Significant changes to the taxation of stapled structures for infrastructure investment

The Australian Government has released details of an “integrity package” containing measures that seek to address the tax efficient use of stapled structures by foreign investors. The proposed changes, if implemented, will make foreign investment into Australian real-estate and infrastructure projects (such as renewables) less attractive.

Since the introduction of the Managed Investment Trust (MIT) regime in 2008, foreign investors (particularly pension funds) have increasingly stapled together:

• a corporate entity that undertakes an active Australian trading business; with
• a trust (usually a MIT) that derives passive income from leasing an asset to its counterpart in the structure (rather than to an independent third party lessee).

This structure is tax efficient as the lease rental payments are deductible against active business income that is subject to the 30% corporate tax rate. The lease rental payments are instead subject to the concessional MIT withholding tax rate of 15% (or less for some exempt sovereign funds).

The key measure neutralises the tax benefits of stapled structures by preventing foreign investors from accessing the 15% MIT rate for certain cross staple payments (subject to some exemptions). Instead, this income will be subject to withholding tax at the company tax rate (30%). This will have a significant economic impact on foreign investors in land-rich infrastructure projects. The measure should have less impact in the commercial and retail property sector as the higher withholding tax will not apply where the stapled entities receive rent from third party tenants.

Additional measures in the announced packaged include:

• a tightening of Australia’s thin capitalisation rules to prevent the use of multiple layers of flow-through entities (trusts and partnerships) to maximise interest deductions;
• limiting the foreign pension fund withholding tax exemptions for interest and dividends to portfolio (<10%) investments;
• limiting the sovereign immunity tax exemption to passive income from portfolio (<10%) investments; and
• preventing rental income from agricultural land being taxed at the concessional MIT rate.

The changes are expected to take effect from 1 July 2019, with the exception of the thin capitalisation changes which are scheduled to take effect from 1 July 2018. Transitional arrangements of seven years (ordinary business staples) and 15 years (for infrastructure assets) have been included in the current package (but exclude the thin capitalisation changes).

Stapled structures have helped facilitate significant investment across a range of industries. These changes will have an economic impact on foreign institutional investors and will impact investment in Australian infrastructure projects.

A link to the Treasurer’s Media Release can be found here and a paper detailing the package can be found here.