Changes to CGT discount and its potential impact
Client alertExplores proposed CGT discount and negative gearing reforms and what they could mean for investors.
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The ATO changes to PCG 2018/9 included:
As taxpayers may recall, the ATO issued PCG 2018/9 and its companion tax ruling TR 2018/5 following the High Court decision in Bywater v FCT (2016) 339 ALR 39.
The Bywater decision overturned decades of established law to hold that a foreign incorporated company was deemed to be carrying on business in Australia because it also had its central management and control located in Australia.
The outcome of the Bywater decision, and the ATO’s responses, is that foreign incorporated companies that have no substantial business activities in Australia may be treated as Australian tax residents. This is a much lower threshold than was previously the case following the previously long-standing High Court decision in Malayan Shipping Company Ltd. v FCT (1946) 71 CLR 156 and as reflected in the ATO’s previous TR 2004/15 on the matter.
While Grant Thornton welcomes the ATO’s efforts to enforce the Bywater CMC test with greater transparency and consistency, the outcome is that taxpayers – especially multinationals – have had to incur further compliance burdens in an area of the law that for many years pre-Bywater, was relatively simple to apply. Such additional efforts now include:
Grant Thornton previously discussed the introduction in 2024 of the CEDS requirements here.
We also previously raised our observations as to the complexities from the Bywater decision and the ATO response in our previous client alert and further called for a legislative ‘fix’ in 2023 to clarify the matter and return the interpretation of the law to the pre-Bywater position.
However, the legislative fix has not (yet) occurred, and we would remind taxpayers to continually monitor the ATO’s views and to review and document the tax status of their foreign incorporated subsidiaries.
Please contact your Grant Thornton tax advisor if you require our assistance on this matter.
Explores proposed CGT discount and negative gearing reforms and what they could mean for investors.
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