What constitutes an arm’s-length amount of debt? The ATO weighs in with PCG 2025/D2
Today, 29 May 2025, the Australian Taxation Office (ATO) issued its long-awaited transfer pricing guidance, Draft Practical Compliance Guideline: 2025/D2 Factors to consider when determining the amount of your inbound, cross-border related party financing arrangement – ATO compliance approach (PCG 2025/D2). The ATO developed this guidance in the wake of legislation ratified by Parliament last year (Treasury Laws Amendment (Making Multinationals Pay Their Fair Share - Integrity and Transparency) Act 2024), which modified how Australia’s thin capitalisation and transfer pricing provisions interact.
PCG 2025/D2 provides a framework for taxpayers to assess the tax risk associated with their inbound, cross-border related-party financing arrangements under the transfer pricing provisions. However, it does so only for taxpayers that are general class investors and financial entities that elect the third-party debt test under Australia’s thin capitalisation legislation.
As with certain other recent ATO Practical Compliance Guidelines, PCG 2025/D2 (The PCG) adopts a ‘risk zone’ approach, with a range of colour-coded risk outcomes, including:
- White Zone - arrangements that have already been evaluated
- Green Zone - arrangements characterised as low risk
- Blue Zone - arrangements where the compliance risk has not been assessed, and
- Red Zone - arrangements characterised as high risk.
White Zone arrangements need not be self-assessed. Green Zone arrangements are either consistent with a ‘low risk’ example in The PCG or have been reviewed by the ATO and classified low risk. Blue Zone arrangements are neither low risk nor high risk, while Red Zone arrangements are either covered by a high-risk example in The PCG or have received a ‘low assurance’ rating from the ATO.
In the ruling, the ATO relates its view of how independent entities evaluate available sources of financing through an evaluation of options realistically available to them. It also summarises its view of the merits of various sources of financing, including internally generated funds, debt and equity.
The ATO suggests a number of factors that taxpayers should consider when determining the arm’s length nature of an intra-group financing arrangement. These include:
- The funding requirements of the entity
- Group policies and practices
- Required returns to shareholders
- The cost of funds to the borrower
- The potential impact of covenants
- The role of explicit guarantees
- The impact of pledging security (collateral)
- The serviceability of the debt assumed
- Total leverage.
The ATO assigns taxpayers that rely upon the third-party debt test (broadly, where all third-party debt is solely used to fund Australian commercial activities and where the lenders only have recourse to Australian assets associated with the loan) and taxpayers that have leverage and interest coverage ratios (as defined by the ATO in the PCG) that are equal to or better than its global group and comparable entities as ‘low risk’.
The ATO classifies taxpayers that both have outstanding debt and significant cash reserves, entities with explicit guarantees that borrow more than they might have without the credit guarantee, and taxpayers that on-lend funds to a related party at a rate below the rate at which they borrowed the funds as ‘high risk’.
The ATO affirms in The PCG that taxpayers should prepare transfer pricing documentation for their related-party loan arrangements for each income year that the financing arrangement is outstanding, citing the ATO’s existing guidance on transfer pricing documentation, TR 2014/8.
Once finalised, the ATO plans to apply PCG 2025/D2 to income years commencing on or after 1 July 2023 and to existing and newly created financing arrangements.
As with other transfer pricing related Practical Compliance Guidelines, the ATO notes that this guidance “is general in nature, does not constitute a ‘safe harbour’ and does not replace, alter, or affect [the ATO’s] interpretation of the law in any way.” While the ATO may use this framework for risk profiling, it does not represent the ATO’s interpretation of actual tax law.
Clearly, The PCG represents the ATO’s considered views, though ones that reflect a specific perspective that potentially creates challenges for taxpayers. We will release a follow-up analysis of some of these challenges and how they might be addressed soon.
How BDO can help
If you need any assistance, contact our team of expert transfer pricing advisers.
