Do your international arrangements with intangible assets pass the test?

The current scrutiny of the Australian tax outcomes relating to the intangible assets of international groups continues.

On 17 May 2023, the Australian Taxation Office (ATO) issued Practical Compliance Guideline 2023/D2 (draft PCG). The draft PCG outlines the approach the ATO will take in assessing the risk of a tax leakage to the Australian tax base in relation to intangible asset arrangements between related parties of international groups.

The draft PCG will require groups to self-assess tax risk against the ATO’s framework as part of annual reporting and return obligations, including Reportable Tax Positions (RTP) Schedules. In addition, those groups looking to secure an Advance Pricing Arrangement (APA) will also need to address the framework criteria and ATO concerns.

The ATO continues to have extensive evidence expectations in relation to related party intangible arrangements. Beyond routine transfer pricing documentation, multinational groups with related party intangible arrangements (historical or prospective) will need to demonstrate the commercial reasons for the arrangement. Evidence will need to be evaluated to ensure that the legal form and the economic substance of the intangible arrangement is aligned, and that the commercial rationale for the arrangements in place prevail over any perceived tax benefits.  This evidence will need to be produced to the ATO to verify the self-assessment process.

Practical Compliance Guideline 2023/D2

Changes in the functions, assets and risks of the Australian entity in the development, enhancement, maintenance, protection and exploitation (DEMPE) of intangible assets or where the intangible assets have moved (migrated) offshore are likely to trigger a review by the ATO, regardless of when those arrangements were entered into.

The draft PCG outlines a risk assessment framework which allocates points to arrangements with certain attributes focusing on:

• the effect of the restructure or change;
• the substance of the relevant (overseas) entity and its activities in relation to the intangible assets; and
• the tax outcomes of the intangibles arrangement.

The draft PCG also sets out the types of evidence the ATO will consider when assessing risk, and it expects that taxpayers are able to produce this evidence to substantiate their arrangements and assist the ATO in verifying the risk, even if the self-assessment rating is low.

The ATO states that by setting out the types of documents and evidence it expects to see, taxpayers can mitigate the level of compliance risk posed by the intangible arrangements and ensure that any engagement with the ATO is as efficient as possible.

Addressing the risk assessment framework

In order to address the extensive list of questions in the risk assessment framework, taxpayers will need to evaluate the factual circumstances of their intangibles arrangement. Many of the responses are likely to be subjective, and there is the potential for the ATO to form a different view of the arrangement. Extensive and detailed evidence regarding the functions, assets and risks of the entities in the group will be required to meet ATO expectations. The evidence required to discharge the burden of proof will go beyond what may already exist for organisations, such as legal agreements, records of corporate decisions, guidelines and policies and routine transfer pricing documentation.

The ATO has extensive powers to make adjustments to filed tax positions under the transfer pricing provisions and Australian tax laws. In addition, the ATO will likely consider whether the arrangement was entered into or carried out for the dominant or principal purpose of obtaining a tax benefit (through the application of the anti-avoidance rules such as Part IVA or Diverted Profits Tax).

The obligation is on taxpayers to establish that the ATO’s adjustment is incorrect. This often involves extensive evidence, time and resources both at the phase before adjustments to the tax position are raised and subsequently through dispute and litigation processes. Taxpayers face evidentiary challenges arising due to the passage of time. Proactively considering risks prior to the ATO investigation presents opportunities for taxpayers to put in place strategies to manage and mitigate those risks.

What are the types of arrangements likely to be caught?

The ATO will likely explore arrangements where the Australian entity has historically owned, managed and controlled the DEMPE activities associated with the intangibles, assumed the associated risks and received world-wide income, and, following a change of arrangements, there is reduced tax in Australia. For example:

1. The centralisation of intangible assets (existing and pre-commercialisation) to an overseas entity (via a sale, licence or undocumented use).
2. The Australian entity sells to a related party located offshore, part of its intangible assets, bifurcating into Australian and offshore intangibles.
3. Contract R&D service arrangements, where the Australian entity is the provider to an international related party of these services.
4. Multiple parties within a group, including the Australian entity, share or pool intangible assets and risks and costs of development of intangible assets via a cost contribution arrangement.

Concluding comments

The testing of the Australian tax outcomes relating to intangible assets held by multinational groups continues to be a priority focus for the ATO. There may be other issues to consider outside of the themes raised in the draft PCG, such as the proposed denial of deductions for royalty payments made in relation to intangible assets by Significant Global Entities (SGEs) to low-tax jurisdictions.

Key areas of disputation are likely to involve the nature and extent of the DEMPE functions, both in Australia and offshore, and the commercial reasons for any mismatch between where those functions occur and the location of the legal and beneficial ownership of the assets.

In order to maximise efficiencies in the event of a review, and mitigate against adverse exposure to adjustment, taxpayers should consider preparation of a “review ready” package of documentation to accompany their self-assessment process. Historical positions, transactions and previous self-assessments should be reviewed and brought up to date in line with the requirements of the draft PCG.