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Submission No. 261 Back to full list of submissions
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 QUEENSLAND GOVERNMENT

SUBMISSION

TO

THE REVIEW OF BUSINESS

TAXATION

Prepared by

Department of State Development

Queensland Treasury

April 1999

 

Contents

Section

Issue

Page

Executive Summary

(i)

Summary of Recommendations

(vi)

1

Capital Gains Tax Reform

1

2

Accelerated Depreciation

4

3

Entity Taxation and the Taxation of Trusts

8

4

Foreign Investment

11

5

The infrastructure impediments posed by, and competitive disadvantages to Government Owned Enterprises (GOEs) created by, Section 51AD and Division 16D of the Income Tax Assessment Act 1936

13

6

Research and Development Tax Concession

18

7

Treatment of Exploration Expenditure

20

8

Taxation of Fringe Benefits

22

9

The implications of Division 58 for the sale of public sector assets

24

10

Business Compliance Costs

28

11

Black Hole Expenditure

29

12

Additional Issues

30

Appendix 1 Impact of Entity Taxation Proposals on the Queensland Water Industry

31

Appendix 2 Airtrain Project – Section 51AD and Division 16D - Bailor of Equipment as End-User

33

Appendix 3 Examples of the Anti-competitive Operation of Section 51AD and Division 16D

35

Appendix 4 Proposed amendment to Section 51AD and Division 16D to remove their anti-competitive effect on GOEs as operators and co-owners of facilities

Suggested Amendments to Section 51AD of the Income Tax Assessment Act 1936

37

Appendix 5 Observations on Chapters 8 and 9 of A Platform for Consultation

38

 

QUEENSLAND GOVERNMENT SUBMISSION TO THE REVIEW OF BUSINESS TAXATION

 

EXECUTIVE SUMMARY

The Queensland Government supports the need for change to the corporate tax structure in Australia. The importance of an internationally competitive tax regime to encourage investment in Australia will be a critical element in ensuring continued economic growth.

This submission addresses those issues which have been identified as representing a potential significant impact on the Queensland economy. In this respect, issues such as the impact of proposed changes on regional areas assume a critical importance given the contribution which world competitive industries, such as agriculture and mining, make to the State’s economy, particularly in terms of exports.

The proposed revenue neutral reduction in the corporate tax rate raises the necessity for a trade-off between a reduction in the corporate tax rate and the maintenance of various tax concessions such as accelerated depreciation. The Queensland Government agrees that achieving a balance is difficult, particularly when detailed supporting data is lacking. However, the Queensland Government Submission has taken the view that accelerated depreciation should be addressed within the revenue neutrality constraint.

Capital Gains Tax (CGT)

The Queensland Government supports a tapered CGT rate for both individual and institutional investors, complemented by scrip-for-scrip rollover relief. A stepped rate or taper has the advantage of encouraging longer term investment. This approach, based on that recently introduced in the United Kingdom, is simple to understand and administer. It should be noted that the lowest tax rate under a tapered approach would still need to be internationally competitive and provide adequate incentive for long-term investment.

Accelerated Depreciation

The potential implications of abolishing accelerated depreciation on the State’s development are wide-ranging. The Queensland Government has identified the following issues of particular concern:

  • the impact on overall international competitiveness and investment attraction since most countries provide tax benefits for certain capital expenditures;
  • the negative effect on the incentive to invest in capital-intensive industries which may reduce the speed of diffusion and adoption of new production methods, with implications for productivity, international competitiveness and economic growth; and
  • particularly in the case of Queensland, the impact on regional and rural development resulting from mining and agriculture as principal beneficiaries of existing accelerated depreciation provisions.

The Queensland Government believes that insufficient information is available to enable an informed decision on the relative merits of a lower across the board company tax compared to the retention of the accelerated depreciation provisions. Extensive modelling needs to be undertaken to identify likely impacts across the various sectors of the economy before any decision is taken to vary any aspect of the corporate tax regime.

In this respect, the Queensland Government points to the importance of accelerated depreciation provisions for sectors of considerable importance to the State’s economy, notably agriculture and mining. In these instances, the availability of the accelerated depreciation provisions often make the difference whether or not to proceed with a project or to invest in more modern equipment.

On the other hand, service-oriented industries such as tourism, which are of significant and growing importance to Queensland, could be expected to benefit from reduced company taxation. Evidently, the Queensland Government cannot make a recommendation with such substantial implications for individual sectors of the State’s economy without far more comprehensive information.

Entity Taxation

Although the scope of A Platform for Consultation (PFC) is wide, the interaction of business taxation and the conduct by Governments and Government-owned bodies of business and investment activity is not addressed. As a general rule, Commonwealth, State, Territory and Local Governments are exempt from income tax. This exemption extends to Commonwealth, State and Territory–owned bodies. Despite the clear intention of the Commonwealth to exempt these bodies from income tax, Governments can be indirectly drawn into the income tax net through their investment activities.

Governments can and do invest surplus funds either directly, or through trust vehicles of statutory authorities. Government may invest in companies and receive fully or partially franked dividends. However, since they are exempt from income tax, Government cannot use the imputation credits attached to franked dividends. As a result, the tax burden is effectively borne by the Government in the form of lower returns than would be available to a private resident investor.

Foreign Investment

The Queensland Government is pleased that the Review has recognised the potential impacts for foreign investment arising from the Commonwealth’s proposal to introduce a new entity taxation regime.

The Queensland Government encourages foreign investment in all sectors of the State’s economy. Because of Australia’s low rate of saving, foreign capital enables a stronger rate of growth and development than could otherwise be achieved. Any impact on foreign investment could then be expected to have a broad effect on the economy. Given the potential for wide-ranging impacts resulting from changes in foreign investment, the Queensland Government recommends that the Review identify fully the expected impact on foreign investment of any reform option recommended to the Commonwealth particularly in relation to the proposed entity tax regime.

Sections 51AD and Division 16D of the Income Tax Assessment Act

Any government involvement in a project with the private sector, even of a regulatory nature, potentially triggers Section 51AD and Division 16D. Issues then emerge that require disproportionate negotiation with the Tax Office to obtain rulings on, and clarify the effect of, these provisions. This delays and adds substantially to costs incurred by genuine public/private infrastructure partnerships and impedes the quality and quantity of services available to the community. Delays to and foregone opportunities for new projects are retarding national development, distorting investment decisions, inhibiting competition (by ruling out the participation of efficient service providers) and reducing the profitability (and hence the tax paying capacity) of projects.

The current provisions also discourage private sector entities partnering with GOEs. As most Queensland GOEs are exempt from Commonwealth income tax, (even though they are required to pay equivalent income tax payments), any operation by a GOE of a depreciable asset will be deemed to be use or control of use by the GOE, raising the prospect of Section 51AD or Division 16D applying. If applied, ownership-related deductions to the private sector entity partner or the private sector entity partner’s financier are denied, even though the GOE is not attempting to obtain any tax benefit transfer at the expense of Commonwealth revenue.

A separate, technical submission will be forwarded on Section 51AD and Division 16D.

Research and Development (R&D) Tax Concession

The Queensland Government does not support changes to the R&D Tax Concession to achieve a revenue-neutral reduction in the company tax rate. While the discussion paper clearly targets accelerated depreciation to fund a reduction in the company tax rate, it is not clear how the Review proposes to treat the current 125% R&D Tax Concession. The reduction in the level of private R&D expenditure since the present rate was introduced is evidence of the importance of appropriate incentives in this area.

The implications of reducing or abolishing the tax concession for R&D could therefore be significant and could seriously compromise the Queensland Government’s goal of promoting innovation by Queensland business and industry.

Treatment of Exploration Expenditure

If the mining industry lost the ability to immediately deduct exploration expenditure, investment could become increasingly targeted at low risk activities and areas of known prospectivity. This could impact on regional growth and development as potentially significant mineral reserves are left underexplored and subsequently undeveloped. As resource sector investment is highly mobile and as competition for mining investment increases, the impact of removing immediate deductibility of exploration expenditure on Australia’s international competitiveness must also not be overlooked.

Fringe Benefit Tax Issues

The changes proposed in the Commonwealth Government’s A New Tax System (ANTS) will create inequities with respect to fringe benefits taxation (FBT). In particular, the proposed alignment of the FBT and income years would create an additional resource burden on employers. The proposed requirement for employers to keep records of benefits provided to individual employees will also increase the administrative burden of complying with FBT.

The amendments proposed in relation to salary packaging have the potential to increase the difficulties associated with attracting staff to public benevolent institutions (PBIs) in remote areas. Should PBIs be adversely affected by the proposed changes, this may transfer demand to Government services.

The Implications of Division 58 for the Sale of Public Sector Assets

The Queensland Government has several concerns about the proposed Division 58. Firstly, the Queensland Government questions the need for these provisions. Under the State tax equivalent regime (TER), a tax-exempt business entity selling an asset does not benefit from the sale since a balancing charge would be applied to the entity. Therefore, the TER creates an equivalent tax obligation to that of a Commonwealth taxpaying entity, in a comparable situation.

Secondly, the Federal Treasurer's original press release in August 1997 stated that the new provisions would apply to the disposal of assets of a government agency, which were "associated with the sale of a business". It is clear from this statement that the scope of the legislation was intended to apply to Government businesses that provided a service to the public on a commercial basis, for example, the provision of electricity or port facilities.

Compliance Costs

The business tax review opens the potential for compliance costs for business to be reduced. However, the review has not made an assessment of the extent to which this objective might be achieved. The issue of compliance costs, particularly on small and medium businesses (which represent 97% of the Queensland economy), is well known. Any proposed changes to the taxation regime should be framed with reduction of compliance costs as a key outcome.

Black Hole Expenditure

Finally, the reform of business taxation provides an opportunity for reform of black hole expenditures; those expenditures which for tax purposes do not qualify for deduction or for write-off even though they are undertaken for the purposes of earning assessable income. The Queensland Government supports the proposed treatment of black hole expenditures but identifies the need to ensure that the classes of expenditure to be considered under possible black hole treatment are adequately defined.

It is the Queensland Government’s view that the existing wording of the class of expenditure, ‘payment to defend native title claims’, does not adequately capture all payments relevant to native title claims and should therefore be reworded.

Additional Issues

Section 120(1)(c) of the Income Tax Assessment Act 1936 provides a tax deduction to co-operatives for the repayment of loans provided by the Commonwealth or a State. A decision on the retention of this concession should take into account public policy considerations including the likely impact on affected industries.

An assessment of the continuing policy relevance of the concession would be required before a decision could be made on this issue. Any such assessment should take into account the structure of the concession including the level of assistance provided, the eligibility criteria and the restriction to borrowing from Commonwealth and State authorities.

SUMMARY OF RECOMMENDATIONS

Recommendation 1: A tapered CGT rate for both individual and institutional investors should be introduced, complemented by scrip-for-scrip rollover relief.

Recommendation 2: That no decision be taken on changes to the accelerated depreciation provisions, either independent of or in conjunction with a reduction to the general level of corporate taxation, without a comprehensive assessment of the potential impact across the economy and also in relation to individual sectors and regions, with a particular emphasis on employment and business activity.

Recommendation 3: That all trusts where the Government or Government-owned bodies are the beneficiaries or trustees should be subject to ‘flow-through’ treatment.

Recommendation 4: Given the potential for wide-ranging impacts resulting from changes in foreign investment, the Queensland Government recommends that the Review identify fully the expected impact on foreign investment of any reform option recommended to the Commonwealth particularly in relation to the proposed entity tax regime.

Recommendation 5: Section 51AD should be abolished and Division 16D be substantially amended to replace the "control of end-use" test with a test that determines whether the risk in infrastructure projects is predominantly with the government or the private sector. This test should focus on the project’s overall life, rather than simply on the assets that may attract capital allowances.

Recommendation 6: Section 51AD should be abolished and Division 16D should be substantially amended to allow Government Owned Enterprises (GOEs) that are subject to State and Territory tax equivalents regime to participate in the same tax-effected financings from Commonwealth taxpayers on the same basis as private sector competitors.

Recommendation 7: If Section 51AD and Division 16D are retained they should be amended in the manner set out in Appendix 4 to remove their anti-competitive effect. This recommendation is revenue neutral because affected GOEs are not accessing the Commonwealth tax base.

Recommendation 8: That the existing R&D Tax Concession be retained.

Recommendation 9: That immediate deductibility for exploration expenditure be retained.

Recommendation 10: The proposed Division 58 be amended so that the latest Pre Audited Book Value (PABV), not subject to an audit qualification, be an allowable valuation methodology that can be applied to the assets of an exempt entity that enter the Federal taxation regime via either an entity or asset sale.

Recommendation 11: That the Review’s final report include an assessment of the impact of any proposed changes on business compliance costs.

Recommendation 12: That black hole expenditure currently defined as ‘payment to defend native title claims’ be redefined as ‘payment to negotiate native title agreements’.

1. CAPITAL GAINS TAX REFORM

The Queensland Government supports changes to Capital Gains Tax (CGT) in order to encourage investment.

Capital Gains Tax is a major impediment to investment in innovative, technology-based companies where returns are typically provided through capital growth rather than dividend income. These companies are in industries of critical importance to Australia’s international competitiveness, including biotechnology, pharmaceuticals, computer software and engineering, advanced materials, environment, energy and electronics. Investment in these companies is vital if Australia is to realise the benefits of its world class research base and take part as a provider rather than a consumer in the ‘knowledge economy’.

Such investments are generally long term, rather than speculative (in the usual sense), but have a higher risk profile than investments in more established industries. These investments are vital to the diversification of the economy, which requires reduced dependence on commodities and low value activities.

An independent report, Impediments Imposed by Capital Gains Taxes on Seed and Start-Up Enterprises prepared by John Howard & Associates, found that Australia’s capital gains tax regime is uncompetitive compared to international models. This result was also confirmed in the Review’s information paper, An International Perspective. Further, there is substantial evidence that Australia is missing out on hundreds of millions of dollars of global investment capital, in particular from US venture capital funds who are unwilling to invest in Australia until the burden of CGT is addressed. Analysis undertaken by the Commonwealth’s Health and Medical Research Strategic Review in relation to biotechnology found that the investment return for a hypothetical portfolio is between 25% and 40% lower in Australia than in the UK or US, due solely to different tax regimes.

Although there may be a short-term reduction in revenue from existing sources if the rate of CGT is reduced, it can be expected that a net economic benefit would be derived from the changes. This would occur not only through increased investment and improved mobility of capital, but more importantly, benefits would include increases to research and development, employment and exports. Research commissioned by the Australian Venture Capital Association Ltd found that venture-backed companies demonstrate consistently higher growth in these areas than other firms.

Increased company tax collections from venture capital dependent companies may also, over the longer term, offset any shorter term revenue shortfalls from reductions to CGT collected on the supporting finance. An additional consideration is that increased investment brought about by changes to CGT may reduce the need for companies to relocate off-shore to obtain venture and development capital. In these cases, Australia is losing the entire economic benefits derived from these high-growth companies.

It should be noted that entrepreneurs, business ‘angels’ and individuals, venture capital funds and institutional investors can play a more important role in Australia’s national innovation system. In order for technology-based businesses to attract investment at each stage of their growth, CGT impediments must be removed to encourage individuals, entrepreneurs and business angels to invest in start-up businesses, and for institutional investors to provide risk capital and later-stage funding for expansion.

In relation to the specific options put forward by the Review:

  • While a $1000 CGT-free threshold for individuals may provide an incentive for savings, it would have little effect on individual equity investments in businesses. This is because the typical size of an individual equity investment is usually between $100,000 and $500,000. A $1000 threshold may in fact encourage potentially damaging short-term speculative investment by smaller investors although, in the longer term, increased trading in the shares of publicly listed technology-based businesses may deepen this particular segment of the market.
  • For similar reasons, a 30% capped rate for individuals would not necessarily provide an incentive for long-term investment. Moreover, if indexation is abolished the benefit of a lower rate of capital gains tax may be washed out. Also critical to the decision to cap the maximum rate of capital gains tax is the effect on the progressivity of the income tax system. Currently, capital gains are taxed at the individual’s marginal tax rate so a cap would only benefit those individuals with marginal tax rates greater than 30%. Australian Taxation Office statistics show that the proportion of taxpayers paying capital gains increases as taxable income rises, with around 80% of all capital gains tax paid by individuals with a taxable income greater than $50,000.
  • Targeted concessions for certain types of investment such as venture capital, would create favourable conditions for early-stage venture capital or technology-based businesses and would emphasise the importance attached to this type of investment. Appropriate eligibility criteria and the administration of concessions would require clear definition.
  • Scrip-for-scrip rollover relief is supported where no cash is realised from the investment. Lack of rollover relief can lead to the maintenance of organisational structures which are not suited to the efficient operation of business. As identified in the information paper An International Perspective, many countries provide rollover relief. Without rollover provisions Australian business is at a competitive disadvantage. There is also evidence that there could be a positive revenue impact of such a reform over the longer term. Recent research by Access Economics for the Securities Institute found that the gains to Commonwealth revenue would more than offset initial losses due to the impact rollover provisions would have in stimulating merger activity.
  • The Queensland Government supports a tapered CGT rate for both individual and institutional investors, complemented by scrip-for-scrip rollover relief. A stepped rate or taper has the advantage of encouraging longer term investment. This approach, based on that recently introduced in the United Kingdom, is simple to understand and administer. It should be noted that the lowest tax rate under a tapered approach would still need to be internationally competitive and provide adequate incentive for long-term investment. To encourage venture capital investment the taper would need to take into account the typical payback period demanded by venture capitalists.

Recommendation 1

A tapered CGT rate for both individual and institutional investors should be introduced, complemented by scrip-for-scrip rollover relief.

2. ACCELERATED DEPRECIATION

The proposed revenue neutral reduction in the corporate tax rate raises the necessity for a trade-off between a reduction in the corporate tax rate and the maintenance of various tax concessions such as accelerated depreciation.

A Platform for Consultation (PFC) is far from convincing in its approach to the revenue neutrality constraint ("It is a far from straightforward matter to balance the relative benefits to economic growth created by…trade-offs against the alternative benefits of existing arrangements".) The Queensland Government agrees that achieving a balance is difficult, particularly when detailed supporting data is lacking. However, the Queensland Government Submission has taken the view that accelerated depreciation should be addressed within the revenue neutrality constraint.

As identified in the Commonwealth’s tax package, A New Tax System, changes to accelerated depreciation will impact differentially across industry with agriculture, mining, manufacturing and some infrastructure provision industries currently the largest beneficiaries of accelerated depreciation provisions. The Review also acknowledges that if accelerated depreciation was abolished in return for a revenue neutral reduction in the company tax rate, in general, capital intensive industries would be disadvantaged relative to less capital intensive industries such as finance, tourism and retailing. In other words, a revenue neutral change would not affect the overall burden of tax on business but instead would shift the tax burden between sectors.

The potential implications of abolishing accelerated depreciation on the State’s development are wide-ranging. The Queensland Government has identified the following issues of particular concern:

  • the impact on overall international competitiveness and investment attraction since most countries provide tax benefits for certain capital expenditures;
  • the effect on the incentive to invest in capital-intensive industries which may reduce the speed of diffusion and adoption of new production methods, with implications for productivity, international competitiveness and economic growth; and
  • particularly in the case of Queensland, the impact on regional and rural development resulting from mining and agriculture as principal beneficiaries of existing accelerated depreciation provisions.

The abolition of accelerated depreciation could have significant impacts for the mining industry, which is a significant source of Queensland’s (and Australia’s) export earnings. As emphasised in the Commonwealth’s 1998 Resources Policy Statement by the Prime Minister and the then Minister for Resources and Energy, the resources sector has become fundamental to Australia’s economic and social prosperity. Mining also continues to be a significant catalyst for regional development in Queensland and produces important economic and social benefits for the State. In this regard, the Review lists the generation of externalities as one of the possible rationales for the provision of accelerated depreciation (para 2.14 of PFC).

As identified in a report to the Australian and New Zealand Mining and Energy Council (ANZMEC), on which the Queensland Government is represented, resource projects involving large capital expenditures, and long lives (around 15 years or more), and with marginal to moderate profitability, are more sensitive to the depreciation rate than to changes in the company tax rate due to the impact on cash flows. This indicates that a decision to proceed with some resource projects could be seriously impacted by the proposed trade-off with implications for regional development and particularly employment in regional areas.

The possible trade-off between accelerated depreciation and a lower company tax rate also raises the potential for a shift in the allocation of investment from major long term projects to projects with a shorter life. Major projects, particularly in mining, are a significant factor in supporting regional infrastructure and employment and in some regions are critical to on-going economic development by enabling the development of new industries. The greater level of assistance provided to longer term investments under the current accelerated depreciation regime could be justified on the basis of these spillover benefits.

If mining project proponents were expected to absorb additional costs resulting from reduced rates of return on their major, capital intensive, long-lived investments, the result would be to significantly reduce the appetite for investment in Australia in projects of this type. Major projects, which are of strategic significance and contribute to economic growth, particularly in regional areas may be lost.

Alternatively, if the project proponents sought to reinstate lost value by raising the price of outputs, the competitiveness of these outputs will be reduced and potential customers will be encouraged to look elsewhere for their sources of supply. Moreover, customers of major projects may themselves contemplate investments in high capital, long-lived plant. These parties will find themselves facing higher input costs as well as more onerous taxation imposts on their own investments. They will therefore face a double incentive to locate elsewhere.

For primary producers, abolishing accelerated depreciation would create a disincentive for capital investment at a time, following the severe drought since 1991, when capital investment is needed to reinvigorate many enterprises.

Given the trade-off proposed by the Commonwealth, however, maintaining accelerated depreciation may compromise a reduction in the company tax rate. A lower company tax rate would assist in increasing Australia’s international competitiveness. As highlighted in the Review’s information paper, An International Perspective, Australia’s company tax rate is lower than a number of major OECD countries such as France, Germany and Japan but high when compared with most other countries considered, particularly Taiwan, Chile, Singapore and Brazil. However, in targeting the company tax rate for reduction it is important that other facets of the tax system, which also affect tax competitiveness, are not overlooked. These include tax certainty, tax compliance costs and complexity of the tax system.

Service-oriented industries such as tourism, which are of significant and growing importance to Queensland, could be expected to benefit from reduced company taxation. There is also the argument that reducing the tax burden on labour intensive industries, through a reduction in the company tax rate, would assist in generating employment growth. However, any assessment of employment effects would also need to consider the employment impact of the concurrent removal of accelerated depreciation; not only on capital intensive industries, but on supporting service industries.

Moreover, the Committee should consider the regional impacts of any recommendation it may make on accelerated depreciation. For example, in Queensland the mining industry provides direct employment for more than 20,000 people and indirect employment for another 60,000 people, many of whom are employed in the State’s regions.

Mining dominates the economy in the Mount Isa region. It generates the highest number of direct employment positions; approximately 30.8% of Mount Isa’s total work force. The gross regional product for mining in the Mount Isa Economic Zone is $729.4 million. This represents 12% of the total value of minerals produced in Queensland. The potential for flow-on effects into the region, should mining activity decline as a result of changes to the taxation system, is obvious.

Because of the scale of the likely impact of the decision, the Queensland Government considers that a properly informed decision on the relative merits of accelerated depreciation versus a lower company tax rate cannot be made without giving due consideration to all the potential effects on economic and industry growth, regional development, and importantly, on employment. While the Review accepts that the resolution of this issue is a matter for policy-makers and that an objective analysis of the trade-off is difficult, the Queensland Government is concerned that the Review has not attempted to comprehensively identify, and where possible quantify, these potential economic impacts. This is of particular concern in light of the Review’s objectives for the business tax system which include optimising economic growth. As the Review states in the discussion paper in relation to the business tax system:

… reforming the design of that system should have as its real focus a tax system that delivers socially optimal outcomes - particularly international competitiveness, job growth and productivity - over the longer term.

If the impact of any proposed reforms to the business tax system is not assessed in the context of the potential effect on the fundamental objectives of the business tax system, then the framework which the Review proposed in A Strong Foundation, has already been compromised.

Clearly, any economic assessment of the reforms proposed to the business tax system would need to accommodate other reforms to the tax system proposed by the Commonwealth, particularly the introduction of a goods and services tax which, by the Commonwealth’s own estimates, will impact differentially across industries.

Recommendation 2

That no decision be taken on changes to the accelerated depreciation provisions, either independent of or in conjunction with a reduction to the general level of corporate taxation, without a comprehensive assessment of the potential impact across the economy and also in relation to individual sectors and regions, with a particular emphasis on employment and business activity.

3. Entity Taxation and the Taxation of Trusts

Although the scope of A Platform for Consultation (PFC) is wide, the interaction of business taxation and the conduct by Governments and Government-owned bodies of business and investment activity is not addressed. As a general rule, Commonwealth, State, Territory and Local Governments are exempt from income tax. This exemption extends to Commonwealth, State and Territory–owned bodies.

Despite the clear intention of the Commonwealth to exempt these bodies from income tax, Governments can be indirectly drawn into the income tax net through their investment activities.

Governments can and do invest surplus funds either directly, or through trust vehicles of statutory authorities. Government may invest in companies and receive fully or partially franked dividends. However, since they are exempt from income tax, Government cannot use the imputation credits attached to franked dividends. As a result, the tax burden is effectively borne by the Government in the form of lower returns than would be available to a private resident investor.

Even where Government bodies are subject to income tax, the application of entity taxation has the potential to impact negatively on these bodies. Appendix 1 provides an example of the potential impact of the entity taxation proposals on the Queensland water industry.

This feature of the current business income tax system militates against achievement of two of the benchmarks for an ideal business tax system posited in PFC.

Firstly, the entity taxation benchmark requires that "business or investment income should be subject to the same overall level of taxation whether it is derived directly by an individual or through an entity such as a partnership, co-operative, company or trust."

In the case of Governments, the level of taxation will differ depending on whether the Government undertakes a business activity itself, or reaps the profits of that activity from a company by way of franked dividends.

Secondly, the investment benchmark states that "A fundamental premise underlying the success of the market system is that investors will allocate resources where they may be used efficiently – that is, where they generate the highest rate of return for the investor. That allocation can operate most efficiently only if investment decision-making is unencumbered by tax considerations."

The requirement that tax considerations should not encumber investment decisions is not met in the current tax system as it relates to Government investment activity. Government currently has an artificial incentive to prefer direct investment and, in the case of other entities, tax–preferred income to franked dividends.

There are a number of options for addressing this problem.

Tax-preferred income could be taxed at the entity level, which would remove the incentive for Governments to seek tax-preferred income (eg unfranked dividends). However, to do so would potentially increase the level of tax effectively borne by Government, contrary to the general policy intention that Governments should be exempt from income tax. However, there would still be a tax differential between direct investment by Government and investment through other entities.

Alternatively, more fundamental change could be effected by allowing Government to claim refunds of imputation credits, as is proposed in respect of individual residents and registered charities. This would address the current deficiencies of the income tax system in respect of the entity taxation and investment benchmarks. Governments would not have a tax incentive to prefer interest income and tax-preferred income such as unfranked dividends to franked dividends.

The full refund of imputation credits to Government may not be acceptable on the grounds that it would not be revenue neutral. In this case, the Queensland Government would support a partial refund to ensure that Governments were at least not financially disadvantaged as a result of entity taxation.

In respect to the application of entity taxation to trusts, the Queensland Government supports the intention to reduce the use of trusts as a taxation avoidance device by taxpayers. However, it is important that unintended negative impacts on other taxpayers, beneficiaries of trusts, particularly the disadvantaged supported through trusts, and Governments are avoided.

PFC has recognised the need for careful application of the entity taxation arrangements. The submission by the Queensland Investment Corporation (QIC) on the PFC demonstrates why careful application is essential. Significant transfers of State Government revenues to the Commonwealth Government will occur under most options proposed for entity taxation. If these transfers were to occur, the capacity of the State to fund services would be seriously diminished. This is clearly inconsistent with the outcomes sought from the Review of Business Taxation."

PFC proposed that Collective Investment Vehicles (CIVs) could be subject to ‘flow-through’ taxation arrangements as an exception to the general rule of entity taxation. This treatment would enable widely held trusts engaging in passive investment activity to avoid the cash flow detriment arising from the application of entity taxation.

The Queensland Government strongly supports the application of ‘flow-through’ taxation to CIVs. This is justifiable on the grounds that Governments are generally passive investors investing on behalf of all their citizens.

Recommendation 3

That all trusts where the Government or Government-owned bodies are the beneficiaries or trustees should be subject to ‘flow-through’ treatment.

4. FOREIGN INVESTMENT

After-tax returns typically guide the direction of investment capital. Although many other factors also figure in the investment decision (such as market access, availability and cost of human and material resources, the suitability and effectiveness of social and economic infrastructure, and political and legal certainty), comparative rates of taxation on profits, capital gains and capital transactions are also relevant.

However, through the treatment of dividends proposed by the Commonwealth, the entity tax system has the potential to erode Australia’s tax competitiveness by reducing the after-tax return on Australian investments. The Commonwealth has acknowledged that changes to Australia’s international tax agreements would be necessary to maintain Australia’s attractiveness as a place to invest under its proposals.

The Queensland Government is pleased that the Review has recognised the potential impacts for foreign investment arising from the Commonwealth’s proposal to introduce a new entity regime.

In reforming the business tax system there is a fundamental need to achieve a balance between obtaining a sufficient amount of revenue from foreign investors and ensuring that the tax environment is competitive and not an impediment to investment. This balance underpins the Queensland Government’s commitment to a competitive tax and low debt status. A taxation environment which is conducive to investment is critical, particularly in Australia where foreign capital funds a number of projects that support employment and regional development and generate wages and salaries which are taxed.

The Queensland Government encourages foreign investment in all sectors of the State’s economy. Because of Australia’s low rate of saving, foreign capital enables a stronger rate of growth and development than could otherwise be achieved. Foreign investment is a significant factor in:

  • maximising returns from the State’s considerable resource endowments;
  • developing new industry;
  • increasing opportunities for employment;
  • improving industry competitiveness;
  • enhancing the State’s labour force through new skills and technologies; and
  • increasing access to international markets.

Any impact on foreign investment could then be expected to have a broad effect on the economy.

Recommendation 4

Given the potential for wide-ranging impacts resulting from changes in foreign investment, the Queensland Government recommends that the Review identify fully the expected impact on foreign investment of any reform option recommended to the Commonwealth particularly in relation to the proposed entity tax regime.

5. The infrastructure impediments posed by, and competitive disadvantages to Government Owned Enterprises created by, Section 51AD and Division 16D of the Income Tax Assessment Act 1936.

The Queensland Government submits that Section 51AD and Division 16D of the Income Tax Assessment Act (ITAA) should be repealed or amended to:

  1. remove the restrictions that those provisions place on the development of public infrastructure by the private sector in Queensland, and
  2. remove the anti-competitive effect that those provisions have on government owned enterprises and commericalised business units ("GOEs").

Section 51AD and Division 16D have outlived their usefulness and now are seriously impeding economic development and competition reform. The changes recommended by Queensland should enhance the economic development of Australia and be revenue neutral to the Commonwealth tax base.

A commentary on the Review Committees report’s discussion on the taxation of leases and rights is provided in Appendix 5.

The Queensland Government will also be making a supplementary submission containing draft legislation in line with Recommendations 5 and 6 referred to below.

Impediments to Infrastructure Development

The Queensland Government pursues efficient economic development, including cooperation between the public and private sector in the provision of infrastructure. It is the Queensland Government’s view that Section 51AD and Division 16D of the ITAA have been, and still remain, serious impediments to the timely and cost-effective cooperative development of infrastructure in Queensland.

In line with the principle of competitive neutrality, GOEs should have the freedom to pursue the same kinds of opportunities as their private sector counterparts. Unintentionally, Section 51AD and Division 16D significantly impede such opportunities. Section 51AD applies to arrangements involving non-recourse funding of property owned by a taxpayer where the end-user is exempt from Commonwealth taxation. Division 16D applies where the relevant property (that has not been funded by non-recourse debt) is owned by a taxpayer and is used by, or its use is controlled by, an exempt public body.

Any government involvement in a project with the private sector, even of a regulatory nature, potentially triggers Section 51AD and Division 16D. Once triggered, issues emerge that require months and sometimes years of negotiation with the Tax Office to obtain rulings on, and clarify the effect of, these provisions. This delays and adds substantially to costs incurred by genuine public/private infrastructure partnerships and impedes the quality and quantity of services available to the community. Delays to and foregone opportunities for new projects are retarding national development, distorting investment decisions, inhibiting competition (by ruling out the participation of efficient service providers) and reducing the profitability (and hence the tax paying capacity) of projects.

The primary deficiency in Section 51AD and Division 16D is the application of the "control of end-use" test. This test has proven to be most difficult to apply, which frustrates the efforts of private sector providers of public infrastructure. As well as adding to costs and delays, some providers are deterred by the difficulties associated with applying the test and opt not to participate in the provision of such infrastructure.

If these sections are retained, at a minimum, this test should be replaced by a mechanism that determines whether the risk is predominantly with the government or private sector participants. In this context, it is essential to focus on the project’s overall economic life, rather than to take a limited view of, for example, depreciable assets.

Amending the legislation must also make allowance for government’s role as a regulator. For example, step-in rights that can be exercised to ensure continuity of service delivery should not be interpreted as a "back-door" mechanism for government to take over a project after tax benefits have been extracted. Further, simply because a government is the sole or predominant service recipient should not automatically trigger Section 51AD or Division 16D. If there is an appropriate and transparent risk-sharing profile, this action is an inappropriate and unjustified restriction on the development of public infrastructure by the private sector.

To overcome the impediments referred to above, GOEs and their private sector partners are forced to incur significant advisory costs in structuring their commercial arrangements. Section 51AD and Division 16D hinder national development by creating unnecessary structuring complexities, as well as expense and delays while complex structures are worked out and tax rulings are obtained. Sub-optimal funding and operational solutions are being forced on projects where no structural solution can be found.

An example of the negative impact of the provision is provided in Appendix 2.

In response to limitations and disincentives of Section 51AD and Division 16D to the efficient development of public infrastructure the Queensland Government recommends that:

Recommendation 5: Section 51AD should be abolished and Division 16D be substantially amended to replace the "control of end-use" test with a test that determines whether the risk in infrastructure projects is predominantly with the government or the private sector. This test should focus on the project’s overall life, rather than simply on the assets that may attract capital allowances.

This is revenue neutral because the proposed risk-based test is intended only to clarify when capital allowances can be claimed by the private sector. It is not envisaged that any greater number of infrastructure projects would occur after the amendment, but rather that the ruling process will be streamlined.

The Anti-competitive Effect of Section 51AD and Division 16D

The implementation of National Competition Policy (NCP) reforms by the Federal and State Governments requires that Government Owned Enterprises (GOEs) conduct their affairs on competitively neutral basis when they compete in national or statewide markets.

Section 51AD and Division 16D impede NCP in two main respects:

  1. GOEs are unable to access the same forms of financing as their private sector competitors.
  2. Contrary to the intent of the NCP reforms, these provisions prevent GOEs from obtaining forms of finance (eg. leveraged leases) that are available to their private sector competitors because they pay tax to their owner government rather than to the Commonwealth. The common element of these prohibited classes of finance is what is called "tax benefit transfer", where the financier seeks to claim tax allowances associated with ownership of the financed property.

    The original purpose of Section 51AD and Division 16D was to prevent private sector organisations providing credit to tax exempt "borrowers" from claiming property allowances not available to tax-exempt public sector entities. The application of Section 51AD and Division 16D have become less relevant for the current day GOE, which under Commonwealth and State agreements pay tax under appropriate Tax Equivalent Regime.

  3. The establishment of public/private sector partnerships are inhibited because Section 51AD and Division 16D can present difficulties to the potential private sector partner. This is because the presence of a GOE as an operator or joint owner could trigger Section 51AD or Division 16D and deny ownership related tax deductions to the private sector entity. Appendix 3 provides an example of the difficulties faced by a private/public sector project in this situation.

The current provisions also discourage private sector entities partnering with GOEs. As most Queensland GOEs are exempt from Commonwealth income tax, (even though they are required to pay equivalent income tax payments), any operation by a GOE of a depreciable asset will be deemed to be use or control of use by the GOE, raising the prospect of Section 51AD or Division 16D applying. If applied, ownership-related deductions to the private sector entity partner or the private sector entity partner’s financier are denied, even though the GOE is not attempting to obtain any tax benefit transfer at the expense of Commonwealth revenue.

This situation also arises when a GOE has a joint ownership stake in the relevant project. Once again, the private sector partner’s ability to claim tax allowances on the share of the project that they own is threatened by the presence of the GOE.

Notwithstanding the Australian Taxation Office’s clarification of permitted involvement of GOEs in IT 2602, private sector businesses are becoming increasingly cautious about arrangements involving GOEs as operators and as joint owners.

Recommendation 6: Section 51AD should be abolished and Division 16D should be substantially amended to allow GOEs that are subject to State and Territory tax equivalents regime to participate in the same tax-effected financings from Commonwealth taxpayers on the same basis as private sector competitors.

In terms of the revenue costs of allowing tax preference transfers, banks, as lessors, only have limited tax capacity and therefore, as a result of this natural cap, the overall volume of leasing is unlikely to increase. A more likely response is competition for the available capacity. Inevitably, other lessees competing for this capacity will be tax loss companies, so whether and when the Commonwealth will recoup the benefits claimed by the bank lessors is questionable. Consequently there is likely to be no revenue cost in respect of removing the anti-competitive effect of S.51AD on GOEs as operators or joint owners.

It must also be considered whether there will be a resulting bias in favour of leasing if tax preference transfers are allowed. From a GOE perspective such a preference will only occur if entities are in TER tax loss and financiers share the benefits sufficiently. The Queensland Government’s submission is that if a preference exists then it should apply equally to GOEs and their private sector competitors.

Therefore, in order to address the requirement of revenue neutrality, reciprocal tax benefit transfers from the TER system to Commonwealth taxpayers, and between TER systems, should be permitted.

For example, Commonwealth taxpayers could, without loss of entitlement to claim deductions for capital allowances and interest, enter into leases (or arrangements having similar effect) to TER taxpayers, as could TER taxpayers lease to Commonwealth taxpayers, and TER taxpayers in one state also could lease to TER taxpayers in other states.

Precedent for the amendment suggested by Recommendation 6 exists in the commerciality tests used in the infrastructure bond rules under Section 93I(4) of the Development Allowance Authority Act 1993. The commerciality tests are:

  • The entity must have the objective of making profits and returns to shareholders;
  • The entity must be incorporated as a public company or conform within published government business enterprise guidelines;
  • The entity must specify transparently its Community Service Obligations and have an objective to meet these at minimum cost;
  • Any dealing that the entity has, whether directly or indirectly, with a government body must be on arm’s length terms;
  • The entity must not be subject to more than a minimum of government direction of a kind to which comparable private sector bodies are not subject (other than a legitimate exercise of shareholder rights);
  • There must be no explicit government guarantee for the body, or from some other entity that is raising funds for the entity; and
  • The entity must operate within a commercial risk-return environment.

The infrastructure borrowing legislation recognises that GOEs function in the commercial world, and that their projects should not be disqualified from that concession only because of the GOEs tax status.

Under this proposal, public sector entities that are subject to NCP would be able to trade on a fully competitive basis with private sector entities, as they will be able to have access to the same types of funding arrangements as their private sector counterparts. Further, the presence of a commercially oriented public sector operator and/or owner will not cause adverse tax consequences for private sector participants in projects.

Recommendation 7: If Section 51AD and Division 16D are retained they should be amended in the manner set out in Appendix 4 to remove their anti-competitive effect. This recommendation is revenue neutral because affected GOEs are not accessing the Commonwealth tax base.

This is revenue neutral because it is intended to overcome inadvertent loss of tax deductions by private sector parties.

Recommendation 7 would amend Section 51AD and Division 16D of the ITAA to prevent their application to genuine commercial participation by GOEs. The amendments in Recommendation 7 do not abolish Section 51AD or Division 16D and do not affect the application of those provisions in the context of foreign end-users or tax-exempt end-users that are not operating on a fully commercial basis. Nor do the suggested amendments affect the proposed non-recourse debt anti-avoidance amendment contained in draft Division 243.

6. RESEARCH AND DEVELOPMENT TAX CONCESSION

The Queensland Government does not support changes to the R&D Tax Concession to achieve a revenue-neutral reduction in the company tax rate. While the discussion paper clearly targets accelerated depreciation to fund a reduction in the company tax rate, it is not clear how the Review proposes to treat the current 125% R&D Tax Concession.

R&D tax concessions are generally provided in recognition of ‘externalities’, that is, recipient firms do not accrue all the benefits from R&D investment. Instead, the benefits of R&D investment ‘spillover’ to the broader community. As reported in An International Perspective, R&D tax concessions are internationally the most common form of tax preference. Without such concessions it is unlikely that R&D investment will reach a level that is deemed economically and socially optimal. A reduction in the general rate of company tax does not remove the need for R&D tax concessions. Importantly, there is also significant anecdotal evidence that without R&D tax concessions Australia’s ability to attract investment would be impeded.

Australia records a poor level of business expenditure on R&D by international standards. This is confirmed by data published by the Australian Bureau of Statistics which compares the level of business R&D expenditure among countries in the OECD. In order to maintain international competitiveness Australia must at least aim for business expenditure on R&D on a par with the OECD average.

It is increasingly recognised that research and development is an important determinant of innovation and therefore also of productivity and economic growth. Innovation is a significant driver of employment and wealth creation and provides a basis for increasing competitiveness and progressing economic development. In recognition of these factors, governments internationally are concentrating more resources on encouraging innovation. For example, the United Kingdom has only recently announced a new series of tax measures to encourage R&D investment. Included in the changes is a new R&D tax credit which would underwrite approximately one third of small business R&D costs.

The Queensland Government is concerned that, as part of proposed changes to the business tax regime, the Commonwealth may consider reducing or abolishing tax concessions for R&D investment. The outcomes of the Commonwealth’s decision in 1996 to reduce the tax concession from 150% to 125% only serve to demonstrate the importance of the R&D tax concession to R&D investment. In 1996-97, for the first time in the twenty years in which the data has been collected, business expenditure on R&D fell.

The implications of reducing or abolishing the tax concession for R&D could therefore be significant and could seriously compromise the Queensland Government’s goal of promoting innovation by Queensland business and industry.

Moreover, a recent independent report into seed and start-up enterprises recognised that a reduction in capital gains tax alone will not be effective in developing high-growth innovative companies, unless it is complemented by existing support for R&D activities, such as the R&D Tax Concession.

Recommendation 8

That the existing R&D Tax Concession be retained.

7. Treatment of Exploration Expenditure

The Review proposes reforms to the treatment of wasting assets, which could affect the way exploration expenditure is currently treated, by reducing the availability of write-off concessions.

Sections 122J and 124AH of the Income Tax Assessment Act 1936 allow for the immediate deductibility of expenditure on exploration for mining against any income rather than the amortisation of such expenditure. However, the Review’s aim to achieve greater consistency of treatment of capital allowance write-offs could lead to the loss of immediate deductibility of exploration expenditure.

Of major concern to the Queensland Government is the potential impact of removing immediate deductibility of exploration expenditure on exploration activity in the State. Research undertaken by the ANZMEC Secretariat shows that the current treatment of exploration expenditure has been justified on the grounds of particular characteristics of exploration activity:

  • it is expenditure necessarily incurred in earning assessable income;
  • it seeks to identify a community owned resource;
  • it is often a high cost, high risk, long term activity where risk averse investors tend to concentrate on areas of higher known prospectivity rather than extending activities to untested areas where new reserves may be found;
  • the success rate is very low - typically there will not be a successful development from most exploration activity; and
  • it provides a public good through the public provision of geological information, and in the case of petroleum exploration, oil security.

Given these characteristics of exploration activity it is unlikely, due to market failure, that without some mechanism for concessional treatment there would be an economically and socially optimal level of expenditure on exploration. In fact, recognition of market failure in relation to exploration provided the original rationale for immediate deductibility of exploration expenditure.

As noted by the Industry Commission:

While it is true that successful exploration expenditure is of a capital nature (except for specialist exploration companies), if deductibility of unsuccessful exploration expenditure was not permitted then the low probability of success in exploration may distort investment decisions.

Further, the Industry Commission has concluded that:

…although immediate deductibility of exploration expenditures may involve an element of assistance, this ‘concession’ is the least distorting tax treatment in terms of efficient allocation of resources in the economy.

If the mining, petroleum, oil and gas industries lost the ability to immediately deduct exploration expenditure, investment could become increasingly targeted at low risk activities and areas of known prospectivity. This could impact on regional growth and development as potentially significant mineral reserves are left underexplored and subsequently undeveloped.

As resource sector investment is highly mobile and as competition for mining investment increases, the impact of removing immediate deductibility of exploration expenditure on Australia’s international competitiveness must also not be overlooked. As noted by the Review in A Strong Foundation, the taxation of investment should be consistent with Australia’s national interests, including its competitiveness. This is particularly important given that in all of the jurisdictions surveyed in An International Perspective, the resource sector receives some form of concessionary treatment.

Recommendation 9

That immediate deductibility for exploration expenditure be retained.

8. Taxation of Fringe Benefits

The changes proposed in the Commonwealth Government’s A New Tax System (ANTS) will create inequities with respect to fringe benefits taxation (FBT). The proposed changes will introduce new FBT reporting requirements, cap the concessional FBT treatment available to public benevolent institutions and their employees from 1 April 2000 and create additional compliance costs for the Queensland Government.

Administrative Complexity

PFC states that "the administrative load imposed by the current regime for taxing fringe benefits is regarded by business as complex and costly." PFC proposes the alignment of the FBT years and income years to alleviate some of this administrative complexity. However, this change would instead create an additional resource burden on employers. This is particularly so in view of the new requirements to record the value of fringe benefits against individual employees. Employers will need the existing period between 1 April and 30 June to determine the values attributable to employees. Existing income tax legislation requires group certificates to be issued by 14 July. If the FBT and income years were aligned, most employers would not be able to comply with the 14 July deadline for the issue of group certificates.

The proposed requirement for employers to keep records of benefits provided to individual employees will also increase the administrative burden of complying with FBT.

Restrictions on FBT Concessions

The amendments proposed by the Commonwealth in relation to salary packaging needs further consideration. If introduced, employers will need to renegotiate salary arrangements with highly skilled employees. Currently public benevolent institutions (PBIs), such as public hospitals, are generally not liable for FBT and the supply of fringe benefits has been used to attract and retain staff without imposing significant salary costs on PBIs. Under the proposed changes, however, the FBT exemption will only apply where the grossed-up value of benefits is less than $17,000 per employee per annum. Beyond this threshold, the employer will be liable for the payment of the FBT. The proposed changes also have the potential to increase the difficulties associated with attracting staff to remote areas because some additional expenses associated with employment in remote locations will be captured by FBT, despite the recent amendment for FBT reporting requirements for remote area housing.

PFC has not given sufficient consideration to the potentially adverse impact of these changes on PBIs. Should the costs and services of PBIs be adversely affected by the proposed changes, this may transfer demand to Government services. There will also be an increase in the FBT liability for the State Government. Given that the direct cost impact of these changes on the State would not be compensated by the Commonwealth, the Queensland Government considers that transitional arrangements should be introduced to allow sufficient time to renegotiate their employment contracts. Consideration should also be given to the indexation of the $17,000 threshold applying to PBIs, so that it will not be gradually eroded with inflation.

9. The implications of Division 58 for the sale of public sector assets

On 4 August 1997, the Federal Treasurer announced details of proposed changes to the tax depreciation rules for privatisation transactions. The measures announced rules for the calculation of depreciation on plant previously owned by a tax-exempt entity.

The Commonwealth Government case for the legislative changes rests on the protection of Commonwealth revenue. Specifically, the Commonwealth Government’s concern is that the sale of tax-exempt business entities or assets could be structured in such a way to provide large depreciation deductions. These depreciation deductions would reduce Commonwealth Government revenue from taxable entities that purchased Government assets or businesses or issued shares in a GOE.

The draft Division 58 contained within the Taxation Laws Amendment Bill No.5 (TLAB5) sets out the rules that will apply in calculating depreciation deductions and balancing adjustments in respect of plant previously owned by an exempt entity if the plant:

  • continues to be owned by that entity after the entity becomes subject to Federal income tax; or
  • is acquired from that entity, in connection with the acquisition of a business, by an entity that is subject to Federal income tax.

The Queensland Government has several concerns about the proposed Division 58:

Firstly, the Queensland Government questions the need for these provisions. Under the State tax equivalent regime (TER), a tax-exempt business entity selling an asset does not benefit from the sale since a balancing charge would be applied to the entity. Therefore, the TER creates an equivalent tax obligation to that of a Commonwealth taxpaying entity, in a comparable situation.

Part IVA of the Income Tax Assessment Act 1936 is the appropriate mechanism to combat any perceived avoidance of Commonwealth income taxes which may erode the Commonwealth’s tax revenue base.

Secondly, the Federal Treasurer's original press release in August 1997 stated that the new provisions would apply to the disposal of assets of a government agency, which were "associated with the sale of a business". It is clear from this statement that the scope of the legislation was intended to apply to Government businesses that provided a service to the public on a commercial basis, for example, the provision of electricity or port facilities.

TLAB5 has broadened the potential application and now also includes the provision of outsourced government functions such as car fleets, cleaning and printing services. Traditionally, these types of functions have not been provided to the public and therefore should not be caught under the legislation. Applying the provisions to these functional areas of government will significantly increase the complexity of compliance by the private sector for the transfers of plant that were never intended to be caught under the provisions.

Thirdly, the proposed provisions in Division 58 are considered regressive, as demonstrated by the following example.

Power Corporation, a GOE, has owned and operated three (3) power stations for a number of years. One of these power stations is sold to the private sector for $500 million on 30 June 2000. The power station in question cost $300 million to construct. Construction was completed and the asset ready for use as at 30 June 1990. As at the date of sale the asset had a current book value of $450 million and a written down value for tax equivalent purposes of $200 million.

The tax position with respect to the disposal would be represented as follows:

In the absence of Division 58 (current treatment)

For the GOE -

Tax equivalence on recouped depreciation ($300 - $200) million x 36% $ 36 million

Capital gains tax equivalence ($450 - $350) million x 36% 36 million
Total tax equivalence on transaction $ 72 million

For the Purchaser -

The purchaser would have a cost base for taxation depreciation purposes of $450 million.

Assuming Division 58 in its current format applies

For the GOE -

Tax equivalence on recouped depreciation ($300 - $200) million x 36% $ 36 million

Capital gains tax equivalence ($450 - $3501) million x 36% 36 million
Total tax equivalence on transaction $ 72 million

However, the sale price would be reduced by the net present value of the tax effect of a $250 million reduction in the depreciation tax base ($450 - $200) that would not be available to the purchaser.

For the Purchaser -

The purchaser would have a cost base for taxation depreciation purposes of $200 million.

To add to the inequity, if the private sector entity on-sells the asset to another private sector entity the balancing charge is calculated by using the taxation cost base to the first private sector owner. In other words, if the power station used in the above example was on-sold after twelve months for $450 million to another private sector operator the balancing charge would be $250 million ($450 - $200 million). Apart from the harsh taxation treatment on the entity that may have to sell this type of asset unexpectedly, the additional accounting requirements for taxation purposes are onerous.

The provision also gives rise to the following anomalies:

(a) Pre Audited Book Value

The concept of a Pre Audited Book Value ("PABV") being available to calculate notional values for taxation purposes would be fair if it were not frozen at a point in time. In the case of Queensland, this point in time will generally be 30 June 1996.

GOEs are subject to stringent accounting standards and independent audits. Once an entity’s book values have been audited without qualification, these book values are the most relevant values for the purposes of transferring assets or calculating that part of a share's value that is backed by non-current assets. The most current PABV, not subject to audit qualification, should be an acceptable base for taxation valuation purposes and not just the PABV prior to 4 August 1997.

(b) Depreciation Inconsistency

An inconsistency arises with respect to the depreciation rates that can be used for sales of assets or equity. In the case of an asset sale, the purchaser is allowed to depreciate plant using rates of depreciation that are applicable at the date the asset became subject to Commonwealth income tax. These rates have been concessional in recent years. On the other hand, after entry into the Commonwealth income tax regime, depreciation on plant sold as part of an equity sale is limited to the rates that applied to the plant at the time it originally became ready for use. As a result, asset sales will lead to a faster depreciation write-off of an asset than an equity sale.

(c) Tax bias favouring sale to non-residents

The proposals, as currently drafted, provide that a non-resident purchaser of these assets, or of the associated business, will achieve an artificial competitive advantage over resident bidders. This occurs because non-resident purchasers are able to claim deductions for the difference between the original cost price of the assets and the purchase price of the business from the exempt entity. As a result, Australian bidders are placed at a competitive disadvantage relative to non-residents.

The Queensland Government considers that Division 58 adds further unnecessary complications to the income tax system. While the Queensland Government considers that the proposed Division 58 is not necessary, the following amendments are considered essential should the Commonwealth proceed with this proposal.

Recommendation 10

The proposed Division 58 be amended so that the latest PABV, not subject to an audit qualification, be an allowable valuation methodology that can be applied to the assets of an exempt entity that enter the Federal taxation regime via either an entity or asset sale.

The legislation should only apply where the sale of depreciable assets held by an exempt entity are associated with either an entity or asset sale.

10. BUSINESS COMPLIANCE COSTS

There is significant potential to use the reform of the business taxation system to minimise the cost of tax compliance on business, particularly small and medium businesses which represent 97% of the total number of businesses in Queensland.

The Review’s Terms of Reference state that its recommendations must be consistent with reducing compliance costs. However, despite the Review’s simplification objective there is little analysis of how the reform options proposed in the discussion paper will affect compliance costs faced by small business. The Queensland Government supports the reduction of compliance costs for small business and identifies the need for the Review to provide an assessment in its final report to the Commonwealth of how business compliance costs will be affected by the package of reforms to the business tax system.

Recommendation 11

That the Review’s final report include an assessment of the impact of any proposed changes on business compliance costs.

11. BLACK HOLE EXPENDITURE

The Queensland Government supports reform of the tax treatment of non-deductible (so-called black hole) expenditures as listed in Table 1.1 of PFC.

However, it is important that the expenditures to be considered under possible black hole expenditure are well defined. For example, in relation to payments to defend native title claims, it is important to ensure that this expenditure is defined to include payments for involvement in the rights to negotiate processes and Indigenous Land Use Agreements for exploration and mining, as well as expenses for participation in processes associated with the determination of native title claims. It is the Queensland Government’s view that the existing wording of this class of expenditures, ‘payment to defend native title claims’, does not adequately capture all payments relevant to native title claims.

To remove any ambiguity and uncertainty, the Queensland Government recommends that black hole expenditure currently defined as ‘payment to defend native title claims’ be redefined as ‘payment to negotiate native title agreements’.

Recommendation 12

That black hole expenditure currently defined as ‘payment to defend native title claims’ be redefined as ‘payment to negotiate native title agreements’.

ADDITIONAL ISSUES

Tax Concessions for Co-operatives

PFC considers that Section 120(1)(c) of the Income Tax Assessment Act 1936 has limited justification and relevance.

This concession is available to co-operatives and allows them to claim a tax deduction for the repayment of loans provided by the Commonwealth or a State. Co-operatives play an important role in agriculture in Queensland.

In Queensland, the loans are provided to co-operatives by Queensland Treasury Corporation (QTC) as an agent of the State. The tax concession is only available if the loan is made by a State or Commonwealth authority.

There does not appear to be any evidence that this concession is being abused.

The arguments for abolition of this concession advanced by PFC are based solely on application of the principles and objectives in A Strong Foundation. A decision on the retention of this concession should take into account public policy considerations including the likely impact on affected industries. A full evaluation of these considerations may support the retention, or restructuring, of this concession.

The concession was originally introduced in recognition of the fact that co-operatives usually find it more difficult to source funding from regular financial institutions. An assessment of the continuing policy relevance of the concession would be required before a decision could be made on this issue. Any such assessment should take into account the structure of the concession including the level of assistance provided, the eligibility criteria and the restriction to borrowing from Commonwealth and State authorities.

APPENDIX 1

Impact of the Entity Taxation Proposals on the Queensland Water Industry

PFC proposes three options to replace the existing company imputation system. These three options are as follows:

  • Impose a deferred company tax regime;
  • Apply a resident dividend withholding tax regime; or
  • Tax unfranked inter-entity distributions.
  1. Deferred Company Tax Regime
  2. The proposed deferred company tax regime model would have a very significant impact on the return to State Government owners of entities subject to Federal income tax where such entities benefit from "tax preferences" eg deductions attributable to infrastructure ownership such as tax depreciation. In essence, such entities are commonly protected from income tax for a significant period of time as a result of the availability of income tax deductions attributable to the ownership of such infrastructure. Under the proposed deferred company tax regime, any distributions to State/Local Government owners would be reduced by 36%.

    It is noted for completeness that while there are currently few examples of such entities in existence in the Queensland Water Industry which are Commonwealth taxpayers, given the likely transition of many entities in the Queensland Water Industry into the Federal tax regime at some stage in the future, these proposals will have significant impacts on the State Government to the extent such a transition eventuates.

    The Federal Government does not propose to permit any refund of this DCT to shareholders, other than individuals or superannuation funds.

    In summary, the proposed deferred company tax regime is equivalent to a tax on the State Government equal to 36% of the untaxed distributable earnings of relevant entities.

  3. Resident Dividend Withholding Tax Regime
  4. An alternative to the deferred company tax regime is to apply a resident dividend withholding tax regime. In so far as resident shareholders are concerned, the regime imposes a 36% withholding tax on unfranked distributions paid by resident entities to resident investors. This withholding tax is a tax on the investor, not on the entity paying the dividend. Accordingly, there should be no impact on the reported earnings of the entity.

    The resident dividend withholding tax is creditable in the case of resident investors against their income tax liability. However, for State Government recipients of such dividends which have borne a resident dividend withholding tax, no such crediting, or refund mechanism is available. In essence, this proposal would result in an effective 36% tax on unfranked dividend distributions to State Government.

  5. Taxing unfranked inter-entity distributions

The third option is the least adverse option from the State Government’s perspective in so far as receiving unfranked dividend distributions from lower tier entities are concerned. In essence, this proposal should not adversely impact upon the State as long as the State is able to avoid multi-tier corporate structures.

Conclusion

Any option advanced for entity taxation must preserve the exemption of other governments from income tax. Failure to do so will result in a revenue transfer from the States to the Commonwealth. Both the deferred company tax and resident withholding tax regimes should be amended appropriately to provide for the receipt of unfranked dividend distributions by tax exempt entities such as State and Local Government entities.

APPENDIX 2

Airtrain Project - Section 51AD and Division 16D - Bailor of Equipment as End-User

A private syndicate is building an 8 km spur off the Brisbane suburban rail system to create a passenger link to the Brisbane airport. The track and associated facilities making up the spur will be owned by a private company (Airtrain) and that company will contract with Queensland Rail (a government owned corporation liable for tax under the TER system in Queensland) for the provision of rolling stock (under a bailment) to operate on the track. Queensland Rail drivers will be seconded to Airtrain for the section of travel when the railcars are on the airport spur. Queensland Rail also provides safety checks and timetable integration services.

Airtrain will carry the full commercial risk of the airport link operation, most notably risk capital, funding, operations and maintenance. Airtrain will be at risk for 100% of its revenues, its only source being the sale of tickets to the fare paying public. At the end of 35 years, the track and associated easements and rights of way will transfer from Airtrain to Queensland Rail for no consideration. Queensland Rail has the option to extend delay the transfer for an additional five years.

A substantial amount of effort had to be expended in demonstrating to the Tax Office that Queensland Rail was not able to control the end-use of the track owned by Airtrain. Because of the broad scope of Section 51AD and Division 16D, it was decided at an early stage that ownership of the rolling stock, which also has to integrate with and hence operate on Queensland Rail's track system, as far away as the Gold Coast, was not feasible for Airtrain. This meant that an overly-complex contractual arrangement had to be effected with Queensland Rail for the use of their rolling stock and personnel.

If the Tax Office had not eventually accepted that Queensland Rail did not control the end use of the Airtrain track and associated facilities, both Section 51AD and Division 16D could have applied. Following lodgement of the initial application for a private ruling on Section 51AD in October 1997, the Tax Office came to the view that Section 51AD did in fact apply to the project. The parties continued with the project in the face of this uncertainty until a positive ruling was released in May 1998. This followed months of negotiations with the Tax Office, submissions to independent arbitrators, briefs to QCs and a major review by an independent expert to confirm that Section 51AD did not apply.

The artificial structuring necessitated by Section 51AD is evidenced by the need to second Queensland Rail personnel to Airtrain instead of a more straightforward service arrangement that could have been undertaken if Airtrain had a private sector counterpart. The expense and delay suffered by Airtrain in framing its agreements with the tax exempt Queensland Rail, are clear indicators of the anti-competitive effect of Section 51AD on Queensland Rail's commercial operations.

If the Tax Office had not accepted that Queensland Rail was not the end user, and thus Division 16D had applied (assuming for present purposes that Section 51AD was not applicable), then Division 16D would have denied all of Airtrain's amortisation deductions, and (arguably) all the assessable income from fare sales would have been fully taxable without recharacterisation (into principal and interest components) by Division 16D. This is because the fare revenue would not be income under the arrangement for the "use, control of the use, or sale or disposal" of the track and other depreciable property.

APPENDIX 3

Examples of the Anti-competitive Operation of Section 51AD and Division 16D.

In the following examples it is clear that none of the parties had any intention of exploiting the tax exempt status of State-owned bodies. Nor was there any attempt to transfer the benefit of capital allowances, whether or not accelerated, or other deductions, from tax exempts to taxpaying parties.

1. Callide Power Project - Section 51AD and Division 16D

CS Energy is a Queensland Government owned corporation that is jointly developing a power station in central Queensland with Shell Coal ("the Callide project"). The project is to be jointly (50/50) owned by a companies controlled by Shell Coal and CS Energy. CS Energy is to operate the Callide power station after its completion in 2001. CS Energy is exempt from Commonwealth tax, but, as required by National Competition Policy, is liable to income pay tax under the Queensland Tax Equivalents Regime (TER).

At first glance this project should not attract Section 51AD in respect of Shell Coal’s interest. Shell Coal is a Commonwealth taxpayer, and thus it is not possible to suggest that CS Energy, as a Commonwealth tax exempt, is the end-user of the property for Section 51AD purposes, at least in respect of Shell Coal’s share of the project. Further, even if CS Energy is regarded as an end user of the power station because of its ownership interest, it still does not control the project, because it only has a 50% share.

Pursuant to existing Australian Tax Office guidelines Section 51AD would deem CS Energy to control the end use of the power station because it will be the operator of the station. Thus, because there is for the purpose of the section a tax exempt end user, all Shell Coal’s ownership deductions relating to the power station will be denied if more than 50% of the project cost is funded by non-recourse debt. Shell and CS Energy wished to consider the use of non recourse debt to fund the construction phase, but after extensive examination of the situation, found that this was not a viable option because of the high level of Section 51AD tax risk that would arise for Shell Coal.

Highlighting the arbitrary nature of this result, it should be noted that Section 51AD, as currently framed, does not however prevent the use of non-recourse debt to refinance any initial full recourse debt after the completion of construction. This is because Section 51AD only applies if the non-recourse debt is used to fund the "construction or acquisition" of the relevant property. As Shell Coal and CS Energy will already own the completed facility, a post-completion refinancing will not have funded "construction" or "acquisition".

This is a situation where Section 51AD prevents a Commonwealth taxpayer (Shell Coal) from pursuing an otherwise normally available financing option simply because it has chosen a Government Owned Corporation as a partner to operate a facility on which it will be fully taxed. Section 51AD could apply even if CS Energy had no ownership interest at all. Pursuant to existing ATO guidelines the operating role is sufficient on its own to trigger the section. CS Energy was thus at a competitive disadvantage to private sector operators in seeking to partner with Shell Coal. The difficulty represented by this case is becoming relatively common.

Although the Taxation Office is not known to have invoked Division 16D in the following manner, that Division also can apply in the above type of situation, and in a manner just as severe as Section 51AD. The Division can apply because the property is owned by a Commonwealth taxpayer and there is, as for Section 51AD, a tax exempt end user (CS Energy as the operator). If CS Energy could also be seen to have an ownership type of risk in the power station (as indeed it does to the extent of 50% - all the more so if the arrangement between CS Energy and Shell Coal were for a period equal to or greater than 75% of the station’s effective life, or if CS Energy was liable for the cost of repairs to the power station – not unexpected if it is the operator), then Division 16D would deny all Shell’s, and any body else’s, amortisation deductions in the property.

Because Shell Coal does not receive any income under the arrangement for the use, control of use, sale or disposal of the power station, there is no income to be recharacterised into principal and interest by Division 16D. Thus Shell Coal’s share of the power sales revenue would be assessable in full and not reduced by Division 16D, if the Division were to be applied by the ATO in the manner described.

APPENDIX 4

Proposed amendment to Section 51AD and Division 16D to remove their anti-competitive effect on GOEs as operators and co-owners of facilities.

Suggested Amendments to

Section 51AD of the Income Tax Assessment Act 1936

Include after subsection (5)

(5A) An end-user in subsection (4) does not include an eligible GOE.

(5B) In this section "eligible GOE" includes:

  1. where paragraph (b) is not satisfied - a body that the Treasurer considers should be an eligible GOE having regard to national competition policy principles, and in respect of which body a notice is published in the Gazette;
  2. a body that is:

(i) (1) an STB as described in Section 24AO to 24AS inclusive at any time during an income year; or

    (2)subject to section 50-25 of the Income Tax Assessment Act 1997 at any time during an income year; and

(ii) (1) subject to a Tax Equivalents Regime imposed by a State or Territory; or

(2) in accordance with criteria published in the Gazette by the Treasurer for the purpose of this section, a body that operates on a commercial basis.

Suggested Amendments to

Division 16D of the Income Tax Assessment Act 1936

Include at the end of the definition of "exempt public body" in Subsection 159GE(1) the words "other than an eligible GOE".

Insert a definition of "eligible GOE" in Subsection 159GE(1):

In this Division "eligible GOE" has the meaning given by Subsection 51AD(5B).

APPENDIX 5

Observations on Chapters 8 and 9 of A Platform for Consultation

  • The paper seems to assume that GOEs would all prefer to use leasing if they had the chance (eg. refer paras 8.15, 9.28, Appendix C.11 and C.14 in Chapter 9). This is not true unless they are in TER tax loss. Profitable GOEs, in themselves, do not benefit from tax benefit transfer leasing, even if the State might.
  • It is suggested that structuring lease rentals to give the lessor a tax deferral gives those lessees an advantage which is not available to other taxpayers (para. 8.17). This is not true because lessees pay a premium for the use of the lessor's tax capacity. Their cost of funds outcome is always higher than if they were not in tax loss and were able to claim the interest and depreciation deductions directly.
  • There is an assumption that more aggressive structures (than level rentals) can be achieved. In practice, because of Tax Ruling IT 2051, this is very difficult in almost all cases.
  • There is an assumption that the price of assets attracting accelerated depreciation will be bid up, thus making it less likely that tax exempts will invest in such assets (para. 8.22). We question this contention. It is more likely the case (as recognised elsewhere in the paper) that tax-exempts are forced to accept sub-market returns on projects involving such assets if they are to be competitive. It nevertheless follows that the tax bias creates an investment bias that would be removed by permitting tax preference (and benefit, if allowed) transfer.
  • The paper suggests that Division 16D is less severe in its operation than Section 51AD (paras 8.33 & 8.36). While this is true in the case of leases, service arrangements can have all amortisation deductions disallowed, and because there is no income under the arrangement for the "use, control of use, sale or disposal" of the affected asset, the service fees are assessable in full, rather than being split into principal and interest components. This unintended effect should be remedied in any re-write of Division 16D.
  • Para. 9.58 says that the benefits of Australian accelerated depreciation can be passed to offshore lessees. Section 51AD and Division 16D prevent this in all but the most limited of cases involving some aircraft and shipping.
  • Para. B1 in Appendix B of Chapter 9 suggests that in the absence of Section 51AD, sales and leasebacks by tax-exempts would not be subject to any restrictions. Division 16D would in fact apply to such arrangements. Further, the sale and leaseback provision in Section 51AD is not directed at tax-exempts, but at all lessees.
  • The paper does not take account of the fact that tax capacity (ie. positive assessable income capable of sheltering lease losses) is a scarce resource and that, accordingly, a premium is charged by the lessor for its use in a tax benefit transfer transaction. This means that lease rentals, and thus lessors' incomes, will be greater than the idealised models in the paper would indicate.
  • The paper does not recognise that because tax shelter is a scarce resource, this serves to impose a cap on the volume of leasing transactions, particularly if leases by syndicates of individuals are excluded.
  • Paragraph 8.53 of the paper does not seem to recognise that lessors can transfer the risk in leased assets to parties other than the lessee. This can be done for non-tax reasons, eg. they may enter into an arrangement with a residual risk taker, unrelated to the lessee or the lessor. The parties should not be disadvantaged if this type of arrangement is used.
  • The reason why the full lease rentals have traditionally been deductible to lessees (as distinct from just the interest under a loan) is because the underlying loan is of a wasting asset, rather than money. (Para. 9.7 refers.)
  • The "sale and loan" approach contemplated under para. 9.16 is likely to run into the same difficulty as the accounting standards for leases, in that where the residual value is not disclosed (as in operating leases), there is a great deal of room for debate over the implicit lease rate, and it will happen (reasonably frequently) that the lessor and lessee will use different discount rates for working out the interest component in lease rentals, producing differing income and deductions for the same payments.
  • The assumption in para. 9.25 that lessors may not dispose of assets when the lease ends is, apart from operating lease business, very unlikely to occur. Under the tax preferred leasing approach, the lessor claims the "excess" accelerated depreciation and can pass all (or more likely a part) of this on to the lessee through reduced rentals. Given that the only likely situations where the lessor will keep the asset after the end of a lease is in the case of genuine operating leases or hiring arrangements, the notion of imposing a balancing charge on the outgoing lessee seems a little extreme. For example if a person took a truck under a three month hire, the need to obtain a valuation and adjust the lessee's income would be administratively very cumbersome and would discourage this legitimate avenue of accessing equipment on a short term basis. In the case of finance leases, the former lessors usually sell the assets, realising the balancing charge (or loss) at that time.
  • The reference in para. 9.34 to international competitiveness being less relevant to domestic tax-exempts is not correct. GOEs (eg. power generators) are subject to inbound international competition by parties that can double dip tax benefits in their home (and other) countries and in Australia. Further, some GOEs do invest overseas.
  • Because GOEs are usually TER taxpayers, leasing will only be the preferred form of financing for them if they are in tax loss. Thus the bias in favour of leasing would not be as pronounced as contemplated by para. 9.45.
  • The paper does not recognise the anti-competitive effect of Section 51AD and Division 16D in making GOEs unattractive partners and joint owners, ie. where no tax benefit transfer is involved.
  • Limiting the discussion on service contracts to situations involving tax exempts (para. 9.63), rather than including tax loss entities, seems unusual, and is defended only on the basis that the revenue loss in that area is irrecoverable on account of complexity.
  • Para. 9.65 examines the option of applying the "sale and loan" treatment to finance leases, rather than to all leases with limited exclusions (the latter option being the Canadian regime). The paragraph does not consider the existing "true lease" rules contained in the Tax Rulings, eg. IT 28, IT 2051. These rules are well understood and are certainly no more capable of misinterpretation than the accounting standard AASB 1008.
  • Hopefully the "similar arrangements" provision contemplated by para. 9.76 will not affect shorter term service contracts, where there is no material assumption of asset risk by the tax-exempt beneficiary of the service. The same comment applies to the discussion in Appendix C to Chapter 9.
  • None of the elements mentioned in para. C8 (Appendix C, Chapter 9) seem offensive in any way, and are standard in outsourcing arrangements.
  • The structured non-payment of non-recourse debt discussed in Appendix B to Chapter 9 appears to be an aggressive avoidance arrangement, if not evasion. Query how material an issue this is (or would be if Section 51AD were removed), given the range of anti-avoidance provisions at the Tax Office's disposal. Has the Tax Office ever ruled favourably on such an arrangement? If the draft Div. 243 currently before Parliament is a reaction to this practice, it would seem to be unnecessarily wide. The explanation does not make clear how tax benefits can be transferred to a tax-exempt body that lends to the lessor. The back to back loans discussion in Ruling IT 2051 has not been addressed.
  • The approach suggested in para. C.12 (Appendix C, Chapter 9) is unacceptably extreme and out of character with the more even-handed approach taken in the rest of the discussion.