The Tax Institute welcomes the opportunity to make a submission to the Treasury in respect of its consultation on:
- the exposure draft Treasury Laws Amendment Bill 2024: Multinational tax transparency - country by country reporting (updated draft Bill) and accompanying draft explanatory memorandum (updated draft EM); and
- the exposure draft Taxation Administration (Country by Country Reporting Jurisdictions) Determination 2024 (draft determination) and the draft explanatory statement (draft ES).
In the development of this submission, we have closely consulted with our National Large Business & International Technical Committee to prepare a considered response that represents the views of the broader membership of The Tax Institute.
The Tax Institute is pleased to see that the updated draft Bill proposes some welcome amendments to the exposure draft legislation (original draft Bill) and accompanying explanatory materials (original draft EM) that were previously released by the Treasury for consultation in April 2023. These amendments include:
- the deferred start date of the reporting requirements to on or after 1 July 2024;
- closer alignment with the reporting requirements prescribed by the EU 2021/2101 reporting systems (EU CbCR).;
- the introduction of de minimis exclusion that exempts a country-by-country (CbC) reporting entity from its reporting obligations where the entity’s Australian sourced aggregated turnover for the income year is less than $10 million;
- minimum compliance standard of CbC basis disclosures for Australia and 41 specified jurisdictions which include Singapore, Hong Kong and Switzerland, and on either a CbC basis or on an aggregated basis disclosure for the rest of the world.
- This is an improvement from the original draft Bill which had proposed mandating full
- disaggregated reporting; and
- the removal of certain additional disclosures such as related party expenses, a list of tangible assets, book value and list of intangible assets, and the effective tax rate disclosure.
Overall, The Tax Institute generally supports the updated draft Bill and updated draft EM. However, we note the following key unresolved issues that could be addressed either through legislation or ATO guidance.
- Aligning the Australian requirements more closely with global reporting standards, including the Organisation for Economic Co-operation and Development reporting system (OECD CbCR), is a positive step toward reducing the compliance burden, as mentioned in the updated draft EM. However, discrepancies in disclosure requirements between the draft Bill and other CbC reporting systems create challenges for taxpayers. The updated draft Bill should allow information from the OECD CbCR or EU CbCR to be used if it overlaps with Australia's proposals, easing the transition for affected entities.
- Singapore, Hong Kong and Switzerland should be removed from Part 2 - Determination of country-by-country reporting jurisdictions of the draft determination as there is no clear policy rationale for their inclusion. These jurisdictions are not part of the EU’s non-cooperative jurisdictions list for tax purposes and have indicated that they are committed to implementing the Pillar 2 rules. We also note that Singapore and Switzerland have tax treaties with Australia.
- Clarity is needed on the administrative aspects of this proposed measure, regarding how to submit information to the Commissioner, what constitutes a material error etc., with proactive engagement from the ATO. Prompt and detailed guidance from the Commissioner will facilitate and support taxpayers’ compliance with their reporting obligations.
- The de minimis exclusion is positive for entities with turnover below $10 million, but concerns arise about excluding entities with Australian-sourced income from related party transactions. Further guidance is needed regarding submitting information to the Commissioner, especially for foreign entities serving as CBC reporting parents.
- The Tax Transparency Code should be reviewed in light of this proposed measure to ensure consistency.
- Also, the Government should conduct a post-implementation review to address operational issues and technical amendments as they arise in practice. Real-time feedback and potential revisions within a year or two of the new rules coming into effect may be necessary
Further details are in the attached downloadable submission.