Digital Games Tax Offset | What Does it Mean?01 JULY 2023 | by Tasman Wylie
On 23 June 2023, the Digital Games Tax Offset (DGTO) became law1. The DGTO is intended to provide eligible video game developers with a 30% refundable tax offset for qualifying Australian development expenditure.
Whilst this is a flashy headline, what does it actually mean in plain English?
1. What is a refundable tax offset?
Typically, a tax offset is an amount of money spent by a company which can be used later to offset the tax you have payable.
In the case of the DGTO, it is a refundable offset. This means if you have $1,000 worth of tax but an offset of $2,000, the ATO will return $1,000 to you as a tax refund.
Effectively this can be a way for the government to contribute to and boost the development budget of a video game (you just have to spend the money first to then claim some of the budget back).
2. Who is entitled to claim the offset?
The following criteria must be met to claim the offset:
a. The applicant must be a company that is an Australian resident and hold an ABN or be a foreign resident that is permanently established in Australia with an ABN. This means if you are a sole trader, partnership or trust you are not eligible.
[NB. To claim the offset you should ensure you have the correct legal structure in place.]
b. A minimum budget of $500,000 is spent in an income year on qualifying Australian development expenditure (see point d below).
c. The game is an original game.
[NB: I am yet to see guidance as to what constitutes an ‘original’ game. This will be a matter for the Arts Minister who is expected to release further information in early July 2023.]
d. Development expenditure covers a variety of activities. The full list can be found here, but notably includes:
- remuneration to persons (including independent contractors) who perform services for the development (including, project managers, designers, writers, software developers, testers and more);
- underlying game infrastructure (ie. game engines);
It also notably excludes:
- marketing and user acquisition;
- travel and accommodation expenses;
- land/premises (ie. rent);
- acquiring copyright, a trade mark or image rights; and
- computer hardware or services.
e. That the development expenditure is Australian, meaning that the goods or services are acquired in Australia.
[NB. This may rule out some expenditure where it is acquired overseas. For instance, a US based artist is contracted to provide character designs.]
3. How much can I claim?
A company may claim up to 30% of all qualifying expenditure (ie. if you spend $1m then $300,000 may be claimed as an offset).
This is up to a maximum of $20m in one year.
This can also be claimed across multiple games being developed, however the cap of $20m remains. For example, if you developed 3 games with a budget of $30m each (ie. a total budget of $90m), the maximum offset is still $20m. The ATO guidance is that $66.7m is the approximate limit of a game’s budget that can be claimed.
[NB. The Government groups related companies. For example, if you are developing two games from two separate companies, the ATO will note this and will add the total expenditure of each company together for the purposes of applying the cap.]
4. Do I need a certificate?
Yes. Prior to filing an offset claim with the ATO, you will require a certificate (being a: completion, porting or on-going certificate) from the Arts Minister.
The Arts Minister is tasked with verifying the above requirements and the certificate is issued once verification is complete.
5. What counts as a video game?
The definition under the act is broad and covers video games in the ordinary meaning. But specifically, under the act, a ‘digital game’ is a game in electronic form that is capable of generating a display on:
a. a portable electronic device; or
b. a computer monitor, television screen, liquid crystal display or similar medium.
My initial takeaway is that the DGTO is likely to benefit larger developers far more than indie developers.
The minimum threshold of $500k development expenditure will rule out a lot of independent studios, particularly when you consider the expenditure that is ruled out from ‘qualifying’. So even a game with a $500k+ budget may not qualify.
If you would like assistance identifying whether you qualify for the offset or you would like to apply for a certificate, please do not hesitate to reach out to Tasman Wylie, Senior Associate, at firstname.lastname@example.org or 08 8235 3033.
1 Treasury Laws Amendment (2022 Measures No.4) Bill 2023
The content of this newsletter is for general information purposes only and should in no way be treated as formal legal advice.