Australian dividend imputation system

The Australian dividend imputation system is a corporate tax system in which some or all of the tax paid by a company may be attributed, or imputed, to the shareholders by way of a tax credit to reduce the income tax payable on a distribution. In comparison to the classical system, dividend imputation reduces or eliminates the tax disadvantages of distributing dividends to shareholders by only requiring them to pay the difference between the corporate rate and their marginal rate.

The objective of the dividend imputation system is to eliminate double taxation of company profits, once at the corporate level and again on distribution as dividend to shareholders. More specifically, it is intended to create a "level playing field" by taxing the same activity in the same way, irrespective of the business structure being used, namely a company or trust, sole trader or partnership. Under the previous system, the company and shareholders had an incentive for the taxed income of the company to be retained by the company.

History

Before 1987, an Australian company would pay company tax on its profits at a flat rate of 49%; and if it then paid a dividend, that dividend was taxed again as income for the shareholder.^[1] The company and shareholders had an incentive for the taxed income of the company to be retained by the company. Paying a dividend gave raise to double taxation, once by the company at the corporate rate and then on dividend income in the hands of the company’s shareholders.

Dividend imputation was introduced in Australia in 1987 to stop this effect and create a "level playing field". The company tax rate was reduced to 39% in 1988 and 33% in 1993, and increased again in 1995 to 36%, to be reduced to 34% in 2000 and 30% in 2001.^[2][3]

Dividend imputation was introduced in 1987, one of a number of tax reforms by the Hawke–Keating Labor Government. Prior to that a company would pay company tax on its profits and if it then paid a dividend, that dividend was taxed again as income for the shareholder, i.e. a part owner of the company, a form of double taxation.^[4]

In 1997, the eligibility rules (below) were introduced by the Howard–Costello Liberal Government, with a $2,000 small shareholder exemption. In 1999 that exemption was raised to the present $5,000. In 2000, franking credits became fully refundable, not just reducing tax liability to zero. In 2002, preferential dividend streaming was banned. In 2003, New Zealand companies could elect to join the system for Australian tax they paid.

From 2015/16, designated "small business entities" with an aggregated annual turnover threshold of less than $2 million were eligible for a lower tax rate of 28.5%. Since 1 July 2016, small business entities with aggregated annual turnover of less than $10 million have had a reduced company tax rate of 27.5%. Additionally, the Australian Government announced that from 2017/18, corporate entities eligible for the lower tax rate will be known as "base rate entities". The small business definition will remain at $10 million from 2017–18 onwards, however the base rate entity threshold (the aggregated annual turnover threshold under which entities will be eligible to pay a lower tax rate) will continue to rise.^[5]

Operation

The present operation of the system is as follows. The actual law is complex, the core is in the Income Tax Assessment Act 1936 and other elements are in the Income Tax Assessment Act 1997.

Australian companies that have paid Australian company tax can declare how much of the tax it paid is to be imputed or associated with any dividend it pays. Dividends with the maximum imputed tax amount are called franked dividends, while any other dividends are unfranked. Australian-resident shareholders who receive franked dividends from Australian companies would declare both the dividends and the associated imputation credits (as well as the unfranked dividends) on their tax returns, but are entitled to claim back a tax credit (called a franking credit) on those imputation credits.

Initially, in 1987, excess franking credits over the tax liability were lost, but since 2000, such excess credits have been refundable.^[6]

Non-resident shareholders are not entitled to claim a tax credit or refund of imputation credits. Unfranked dividends received by non-residents are subject to a withholding tax, which does not apply to franked dividends.

Say, a company makes a profit of $100 and pays company tax of $30 (at 2006 rates) and records the $30 in the franking account. The $30 is paid to the tax office. The company now has $70 left to pay a dividend, either in the same year or later years. When it does so, it may attach a franking credit from its franking account, in proportion to the tax rate. So if it pays a $70 dividend it could attach $30 of franking credits. When the dividend is paid, the franking account is debited by $30.

An eligible shareholder receiving a franked dividend declares the cash amount plus the franking credit as income, and is credited with the franking credit against their final tax bill. The effect is as if the tax office reversed the company tax by giving back the $30 to the shareholder and had them treat the original $100 of profit as income, in the shareholder's hands, like the company was merely a conduit.

Thus company profits going to eligible shareholders are taxed just once. Profits are either retained by the company and taxed there at the corporate rate, or paid out later as dividends and instead they're taxed at the shareholder's rate.

Dividends may still be paid by a company when it has no franking credits (perhaps because it has been making tax losses), this is called an unfranked dividend. Or it may pay a franked portion and an unfranked portion, known as partly franked. An unfranked dividend (or the unfranked portion) is ordinary income in the hands of the shareholder.

Franking credits

Companies can determine the proportion of the dividends they pay will have franking credits attach. This can range from the dividend being fully franked to it being entirely unfranked. A franking credit is a nominal unit of tax paid by companies using dividend imputation.

Shareholders who are residents of Australia for tax purposes include in their assessable income the grossed-up dividend amount (being the total of the dividend payable plus the associated franking credits). The income tax payable by the shareholders is calculated, and the franking credits are applied to offset the tax payable. In Australia and New Zealand the end result is the elimination of double taxation of company profits.

Refund

Franking credits on dividends received after 1 July 2000 are refundable tax credits. It is a form of tax prepayment, which can reduce a taxpayer's total tax liability, with any excess being refunded. For example, an individual with income below the tax-free threshold ($18,200 since 2011/12) will pay no tax at all and can get a refund of the franking credits in full, after a tax return is lodged.

Prior to 1 July 2000 such excess franking credits were lost. For example, an individual at that time paying no tax would get nothing back, and would merely keep the cash part of the dividend received.

Investors

A franking credit is income received by the shareholder, though it is not paid in cash. It is a credit towards tax that may be payable by the shareholder. Thus a franked dividend of $0.70 plus a $0.30 franking credit is equivalent to an unfranked dividend of $1.00, or to bank interest of $1.00, or any other ordinary income of that amount. (It is exactly equivalent because franking credits are fully refundable, as described above.)

Franked dividends are often described as a "tax effective" form of income. The basis for this is that the cash $0.70 looks like it is taxed at a lower rate than other income. For example, for an individual on the top rate of 48.5% (for 2006) the calculation is $0.70 plus $0.30 credit is $1.00 on which $0.485 tax is payable, but less the $0.30 credit makes $0.185 net tax, which is just 26.4% of the original $0.70. Conversely, an individual on the 20% marginal tax rate actually gets a $0.10 rebate. In this latter case, the rebate looks very much like negative tax.

There's nothing inherently wrong with the latter way of thinking about franked dividends, and it is frequently made to demonstrate how franking benefits the investor, but it can be argued a grossing-up like the former is better when comparing yields across different investment opportunities.

Restrictions on eligibility

There are restrictions on who can claim franking credits. Those who cannot claim the credit simply declare as income the cash part of the dividend amount received, and ignore the franking credit on the tax return. The "holding period rule" has applied since 1 July 2000. Its objective is to prevent traders buying shares on the last cum-dividend date and selling them the following day ex-dividend. The typical result would be that the trader would receive the dividend, together with the franking credits, while incurring an equivalent capital loss and qualifying for the franking credit with only overnight risk in holding the shares.

An eligible shareholder is one who either:

• holds the shares for a continuous period of 45 days or more (not counting purchase and sale days); or 90 days in the case of certain preference shares. This is the "holding period rule". Shares must be "at risk" for the necessary period, i.e. not with an offsetting derivatives position for instance, or

• has total franking credits for the tax year of less than $5000 (the "small shareholder exemption") and has not arranged to pass-on the benefits to someone else (the "related payments rule").

Thus franking credits are not available to short-term traders, only to longer term holders, but with small holders exempted provided it's for their own benefit.

The small shareholder exemption is not a "first $5000", but rather once the $5000 threshold is passed the rule is inoperative and all the shares are under the holding period rule.

For the holding period rule, parcels of shares bought and sold at different times are reckoned on a "first in, last out" basis. Each sale is taken to be of the most recently purchased shares. This prevents a taxpayer buying just before a dividend, selling just after, and asserting it was older shares sold (to try to fulfill the holding period).

This "first in, last out" reckoning may be contrasted with capital gains tax. For capital gains the shareholder can nominate what parcel was sold from among those bought at different times.

Company shareholders

A dividend received by a company shareholder is income of the receiving company, but the dividend income is not grossed-up for the franking credit nor is the receiving company entitled to claim the franking credit as a tax credit. Instead, the franking credit is added directly to the receiving company's franking account, and can be paid out in the same way as franking credits generated by the receiving company.

This transfer of credits has made the previous "intercorporate rebates" allowances redundant. Those rebates had avoided double taxation on dividends paid from one company to another company. Those rebates were part of the original 1936 Taxation Act (section 46), meaning that the principle of eliminating double taxation has been present to some degree in Australian income tax law for a very long time.

The company tax rate has changed a few times since the introduction of dividend imputation. In each case transitional rules have been made to maintain the principle of reversing the original tax paid, even if the tax rate has changed. This has been either by separate franking accounts for separate rates (e.g. class A 39%, class B 33%), or making an adjusting recalculation of the credits (e.g. into class C 30%).

Trans-Tasman Imputation

New Zealand companies can apply to join the Australian dividend imputation system (from 2003). Doing so allows them to attach Australian franking credits to their dividends, for Australian tax they have paid. Those credits can then be used by shareholders who are Australian taxpayers, the same as dividends from an Australian company.

There are certain anti-tax-avoidance rules to prevent New Zealand companies deliberately streaming Australian franking credits towards their Australian shareholders; credits must be distributed on a pro-rata basis.

Note that it is only Australian franking credits which can be used by an Australian taxpayer. New Zealand imputation credits on dividends paid to an Australian shareholder cannot be used against that shareholder's Australian taxes.

Dividend streaming

A company can determine the level of franking credits it will attach to its dividends, and they are not obliged to attach any franking credits. However, it costs the company nothing to attach the maximum amounts of credits it has available, which is the usual practice to benefit eligible shareholders. It is actually possible for a company to attach more franking credits than it has, but doing so attracts certain tax penalties.

Until 2002 it was permissible for companies to direct the flow of franking credits preferentially to one type of shareholder over another so that each could benefit the most as fits their tax circumstances. For example, franking credits are of no use to foreign shareholders, who cannot offset them against withholding tax, but Australian shareholders can claim them as a tax credit. This practice, known as dividend streaming, became illegal in 2002, after which all dividends within a given time frame must be franked to a similar (but need not be identical) degree irrespective of shareholder location or which class of shares they hold.

Division 7A and debit loans by private companies

Division 7A of the Tax Act applies where there is a loan, payment or the forgiveness of a loan to a shareholder or an associate of a shareholder of a private company.^[7] When such amounts are not repaid by the end of a financial year they may be treated as unfranked dividends. The total of all dividends a private company can be taken to pay under Division 7A is limited to its "distributable surplus" for that income year, which includes the retained earnings plus provisions made for accounting purposes.^[8]

An ‘associate’ is very broad and generally includes a trust under which a shareholder can benefit.^[9] This will mean that Division 7A can apply to loans to discretionary trusts and unit trusts in the family group, and sometimes to such trusts not in a family group.

Effective elimination of company tax and thus incentives

To a large extent, dividend imputation makes company tax irrelevant. This is because every dollar that a company pays in company tax can be claimed by the shareholder as franking credit, with no net revenue flowing to the government. (There are exceptions which include profits retained by the company that are never paid as dividends, and payments to international investors.)

When gross company tax is reported by Treasury, it is unclear whether the number generally includes the effect of the corresponding franking credits.

One effect is that this has reduced the effectiveness of tax incentives for corporations. If a corporation was given a tax break then its incomes thus released from taxation would not generate franking credits precisely because no tax was paid. In turn, this meant that the shareholders received fewer credits along with their dividends, meaning in turn that they had to pay more tax.

The net result is that each tax break a corporation itself got was countered by a matching increase in the tax burden of shareholders, leaving shareholders in exactly the same position had no tax break been received by the corporation. Thus, to the extent that corporate directors acted so as to increase shareholder wealth, tax incentives would not influence corporate behaviour.

Politics and economics

Dividend imputation has been uncontroversial over most of its lifetime. Investors and their advisors recognise the benefits and are supportive.

In October 2006, the Committee for Economic Development of Australia released a report, Tax Cuts to Compete, concluding that dividend imputation had proved an inefficient means of reducing Australia's cost of capital. The report, authored by prominent economist Dr Nicholas Gruen, argued that the elimination of imputation would allow the funding of a substantial corporate tax cut. This would attract foreign investment and thus increase economic growth, it said.

See also

• Corporate tax
• Dividend stripping, on buying shares to access dividends
• Dividend tax
• fr:Avoir fiscal (in French)

References

External links

• Australian Taxation Office guide You and Your Shares 2005, product NAT 2632-6.2005
• Australian Taxation Office fact sheet Trans-Tasman Imputation Overview