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Pitfalls and proposed changes in the use of R&D tax incentives

Since its introduction, a number of taxpayers have fallen foul of the ATO in its administration of the research and development (R&D) tax incentive scheme under the Income Tax Assessment Act 1997 (Cth) (ITAA) for failing to have claimed an offset for an activity that strictly complies with the relevant tests.

 

 

In light of the current review by the federal government into the dual administration of the R&D regime by the ATO and Industry Innovation and Science Australia (IISA), and the decision in Commissioner of Taxation v Bogiatto,[1] we provide this update on recent developments in the R&D tax incentive space.

Common mistakes in R&D tax offset claims

To claim a tax offset, a taxpayer is required to register their R&D activity with IISA, however registration does not determine eligibility for the offset.[2] The IISA may make a formal assessment of the R&D activity, however, as this often does not occur, the registration of R&D activities is mostly based on self-assessment. This often leads to taxpayers making mistakes when claiming R&D expenditures – we discuss two common issues below.

Not generating new knowledge

When claiming activities as core R&D activities, taxpayers must ensure that the activity was conducted for the purpose of generating new knowledge.[3]

In the matter of Havilah Resources Ltd and Innovation and Science Australia (Taxation), Re [2020] AATA 933, Havilah was an exploration company with a number of gold, copper and iron ore mining sites. Havilah sought to register a number of activities relating to its mining sites as R&D activities, including routine hydrogeological and gold tertiary clay investigations. The IISA had found that these activities were neither core nor supporting R&D activities.

Havilah appealed IISA’s decision to the AAT. The AAT had regard to the statutory object of the R&D incentive, that the knowledge gained is likely to benefit the wider Australian economy. It is not enough that new knowledge is generated – there must be experimental activities conducted in a scientific way for the purpose of generating new knowledge.[4]

The AAT found that some of the activities relating to the hydrogeological investigations generated knowledge relating to the specific characteristics of the sites and could only be used for another project facing similar conditions. The knowledge was not likely to benefit the wider Australian economy and was not conducted for the purposes of generating new knowledge.[5]

In relation to the investigation of the gold tertiary clays, the AAT held that the knowledge generated was the result of routine methods of investigation involving sampling and testing at a particular site. The activities were not carried out for the purposes of generating new knowledge likely to benefit the wider economy, but was for the purpose of acquiring site-specific information for the sole benefit of Havilah.[6]

This case demonstrates that a successful R&D offset claim must demonstrate some wider applicability and general benefit to the Australian economy – consistent with the purpose of the scheme.

Generic research activities are unlikely to constitute core R&D activities

R&D activities must involve a systemic progression of work that is based on principles of established science and that proceeds from hypothesis to experiment and evaluation, and that leads to logical conclusions. The outcome of such experimental activities cannot be known in advance.[7]

This point was demonstrated in Coal of Queensland Pty Ltd v Innovation and Science Australia [2021] FCAFC 54 (Coal of Queensland). In Coal of Queensland, the taxpayer mining company sought to register an investigation into the location, size and quality of a coal deposit that had historically produced low-quality coal. It was found by the Full Federal Court that while the exact values of expected coal yields from the deposit could not have been known in advance, the outcome of the research could have been predicted from what was known at the time.[8] The Full Federal Court also upheld the Tribunal’s findings that the absence of R&D plans or documentation by the taxpayer was a valid consideration in determining that the activities were not core R&D activities.

Promoter penalties

Section 290-50 of the Taxation Administration Act 1953 (Cth) imposes a penalty on any entity that promotes tax exploitation scheme – this can often prove problematic for tax advisers and accountants.

In February 2021, the Federal Court handed down a landmark promoter penalty of $22,680,000 against a former tax agent and registered accountant.

In Commissioner of Taxation v Bogiatto [2020] FCA 1139, it was alleged by the Commissioner that Mr Bogiatto and his associated companies promoted a tax exploitation scheme involving the R&D tax incentive. Mr Bogiatto operated over 20 schemes involving 14 taxpayers where it was alleged that the R&D claims made were not reasonably available at law. The tax exploitation schemes typically involved Mr Bogiatto persuading a taxpayer to make an application for the R&D tax incentive before advising the taxpayer to use certain figures that he had prepared to incorporate into the taxpayer’s return.

Thawley J found that each of the schemes involved tax evasion as the claims were grossly exaggerated or wholly unavailable.[9] Thawley J held that Mr Bogiatto knew that the R&D claims were not reasonably arguable and that he had deliberately put forward claims that he knew were wholly or partly unjustifiable and had engaged in evasion.[10]

In Commissioner of Taxation v Bogiatto (No 2) [2021] FCA 98, Thawley J imposed a penalty of $22,680,000 against Mr Bogiatto and his associated companies.[11] In arriving at this landmark penalty, Thawley J had regard to the amount of consideration received by Mr Bogiatto and his associated companies in applying the principles of general and specific deterrence.[12] Regard was also had to the losses suffered by the tax evasion scheme participants, the nature and extent of the contraventions, including that the conduct occurred over a number of years, and the lack of cooperation Mr Bogiatto demonstrated towards the Commissioner.[13]

Recent policy and regulatory developments

Over the course of 2020 and so far in 2021, there have been a number of policy developments, some of which are intended to increase the clarity and transparency of the R&D offset system.

New online portal

Earlier this year in June, AusIndustry released a new “R&DTI portal” to replace the previous PDF form. The new online form is intended to be more closely aligned with the ITAA and IDR Act and includes rewritten questions to assist companies to understand the information they needed to provide when applying to the incentive.[14]

Draft guidance on ‘at risk rule’

The ATO published the draft tax ruling TR 2021/D3 on 25 June 2021 to clarify the uncertainty relating to the “at risk rule” contained in s 355-405 of the ITAA. The “at risk rule” prohibits or limits the deductions an entity may make for R&D expenditure if that expenditure was for consideration.[15] The draft ruling clarifies that “consideration” includes non-monetary benefits.[16]

Treasury Laws Amendment (A Tax Plan for the COVID-19 Economic Recovery) Act 2020 (Cth)

The Treasury Laws Amendment (A Tax Plan for the COVID-19 Economic Recovery) Act 2020 (Cth) was passed into law on 14 October 2020 and introduced a number of amendments to the R&D tax incentive legislation. The key changes include:

  1. The R&D expenditure threshold has been increased to $150 million.[17]
  2. R&D entities with a turnover of less than $20 million are able to claim an R&D offset equal to the R&D entity’s corporate tax rate plus 18.5 per cent.[18]
  3. R&D entities with a turnover of more than $20 million are able to claim an R&D offset equal to the R&D entity’s corporate tax rate plus either 8.5 per cent or 16.5 per cent, depending on the amount of total R&D expenses.[19]
  4. Permitting the IISA to make determinations about the circumstances in which it will exercise its power or perform its functions.[20]

Review of dual-agency administration model

Earlier this year in May, the federal government announced that the Board of Taxation would review the dual-agency administration model for the R&D tax incentive. The review will consider opportunities to reduce duplication between the ATO and IISA, simplify administrative processes and reduce compliance costs for applicants. The review is open for consultation until 15 September 2021. The Board of Taxation is to report to the government by 30 November 2021.[21]

 

 

William Madani
Holding Redlich
03 September 2021
accountantsdaily.com.au

 

[1] (No 2) [2021] FCA 98

[2] Industry Research and Development Act 1986 (Cth) (IDR Act) s 27A.

[3] ITAA s 355025(1)(b).

[4] Havilah at [25].

[5] Havilah at [91], [132].

[6] Havilah at [158].

[7] ITAA s 355-25(1)(a).

[8] Coal of Queensland at [101].

[9] Commissioner of Taxation v Bogiatto [2020] FCA 1139 at [15].

[10] Ibid at [709] – [710].

[11] Commissioner of Taxation v Bogiatto (No 2) [2021] FCA 98 at [5].

[12] Ibid at [51] – [53].

[13] Ibid at [64], [66], [70] and [73].

[14] See AusIndustry R&D Tax Incentive, “Upcoming changes to the R&DTI application form – Overview factsheet”.

[15] ITAA s 355-405.

[16] TR 2021/D3 at [17].

[17]  ITAA s 355-100(3).

[18] ITAA s 355-100(1).

[19] ITAA ss 355-100(1), (1A).

[20] IRD Act s 31C.

[21] See Board of Taxation, “R&DTI – Review of the dual-agency administration model”.

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Before commencing a new business, the following are some of the key items that need to be considered:

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Clients of Wybenga & Partners Pty Limited can engage our partner firm, Washington Brown, for a competitive price on their depreciation services: Tax Depreciation Quote Request – Wybenga & Partners Pty Limited Clients

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Accounting Videos

 

Chris Wybenga

B.Bus, CA

Chris is the Managing Director of the Firm who established the practice in August 1994 and has been responsible for its growth and development since that time.

Chris has over 40-years experience in the Chartered Accountancy profession, predominantly spent in small to medium sized firms, advising both small business and individuals in areas such as taxation and accounting as well as business restructuring and superannuation advice.

Chris is active in the development of young accountants both in mentoring cadets at the Firm and lecturing in taxation for the CA Program for the Institute of Chartered Accountants.

  • 1980 – Commenced employment and part time university studies
  • 1985 – Graduated Bachelor of Business from University of Technology, Sydney
  • 1986 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 1988 – Registered as a Registered Company Auditor
  • 1994 – Established Wybenga & Partners (formerly known as Farrar & Wybenga)

Dianne Bechara

B.Bus, CA

Dianne is responsible for the day-to-day operations and administration of the practice.

Dianne has over 30-years Chartered Accountancy experience and has significant expertise in providing advice and solutions to high-net-worth individuals and their associated entities. Dianne also has considerable knowledge in the areas of taxation, business services, superannuation, and compliance.

Dianne is active in promoting gender equality in the industry through various programs and mentoring opportunities. Dianne is also committed to the development of young accountants and donates considerable time to sharing her expertise.

  • 1992 – Graduated Bachelor of Business from University of Technology, Sydney
  • 1993 – Commenced employment in acounting profession
  • 1996 – Commenced career with Wybenga & Partners
  • 1997 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 2002 – Appointed as Director of Wybenga & Partners

Roger Potter

B.Bus, CA

Roger is responsible for the HR aspect of the Firm, cultivating the culture, and maintaining the highly social environment we pride ourselves on.

Roger has over 35-years in the Chartered Accountancy profession and significant expertise in providing advice and solutions to small businesses and high-net-worth individuals. He also has extensive experience in the areas of Self-Managed Superannuation Funds and retirement strategies.

Roger is active in the development of young accountants both in mentoring cadets at the firm and lecturing in taxation for the CA Program for the Institute of Chartered Accountants.

  • 1985 – Commenced employment and part time university studies
  • 1990 – Graduated Bachelor of Business from University of Technology, Sydney
  • 1992 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 1998 – Commenced career with Wybenga & Partners
  • 2002 – Appointed as Director of Wybenga & Partners

Tess Uncle

B.Sc, M.Com, CA

Tess has over 22-years experience in Chartered Firms and in this time has had a broad range of experience in superannuation, taxation, and business services. In particular, Tess has had significant experience in MYOB and assisting clients in day-to-day bookkeeping activities and periodic reporting.

Tess is responsible for the Firm’s training and development needs.

Tess is active in promoting gender equality in the industry through various programs and mentoring opportunities. Tess is also committed to the development of young accountants and donates considerable time to sharing her expertise.

  • 2001 – Commenced employment with Wybenga & Partners and part-time accountancy studies
  • 2004 – Graduated Masters of Commerce from the University of New South Wales
  • 2005 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 2007 – Promoted to Manager at Wybenga & Partners
  • 2012 – Appointed as Associate Director
  • 2016 – Appointed as Director of Wybenga & Partners

Schedule a Meeting with Tess


Adam Roberts

B.Bus, B.Sc, CA

Adam has over 18-years experience in Chartered Firms and in this time has had a broad range of experience in superannuation, taxation, and business services. In particular, Adam has had significant experience in MYOB and assisting clients with periodic management reporting.

Adam is responsible for the implementation of technology in the Firm and sourcing new areas of innovation and efficiency.

Adam is active in the development of young accountants and donates considerable time to sharing his expertise.

  • 2005 – Commenced employment with Wybenga & Partners and part-time Accountancy Studies
  • 2005 – Graduated Bachelor of Science from the University of Western Sydney
  • 2007 – Graduated Bachelor of Business from the University of Western Sydney
  • 2010 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia
  • 2010 – Promoted to Manager at Wybenga & Partners
  • 2012 – Appointed as Associate Director
  • 2016 – Appointed as Director of Wybenga & Partners

Schedule a Meeting with Adam


Accounting Cadetships

Build your career with expert guidance from our accounting cadetships program, based in Sydney NSW.

Wybenga & Partners offer accounting cadetships at our location in the CBD of Sydney NSW. You’ll receive expert guidance as you work in the industry.

  • Industry experts guiding you
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Call (02) 9300 3000

or send your enquiry now

    Each year we offer several school leavers or undergraduates the opportunity of beginning their career with us via an Accounting Cadetship. If you are interested in pursuing a career in accounting please read the information below. Our accounting cadetships could be perfect for you!

    What is an Accounting Cadetship?

    An Accounting Cadetship enables you to commence your career whilst attaining the necessary university qualifications by studying part-time.

    How Does It Work?

    Generally, our cadets complete a Bachelor of Commerce (BCom) or Bachelor of Business (BBus) degree at the University of New South Wales, the University of Technology Sydney, Macquarie University, or the University of Western Sydney.

    The firm provides 3 hours paid study leave per week to attend University. This can either be taken at the one time or broken between days depending on the individual’s requirements. In addition, the Firm provides paid study leave for both mid-semester and end-of-year exams.

    We take the work life balance very seriously at Wybenga & Partners and our cadets are encouraged to have a fulfilling life outside the office. A typical day will have you arriving at the office at around 8.30am with most days concluding at 5.30pm.

    What Are the Benefits of Accounting Cadetships with Wybenga and Partners?

    Our cadets benefit from the following:

    • Career path – on completion of their degree our cadets have significant practical experience which will assist them in advancing their careers.
    • Work helps your studies – by working full-time our cadets are able to apply their practical knowledge in the university subjects.
    • Camaraderie with other cadets – the Firm has a number of cadets at various stages of their career.
    • Mentoring – cadets are paired with a senior staff member who oversees their progress and training both at work and with their studies.
    • Communication and feedback – the Firm has an open door policy which enables all cadets to interact with all members of staff including Directors.
    • Culture – the Firm promotes a friendly social culture with a number of functions throughout the year.
    • Modern environment – including ‘socialising’ areas such as pool table and break out area.
    • Training – ongoing support and technical training. We also provide internal and external training on a monthly basis.
    • Remuneration – working full-time provides a market salary and independence with salaries being reviewed every 6-months.
    • Professional registered tax agents – Wybenga & Partners are registered tax agents with the Tax Practitioners Board. We use our years of experience and professionalism to provide the best advice and education to you, helping you build your career effectively.

    What Happens When I Complete My Degree?

    The completion of your degree is the first step of what we hope to be a long and successful career with us. The next step is the commencement of your CA Program with the Institute of Chartered Accountants Australia and New Zealand whilst at the same time continuing your employment with us.

    A number of cadets have progressed to Seniors, Managers, and Directors within the firm.

    Who Should Apply?

    Current Year 12 students or first/second year University Students who:

    • want to commence their career in accountancy;
    • are due to commence or are currently completing a part-time business or commerce degree at university with an accounting major;
    • want to gain valuable hands-on experience while completing their qualifications;
    • are looking for a friendly working environment;
    • are team players who display initiative;
    • have a commitment to self-development;
    • possess excellent personal presentation and communication skills; and
    • are motivated and mature minded.

    How Do I Apply for an Accounting Cadetship?

    To apply for a Cadetship position at Wybenga & Partners send us your details. Please also include in your covering letter why you wish to do a cadetship, include relevant qualities you possess, main interests / achievements, and any previous employment.

    Interested candidates should initially forward a resume/covering letter of no more than 3-pages. Please provide full details of contact information (telephone or e-mail).

    What If I Have More Questions?

    For further information about our Cadetship program, please send your enquiry to .

    Skilled Accountants

    Wybenga & Partners offers a stimulating work environment giving you the opportunity to develop your future success.

    Wybenga & Partners recognises and promotes that there is more to life than work. We know that your needs change and we provide support to balance your work, academic and lifestyle pursuits.

    We welcome enquires from trained accountants regarding a career with Wybenga & Partners. Please email us your details to .