Australia

Details

  • Service: Tax, Corporate Tax
  • Industry: Technology
  • Type: Regulatory update
  • Date: 25/02/2014

Tax Insights

KPMG's analysis of tax issues and developments.

Paul Sorrell

Paul Sorrell
Partner, Tax

+61 2 9335 8613

psorrell@kpmg.com.au

To withhold, or not to withhold, that is the question 

by Paul Sorrell, National Tax Lead Partner for Technology Media & Telecommunications sector

Establishing whether particular Australian payments to foreign recipients relating to technology fall within the meaning of ‘royalty’ for tax purposes, and are therefore subject to withholding tax, can be a difficult proposition.

The two key public taxation rulings, IT2660 and TR93/12, which have generally been used as guidance, were released in the early 90s. Technology and business delivery models have advanced considerably since then (e.g. cloud computing), and it has become increasingly challenging to apply that guidance.

 

The Australian Taxation Office (ATO) has lately been particularly active in conducting reviews of technology related payments to uncover any unpaid royalty withholding tax, and will no doubt have observed that it has been successful in recent litigation on royalty withholding tax, including International Business Machines Corporation v Commissioner of Taxation [2011] FCA 335 and Task Technology Pty Ltd v Commissioner of Taxation [2014] FCA 38.

 

It should be kept in mind that the standard 4 year statutory time limit does not apply to withholding tax, and that an income tax deduction for a royalty payment cannot strictly be claimed unless withholding tax has been paid.

 

Given the above, it is prudent to undertake a proper review of any technology related payments to a foreign recipient to ensure that they are not subject to Australian royalty withholding tax. This should include consideration of the legal contractual position between the parties as to who bears the ultimate economic burden, as well as the practical and commercial implications of actually pursuing recovery, in the event of any unpaid withholding tax.

 

Further, an understanding of the foreign tax position of the foreign recipient would be relevant.

 

KPMG would be pleased to assist by leveraging our extensive experience on royalty withholding tax matters, including drawing insights from recent ATO reviews, as well as global developments.

 

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