The Budget had been forecasted last year to reflect a worsening economic outlook, with increases expected to both the deficit and unemployment. Instead, the Budget has returned to a predicted $4.2 billion surplus on the back of increased tax revenue and persistently low unemployment. The Government reports that strong employment and wages growth contributed around 40% to the revenue upgrade, with another 20% coming from higher than expected commodities prices.

The Government remains cautious over the future performance of the Australian economy and forecasts the economy to return to deficit for the remainder of the four-year forward estimate. Unemployment is still predicted to rise and place pressure on the Budget, reaching a rate of 4.5% in the June quarter of 2025. Inflation continues to pressure cost of living and real wages, having declined slightly to 7% over the year to March 2023, but the Government expects inflation to return to the target band in 2024-25.

The headline measures of the Budget, including a $14.6 billion cost-of-living package, are caught between delivering immediate relief for vulnerable Australians and small businesses and the risk of driving inflation higher. Tax reform remains directed at increasing tax revenue in discrete sectors, with an effective 'bring forward' of PRRT and the previously announced increase to the headline tax rate for superannuation balances exceeding $3 million.

Tax treatment of ‘exploration’ and ‘mining, quarrying and prospecting rights’

The Government has responded to the decision in Commissioner of Taxation v Shell Energy Holdings Australia Limited (Shell) by proposing two measures.

The Government will amend the PRRT legislation so that ‘exploration for petroleum’ is limited to the ‘discovery and identification of the existence, extent and nature of the petroleum resource’ and does not extend to ‘activities and feasibility studies directed at evaluating whether the resource is commercially recoverable’ (as had been found in the Shell case). While the Shell case concerned income tax, the Court's decision applied equally to the ordinary meaning of 'exploration' under the PRRT, so this change reverses the effect of the Shell case as it applies to PRRT.

This change has been made retrospective from 21 August 2013, being the date of effect of TR 2014/9, which set out the prior position of the Commissioner of Taxation (Commissioner) on the meaning of 'exploration for petroleum'.

In addition, the Budget provides the law will be changed so that mining, quarrying and prospecting rights (MQPRs) cannot be depreciated for income tax purposes until they are used (not merely held). This change overcomes the finding in the Shell case, which was accepted by the Commissioner in his recent Decision Impact Statement, to the effect that an MQPR is installed ready for use, once it is held for use. It remains to be seen what level of 'use' will be required to meet the new test. Finally, the Government will limit the circumstances in which the issue of new rights over areas covered by existing rights lead to tax adjustments (as no explanation was provided in respect of this last aspect, it will be necessary to monitor further developments to understand the significance of this change).

This change will apply in respect of all MQPRs acquired or started to be used after the date of announcement being 7:30 PM AEST on 9 May 2023 (Budget night).

Response to the Review of the PRRT Gas Transfer Pricing arrangements

As announced by the Treasurer on 7 May, the Federal Budget includes changes to be made to the PRRT, stemming from the Treasury Gas Transfer Pricing Review (GTP Review), the results of which were also released on 7 May.

PRRT is, broadly, a 40% tax on profits generated from the sale of marketable petroleum commodities from offshore petroleum projects. It is a project-based tax, meaning that at the end of the relevant year of tax, an entity calculates its PRRT liability (by multiplying the 40% tax rate to any excess of assessable receipts over deductible expenditure) separately for each project interest that it holds. PRRT is deductible for income tax purposes.

The Government will act on the key recommendation arising from the GTP Review which is to introduce a cap on the use of deductions from 1 July 2023. Specifically, the change will limit the proportion of PRRT assessable income that can be offset by deductions to 90%. The change will apply only to projects which produce LNG. However, the cap will not apply to certain classes of deductible expenditure, being closing-down expenditure, starting base expenditure, and resource tax expenditure. It is not clear whether this means that where those classes of expenditure are present, a greater than 90% deduction is available.

Assuming the 'certain classes of income' do not allow for a greater than 90% deduction, the effect of the announced change is that there will be a minimum 4% tax levied on the total PRRT assessable income generated from an offshore oil and gas project (being the 40% PRRT rate applied to 10% of the PRRT assessable income derived from a project). Any unused PRRT deductions, including deductions which cannot be used as a result of the cap, will be carried forward and uplifted at the Government long-term bond rate, rather than being denied outright, meaning that the changes effectively bring forward the payment of PRRT. The changes will apply to projects from the later of 1 July 2023 and 7 years after the year of first production.

In addition to these changes, the Government will make a number of other 'supporting changes', including updating the PRRT general anti-avoidance rule and arm's length rule from 1 July 2023 and, from 1 July 2024, making changes to 'modernise the PRRT for emerging developments in LNG project structures, better reflect the contributions and risks of the notional entities that comprise the LNG value chain, align the regulations with current transfer pricing practices and provide appropriate integrity rules for the regime'. These 'supporting changes' would seem to provide the Government with the opportunity to further develop its response to the GTP Review, and to change the existing transfer pricing arrangements.

The PRRT changes are expected to increase tax receipts by $2.4 billion over the 5 years from 2022-23, although it is not clear whether this figure includes any additional revenue resulting from the 'supporting changes'.

Implementation of global minimum tax and domestic minimum tax

The Government announced the long awaited implementation of the 15% global minimum tax (GMT) and domestic minimum tax (DMT), key features from Pillar Two of the OECD's Base Erosion and Profit Shifting (BEPS) 2.0 global initiative. These measures will apply for income years starting on or after 1 January 2024.

Australia follows a number of other countries including the EU, Canada, Japan and the UK, which have committed to implementing a GMT from 2024.

The GMT and DMT tax will apply to multinationals (MNCs) with an annual global revenue of EUR 750 million (approximately A$1.2 billion) or more, requiring these MNCs to pay an effective minimum level of tax on income in each country in which they operate. There are exceptions for certain investment and pension funds, government entities, and not-for profit organisations.

The GMT rules have two elements:

• from 1 January 2024, the Income Inclusion Rule applies a 'top up' tax to Australian headquartered MNCs and Australian entities which are subsidiaries of a foreign-headquartered MNC located in a country that has not implemented this rule (i.e. income is taxed below 15% in another country); and
• from 1 January 2025, where the Income Inclusion Rule does not apply, the Undertaxed Profits Rule will apply to foreign MNCs operating in Australia.

In a small number of instances where a large MNC's effective Australian tax rate falls below 15%, a 15% DMT will apply. The DMT will apply for income years starting on or after 1 January 2024. The DMT applies so that Australia retains taxing rights over undertaxed Australian profits to obtain tax revenue that would otherwise be collected by another country's GMT.

It is expected that MNCs will generate franking credits in respect of DMT paid. However, the GMT may not give rise to franking credits.

Significantly, the interaction between the proposed anti-avoidance rules on denying deductions for payments relating to intangibles connected with low corporate tax jurisdictions and Pillar Two requires further consideration.

Clean building MITs

The Government will extend the clean building 10% concessional MIT withholding tax rate to data centres and warehouses where construction commences after 7:30 PM (AEST) on 9 May 2023.

The data centres and warehouses must meet the relevant energy efficiency standard in order to attract the reduced MIT withholding rate. This includes a new minimum energy efficiency requirement of a 6-star rating from the Green Building Council Australia or under the National Australian Built Environment Rating System (NABERS).

The 10% withholding rate for MITs in relation to data centres and warehouses will apply from 1 July 2025.

The availability of this concession will be subject to the expanded Part IVA general anti-avoidance rule that is proposed to commence from 1 July 2024, which will target schemes to reduce tax paid in Australia by accessing a lower withholding tax rate on income paid to foreign residents.

The Government will consult on transitional arrangements for existing data centres and warehouses.

Build-to-rent

For new BTR projects where construction commences after 7:30 PM (AEST) on 9 May 2023, there will be:

• a reduction in the MIT withholding tax rate on fund payments from 30% to 15%; and
• an increase in the rate for the capital works tax deduction (depreciation) from 2.5% to 4% per year.

The requirements for this concessional treatment are as follows:

• the BTR project must consist of 50 or more apartments or dwellings made available for rent to the general public;
• the dwellings must be retained under single ownership for at least 10 years before being able to be sold; and
• landlords must offer a lease term of at least 3 years for each dwelling (nothing that the 3 year minimum mirrors the land tax concessions).

The 15% MIT withholding rate will apply from 1 July 2024.

The availability of this concession will be subject to the expanded Part IVA general anti-avoidance rule that is proposed to commence from 1 July 2024, which will target schemes to reduce tax paid in Australia by accessing a lower withholding tax rate on income paid to foreign residents.

The Government confirms that consultation will be undertaken on implementation details, including any minimum proportion of dwellings being offered as affordable tenancies and the length of time that dwellings must be retained under single ownership.

$3m Superannuation cap

The Government will reduce the tax concessions available to individuals with a total superannuation balance exceeding $3m, commencing on 1 July 2025.

This announcement will bring the headline tax rate to 30%, up from 15%, for earnings corresponding to the proportion of an individual’s total superannuation balance that is greater than $3 million (so unrealised gains can potentially be taxed). Earnings relating to assets below the $3 million threshold will continue to be taxed at 15% or 0% if held in a retirement pension account.

Importantly, the $3m threshold will not be subject to indexation. This is similar to other thresholds in the superannuation law, such as the Division 293 threshold or the low-income superannuation tax offset.

Earnings from interests in defined benefit schemes will also be taxed in a similar manner under this reform.

Superannuation Guarantee Package – Payday Super

The Government has confirmed its pre-Federal Budget announcement that employers will need to pay employees' superannuation guarantee entitlements (SGE) at the same time they pay salary and wages. Under the current regime, SGE is generally paid quarterly. These changes are to take effect from 1 July 2026.

This measure is intended to assist employees to keep a track of their SGE, better enable the ATO to recover unpaid superannuation, and support better retirement outcomes. For example, the Government also anticipates that employees will benefit from the effects of compounding returns on more frequent contributions. For example, by switching to payday super, a 25-year-old median income earner currently receiving their super quarterly and wages fortnightly could be around $6,000 or 1.5% better off at retirement.

The Government has flagged that it will engage in industry and stakeholder consultation on the design of these changes, with the final design to be considered as part of the 2024-25 Budget.

From 1 April 2025, plug-in hybrid electric cars will no longer be considered a 'zero or low emissions vehicle' for fringe benefit tax (FBT) purposes, removing their eligibility for the FBT exemption for eligible electric cars. However, arrangements involving plug-in hybrid electric cars entered into between 1 July 2022 and 31 March 2025 will remain eligible for the Electric Car Discount.

Importantly, both battery electric vehicles and hydrogen fuel cell electric vehicles will continue to constitute a 'zero or low emissions vehicle' for FBT purposes beyond 1 April 2025 and remain eligible for the Electric Car Discount.

The Government has announced three new measures that are targeted at small and medium businesses.

Management of tax instalments and improving cashflow

• Firstly, the Government will reduce the GDP adjustment factor for Pay-As-You-Go (PAYG) and GST instalments from 12% to 6% for instalments relating to the 2023/24 income year with a due date after the legislation receives Royal Assent. This measure is aimed at helping small businesses and other PAYG instalment taxpayers manage their tax instalments and improve cashflow.

$20,000 instant asset write-off

• As a temporary measure, small businesses (with aggregated annual turnover of less than $10 million) will be able to immediately deduct the full cost of eligible assets costing less than $20,000 that are first used or installed ready for use for a taxable purpose between 1 July 2023 and 30 June 2024. This measure will follow the expiry of the temporary full expensing measures introduced in the 2020/21 Budget which have been extended to 30 June 2023.
• The $20,000 threshold will apply on a per asset basis, so small businesses can instantly write off multiple assets. Assets valued at $20,000 or more (which cannot be immediately deducted) can continue to be placed into the small business simplified depreciation pool and depreciated at 15 per cent in the first income year and 30 per cent each income year thereafter.

Energy incentive

• Finally, the Government will introduce energy incentives for small and medium businesses (those with an aggregated turnover of less than $50 million) relating to the electrification of assets and improved energy efficiency. Specifically, the Government will provide these businesses with an additional 20% deduction on spending that 'supports' electrification and more energy efficient depreciating assets. The incentive will be available for up to $100,000 of total expenditure, so the maximum bonus deduction for a qualifying business would be $20,000.
• The measure will apply to eligible assets and upgrades to existing assets, including more energy efficient electrical goods, assets that support electrification (e.g. heat pumps and electric heating or cooling systems) and demand management assets (e.g. batteries or thermal energy storage). However, certain assets, such as electric vehicles, renewable electricity generation assets, capital works and assets not connected to the electricity grid that use fossil fuels will not be eligible for the incentive. The eligible assets will need to be first used or installed ready for use between 1 July 2023 and 30 June 2024, and any eligible upgrades will need to be 'made' in this period (presumably this means completed). The Government will consult on the asset eligibility criteria.

Extending and merging the serious financial crimes task force

The Government will extend funding for the Serious Financial Crime Taskforce (SFCT) and Serious Organised Crime program (SOC) over 4 years to 30 June 2027. The programs will also be merged, with a merged SFCT to commence from 1 July 2023. Funding for both programs currently terminates on 30 June 2023.

These groups are led by the ATO and are aimed at organised crime groups as well as serious financial crime and tax evasion. The Government expects this measure to maximise the disruption of crime groups that undermine the integrity of the Australian financial system.

This measure is estimated to:

• increase receipts by $279.5 million, and
• increase payments by $256.6 million.

These increased payments include an increase in GST payments to the states and territories of $32.7 million over the 5 years from 2022–23.

Tax and superannuation compliance

To address the growth in tax and superannuation liabilities, the Government will provide additional funding to the ATO to engage with taxpayers who have tax and superannuation related debts. The funding will assist the ATO in engaging with taxpayers who have debts over $100,000 and aged debts older than two years where those taxpayers are either public and multinational groups with an aggregated turnover of greater than $10 million, or privately owned groups or individuals controlling over $5 million of net wealth.

To encourage small businesses to re-engage with the tax system, the Government has also announced an amnesty program for small businesses with a turnover of less than $10 million.

GST compliance program – four-year extension

The Government has announced a four-year extension to the ATO’s GST compliance program. This will see an additional $588.8 million provided to the ATO over this period to continue a range of activities that promote GST compliance, and is estimated to increase GST receipts by $3.8 billion over the five years from 2022-23.

The aim of these activities is to ensure businesses meet their tax obligations, including accurately accounting for and remitting GST, and correctly claiming GST refunds. Funding through this extension will also help the ATO develop more sophisticated analytical tools to combat emerging risks to the GST system.

In light of this announcement, it is critical that taxpayers are aware that GST remains a big area of focus for the ATO. The GST compliance program includes Top 100 and Top 1,000 GST Streamlined Assurance Reviews, as well as more conventional GST audits, risk reviews, and specific issue reviews.

We are seeing a shift in the way that the ATO undertakes GST reviews, with an increased focus on taxpayers’ GST related systems, processes and controls that ultimately impact GST reporting. Taxpayers need to pre-emptively prepare for ATO compliance activity by reviewing their GST systems and processes, and addressing any issues before a review commences, to mitigate the risk of penalties and interest imposed by the ATO on top of any underpaid GST.

Expansion of Part IVA – Anti-Avoidance Rules

The Government has announced that it will expand the scope of the general anti-avoidance rule in Part IVA. The rule will now include:

• schemes that reduce tax paid in Australia by accessing a lower withholding tax rate on income paid to foreign residents; and
• schemes that achieve an Australian income benefit, even where the dominant purpose was to reduce foreign income tax.

The first measure expands the anti-avoidance rule from applying only to schemes that result in a taxpayer no longer being liable to pay withholding tax, to schemes that merely reduce the amount of withholding tax payable. The measure can apply to the clean building, datacentre and warehousing 10% concessional MIT and the BTR MITs.

The second measure brings the general anti-avoidance rule in line with the Multinational Anti-Avoidance Law and Diverted Profits Tax regimes in so far that taxpayers will no longer be able to rely on a scheme resulting in a larger (or otherwise more important) foreign tax benefit than Australian tax benefit to avoid the application of Part IVA.

The measure will apply to income years commencing on or after 1 July 2024.

Amending Measures of the Former Government - Franked Distributions funded by capital raisings

In September 2022, the Government announced its intention to go ahead with a measure preventing companies from making franked distributions where the distribution is funded by a capital raising. The Budget included an announcement that the start date for this measure would be amended from 19 December 2016 to 15 September 2022. A Bill to legislate the measure is currently before the Senate, which includes the 2022 start date.

Amending the Measures of the Former Government - Discontinuation of Patent Box Regime

The 2021/22 Budget introduced the patent box regime and the 2022/23 Budget expanded the regime. These measures were intended to encourage research and development in Australia by offering a lower tax rate on income derived from patents developed in Australia. In this year's Budget, the Government has announced that it will not be proceeding with those patent box measures.

Promoting social impact investment

Another important initiative announced by the Government as part of the Budget is the provision of $199.8 million in funding over 6 years from 2023-24 to address entrenched community disadvantage by working with local and state governments, service providers and philanthropic organisations. This series of social impact initiatives will tackle some key issues including youth unemployment and homelessness in disadvantaged communities.

The announced measures include:

• the commitment of $100m for the establishment of an Outcomes Fund;
• an extension of the work being undertaken under the Stronger Places, Stronger People program;
• improving data collection and sharing by way of funding to the Australian Bureau of Statistics to better support local planning and decision making to inform long term policy responses;
• the establishment of a Social Enterprise Development Initiative; and
• the development of a whole of government Framework to Address Community Disadvantage.

We are currently working through these measures, and what this could mean for state and territory governments, service providers, philanthropic organisations and social impact investors. We will provide a further update on this shortly.

Changes to corporate tax residency

The Budget does not include any announcements in relation to the long awaited (and desired) changes to the corporate tax residency tests. The withdrawal of former Taxation Ruling (TR) TR 2004/15, and release of TR 2018/5, resulted in a significant change in the application of the corporate tax residency tests, and in particular, the central management and control (CMC) test for residency.

Prior to the 2016 decision of the High Court in Bywater Investments, the ATO administered the CMC test for residency as a two part test requiring that a foreign incorporated entity both carry on business in Australia and have its CMC exercised in Australia. In particular, the ATO previously accepted that, where a foreign incorporated company was carrying on its trading activities outside Australia, that company would not be a resident of Australia for tax purposes simply because its board of directors held meetings in Australia and made strategic decisions relating to contracts, finance and operational or investment policies in Australia.

In TR 2018/5, the ATO's position changed to align with the decision in Bywater Investments, such that, where a foreign incorporated entity's CMC is exercised in Australia, it will necessarily be carrying on business in Australia given CMC is factually part of carrying on business. That is, the CMC test for residency is not a two part test.

Recognising that this change in long standing practice could adversely impact many foreign incorporated companies with Australian based boards of directors (or Australian parent entities), a transitional compliance approach was included in PCG 2018/9. Under this approach, the ATO agreed that it would not apply compliance resources to review or seek to disturb a foreign incorporated company's status as a non-resident where, broadly, that entity relied on the position adopted in TR 2004/15. This approach was intended to give affected taxpayers the time to update their corporate governance arrangements to align them with the ATO's revised interpretation of the law.

Following multiple extensions to the initial transitional period, this transitional compliance approach now ends on 30 June 2023 and the ATO has indicated that it will not be extended beyond this date.

Against this background, a significant technical amendment to the corporate tax residency test was announced as part of the 2020/21 Budget. The proposed amendment to the CMC test was to ensure that the determination of the corporate tax residency of foreign incorporated companies was consistent with the position prior to the Bywater Investments decision and subsequent TR 2018/5. The proposed change was to ensure that only corporate entities with a 'significant economic connection to Australia' would be residents of Australia for tax purposes.

Since this announcement, there has been a change in government and it remains unclear whether this proposal will proceed. As the Budget is silent on this point, this uncertainty continues. Unfortunately, the 30 June 2023 deadline is around the corner.

As a result, many foreign incorporated companies will need to work out how to apply the principles in TR 2018/5 and PCG 2018/9 to their affairs. There is now an urgent need for these taxpayers to revisit their governance, systems and processes and act quickly in order to make any necessary changes prior to 30 June 2023. This is particularly the case for those taxpayers who may have been hoping for the previously announced measures to be retrospectively introduced prior to the end of the ATO's transitional compliance period, and who are yet to update their corporate arrangements.

Changes to stage three tax cuts

Despite some speculation that the Government would scrap the Stage 3 cuts to personal income tax, which are set to come into effect from 1 July 2024, they have remained unchanged in this Budget.

Stage 3 cuts are the largest and most impactful of a series of tax cuts announced by the Coalition in the 2018-19 Budget. The tax cuts were legislated with the reluctant support of the current Government (whilst in opposition). The first two stages entered into force prior to the last election, but Stage 3 has become a controversial topic for the current Government.

Stage 3 is set to reduce the 32.5% tax bracket to 30%, and entirely remove the 37% tax bracket. The effect of this change will be that the same marginal tax rate of 30% will apply to all income earned between $45,001 and $200,000, as set out in the table below. Stage 3 is set to come into effect from 1 July 2024.

Throughout its election campaign, the Government committed to leave Stage 3 cuts unchanged. The need to bring the budget into surplus and stem inflationary pressure led to some speculation that Stage 3 tax cuts would be scrapped. The Treasurer also flagged last year that the anticipated cost of the stage three tax cuts had blown out to $254billion over 10 years. However, prior to the October 2022/23 Budget, the Government had confirmed that the stage three tax cuts were an election promise it would keep. Although no changes were made in this Budget, future changes have not been ruled out.