Common Reporting Standard and the Foreign Account Tax Compliance Act (FATCA)
In April 2014, the Australian government signed an intergovernmental agreement (IGA) with the United States in relation to the implementation of FATCA. The agreement is intended to establish a framework to assist Australian financial institutions in meeting their obligations under FATCA.
Australia has enacted legislation to give effect to the IGA requiring Australian financial institutions to collect information about their customers that are likely to be taxpayers in the United States, and report that information to the ATO. The Australian Commissioner of Taxation will then pass this information on to the US Internal Revenue Service (IRS). Australia’s obligations under the agreement apply to FATCA ‘reportable accounts’ maintained on or after 1 July 2014.
Australia has also adopted the OECD’s Common Reporting Standard (CRS), which first applied to financial institutions in Australia from 1 July 2017. Financial Institutions, including banks and other deposit-taking institutions, custodial institutions, or entities that hold financial assets for the account of others, are required to report information in the form of an annual CRS report to the Commissioner of Taxation about financial accounts held by foreign tax residents. The annual CRS report is due to be lodged with the ATO for the previous calendar year by 31 July each year. In turn, the Commissioner of Taxation will provide this information to the foreign residents’ tax authorities and will receive information on Australian tax residents with financial accounts held overseas.
OECD Multilateral Convention
Domestic law to give effect to the OECD Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS which was signed by Australia on 7 June 2017 is now enacted. The Multilateral Instrument (MLI) provides participating jurisdictions with a means to swiftly modify its bilateral treaties to implement measures developed as part of the OECD/G20 BEPS Project without having to negotiate changes on a treaty-by-treaty basis. Australia has since deposited its instrument of ratification with the OECD which means that the MLI has effect for applicable Covered Tax Agreements from as early as 1 January 2019.
The Commissioner of Taxation is required to publish limited information about the tax affairs of public and foreign-owned companies with ‘total income’ of AUD 100 million or more for an income year, and Australian-owned private companies with total income of at least AUD 200 million for an income year, as reported in the entity’s tax return, and those with a liability to pay the PRRT. The published information discloses the entity’s name, Australian Business Number, total income, taxable income, and tax payable.
The Australian government has encouraged all companies (annual turnover of AUD 100 million or more) to adopt a Voluntary Tax Transparency Code (TTC) for increased public disclosure of their tax information.
Foreign investment tax conditions
Foreign investors that invest in Australia are now subject to additional criteria as part of the clearance process for proposed foreign investment in Australia. Tax conditions are now formally applied and will be considered in making an assessment of Australia’s national interest, a key criterion in the foreign investment clearance process. These tax conditions may include requirements relating to the settlement of outstanding debts, ongoing compliance with tax laws, and annual reporting to the ATO.
New laws applicable from 1 July 2019 codify and limit the scope of the sovereign immunity tax exemption. In broad terms, the new law defines a ‘sovereign entity’ and provides that a sovereign entity is liable to pay tax other than where it is covered by a specific limited exemption. The income tax (and withholding tax) exemption typically will apply to return on a less than 10% ‘portfolio-like’ interest in an Australian company or MIT and where no member of the sovereign entity group has influence (either directly or indirectly) over decisions that comprise the control and direction of the operations of the Australian company or MIT. Transitional rules can apply to returns on an investment asset acquired by a sovereign entity on or before 27 March 2018.