In brief

The Australian Treasury has released an exposure draft of legislation, which, if implemented, would require operators of electronic platforms to report to the Australian Taxation Office (ATO) identification and payment information regarding the sellers that participate on their platforms (“Sellers“). 

The draft legislation adopts definitions and concepts used in Australia’s GST law and in particular, the concept of “Electronic Distribution Platforms” (EDPs). The new regime will see both onshore and offshore EDPs have a greater obligation with respect to supplies flowing through the platform. Platforms responding to these new rules will need to take into account not only the tax, but also the non-tax privacy aspects of such reporting.

While a finalised list of data points that will have to be reported is not yet available, it is expected that the ATO will, at a minimum, require information which will allow it to have a reasonable level of assurance about each Seller’s identity and tax obligations (e.g., full legal name, bank account details, total gross payments received from the platform). 

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If enacted, this reporting regime will apply to transactions in the short-term accommodation and ride-sharing economies from 1 July 2022. However, the regime is drafted and stated as applying to a broader range of transactions. Platforms that facilitate transactions in all other sharing/gig economies will be subject from 1 July 2023.

Interested parties are invited and encouraged to comment on the exposure draft – submissions should be made before 2 August 2021.

Please see below for more details.

In more detail

Background

The sharing economy reporting regime was one of the recommendations that was proposed by the Black Economy Taskforce in 2017. This exposure draft follows the initial public consultation process that occurred in 2019 – the proposed regime purports to ensure that sharing economy sellers are meeting their tax obligations, and that these sellers do not have an unfair advantage compared to similar activities elsewhere in the economy with better tax compliance. 

Scope of reporting regime’s application

Operators of EDPs will be subject to the reporting regime.  “EDP” is defined in GST legislation and has a very broad reach, effectively capturing any services (including websites, internet portals, gateways, stores, or marketplaces) that are delivered by means of electronic communication and allow entities to make supplies available to end-users.  In our experience, this “EDP” definition is broad enough to capture non-traditional marketplaces on which participants simultaneously buy and sell to each other.

Any supply that is ‘connected with Australia’ under GST concepts, and is made through an EDP, is slated to be a reportable transaction.

Although the informal fact sheet that summarises the proposed regime states that “transactions where the service, loaned assets, or property does not take place in Australia” are exempt from reporting, that statement is not grounded in the draft legislation and it is unclear to what extent the regime will apply to supplies made by onshore and offshore parties selling into Australia. The reporting regime does grant the Commissioner discretion to issue legislative instruments to exempt additional classes of transactions from being reportable, however, whether this will happen or not is currently unclear. Even if such a legislative instrument is issued, there remains a grey area for electronic services that are delivered through a data centre/service located in Australia – depending on how the legislative instrument is worded, these supplies arguably take place in Australia but potentially fall short of being ‘connected with Australia’ on the basis that they are not ‘done’ in Australia nor made through an enterprise carried on in Australia.

For completeness, services that only advertise or create awareness of possible supplies (e.g., online classifieds, listing, advertising services) are generally considered not to be EDPs.

Exemptions and carve-outs

 Generally, platform operators will not be required to report under the following exemptions:

1. transactions where only the title/ownership of goods are exchanged
2. transactions for financial supplies (such as financial securities trading)
3. transactions relating to the transfer of ownership of real property
4. transactions subject to certain tax withholding requirements (such as payments to suppliers on which amounts are required to be withheld under the No-ABN withholding regime)
5. transactions where the seller is also the operator of the platform (such as where an EDP operates under a reseller model as opposed to a facilitator model)

Mechanics of reporting

The ATO has yet to confirm the reporting frequency, but it is expected that there will be two reporting periods per annum. 

The regime will apply from 1 July 2022 to transactions relating to:

• supplies of a taxi travel (as defined in the GST legislation, which includes ride-sharing)
• supplies of short-term accommodation

For every other type of transaction, the regime will apply from 1 July 2023. The different application dates are because data matching protocols already exist between the ATO and the operators of platforms that commonly facilitate taxi travel and short-term accommodation transactions.

As noted above, the Commissioner of Taxation (“Commissioner“) may specify the information required to be reported, but has yet to do so. We note that the Commissioner may only request for information that relates to the identification, collection, recovery, or reduction of a possible taxation liability. The following table, which sets out the possible data points which may eventually be required, can be found in the fact sheet to the exposure draft materials.

Seller identification information	Total consideration and transaction information for the reporting period
Full legal name	Total gross payment to seller
Date of birth	Total net payments to seller
Primary address	GST attributable to total gross payments
Bank account details	Total fees, commissions, etc. withheld
ABN or foreign tax identification number, if supplied	GST attributable to total fees, commissions, etc.
Telephone details, if supplied	Property address if transaction relates to the rental of real property
E-mail details, if supplied	Period for which property booked during reporting period if transaction relates to the rental of real property

Other considerations

Neither the initial 2019 consultation process nor the exposure draft materials contain any comments from Treasury or ATO acknowledging that certain reporting entities (i.e., the entities that contract/enter into T&Cs with its platform participants) may host and hold user data in overseas jurisdictions or that access to the data may be controlled by another party (e.g., a related entity) which is not subject to the application of the reporting regime. It remains to be seen how the ATO and platform operators will practically manage the interaction between reporting entities’ obligations under this new regime, where and which entities hold the data and the various overseas privacy obligations that may apply. 

In addition, platform operators with an Australian user base will almost invariably be subject to the Privacy Act 1988 (Cth) (“Australian Privacy Act“), which (among other things) requires transparency, through privacy policies and collection notices, around: laws which authorise or require collection of personal information; the purposes of disclosure of personal information; and the likely recipients of disclosed personal information. Platform operators will need to review their user documentation to ensure it adequately addresses EDP reporting to the ATO.

While the Australian Privacy Act expressly allows disclosures of personal information that are required by law, platform operators should be aware that providing the ATO with any more information than is strictly required is unlikely to be permitted unless they have given sufficient notices and obtained user consent.

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Special thanks to Jeffrey Leung (Associate – Tax), Alexandra Stead (Senior Associate – Tax) and Liz Grimwood Taylor (Knowledge Lawyer) for assisting with preparing this alert.