A taxpayer was denied the R&D tax incentive as a "finding" covering activities conducted overseas was not in force.
The taxpayer company designed and developed an electric tricycle. Many of the components, such as the chassis, side sections, door sections and wiring, were manufactured or assembled in China. The taxpayer claimed the R&D tax incentive for the 2018 income year and received a refund of almost $750,000. However, the ATO later issued an amended assessment reducing the refund by just over $700,000 and imposed a shortfall penalty of just over $350,000. The ATO made that decision on the basis that the overseas activities were not covered by a finding in force under the Industry Research and Development Act 1986.
The taxpayer contended that the core R&D activities were solely conducted in Australia and therefore an overseas finding was not required. The AAT, however, agreed with the ATO finding that the supporting R&D activities "plainly go beyond the mere supply of components". As those supporting activities were conducted overseas, the taxpayer was required to have an overseas finding but it did not.
The AAT also upheld the shortfall penalty as there were no circumstances justifying any remission. (T.D.S BIZ PTY LTD and FCT [2022] AATA 3543, AAT, Poljak SM, 25 October 2022.)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2022/3543.html
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