Hybrid mismatch targeted integrity rule: final ruling

By Peter Madden, Director, International Tax; Fabian Fedele, Director, International Tax Advisory; and Bevis Field, Manager, International Tax, KPMG Australia

The Australian Tax Office (ATO) has now released LCR 2021/1 which finalises its guidance on particular aspects of the targeted integrity rule (TIR), contained within the hybrid mismatch rules in Division 832 of the ITAA 1997.

The amendments are effective retrospectively from 1 January 2019.

The final ruling, which follows the earlier release of Draft Law Companion Ruling LCR 2019/D1, maintains the ATO’s views contained in the original draft, and includes clarification of the rule following the amendments passed in 2020.

Key update: Subject to foreign income tax at a rate of 10 percent or less

The final ruling contains an expansion of the ATO’s view on the application of the ‘subject to foreign income tax at a rate of 10 percent or less’ requirement which is integral to the operation of the TIR.

To recap, TIR will only apply to an interest or derivative payment that is not subject to foreign income tax, or the highest rate of foreign income tax applied to the payment is 10 percent or less.

In LCR 2021/1, the ATO has clarified its view that specific facts surrounding the foreign tax payable needs to be considered in determining if a foreign tax rate is at 10 percent or less. This will include where a deduction is provided by a country in working out the applicable income tax payable on the profits of the recipient.

This type of deduction, and any other concessions that has the consequence of reducing the rate of tax applicable on the actual interest or derivative payment or the profits of the recipient entity, need to be considered when calculating the rate of tax paid on an interest or derivative payment.

Impact

The update regarding the ‘subject to foreign income tax at a rate of 10 percent or less’ requirement once again demonstrates that detailed information regarding foreign taxation outcomes of the payment recipient is required to get clarity on whether the TIR may apply. 

To clarify, the jurisdictional tax rate applicable to, or the effective tax rate of the recipient, is not determinative of whether a payment is subject to tax at a rate of 10 percent or less. Rather, additional detail on the tax paid on the actual payment, and the tax outcomes of the recipient, are required to determine the rate of tax paid when assessing the TIR.

ATO compliance and the hybrid mismatch rules

Further and more broadly, the ATO has maintained the overall broad interpretation of the TIR without any meaningful change to the draft ruling. Uncertainty still remains regarding how, in practice, the ATO will seek to apply the ‘principal purpose test’ in situations where there is less than 10 percent foreign tax paid on an interest or derivative payment, but there are commercial drivers supporting the financing arrangement in its particular form.

We continue to assert that where a Group has a financing arrangement in scope of the TIR, consideration will need to be given to how the ‘principal purpose test’ may apply to the particular facts and circumstances present.

If a financing arrangement is impacted as described above we recommend discussing the matter with your KPMG tax specialist.

We anticipate the ATO will make enquiries on inbound financing arrangements for Australian entities in multinational groups to assess the application of the TIR as part of its 2021 compliance program.   

This article was originally published on KPMG Tax Now, KPMG Australia’s subscription tax news service for clients.

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