Principles of Australian Taxation Law
This paper will critically discuss the proposals made by the Organisation for Economic Co-operation and Development (OECD) for a mandatory disclosure regime in Australia. In May 2016, the Australian Government sought input into the framing of the recommendations made by the OECD, in its Discussion Paper. Mandatory disclosure rules are examined in the OECD’s Final Report of the Base Erosion and Profit Shifting (BEPS) project. Primarily, these rules seek to combat aggressive tax arrangements, which pose a threat to revenue authorities worldwide. This paper will analyse the purpose and framing of these rules, their advantages and disadvantages and whom and what they should target, having reference to the Discussion Paper and other valuable sources. Additionally, there will be a critical analysis as to whether a mandatory disclosure regime would be an effective addition to Australian taxation legislation and how it may impact solicitors that advise on revenue law.
Mandatory disclosure rules should be framed having regard to the integrity measures found in current legislation. A key point of distinction is discerning between lawful tax planning activity and unlawful tax evasion. Tax avoidance, which is the focal point of the mandatory disclosure rules, lies between the two polarities. It involves entering into arrangements that exploit loopholes in the legislation. Under Australian taxation law, there are a number of anti-avoidance measures already in place. These include specific anti-avoidance rules (SAARs), general anti-avoidance rules (GAARs) and a promoter penalty regime. There are many types of SAARs that target specific tax avoidance activities, for example, the Personal Service Income (PSI) rules and transfer pricing. On the other hand, GAARs (Part IVA of the Income Tax Assessment Act 1936 (Cth)) act as ‘safety net’ or ‘fall back’ provisions. Justice Pagone highlighted the fact that GAARs occupy a special role in tax law because their role is to underpin the effectiveness of the primary operative provisions when those primary provisions fail to achieve their purpose.
Additionally, the promoter penalty regime in Divisions 290 and 298B of Schedule 1 to the Tax Administration Act 1953 (Cth) seek to force promoters to disclose potential “tax exploitation schemes.” The promoter penalty regime bears resemblance to what a mandatory disclosure regime might achieve. Therefore, a key priority will be ensuring that a new regime does not unnecessarily overlap with existing disclosure rules. It is vital to avoid duplication of and inconsistency with other legislation, as well as excess compliance costs on the vast majority of taxpayers who voluntarily comply with their tax obligations. This regime must also be framed not to infringe on Australian legal rights such as confidentiality, legal professional privilege (LPP) and the privilege against self-incrimination. It is essential that such legislation be shaped in a way that balances policy considerations, the integrity of revenue authorities and fundamental rights.
- Definition of a Mandatory Disclosure Regime
A mandatory disclosure regime is a mechanism that requires taxpayers to disclose upfront to the tax administration system of the use of tax avoidance schemes with certain features or hallmarks. According to the OECD, “the purpose of mandatory disclosure rules is to require tax advisers to make early disclosure of aggressive arrangements (often before income tax returns are lodged) with the view to providing tax authorities with timely information on arrangements that have the potential to undermine the integrity of the income tax system.”This statement provides a useful matrix to ascertain the essential elements of a mandatory disclosure regime. The purpose of a mandatory disclosure regime is to supply prompt information to revenue authorities of possible aggressive tax schemes and to identify the promoters and users of such schemes. The purpose of this detection is to improve the effectiveness of compliance activities of tax authorities.
In regards to the core purpose of mandatory disclosure rules, the supply of early information would allows administrators to identify, address and counteract tax avoidance schemes in their initial stages before they escalate and potentially subvert the integrity of the revenue base. This information can also be utilised to enhance and better focus existing audit processes. Mandatory disclosure regimes can enable countries to quickly respond to tax avoidance risks by providing early access to potential avoidance schemes.
- The Policy Rationale of a Mandatory Disclosure Regime
The main policy rationale behind implementing a mandatory disclosure regime in Australia is to bolster the current anti-avoidance mechanisms by allowing the Commissioner of Taxation prompt disclosure of potentially aggressive tax schemes. This in turn will prevent the exploitation of loopholes that exist within the tax system. These rules will provide the Australian Taxation Office (ATO) with information as early as possible in relation to certain tax arrangements that are being designed and promoted by certain advisers and engaged in by certain taxpayers. A further policy rationale of the new rules is to deter advisers and taxpayers from engaging in these types of arrangements in the first place.
In Australia, the current series of anti-avoidance legislation is elaborate, there are SAARs, GAARs and promoter penalty regimes which all seek to prevent the erosion of the revenue base. Table 1 of the Discussion Paper details the current legislation. There are a range of income tax disclosure rules in relation to large businesses and multinationals. These include disclosures made by companies both before (e.g. Advanced Pricing Agreements) and as part (e.g. Reportable Tax Positions) of their tax returns. Mandatory disclosure rules should capture not only large entities but also high net-worth individuals or individuals that seek to exploit or promote the exploitation loopholes in the Australian taxation system. This is important to ensure a level playing field for all and so that the regime is ubiquitous.
In relation to what activities a mandatory disclosure regime should exclude, it may be useful to look to what the GAARs (Part IVA of the Income Tax Assessment Act 1936) do not apply to. The GAARsdo not apply to a typical husband and wife partnership business agreement. Under this set up, the couple conduct a business in partnership and as the relevant Partnership Act provides, share equally in profits and losses, despite the fact that only one party performs the main amount of work. When regard is had to the eight matters in Part IVA, it would not be objectively concluded that the main purpose of the partnership arrangement was to obtain a tax benefit through the equal division of profits and losses. Similarly, it is possible that a mandatory disclosure regime should not apply to these partnership arrangements for the same reasons.
A comprehensive disclosure regime in Australia would give rise to several advantages and disadvantages. Firstly, a main advantage would be the expeditious identification of potentially aggressive tax planning schemes. This means that the ATO would have to spend less time and utilise less resources in order reduce tax avoidance. Targeted groups would not be as likely to exploit loopholes which exist if Australia had a mandatory disclosure regime. This would firstly lead to enhanced audit and compliance activities which would ultimately lead to quicker dispute resolution in cases where tax avoidance is ascertained. The rise of the technology has also lead to the proliferation of real time intelligence. The need for revenue authorities to access real time information is particularly critical in the current technologically advanced world, where transactions and information can be transmitted internationally and almost instantaneously. Thus access to fast and accurate information is vital for revenue authorities to monitor and police such transactions.
The main disadvantage of a mandatory disclosure regime would be the difficulty in finding an appropriate balance between enhancing information available to the ATO to crack down on tax avoidance and avoiding unnecessary compliance burdens on tax payers. In this regard, the legislation should be very clear on its face that the mandatory disclosure rules would only be triggered in relation to defined tax arrangements with specific features and the rules are targeted at advisers who are actively involved in these tax arrangements.
A tension also exists between legal professional privilege (LPP) and a mandatory disclosure regime. LPP is sacrosanct in Australia and is referred as “part of the functioning of the law itself.” If an entity is obliged to disclose a document that would be protected by LPP, the function of LPP would be undermined which may in turn be a breach of an Australian civil right.
In Australia, there are already rules in place that capture and penalise activity by taxpayers and advisers that results in non-compliance with tax laws, particularly in relation to aggressive tax planning schemes. The mandatory disclosure rules adopted into the Australian tax system would therefore need to complement the other integrity measures already in the system.
- The Drafting, Framing and Targeting of a Mandatory Disclosure Regime
Australia’s rules must be tailored for Australia’s circumstances and in particular to complement its pre-existing disclosure and anti-avoidance measures. The introduction of a mandatory disclosure regime should be specifically directed at people who are required at law to disclose to the Australian Federal Commissioner of Taxation in relation to certain tax arrangements.
- Who should disclose under a Mandatory Disclosure Regime?
It is great importance that the legislation sets out the meaning of particular terms. The initial views of the Australian Government are that mandatory disclosure rules should apply primarily to ‘tax advisers’ involved in the ‘design, distribution and management’ of ‘aggressive tax arrangements.’ Moreover, the Government is also of the view that where the relevant tax adviser is offshore, the Commissioner may instead require the taxpayer to make the disclosure. The OECD has advised that the rules could apply to tax advisers, taxpayers or both.
The mandatory disclosure rules should be narrow and targeted, so that the scope is not too wide to incorrectly identify the actual perpetrators of tax avoidance schemes. Taxpayers will be caught under the mandatory disclosure rules where they have participated in arrangements that become the subject of mandatory disclosure. However, as taxpayers already have a general obligation to disclose information about arrangements and transactions that give rise to tax implications for them, it is not necessary that a separate obligation to disclose be imposed on taxpayers under these rules. Similar to the UK, the suggestion is that disclosure made should be by promoters of schemes with the onus only shifting to the tax-payer in certain situations.
In line with the Australian Government’s views, the new rules would have to provide a clear definition of ‘tax advisers’ or ‘promoters’ for the mandatory disclosure rules. It is logical that the obligation should be in line with promoter definition under the promoter penalty regime under the Taxation Administration Act 1953 as they already have significant obligations. Thus, it is possible that compelling promoters to disclose relevant information in relation to tax arrangements pertaining to the hallmarks would simply consolidate and extend their existing obligations under the promoter penalty regime. Additionally, the promoters of such schemes would be in possession of the information relevant to formation of such avoidance schemes. If this existing definition of a promoter under the current legislation was utilised, then an entity would be a promoter if: they encourage growth of a scheme, they receive consideration in respect of developing a scheme and if they have a substantial role in advancing the scheme. It is important to note that an entity should not be regarded as a promoter just because they provide advice about a scheme. This is particularly relevant when it comes to legal professionals providing advice which will be discussed later in the paper.
- What types of arrangements should be targeted?
The effectiveness of any disclosure regime will revolve around the drafting of ‘hallmarks’ or the trigger points for disclosure. It is impractical for a mandatory disclosure regime to target all transactions that raise tax avoidance concerns. Taxpayers will be obliged to disclose transactions that fall within the descriptions or hallmarks set out in a regime. In the Discussion Paper, there is significant emphasis on the targeting of ‘aggressive tax arrangements.’ However, there is little reference to what this actually means. Both the Canadian and the UK disclosure regimes target arrangements in which the main (or one of the main) purposes of the arrangement are in order to obtain a tax benefit.
Under the general anti-avoidance rules, section 177D in Part IVA of the ITAA 1936 sets out factors relating to the schemes used to obtain tax benefits. This section has often proved difficult in its application because the factors are quite narrow. To avoid issues like this, a lower threshold should utilized under a mandatory disclosure regime. It would be preferable that the test should be whether one of the main purposes of the arrangement is obtaining a tax benefit. This lower threshold would mean that a wider range of schemes could be identified and disclosed.Â The Australian mandatory disclosure rules should also have an objective test for disclosure, meaning that the administrator would not have to inquire into the subjective state of mind of the taxpayer.
Additionally, the Australian Government may also want to consider whether an ‘aggressive tax arrangement’ may be in line with the definition of a ‘tax exploitation scheme’ under the promoter penalty rules.Â The definition of a tax exploitation scheme is whether it would be reasonable to conclude that an entity that entered into the scheme has a sole or dominant purpose of acquiring a tax benefit in which it is not reasonably arguable that the benefit sought is or would be available at law. The definition of tax exploitation scheme would likely be very similar to that of an aggressive tax arrangement under the mandatory disclosure regime.
It would be most effective if mandatory disclosure rules target arrangements in which one of the main purposes is to obtain a tax benefit that may potentially amount to tax avoidance. This should be an objective test, for example, ‘would a reasonable person believe that the arrangement might be in order to obtain a tax benefit that may potentially amount to tax avoidance?’
- What are the benefits and drawbacks of providing the Commissioner of Taxation a broad discretion to determine what is an aggressive tax planning scheme?
There are already a number of mechanisms through which information relating to aggressive tax arrangements is disclosed to the Commissioner. Currently, the Commissioner has the broad administrative powers to require the disclosure of information. However, in the case of the proposed mandatory disclosure rules, the Commissioner can require disclosure to be made without knowing who needs to make the disclosure.
It is important the mandatory disclosure rules require the Commissioner to have evidence of the tax arrangements that he intends to be disclosed pursuant to the rules before he can exercise his discretion and make a publication requesting disclosure. Otherwise, if the Commissioner’s powers are too broad, the process may become ineffective and counter-intuitive.
The Commissioner should clearly articulate why the arrangement is an ‘aggressive tax arrangement’ in line with the objective purpose test.Â This will then allow advisers to effectively determine whether they are involved in these arrangements and whether they have an obligation to make a disclosure to the Commissioner. In line with the Australian Government’s view, the legislation should make it clear that mandatory disclosure rules would only be triggered in relation to aggressive tax arrangements with specifically described features. This will ensure the disclosure rules can be limited to particular arrangements implemented by a specific targeted cohort, rather than imposing more general disclosure requirements on all taxpayers.
- What are the implications of early disclosure?
An early disclosure regime would provide the ATO with information about aggressive tax schemes as well as the parties to such schemes. In comparison with the United Kingdom, the Disclosure of Tax Avoidance Schemes (DOTAS) regime provides early information to Her Majesty’s Revenue & Customs (HMRC). This information enables HMRC to legislate to amend the relevant taxation legislation to better target anti-avoidance activities. The UK mandatory disclosure regime provides prompt information to the revenue authority allowing for easier identification of the users of anti-avoidance schemes.
The United Kingdom’s DOTAS regime has successfully eliminated over £12 billion in tax avoidance schemes and loopholes. This is a strong indicator that such a regime in Australia may have the same effect. The UK regime has lead to over 2500 disclosures and the enactment of 60 different measures contained in the UK Finance Acts. Similarly, a regime in Australia may guide in the legislating of better targeted SAARs and GAARs.
It is likely that a similar disclosure regime in Australia would have a similar effect. The implications of early disclosure allow for revenue authorities to either use the information to improve risk assessment systems, review guidance and ruling products to determine suitable and contemporaneity, undertake additional educational programs and undertake case reviews and audits where appropriate or necessary.
- Would mandatory disclosure rules be a necessary and valuable addition to Australian tax legislation?
It is likely that a mandatory disclosure regime would be a necessary and appropriate addition to Australia’s existing anti-avoidance armoury. This paper weighs the advantages and disadvantages of such a regime and the legislative form that the regime should take. The necessity to acquire early information in regards to aggressive tax schemes is crucial to revenue authorities. While there are several ways that Australia acquires information now, it is possible that a mandatory disclosure regime is a more methodical approach. After researching the current anti-avoidance legislation, it is likely that the introduction of a regime would enhance rather than take the place of the current tax legislation.
A key aspect of the implementation of a mandatory disclosure regime is the expeditiousness. These rules will allow for the ATO become aware of participators in aggressive tax avoidance schemes quicker which will in turn will prevent exploitation of the tax system. There are different ways in which tax administrations can use the collected information to alter behaviour and to counteract tax avoidance schemes, for example, risk assessments and changes to legislation.
There are arguments for the fact that given the plethora of disclosure rules already contained in the Australian law, there is little need for a mandatory disclosure regime to be introduced into the system. Particularly, the existence of the promoter penalty regime is fundamentally similar to what a mandatory disclosure regime may be like. However, cases such as Commissioner of Taxation v Ludekens & Anors,highlights that the scope of promoter penalty regime is quite limited.Â In that case, Justice Middleton found that one of the parties was a ‘promoter’ of the Plan within the meaning of section 290-60, but the other was not. However, it was held that the party that was a ‘promoter’ did not contravene subsection 290-50(1) because his Honour found that the Plan was not a ‘tax exploitation scheme’ within the meaning of section 290-65. Taking this into consideration, mandatory disclosure rules would likely assist with uniformity and the defining of certain key terms in the realm of tax-avoidance. Moreover, if a mandatory disclosure regime were introduced, the ATO would likely have early information on such schemes before they would need to be litigated.
It may also be argued that Australian taxpayers currently only have limited disclosure obligations in relation to reportable tax positions (RTP) and certain international dealings via the International Dealings Schedule (IDS). The introduction of a mandatory disclosure regime may be superior as a single comprehensive regime which would promote administrative efficiency, reduce compliance costs for taxpayers and avoid duplication with existing laws.
- The Impact of a Mandatory Disclosure Regime on Legal Advice
Mandatory disclosure rules would likely impact solicitors which advise on taxation law. Due to the fact that the term “tax adviser” is broad and vague, legislation would need precisely defined the term so that it is clear to which people the rules apply and the circumstances in which they would apply.
In the past, lawyers who hold themselves out to be experienced in a particular area (for example, revenue law) the scope of their duty is quite wide. In the case of Tip Top Dry Cleaners Pty Ltd v Mackintosh, the lawyer was held to have had a duty “to give comprehensive advice” to the client “which touched on all relevant matters.” This duty was held to include a duty not only to advise on whether the proposed transaction might come within the tax deductibility provisions of the legislation but also upon the possible application of the anti-avoidance provisions of the transaction. This authority may be applicable if mandatory disclosure regimes come into play because lawyers advising on revenue law may need to provide advice about it.
The relationship between a lawyer and a client holds confidentiality in the highest regard so there may be problems in regards to the mandatory disclosure of information. Australia’s rules must be designed not to infringe established civil rights such as confidentiality, legal professional privilege and the privilege against self-incrimination any more than is necessary or appropriate. In particular, any disclosures made must be on a “without prejudice” basis so as not to be used as evidence to that effect in proceedings involving the discloser or any other person. Furthermore, there should be strict limits as to the use the ATO may make of the information. There should not be a requirement to disclose previously comprehensively disclosed information and whether a disclosure is “comprehensive” ought depend upon whether it enables the Commissioner to identify the particular aggressive tax arrangement or the participation of the taxpayer in such an arrangement.
The implementation of a mandatory disclosure regime in the Australian tax legislation would likely improve Australia’s anti-avoidance armoury. This new set of rules would improve and support the current mechanisms that are already in place by providing comprehensive and prompt information to the ATO.
By drawing upon other regimes such as that in the United Kingdom as well as examining the current views in Australia, this paper has considered how mandatory disclosure rules in Australia should be framed. The framing should take into regards the current tax legislation and also the impact on taxpayers. Furthermore, special contemplation should take place to ensure that the rules do not infringe on Australian civil rights and do not unnecessarily impact legal professionals that provide advise on tax law. A mandatory disclosure regime would significantly increase transparency, a problem faced by many tax jurisdictions. The introduction of mandatory disclosure rules in Australia would need to be incorporated logically into pre-existing legislation to ensure value and efficacy. Overall, it is likely that a mandatory disclosure regime would be a beneficial addition to Australian revenue legislation.
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 Above n 1.
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 Above n 1.
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 Above n 3, 36.
 Above n 1.
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 Above n 3. 39.
 Baker v Campbell (1983) 153 CLR 52.
 Above n 3,
 Above n 3.
 Above n 1.
 Above n 3,
 Above n 3.
 Australian Tax Office, Promoter Penalty Law (13 September 2016) https://www.ato.gov.au/General/Tax-planning/Promoter-penalty-law/
 Above n 14.
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 Above n 3, 26.
 Oxford University Centre for Business Taxation, The Disclosure of Tax Avoidance Schemes Regime: Paper 2 (3 December 2012) http://www.sbs.ox.ac.uk/sites/default/files/Business_Taxation/Docs/Publications/Reports/DOTAS_3_12_12.pdf
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 (2013) 93 ATR 33.
 Above n 3. 40.
  98 ATC 4346.
 Justice Pagone, Professional Obligations when Advising on Taxation Law (3 October 2008) http://www.austlii.edu.au/au/journals/VicJSchol/2008/18.pdf
 Above n 6, .
 Above n 3.