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TAXATION LAWS AMENDMENT (FOREIGN INCOME) ACT 1990 No. 5 of 1991 - SECT 49
49. After section 315 of the Principal Act the following Part is inserted:
"PART X - ATTRIBUTION OF INCOME IN RESPECT OF CONTROLLED FOREIGN COMPANIES
"Division 1 - Preliminary
Object of Part
"316. (1) The object of this Part is to provide for certain amounts to be
included in a taxpayer's assessable income (Division 9) in respect of:
(a) the attributable income of a CFC (section 456); and
(b) certain changes of residence by a CFC (section 457); and
(c) certain dividends paid by a CFC (sections 458 and 459).
"(2) To that end (and for other purposes of this Act) this Part contains rules
relating to the following:
(a) interpretation (Division 1);
(b) types of entities (Division 2);
(c) control interests, attribution interests, attributable taxpayers and
attribution percentages (Division 3);
(d) attribution accounts (Division 4);
(e) attributed tax accounts (Division 5);
(f) exempting receipts etc. (Division 6);
(g) the calculation of attributable income of a CFC (Division 7);
(h) the active income test (Division 8);
(j) post-attribution asset disposals (Division 10);
(k) the keeping of records (Division 11). Interpretation
"317. In this Part, unless the contrary intention appears: `accounting
period', in relation to company, means an accounting period used by the
company in the accounts by reference to which it distributes dividends;
`accounting records' includes invoices, receipts, orders for the payment of
money, bills of exchange, cheques, promissory notes, vouchers and other
documents of prime entry and also includes such working papers and other
documents as are necessary to explain the methods and calculations by which
accounts are made up; `accounts' means ledgers, journals, profit and loss
accounts and balance-sheets, and includes statements, reports and notes
attached to, or intended to be read with, any of the foregoing; `active income
test' has the meaning given by section 432; `adjusted tainted income' has the
meaning given by section 386; `AFI' or `Australian financial institution'
means any of the following Australian entities:
(a) a bank within the meaning of the Banking Act 1959;
(b) a person who carries on State banking within the meaning of paragraph
51 (xiii) of the Constitution;
(c) a registered corporation within the meaning of the Financial
Corporations Act 1974 ;
(d) a life assurance company; `AFI subsidiary' or `Australian financial
institution subsidiary' has the meaning given by section 326;
`aircraft' means a machine or apparatus that can derive support in the
atmosphere from the reactions of the air or from buoyancy, but does
not include an air-cushion vehicle; `associate' has the meaning given
by section 318; `associate-inclusive control interest' has the meaning
given by section 349; `attributable income' has the meaning given by
Division 7; `attributable taxpayer', has the meaning given by section
361; `attributed tax account credit' has the meaning given by section
375; `attributed tax account debit' has the meaning given by section
376; `attributed tax account surplus' has the meaning given by section
374; `attribution account entity' has the meaning given by section
363; `attribution account payment' has the meaning given by section
365; `attribution credit' has the meaning given by section 371;
`attribution debit' has the meaning given by section 372; `attribution
percentage' has the meaning given by section 362; `attribution tracing
interest':
(a) in relation to a CFC - has the meaning given by section 358; and
(b) in relation to a CFP - has the meaning given by section 359; and
(c) in relation to a CFT - has the meaning given by section 360;
`Australian 1% entity', in relation to a company or trust, means an
Australian entity whose associate inclusive control interest in the
company or trust is at least 1%; `Australian entity' has the meaning
given by section 336; `Australian partnership' has the meaning given
by section 337; `Australian tax' means income tax or withholding tax;
`Australian trust' has the meaning given by section 338; `CFC' or
`controlled foreign company' has the meaning given by section 340;
`CFE' or `controlled foreign entity' has the meaning given by section
339; `CFP' or `controlled foreign partnership' has the meaning given
by section 341; `CFT' or `controlled foreign trust' has the meaning
given by section 342; `CGT roll-over provisions' means section 160ZZF
and Divisions 5A, 7A and 17 of Part IIIA; `commodity' means any thing
that is capable of delivery under an agreement for its delivery, but
does not include an instrument creating or evidencing a chose in
action; `commodity investment' means:
(a) either of the following contracts:
(i) a forward contract in respect of a commodity;
(ii) a futures contract in respect of a commodity; or
(b) a right or option in respect of such a contract; `company' does not
include a company in the capacity of trustee; `company title
interest', in relation to land, means a right of occupancy of the
land, or of a building or part of a building erected on the land,
arising by virtue of the holding of shares, or by virtue of a contract
to purchase shares, in a company that owns the land or building;
`control tracing interest':
(a) in relation to a CFC - has the meaning given by section 353; or
(b) in relation to a CFP - has the meaning given by section 354; or
(c) in relation to a CFT - has the meaning given by section 355; `currency
exchange gain', in relation to a company, in relation to a statutory
accounting period, means a currency gain realised by the company in
the statutory accounting period, to the extent to which it is
attributable to currency exchange rate fluctuations; `currency
exchange loss', in relation to a company, in relation to a statutory
accounting period, means a currency loss realised by the company in
the statutory accounting period, to the extent to which it is
attributable to currency exchange rate fluctuations; `de facto
marriage' means a relationship between 2 persons who, although not
legally married to each other, live with each other on a bona fide
domestic basis as husband and wife; `depreciation provision' means any
of sections 54 to 62 of Division 3 of Part III, or any provision of
Divisions 10, 10AAA, 10AA, 10A, 10C and 10D of that Part; `designated
concession income', in relation to a particular listed country, means
income or profits of a kind specified in the regulations where:
(a) either of the following subparagraphs applies:
(i) foreign tax imposed by a tax law of the listed country is not payable
in respect of the income or profits because of a particular feature;
(ii) foreign tax imposed by a tax law of the listed country is payable in
respect of the income or profits but there is a feature in relation to
that tax; and
(b) the feature is of a kind specified in the regulations; `direct
attribution account interest' has the meaning given by section 366;
`direct attribution interest' has the meaning given by section 356;
`direct control interest':
(a) in relation to a company - has the meaning given by section 350;
(b) in relation to a trust - has the meaning given by section 351;
`discretionary trust' means a trust where:
(a) both of the following conditions are satisfied:
(i) a person (who may include the trustee) is empowered (either
unconditionally or on the fulfilment of a condition) to exercise any
power of appointment or other discretion;
(ii) the exercise of the power or discretion, or the failure to exercise
the power or discretion, has the effect of determining, to any extent,
either or both of the following:
(A) the identities of those who may benefit under the trust;
(B) how beneficiaries are to benefit, as between themselves,
under the trust; or
(b) one or more of the beneficiaries under the trust have a contingent or
defeasible interest in some or all of the corpus or income of the
trust; or
(c) the trustee of another trust, being a trust where both of the
conditions in paragraph (a) are satisfied, benefits or is capable
(whether by the exercise of a power of appointment or otherwise) of
benefiting, under the first-mentioned trust; `disposal', in relation
to an asset, includes redemption; `distributable profits', in relation
to a company, means the amount, whether of an income or capital
nature, that, having regard to the accounts of the company and such
other matters as may reasonably be regarded as relevant, constitutes
profits of the company that would be available for distribution by the
company by way of dividends if there were disregarded any requirement
of the constituent document, or of any resolution or decision, of the
company restricting the availability of the profits for distribution
in that way, other than any requirement providing for an eligible
provision or reserve; `double tax agreement', in relation to a foreign
country, means:
(a) if there is only one agreement (within the meaning of the Income Tax
(International Agreements) Act 1953) in force in respect of the
foreign country - that agreement; or
(b) if there are 2 or more agreements (within the meaning of that Act) in
force in respect of the foreign country - the agreement that is
expressed to be:
(i) for the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on income; or
(ii) for the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on income and capital; or
(iii) for the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on income and on capital; or
(iv) for the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on income and capital gains; or
(v) for the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on income and capital and to certain
other taxes; `eligible designated concession income', in relation to a
listed country, in relation to a particular period (in this definition
called the `income period'), means designated concession income in
relation to the listed country:
(a) that is not subject to tax in another listed country in a tax
accounting period:
(i) ending before the end of the income period; or
(ii) commencing during the income period; or
(b) that is:
(i) subject to tax in another listed country in a tax accounting period:
(A) ending before the end of the income period; or
(B) commencing during the income period; and
(ii) designated concession income in relation to that other listed country;
`eligible finance share' has the meaning given by section 327;
`eligible finance share dividend' means a dividend in respect of an
eligible finance share; `eligible provision or reserve' means:
(a) a provision or reserve required to be maintained by law; or
(b) a provision for any liability in respect of foreign tax or Australian
tax; or
(c) a reserve maintained for the purpose of qualifying for relief from
foreign tax; or
(d) a provision or reserve for depreciation, bad or doubtful debts or
leave payments; or
(e) any other provision or reserve of a kind prescribed by regulations for
the purposes of this paragraph; `eligible transferor' has the meaning
given by sections 347 and 348; `entitled to acquire' has the meaning
given by section 322; `entity' means any of the following:
(a) a company;
(b) a partnership;
(c) a person in the capacity of trustee;
(d) any other person; `exempting profits' has the meaning given by section
378; `exempting profits percentage' has the meaning given by section
379; `exempting receipt' has the meaning given by section 377 (in
relation to a company that is a resident of an unlisted country) or
section 380 (in relation to a company that is a resident within the
meaning of section 6); `factoring income' means income derived from
carrying on a business of factoring; `financial intermediary business'
means:
(a) banking business; or
(b) a business whose income is principally derived from the lending of
money; `general insurance company' means a company whose sole or
principal business is insurance business within the meaning of
subsection 3 (1) of the Insurance Act 1973, but does not include a
life assurance company; `goods' includes:
(a) ships, aircraft and other vehicles; and
(b) animals, including fish; and
(c) minerals, trees and crops, whether on, under or attached to land or
not; and
(d) gas and electricity; `grossed-up amount' has the meaning given by
section 373; `gross tainted turnover' has the meaning given by section
435; `gross turnover' has the meaning given by section 434; `group'
includes:
(a) one entity alone; and
(b) a number of entities the members of which are not in any way
associated with each other nor acting together; `income interest in a
partnership' means an interest in the profits of the partnership;
`income interest in a trust' means an interest in the income of the
trust; `indirect attribution account interest' has the meaning given
by section 369; `indirect attribution interest' has the meaning given
by section 357; `indirect control interest' has the meaning given by
section 352; `IP time' means 7.30 p.m., by standard time in the
Australian Capital Territory, on 12 April 1989; `law', in relation to
a listed country or an unlisted country, means a law of that listed
country or unlisted country, or of any part of, or place in, that
listed country or unlisted country; `lease' includes a sublease and,
in relation to a company title interest in land, includes an agreement
similar to a lease or sublease; `leased' includes let on hire
(including a letting on hire that is described in the relevant
agreement as a lease) under an agreement other than a hire-purchase
agreement; `life assurance company' has the same meaning as in section
110; `life assurance policy' has the same meaning as in section 110;
`life assurance premiums' means premiums (within the meaning of
section 110) in respect of life assurance policies; `listed country'
has the meaning given by section 320; `member of a non-portfolio
company group' has the meaning given by section 334; `net tainted
commodity gains' has the meaning given by section 443; `net tainted
currency exchange gains' has the meaning given by section 444;
`non-attributable income period', in relation to a taxpayer in
relation to a company in relation to the application of a provision of
this Act in accordance with Division 7, means a statutory accounting
period of the company for which:
(a) there is no requirement to calculate under Division 7 the attributable
income of the company in relation to the taxpayer; or
(b) there is a requirement to calculate under Division 7 the attributable
income of the company in relation to the taxpayer, but the particular
provision is not relevant to that calculation; `non-discretionary
trust' means a trust other than a discretionary trust; `non-portfolio
dividend' means a dividend paid to a company where that company has a
voting interest, within the meaning of section 160AFB, amounting to at
least 10% of the voting power, within the meaning of that section, in
the company paying the dividend; `non-resident family trust' has the
meaning given by section 328; `non-share forward contract' means a
forward contract that is not in respect of shares or a share price
index; `non-share futures contract' means a futures contract that is
not in respect of shares or a share price index; `notional allowable
deduction' has the meaning given by subsection 382 (2); `notional
assessable income' has the meaning given by subsection 382 (2);
`notional exempt income' has the meaning given by subsection 382 (2);
`Part X Australian resident' means a resident within the meaning of
section 6, but does not include an entity where:
(a) there is a double tax agreement in force in respect of a foreign
country; and
(b) that agreement contains a provision that is expressed to apply where,
apart from the provision, the entity would, for the purposes of the
agreement, be both a resident of Australia and a resident of the
foreign country; and
(c) that provision has the effect that the entity is, for the purposes of
the agreement, a resident solely of the foreign country; `passive
income' has the meaning given by section 446; `premium income' means:
(a) premiums in respect of insurance or reinsurance; or
(b) life assurance premiums; `profits' includes gains, whether of an
income or capital nature; `property management services' includes any
of the following services:
(a) cleaning;
(b) secretarial;
(c) catering; `provide', in relation to services, includes allow, confer,
give, grant or perform; `public unit trust' has the meaning given by
section 329; `recognised accounts':
(a) in relation to a company, in relation to a statutory accounting
period, means the accounts referred to in subparagraph 432 (1) (c)
that are prepared by the company for the statutory accounting period;
or
(b) in relation to a partnership in which a company is a partner at any
time during a statutory accounting period, means the accounts referred
to in paragraph 437 (1) (b) that are prepared by the partnership for
the statutory accounting period; `rent' means any consideration (in
this definition called a `rental consideration') paid or given by a
lessee under a lease and includes consideration (whether paid or given
by a lessee or another person) in the nature of a rental
consideration; `residency assumption', in relation to a CFC, means the
assumption about the residence of the CFC that is made in paragraph
383 (a); `retention period', in relation to a statutory accounting
period, means the period of 5 years commencing at the end of the
statutory accounting period; `sale', in relation to goods, includes
exchange or hire-purchase and `purchase', when used in relation to
goods, has a corresponding meaning; `services' includes any benefit,
right (including a right in relation to, and an interest in, real or
personal property), privilege or facility and, without limiting the
generality of the foregoing, includes a right, benefit, privilege,
service or facility that is, or is to be, provided under:
(a) an arrangement for or in relation to:
(i) the performance of work (including work of a professional
nature), whether with or without the provision of property; or
(ii) the provision of, or of the use of facilities for,
entertainment, recreation or instruction; or
(iii) the conferring of rights, benefits or privileges for which
remuneration is payable in the form of a royalty, tribute, levy
or similar exaction; or
(b) a contract of insurance; or
(c) an arrangement for or in relation to the lending of money; `ship'
means a vessel or boat of any description, and includes:
(a) an air-cushion vehicle; and
(b) any floating structure; `statutory accounting period' has the meaning
given by section 319; `subject to tax' has the meaning given by
section 324; `tainted asset', in relation to a company, means:
(a) any of the following:
(i) loans (including deposits with a bank or other financial institution);
(ii) debenture stock, bonds, debentures, certificates of entitlement, bills
of exchange, promissory notes or other securities;
(iii) shares in a company;
(iv) an interest in a trust or partnership;
(v) futures contracts;
(vi) forward contracts;
(vii) interest rate swap contracts;
(viii) currency swap contracts;
(ix) forward exchange rate contracts;
(x) forward interest rate contracts;
(xi) life assurance policies;
(xii) a right or option in respect of such a loan, security, share,
interest, contract or policy;
(xiii) any similar financial instrument; or
(b) an asset that was held by the company solely or principally for the
purpose of deriving tainted rental income; or
(c) an asset other than:
(i) trading stock; or
(ii) any other asset used solely in carrying on a business; but does not
include a commodity investment; `tainted commodity gain', in relation
to a company, in relation to a statutory accounting period, means a
gain realised by the company in the statutory accounting period from
disposing of a tainted commodity investment; `tainted commodity
investment', in relation to a company, means:
(a) either of the following contracts:
(i) a forward contract in respect of a commodity;
(ii) a futures contract in respect of a commodity; or
(b) a right or option in respect of such a contract; except where either
of the following conditions is satisfied:
(c) both of the following subparagraphs apply:
(i) the company carries on:
(A) a business of producing or processing the commodity; or
(B) a business that involves the use of the commodity as a
raw material in a production process;
(ii) the contract, right or option relates to the carrying on of that
business;
(d) both of the following subparagraphs apply in relation to the contract:
(i) the contract was entered into by the company for the sole purpose of
eliminating or reducing the risk of adverse financial consequences
that might result for the company, under another contract, from
fluctuations in the price of the commodity;
(ii) the company does not and will not derive tainted sales income from a
transaction under that other contract; `tainted commodity loss', in
relation to a company, in relation to a statutory accounting period,
means a loss realised by the company in the statutory accounting
period from disposing of a tainted commodity investment; `tainted
currency exchange gain', in relation to a company, in relation to a
statutory accounting period, means a currency exchange gain realised
by the company in the statutory accounting period except where the
gain related to an active income transaction (within the meaning of
section 439); `tainted currency exchange loss', in relation to a
company, in relation to a statutory accounting period, means a
currency exchange loss realised by the company during the statutory
accounting period except where the loss related to an active income
transaction (within the meaning of section 439); `tainted income
ratio' has the meaning given by section 433; `tainted interest
income', in relation to a company, means:
(a) interest or a payment in the nature of interest; or
(b) an amount that, if the company were a resident within the meaning of
section 6, would be included in assessable income under Division 16E
of Part III; or
(c) factoring income; but does not include offshore banking income within
the meaning of Division 18 of Part III; `tainted rental income', in
relation to a company, in relation to a statutory accounting period,
means income derived by the company in the statutory accounting period
by way of rent in respect of any of the following:
(a) a lease to which an associate of the company was a party at the time
the income was derived;
(b) a lease where any or all of the rent was paid or given by an associate
of the company;
(c) a lease of land, except where the following conditions are satisfied:
(i) the land is situated in a listed country or in an unlisted country;
(ii) at all times during the period when the income accrued, the company
was a resident of the listed country, or of the unlisted country, as
the case may be;
(d) a lease of land where the following conditions are satisfied:
(i) the land is situated in a listed country or in an unlisted country;
(ii) at all times during the period when the income accrued, the company
was a resident of the listed country, or of the unlisted country, as
the case may be;
(iii) it is not the case that a substantial part of the income is
attributable to the provision of labour-intensive property management
services in connection with the land, being services provided by
directors or employees of the company;
(e) a lease of either of the following:
(i) a ship;
(ii) an aircraft; except where a substantial part of the income is
attributable to the provision by the directors or employees of the
company of any of the following in relation to the ship or aircraft
concerned:
(iii) operating crew services;
(iv) maintenance services;
(v) management services;
(f) a lease of either of the following:
(i) a cargo container designed or intended for use on ships or aircraft as
part of a containerised cargo handling system;
(ii) plant or equipment designed or intended for use on board ships; except
where a substantial part of the income is attributable to the
provision by the directors or employees of the company of either of
the following in relation to the container, plant or equipment
concerned:
(iii) maintenance services;
(iv) management services; `tainted royalty income', in relation to a
company, means royalties derived by the company except where all of
the following conditions are satisfied:
(a) the royalties are derived in the course of a business carried on by
the company;
(b) at the time the royalties were derived, the entity liable to pay the
royalties was not an associate of the company;
(c) either of the following subparagraphs applies:
(i) the matter or thing in respect of which the royalty is consideration
originated with the company;
(ii) the company has substantially developed, altered or improved that
matter or thing with the result that its market value was
substantially enhanced; `tainted sales income' has the meaning given
by section 447; `tainted services income' has the meaning given by
section 448; `tax accounting period', in relation to an entity, in
relation to a foreign tax imposed by a tax law of a listed country,
means the accounting period used by the entity for the purposes of
determining the tax base under that law; `tax detriment' has the
meaning given by section 330; `tax law', in relation to a listed
country or an unlisted country, means:
(a) if the listed country or the unlisted country has federal foreign tax
and either or both of the following:
(i) State foreign tax;
(ii) municipal foreign tax; the law of the listed country or the unlisted
country that imposes the federal foreign tax; or
(b) in any other case - the law of the listed country or the unlisted
country that imposes foreign tax; `trust' means:
(a) an entity in the capacity of trustee (including an entity that is
taken to be a trustee because of section 268); or
(b) as the case requires, a trust or trust estate; `unlisted country' has
the meaning given by section 320. Associates
"318. (1) For the purposes of this Part, the following are associates of an
entity (in this subsection called the `primary entity') that is a natural
person (otherwise than in the capacity of trustee):
(a) a relative of the primary entity;
(b) a partner of the primary entity or a partnership in which the primary
entity is a partner;
(c) if a partner of the primary entity is a natural person otherwise than
in the capacity of trustee - the spouse or a child of that partner;
(d) a trustee of a trust where the primary entity, or another entity that
is an associate of the primary entity because of another paragraph of
this subsection, benefits under the trust;
(e) a company where:
(i) the company is sufficiently influenced by:
(A) the primary entity; or
(B) another entity that is an associate of the primary entity
because of another paragraph of this subsection; or
(C) another company that is an associate of the primary
entity because of another application of this paragraph;
or
(D) 2 or more entities covered by the
precedingsub-subparagraphs; or
(ii) a majority voting interest in the company is held by:
(A) the primary entity; or
(B) the entities that are associates of the primary entity
because of subparagraph (i) of this paragraph and the
preceding paragraphs of this subsection; or
(C) the primary entity and the entities that are associates
of the primary entity because of subparagraph (i) of this
paragraph and because of the preceding paragraphs of this
subsection.
"(2) For the purposes of this Part, the following are associates of a company
(in this subsection called the `primary entity'):
(a) a partner of the primary entity or a partnership in which the primary
entity is a partner;
(b) if a partner of the primary entity is a natural person otherwise than
in the capacity of trustee - the spouse or a child of that partner;
(c) a trustee of a trust where the primary entity, or another entity that
is an associate of the primary entity because of another paragraph of
this subsection, benefits under the trust;
(d) another entity (in this paragraph called the `controlling entity')
where:
(i) the primary entity is sufficiently influenced by:
(A) the controlling entity; or
(B) the controlling entity and another entity or entities; or
(ii) a majority voting interest in the primary entity is held by:
(A) the controlling entity; or
(B) the controlling entity and the entities that, if the
controlling entity were the primary entity, would be
associates of the controlling entity because of
subsection (1), because of subparagraph (i) of this
paragraph, because of another paragraph of this
subsection or because of subsection (3);
(e) another company (in this paragraph called the `controlled company')
where:
(i) the controlled company is sufficiently influenced by:
(A) the primary entity; or
(B) another entity that is an associate of the primary entity
because of another application of this paragraph of this
subsection; or
(C) a company that is an associate of the primary entity
because of another application of this paragraph; or
(D) 2 or more entities covered by the
preceding-sub-subparagraphs; or
(ii) a majority voting interest in the controlled company is held
by:
(A) the primary entity; or
(B) the entities that are associates of the primary entity
because of subparagraph (i) of this paragraph and the
other paragraphs of this subsection; or
(C) the primary entity and the entities that are associates
of the primary entity because of subparagraph (i) of this
paragraph and the other paragraphs of this subsection;
(f) any other entity that, if a third entity that is an associate of the
primary entity because of paragraph (d) of this subsection were the
primary entity, would be an associate of that third entity because of
subsection (1), because of another paragraph of this subsection or
because of subsection (3).
"(3) For the purposes of this Part, the following are associates of a trustee
(in this subsection called the `primary entity'):
(a) any entity that benefits under the trust;
(b) if a natural person benefits under the trust - any entity that, if the
natural person were the primary entity, would be an associate of that
natural person because of subsection (1) or because of this
subsection;
(c) if a company is an associate of the primary entity because of
paragraph (a) or (b) of this subsection - any entity that, if the
company were the primary entity, would be an associate of the company
because of subsection (2) or because of this subsection.
"(4) For the purposes of this Part, the following are associates of a
partnership (in this subsection called the `primary entity'):
(a) a partner in the partnership;
(b) if a partner in the partnership is a natural person - any entity that,
if that natural person were the primary entity, would be an associate
of that natural person because of subsection (1) or (3);
(c) if a partner in the partnership is a company - any entity that, if the
company were the primary entity, would be an associate of the company
because of subsection (2) or (3).
"(5) In determining, for the purposes of this section, whether an entity is an
associate of another entity at a particular time (in this subsection called
the `test time'):
(a) an entity (in this subsection called the `public unit trust entity')
that, apart from this subsection, is the trustee of a public unit
trust at the test time is to be treated as if it were a company
instead of a trustee; and
(b) the public unit trust entity is taken to be sufficiently influenced by
another entity or other entities if the public unit trust entity is
accustomed or under an obligation (whether formal or informal), or
might reasonably be expected, to act in accordance with the
directions, instructions or wishes of the other entity or other
entities (whether those directions, instructions or wishes are, or
might reasonably be expected to be, communicated directly or through
interposed companies, partnerships or trusts); and
(c) another entity or other entities are taken to hold a majority voting
interest in the public unit trust entity if either of the following
percentages is not less than 50%:
(i) the percentage of the income of the trust represented by the share of
the income to which the other entity or other entities are entitled,
or that the other entity or other entities are entitled to acquire;
(ii) the percentage of the corpus of the trust represented by the share of
the corpus to which the other entity or other entities are entitled,
or that the other entity or other entities are entitled to acquire.
"(6) For the purposes of this section:
(a) a reference to an entity benefiting under a trust is a reference to
the entity benefiting, or being capable (whether by the exercise of a
power of appointment or otherwise) of benefiting, under the trust,
either directly or through any interposed companies, partnerships or
trusts; and
(b) a company is sufficiently influenced by an entity or entities if the
company, or its directors, are accustomed or under an obligation
(whether formal or informal), or might reasonably be expected, to act
in accordance with the directions, instructions or wishes of the
entity or entities (whether those directions, instructions or wishes
are, or might reasonably be expected to be, communicated directly or
through interposed companies, partnerships or trusts); and
(c) an entity or entities hold a majority voting interest in a company if
the entity or entities are in a position to cast, or control the
casting of, more than 50% of the maximum number of votes that might be
cast at a general meeting of the company.
"(7) In this section, and in any other provision of this Act in so far as that
provision has effect for the purposes of this section:
(a) a reference to the spouse of a person (in this paragraph called the
`first person'):
(i) includes a reference to a de facto spouse of the first person;
and
(ii) does not include a reference to a person who is legally married
to the first person but is living separately and apart from the
first person on a permanent basis; and
(b) a reference to the de facto spouse of a person (in this paragraph
called the `first person') is a reference to a person who (although
not legally married to the first person) is living with the first
person as the husband or wife of the first person on a genuine
domestic basis. Statutory accounting period of a company
"319. (1) Subject to this section, each period of 12 months finishing at the
end of 30 June is a statutory accounting period of a company.
"(2) A company may, by notice in writing to the Commissioner, elect that a day
(in this section called the `new day') is to be the last day of its statutory
accounting period instead of the day (in this section called the `old day')
that would otherwise apply under this section.
"(3) The new day must be:
(a) if:
(i) the company has not previously given a notice under this section; and
(ii) the company regularly uses:
(A) an accounting period of 12 months finishing at the end of
a day other than 30 June for the purposes of complying
with the requirements of a tax law of any country; or
(B) an accounting period of 12 months finishing at the end of
a day other than 30 June for the purposes of reporting to
its shareholders; either of those days; or
(b) if the company has previously given a notice under this section - 30
June or either of the days that, but for the giving of the notice,
would be applicable under paragraph (a).
"(4) Subject to any further application of subsection (2) and to subsection
(5):
(a) the first statutory accounting period using the new day is the period
that begins immediately after the end of the statutory accounting
period (using the old day) during which the election was made; and
(b) later statutory accounting periods are the successive periods of 12
months finishing at the end of the new day.
"(5) Where, when it makes the election, it is less than 12 months since the
company was incorporated or otherwise established:
(a) the reference in subparagraph (3) (a) (ii) to the company regularly
using an accounting period is instead a reference to the company
proposing to use the accounting period; and
(b) subject to any further application of subsection (2):
(i) the first statutory accounting period of the company is the period
beginning at the time of incorporation or establishment and ending at
the end of the new day; and
(ii) later statutory accounting periods are the successive periods of 12
months finishing at the end of the new day. Listed countries and
unlisted countries
"320. (1) In this Part: `listed country' means a foreign country, or a part of
a foreign country, that is declared by the regulations to be a listed country
for the purposes of this Part; `unlisted country' means:
(a) a foreign country that does not (either in whole or in part) consist
of a listed country or listed countries; or
(b) if one or more parts of a foreign country are listed countries - the
remainder of that foreign country.
"(2) Subject to this section, for the purposes of this section, if, apart from
this section:
(a) a colony, overseas territory or protectorate of a foreign country; or
(b) an overseas territory for the international relations of which a
foreign country is responsible; is not a foreign country in its own
right, the colony, territory or protectorate is taken to be a foreign
country in its own right.
"(3) Subject to subsection (4), for the purposes of this section, if, apart
from this subsection and subsection (4), there are 2 or more foreign countries
with a common income tax system, those countries are to be treated as the same
country.
"(4) For the purposes of this section, if, apart from this subsection, one or
more parts of a particular foreign country are excluded (either expressly or
by implication) from the operation of a double tax agreement in force in
relation to the foreign country, the part or parts so excluded are to be taken
to constitute a separate foreign country. Each listed country and each
unlisted country to be treated as a separate foreign country
"321. For the purposes of the application of section 6AB to this Part, each
listed country and each unlisted country is to be treated as a separate
foreign country. Meaning of `entitled to acquire'
"322. For the purposes of this Part, an entity is entitled to acquire anything
that the entity is absolutely or contingently entitled to acquire, whether
because of any constituent document of a company, the exercise of any right or
option or for any other reason. State foreign taxes may be treated as federal
foreign taxes
"323. If, apart from this section, a listed country or an unlisted country has
both:
(a) federal foreign tax; and
(b) State foreign tax; the regulations may provide that a specified State
foreign tax is to be treated, for the purposes of this Part, as if it
were an additional federal foreign tax of the listed country or the
unlisted country. When income or profits subject to tax in a listed
country
"324. (1) Subject to subsection (2), for the purposes of this Part, a
particular item of income or profits derived by an entity is taken to be
subject to tax in a listed country in a particular tax accounting period if,
and only if:
(a) foreign tax (other than a withholding-type tax) is payable under a tax
law of the listed country in respect of the item because the item is
included in the tax base of that law for the tax accounting period; or
(b) both of the following conditions are satisfied:
(i) either of the following sub-subparagraphs applies:
(A) regulations made for the purposes of section 160AFF
provide that an amount of foreign tax (other than a
withholding-type tax) not actually paid in respect of the
item because of a particular provision of a law of the
listed country is deemed to have been paid;
(B) a double tax agreement provides that an amount of foreign
tax (other than a withholding-type tax) not actually paid
in respect of the item because of a particular provision
of a law of the listed country is deemed to have been
paid;
(ii) if that foreign tax had been payable, it would have been payable under
a tax law of the listed country in respect of the item because the
item would have been included in the tax base of that law for the tax
accounting period.
"(2) If:
(a) apart from this subsection, a particular item of income or profits
derived by an entity is not subject to tax in a listed country in a
particular tax accounting period; and
(b) apart from a feature of a kind specified in the regulations, the item
would have been subject to tax in the listed country in the tax
accounting period; the regulations may provide that the item is to be
treated, for the purposes of this Part or one or more specified
provisions of this Part, as if it were subject to tax in the listed
country in the tax accounting period. When dividends etc. taxed in a
listed country at normal company tax rate
"325. For the purposes of this Part, a dividend or other amount of a
particular kind is to be taken to be taxed in a listed country at the
country's normal company tax rate if, and only if:
(a) foreign tax is payable under a tax law of the listed country in
respect of the dividend or the other amount of a particular kind at
the same rate as, or a higher rate than, is payable under the tax law
in respect of non-dividend income, or non-dividend amounts not of that
particular kind, as the case may be, included in the tax base of a
company that is a resident of the listed country; and
(b) the tax law of the listed country does not provide for any credit,
rebate or other tax concession in respect of the dividend or the other
amount of a particular kind, other than for foreign tax payable under
a tax law of a different listed or an unlisted country. AFI subsidiary
"326. (1) For the purposes of this Part, a company is an AFI subsidiary (or an
Australian financial institution subsidiary) at a particular time if either of
the following paragraphs applies:
(a) at that time, there is a group of 5 or fewer AFI entities the
aggregate of whose direct control interests and indirect control
interests in the company is not less than 50%;
(b) both of the following subparagraphs apply:
(i) at that time, there is a single AFI entity (in this paragraph called
the `assumed controller') the aggregate of whose direct control
interests and indirect control interests in the company is not less
than 40%;
(ii) at that time, the company is not controlled by a group of entities not
being or including the assumed controller or any of its associates.
"(2) A reference in this section to an AFI entity is a reference to:
(a) a company that is an AFI; or
(b) a 100% subsidiary of such a company.
"(3) For the purposes of this section, a company (in this subsection called
the `subsidiary company') is taken to be the 100% subsidiary of another
company (in this subsection called the `holding company') at a particular time
if:
(a) at that time, all the shares in the subsidiary company were
beneficially owned by:
(i) the holding company; or
(ii) a company that is, or 2 or more companies each of which is, a 100%
subsidiary of the holding company; or
(iii) the holding company and a company that is, or 2 or more companies
each of which is, a 100% subsidiary of the holding company; and
(b) there was no agreement, arrangement or understanding in force at that
time by virtue of which any person was in a position, or would be in a
position after that time, to affect rights of the holding company or
of a 100% subsidiary of the holding company in relation to the
subsidiary company.
"(4) For the purposes of this section, where a company is a 100% subsidiary of
another company (including a company that is such a 100% subsidiary by virtue
of another application or other applications of this subsection), every
company that is a 100% subsidiary of the first-mentioned company is taken to
be a 100% subsidiary of that other company.
"(5) For the purposes of subsection (3), a person is taken to be in a position
at a particular time to affect any rights of a company in relation to another
company if, at that time, that person has a right, power or option (whether by
virtue of any provision of the constituent document of either of those
companies or by virtue of any agreement or instrument or otherwise) to acquire
those rights or do an act or thing that would prevent the first-mentioned
company from exercising those rights for its own benefit or receiving any
benefits accruing by reason of those rights. Eligible finance shares
"327. For the purposes of this Part, a share in a company is an eligible
finance share if all the following conditions are satisfied:
(a) the shareholder is an AFI or an AFI subsidiary;
(b) the share was issued to the shareholder by the company in the ordinary
course of business carried on by the shareholder;
(c) the shareholder is not an associate of the company;
(d) having regard to:
(i) the manner in which the amount of dividends in respect of the share
are to be calculated; and
(ii) the conditions applicable to the payment of dividends in respect of
the share; and
(iii) any other relevant matters; the payment of the dividends in respect
of the share may reasonably be regarded as equivalent to the payment
of interest on a loan where the interest accrues at intervals not
exceeding 12 months and is paid not later than 12 months after it
accrues. Non-resident family trusts
"328. (1) Subject to subsections (4) and (5), for the purposes of this Part, a
trust is a non-resident family trust in relation to a natural person at a
particular time if, and only if, at that time:
(a) the trust is either:
(i) a post-marital family trust in relation to the natural person; or
(ii) a family relief trust in relation to the natural person; and
(b) the trust is constituted by:
(i) a deed of trust or other instrument; or
(ii) an order or declaration of a court.
"(2) For the purposes of this section, a trust is a post-marital family trust
in relation to a natural person at a particular time if:
(a) either of the following conditions is satisfied:
(i) the trust was created pursuant to:
(A) a decree or order of dissolution or annulment of
marriage, being a dissolution or annulment that, because
of the Family Law Act 1975, has effect, or continues to
have effect in Australia or is recognised as valid in
Australia; or
(B) a decree or order of judicial separation or a similar
decree or order;
(ii) the trust was created in consequence of the break-down of a de facto
marriage; and
(b) at that time, the only persons who benefit, or are capable (whether by
the exercise of a power of appointment or otherwise) of benefiting,
under the trust (which persons are in subsections (4) and (5) called
the `primary potential beneficiaries') are natural persons who:
(i) are not Part X Australian residents at that time; and
(ii) are covered by any of the following categories:
(A) the spouse or former spouse of the natural person;
(B) a child of the natural person;
(C) a child of the former spouse of the natural person, being
a child who was such a child at a time when the former
spouse was the spouse of the natural person;
(D) a child of the spouse of the natural person.
"(3) For the purposes of this section, a trust is a family relief trust in
relation to a natural person at a particular time (in this subsection called
the `test time') if:
(a) the only persons who benefit, or are capable (whether by the exercise
of a power of appointment or otherwise) of benefiting, under the trust
(which persons are in subsections (4) and (5) called the `primary
potential beneficiaries') are natural persons who:
(i) are identified by name in the trust deed or instrument, or in the
court order or declaration, constituting the trust; and
(ii) are not Part X Australian residents at that time; and
(iii) are covered by any of the following categories:
(A) the spouse or former spouse of the natural person;
(B) a parent of the natural person or of the natural person's
spouse or former spouse;
(C) a child of the natural person or of the natural person's
spouse or former spouse;
(D) a grandparent of the natural person;
(E) a grandchild of the natural person;
(F) a brother or sister of the natural person or of the
natural person's spouse or former spouse;
(G) a child of a brother or sister mentioned in
sub-subparagraph (F); and
(b) the trust was established, and is operated, for the relief of persons
who are in necessitous circumstances; and
(c) any of the following conditions is satisfied:
(i) at the test time, the assets of the trust are not excessive having
regard to the requirements, or likely requirements, of the primary
potential beneficiaries;
(ii) no transfers of property or services to the trust were made during the
period (in this paragraph called the `test period') commencing at the
IP time and ending at the test time;
(iii) immediately after each transfer of property or services to the trust
made during the test period, the assets of the trust were not
excessive having regard to the requirements, or likely requirements,
of the beneficiaries at the time of the transfer.
"(4) Subsection (1) does not prevent a trust from being a non-resident family
trust in relation to a natural person at a particular time if, in the event of
the death of a particular primary potential beneficiary at that time, one or
more natural persons (which persons are in subsection (5) called the
`secondary potential beneficiaries') who:
(a) are not Part X Australian residents at that time; and
(b) are children of the primary potential beneficiary; would benefit, or
be capable (whether by the exercise of a power of appointment or
otherwise) of benefiting, under the trust.
"(5) Subsections (1) and (4) do not prevent a trust from being a non-resident
family trust in relation to a natural person at a particular time if, in the
event of the death of all of the primary potential beneficiaries and all of
the secondary potential beneficiaries at that time, there are one or more
funds, authorities or institutions in Australia covered by paragraph 78 (1)
(a) that would benefit, or be capable (whether by the exercise of a power of
appointment or otherwise) of benefiting, under the trust.
"(6) For the purposes of this section, if, at a particular time, an entity
holds an interest in, or right to benefit under, a trust that is dependent on
the death of one or more natural persons, then, the entity is taken to be an
entity who, in the event of the death of that natural person or those natural
persons immediately after that time, would benefit under the trust.
"(7) A reference in this section to a natural person does not include a
reference to a natural person in the capacity of a trustee. Public unit trusts
"329. For the purposes of this Part, a unit trust is a public unit trust at a
particular time if, assuming that the 12 month period ending at that time had
been a year of income, the unit trust would have been a public unit trust at
all times during the year of income for the purposes of Division 6AAA of Part
III. Tax detriment
"330. (1) For the purposes of this Part, each of the following is a tax
detriment to a partner in a partnership:
(a) an increase in an amount included under section 92 in the partner's
assessable income in respect of an interest in the net income of the
partnership;
(b) a reduction in an amount allowable under section 92 as a deduction to
the partner in respect of the partner's interest in a partnership loss
of the partnership;
(c) a combination of such a reduction to nil and such an increase.
"(2) For the purposes of this Part, an increase in an amount included under
section 97, 98A or 100 in the assessable income of a beneficiary in respect of
a share of the net income of a trust is a tax detriment to the beneficiary.
"(3) For the purposes of this Part, an increase (including from nil) in an
amount assessable to a trustee under section 98 in respect of a beneficiary's
share of, or under section 99 or 99A in respect of the whole or a part of, the
net income of a trust is a tax detriment to the trustee.
"(4) The amount of the tax detriment is equal to the amount of the increase or
reduction or, where paragraph (1) (c) applies, the sum of the amounts of the
reduction and increase. Company deemed to be treated as a resident of a listed
country or an unlisted country for the purposes of the tax law of that country
"331. If the tax law of a listed country or an unlisted country adopts some
criterion other than treatment as a resident as the criterion for applying a
worldwide source tax base to a company, then, sections 332 and 333 have
effect, in relation to that tax law, as if that criterion were the same as
treatment as a resident of the listed country or the unlisted country for the
purposes of that tax law. Companies that are residents of listed countries
"332. (1) For the purposes of this Part, a company is a resident of a listed
country at a particular time if, and only if, the company is, in accordance
with subsection (2), a resident of a particular listed country at that time.
"(2) For the purposes of this Part, a company is a resident of a particular
listed country at a particular time if, and only if, both of the following
conditions are satisfied at that time:
(a) the company is not a Part X Australian resident;
(b) the company is treated as a resident of the listed country for the
purposes of the tax law of the listed country. Companies that are
residents of unlisted countries
"333. (1) For the purposes of this Part, a company is a resident of an
unlisted country at a particular time if, and only if:
(a) the company is, in accordance with subsection (2), a resident of a
particular unlisted country at that time; or
(b) paragraph (a) does not apply and the company is at that time neither:
(i) a Part X Australian resident; nor
(ii) a resident of a particular listed country.
"(2) For the purposes of this Part, a company is a resident of a particular
unlisted country (in this section called the `unlisted country of residence')
at a particular time if, and only if:
(a) the company is not a Part X Australian resident at that time; and
(b) the company is not treated as a resident of a listed country at that
time for the purposes of the tax law of the listed country; and
(c) any of the following subparagraphs applies:
(i) both of the following conditions are satisfied at that time:
(A) the company is treated as a resident of the unlisted
country of residence for the purposes of the tax law of
the unlisted country of residence;
(B) the company is not treated as a resident of any other
unlisted country for the purposes of the tax law of the
unlisted country;
(ii) both of the following conditions are satisfied at that time:
(A) the company is treated as a resident of the unlisted
country of residence and at least one other unlisted
country for the purposes of the tax laws of each of those
unlisted countries;
(B) the company is incorporated in the unlisted country of
residence;
(iii) both of the following conditions are satisfied at that time:
(A) the company is not treated as a resident of any unlisted
country for the purposes of the tax law of the unlisted
country;
(B) the company's management and control is solely or
principally located in the unlisted country of residence.
(iv) all of the following conditions are satisfied at that time:
(A) the company is not treated as a resident of any unlisted
country for the purposes of the tax law of the unlisted
country;
(B) the company's management and control is not solely or
principally located in the unlisted country of residence;
(C) the company is incorporated in the unlisted country of
residence. Member of a non-portfolio company group
"334. A company is a member of a non-portfolio company group if it is a member
of a group of companies for the purposes of section 160AFB. References extend
to pre-commencement matters and things
"335. Unless otherwise expressly provided, references in this Part are to
matters and things whether occurring before or after the commencement of this
Part.
"Division 2 - Types of Entity
"Subdivision A - Australian Entities Australian entity
"336. For the purposes of this Part, each of the following is an Australian
entity:
(a) an Australian partnership;
(b) an Australian trust;
(c) an entity (other than a partnership or trust) that is a Part X
Australian resident. Australian partnership
"337. For the purposes of this Part, a partnership is an Australian
partnership at a particular time if at least one of the partners is an
Australian entity at that time. Australian trust
"338. For the purposes of this Part, a trust is an Australian trust at a
particular time (in this section called the `test time') if:
(a) at any time in the period of 12 months immediately before the test
time:
(i) any trustee of the trust was a Part X Australian resident; or
(ii) the central management and control of the trust was in Australia; or
(b) the trust is a corporate unit trust for the purposes of Division 6B of
Part III, or a public trading trust for the purposes of Division 6C of
Part III, in relation to the year of income of the trust in which the
test time occurs.
"Subdivision B - Controlled Foreign Entities (CFEs) Controlled foreign entity
(CFE) "339. Each of the following is a CFE (or controlled foreign entity):
(a) a CFC (or controlled foreign company);
(b) a CFP (or controlled foreign partnership);
(c) a CFT (or controlled foreign trust). Controlled foreign company (CFC)
"340. A company is a CFC at a particular time if, at that time, the
company is a resident of a listed country or of an unlisted country
and any of the following paragraphs applies:
(a) at that time, there is a group of 5 or fewer Australian 1% entities
the aggregate of whose associate-inclusive control interests in the
company is not less than 50%;
(b) both of the following subparagraphs apply:
(i) at that time, there is a single Australian entity (in this
paragraph called the `assumed controller') whose
associate-inclusive control interest in the company is not less
than 40%;
(ii) at that time, the company is not controlled by a group of
entities not being or including the assumed controller or any
of its associates;
(c) at that time, the company is controlled by a group of 5 or fewer
Australian entities, either alone or together with associates (whether
or not any associate is also an Australian entity). Controlled foreign
partnership (CFP) "341. A partnership is a CFP at a particular time
if:
(a) the partnership is not an Australian partnership at that time; and
(b) at least one of the partners is a CFE at that time. Controlled foreign
trust (CFT) "342. A trust is a CFT at a particular time if, at that
time, the trust is not an Australian trust and:
(a) there is an eligible transferor in respect of the trust; or
(b) there is a group of 5 or fewer Australian 1% entities the aggregate of
whose associate-inclusive control interests in the trust is not less
than 50%.
"Subdivision C - Eligible Transferors in relation to Trusts Interpretation
"343. In this Subdivision, unless the contrary intention appears: `actual
transfer', in relation to property or services, means a transfer of the
property or services other than a transfer that is taken to have been made
because of subsection 345 (1), (2), (5), (6), (8), (10) or (11); `property'
includes money; `scheme' has the same meaning as in Division 6AAA of Part III;
`services' has the same meaning as in Division 6AAA of Part III; `transfer'
has the same meaning as in Division 6AAA of Part III; `underlying transfer',
in relation to a transfer of property or services to a trust, means:
(a) if that transfer was an actual transfer - the actual transfer; or
(b) if that transfer was taken to have been made because of subsection 345
(1) - the actual transfer referred to in that subsection; or
(c) if that transfer was taken to have been made because of subsection 345
(2) - the actual transfer referred to in paragraph 345 (2) (d); or
(d) if that transfer was taken to have been made because of subsection 345
(5) - the actual transfer referred to in paragraph 345 (5) (b); or
(e) if that transfer was taken to have been made because of the
application of subsection 345 (6) or (8) to an actual transfer - the
actual transfer; or
(f) if that transfer was taken to have been made because of the
application of subsection 345 (6) or (8) to a transfer that was taken
to have been made because of subsection 345 (1) - the actual transfer
referred to in subsection 345 (1); or
(g) if that transfer was taken to have been made because of the
application of subsection 345 (6) or (8) to a transfer that was taken
to have been made because of subsection 345 (5) - the actual transfer
referred to in paragraph 345 (5) (b); or
(h) if that transfer was taken to have been made because of subsection 345
(10) - the actual transfer referred to in paragraph 345 (10) (b); or
(j) if that transfer was taken to have been made because of one or more
applications of subsection 345 (11) to an actual transfer - the actual
transfer; or
(k) if that transfer was taken to have been made because of one or more
applications of subsection 345 (11) to a transfer (in this paragraph
called the `deemed transfer') that was taken to have been made because
of subsection 345 (1), (2), (5), (6), (8) or (10) - the actual
transfer that, under a preceding paragraph of this definition, is the
underlying transfer in relation to the deemed transfer. References to
transfer of property or services
"344. (1) A reference in this Subdivision to the transfer of property or
services to a trust includes a reference to the transfer of property or
services by way of the creation of the trust.
"(2) For the purposes of this Subdivision, where an entity acquires property
that did not previously exist, the property is taken to have existed
immediately before the acquisition and to have been acquired from the entity
who created the property.
"(3) For the purposes of this Subdivision, property or services are to be
taken to have been transferred to an entity if the property or services have
been applied for the benefit of, or in accordance with the directions of, the
entity.
"(4) Without limiting the generality of subsection (3), a reference in that
subsection to the application of property or services for the benefit of an
entity includes a reference to the application of property or services in the
discharge, in whole or in part, of a debt due by the entity.
"(5) A reference in this Subdivision to a transfer of property or services to
an entity includes a reference to a transfer made before the commencement of
this Subdivision.
"(6) A reference in this Subdivision to the transfer of property or services
to a trust does not include a reference to a transfer made by the trustee of
the estate of a deceased person under:
(a) the terms of the deceased person's will or codicil; or
(b) an order of a court that varied or modified the provisions of a
deceased person's will or codicil; unless:
(c) the transfer was made in or as a result of the exercise (by the
trustee or any other person) of a power of appointment or any other
discretion; or
(d) under subsection 345 (1), the property or services are taken to have
been transferred by an entity other than the trustee, instead of by
the trustee; or
(e) under subsection 345 (5), the Commissioner treats the property or
services as having been (to any extent) transferred by an entity other
than the trustee, instead of by the trustee. Deemed transfers of
property or services
"345. (1) For the purposes of this Subdivision, where an entity (in this
subsection called the `prime entity') causes another entity to actually
transfer property or services to a trust, the prime entity (instead of the
other entity) is to be taken to have transferred the property or services to
the trust.
"(2) For the purposes of this Subdivision, where:
(a) the trustee of a trust issues units in the trust to an entity (in this
subsection called the `first entity') in the first entity's capacity
as a manager, underwriter or dealer in relation to the marketing or
placement of the units; and
(b) in the course of the marketing or placement of the units, the units
are disposed of by the first entity to another entity (in this
subsection called the `second entity'); and
(c) at a particular time (in this subsection called the `second entity's
transfer time'), the second entity transfers property or services to
the first entity as consideration for the acquisition of the units;
and
(d) the first entity has actually transferred, or actually transfers,
property or services (in this subsection called the `original property
or services') to the trust for the sole purpose of acquiring the
units; the second entity is taken to have transferred the original
property or services (instead of the first entity) at the second
entity's transfer time.
"(3) A reference in subsection (2) to a unit in a trust is a reference to an
interest (however described) in any of the income or property of the trust.
"(4) Subsections (1) and (2) do not limit the operation of subsection (5).
"(5) Where, under a scheme:
(a) an entity (in this subsection called the `scheme entity') actually
transfers property or services to another entity; and
(b) property or services are actually transferred to a trust at a
particular time otherwise than by the scheme entity; the Commissioner
may, for the purposes of this Subdivision, treat the property or
services mentioned in paragraph (b) as having been transferred by the
scheme entity (instead of by any other entity) to the trust at that
time.
"(6) Where:
(a) apart from subsections (8), (10) and (11), a partnership transfers
property or services to a trust at a particular time (in this
subsection called the `transfer time'); and
(b) at a later time (in this subsection called the `cessation time'), the
partnership ceases to exist for the purposes of this Act; then, for
the purpose of determining whether an entity that was a partner in the
partnership immediately before the cessation time is an eligible
transferor in relation to the trust at a time after the cessation
time, each such partner is to be taken to have transferred the
original property or services to the trust at the transfer time.
"(7) Nothing in subsection (6) affects the application of this Subdivision to
the transfer made by the partnership concerned.
"(8) For the purposes of this Subdivision, if:
(a) apart from this subsection and subsections (6), (10) and (11), a
discretionary trust (in this subsection called the `transferor trust')
transfers property or services (in this subsection called the
`original property or services') to another trust (in this subsection
called the `transferee trust') at a particular time (in this
subsection called the `transfer time'); and
(b) at a later time (in this subsection called the `cessation time'), the
transferor trust commences to be wound up or ceases to exist for the
purposes of this Act; and
(c) apart from this subsection and subsections (6), (10) and (11), one or
more other entities transferred property or services to the transferor
trust at or before the transfer time; each of those other entities is
to be taken to have transferred the original property or services to
the transferee trust at the transfer time.
"(9) Nothing in subsection (8) affects the application of this Subdivision to
the transfer mentioned in paragraph (8) (a).
"(10) For the purposes of this Subdivision, where:
(a) any of the following subparagraphs applies:
(i) any of the following events occurs in relation to a company (which
company is in this subsection called the `transferor'):
(A) the company passes a resolution for its winding-up;
(B) an order is made for the winding-up of the company;
(C) any similar event;
(ii) a partnership (in this subsection also called the `transferor') ceases
to exist for the purposes of this Act;
(iii) either of the following sub-subparagraphs applies in relation to the
trustee of a trust (in this subsection also called the `transferor'):
(A) the trust commences to be wound-up;
(B) the trust estate ceases to exist for the purposes of this
Act; and
(b) an actual transfer of property or services is made to a trust (in this
subsection called the `transferee') as a consequence of the transferor
being wound-up or ceasing to exist; the transferor is taken to have
transferred to the transferee the property or services concerned.
"(11) Where:
(a) the following subparagraphs apply to an entity (in this subsection
called the `defunct entity'):
(i) the defunct entity is a company, partnership or trust;
(ii) the defunct entity transferred property or services (in this
subsection called the `original property or services') to a trust
(including a transfer that was taken to have been made because of
another application or applications of this subsection) at a
particular time (in this subsection called the `transfer time');
(iii) if the defunct entity is a company - the company passes a resolution
for its winding-up, an order is made for the winding-up of the company
or a similar event occurs;
(iv) if the defunct entity is a partnership - the partnership ceases to
exist for the purposes of this Act;
(v) if the defunct entity is a trust - the trust commences to be wound up
or ceases to exist for the purposes of this Act; and
(b) the Commissioner is satisfied that an entity (in this subsection
called the `successor entity') has benefited or is capable (whether by
the exercise of a power of appointment or otherwise) of benefiting
(either directly or indirectly through one or more interposed
companies, partnerships or trusts) as a result of a transfer of
property or services made by the defunct entity or a transfer of
property or services made as a consequence of the defunct entity being
wound up or ceasing to exist; and
(c) the Commissioner is of the opinion that it is appropriate to apply
this subsection to the successor entity; then, for the purpose of
determining whether the successor entity is an eligible transferor in
relation to the trust referred to in subparagraph (a) (ii) at a time
after the transfer time, the successor entity is to be taken to have
transferred the original property or services to that trust.
Circumstances in which a transfer of property or services is an
eligible business transaction
"346. An underlying transfer of property or services to a trust is an eligible
business transaction if, and only if, at or about the time of the transfer,
identical or similar property or services were transferred by the transferor
in the ordinary course of business to ordinary clients or customers under
arm's length transactions in similar circumstances and subject to identical or
similar terms and conditions as those that applied in relation to the
underlying transfer of the property or services concerned. Eligible transferor
in relation to a discretionary trust
"347. (1) An entity (in this section called the `transferor entity') is an
eligible transferor in relation to a discretionary trust at a particular time
(in this section called the `test time') if the trust is not a public unit
trust at the test time and:
(a) all of the following subparagraphs apply:
(i) the transferor entity transferred property or services to the trust at
a time (in this subparagraph called the `transfer time') at or after
the IP time and before the test time;
(ii) if the underlying transfer was made in the course of carrying on a
business - the underlying transfer was not an eligible business
transaction;
(iii) if the underlying transfer was made under an arm's length transaction
otherwise than in the course of carrying on a business - the
transferor entity was in a position, at any time after the transfer
time and before the test time, to control the trust; or
(b) all of the following subparagraphs apply:
(i) the transferor entity transferred property or services to the trust at
any time before the IP time;
(ii) the underlying transfer was not an eligible business transaction;
(iii) at any time after the IP time and before the test time, the entity
was in a position to control the trust; and, at the test time, the
transferor entity is an Australian entity or a CFE.
"(2) For the purposes of this section, an entity is taken to be in a position
to control a trust if, and only if:
(a) a group in relation to the entity had the power by means of the
exercise by the group of any power of appointment or revocation or
otherwise, to obtain, with or without the consent of any other entity,
the beneficial enjoyment of the corpus or income of the trust; or
(b) a group in relation to the entity was able in any manner whatsoever,
whether directly or indirectly, to control the application of the
corpus or income of the trust; or
(c) a group in relation to the entity was capable under a scheme of
gaining the enjoyment or the control referred to in paragraph (a) or
(b); or
(d) a trustee of the trust was accustomed or under an obligation (whether
formally or informally) or might reasonably be expected to act in
accordance with the directions, instructions or wishes of a group in
relation to the entity; or
(e) a group in relation to the entity was able to remove or appoint the
trustee, or any of the trustees, of the trust.
"(3) A reference in subsection (2) to a group in relation to an entity is a
reference to any of the following:
(a) the entity acting alone;
(b) an associate of the entity acting alone;
(c) the entity and one or more associates of the entity acting together;
(d) 2 or more associates of the entity acting together. Eligible
transferor in relation to a non-discretionary trust or a public unit
trust
"348. (1) An entity is an eligible transferor in relation to a
non-discretionary trust or a public unit trust at a particular time (in this
section called the `test time') if:
(a) the transferor entity transferred property or services to the trust at
or after the IP time and before the test time; and
(b) the underlying transfer was made for no consideration or for a
consideration less than the arm's length amount in relation to the
underlying transfer; and
(c) it is not the case that the sole purpose of the underlying transfer
was the acquisition of units in the trust where the parties to the
underlying transfer were at arm's length with each other in relation
to the underlying transfer and the trust was a public unit trust at
the test time; and, at the test time, the transferor entity is an
Australian entity or a CFE.
"(2) For the purposes of subsection (1), the arm's length amount in relation
to a transfer of property or services to a trust is the amount that the
trustee could reasonably be expected to have been required to pay to obtain
the property or services concerned from the transferor under a transaction
where the parties were dealing with each other at arm's length in relation to
the transaction.
"Division 3 - Control Interests, Attribution Interests,
Attributable Taxpayers and Attribution Percentages
"Subdivision A - Control Interests Associate-inclusive control interest in a
company or trusts
"349. (1) Subject to this section, the associate-inclusive control interest
that an entity (in this section called the `lower entity') holds in a company
or trust at a particular time is the aggregate of:
(a) the direct control interest in the company or trust that the lower
entity holds at that time; and
(b) the indirect control interests in the company or trust that the lower
entity holds at that time; and
(c) the direct control interests in the company or trust held at that time
by associates of the lower entity; and
(d) the indirect control interests in the company or trust held at that
time by associates of the lower entity.
"(2) In calculating the associate-inclusive control interest that the lower
entity holds in the company or trust:
(a) an indirect control interest of the lower entity is not to be counted
under paragraph (1) (b) to the extent to which it is calculated by
reference to:
(i) a direct control interest in the company or trust that is taken into
account under paragraph (1) (c); or
(ii) an indirect control interest in the company or trust that is taken
into account under paragraph (1) (d); and
(b) an indirect control interest of an associate of the lower entity is
not to be counted under paragraph (1) (d) to the extent to which it is
calculated by reference to:
(i) a direct control interest in the company or trust that is taken into
account under paragraph (1) (a) or (c); or
(ii) an indirect control interest in the company or trust that is taken
into account under paragraph (1) (b) or (d).
"(3) If, apart from this subsection, both of the following things would be
counted in calculating the associate-inclusive control interest that the lower
entity holds in the company or trust:
(a) the holding of a direct control interest by the lower entity or any
other entity;
(b) an entitlement to acquire that direct control interest; only one of
those things is to be taken into account.
"(4) For the purpose of determining any of the following matters:
(a) whether the aggregate of the associate-inclusive control interests
that a group of entities holds in a company is not less than 50%;
(b) whether a single Australian entity has an associate-inclusive control
interest in a company of not less than 40%;
(c) whether the aggregate of the associate-inclusive control interests
that a group of entities holds in a trust is not less than 50%;
(d) whether the associate-inclusive control interest that an Australian
entity holds in a CFC is not less than 10%;
(e) whether the associate-inclusive control interest that an Australian
entity holds in a company is not less than 1%; if, apart from this
subsection, an entity, or each of 2 or more entities, would hold a
direct control interest, or control tracing interest, in another
entity (in this subsection called the `higher entity') equal to 100%:
(f) only one of those entities is to be taken to hold a direct control
interest, or control tracing interest, as the case may be, in the
higher entity equal to 100%; and
(g) no other entity (whether or not the entity would, apart from this
subsection hold a direct control interest, or control tracing
interest, of 100%) is to be taken to hold any direct control interest,
or control tracing interest, as the case may be, in the higher entity.
"(5) For the purpose of calculating the aggregate of the associate-inclusive
control interests that a group of entities holds in a company or trust:
(a) if a particular direct control interest or indirect control interest
that an entity holds in another entity would be counted more than once
because the entity is an associate of one or more other entities in
the group, that interest is to be counted only once; and
(b) if both of the following things would, but for this subsection, be
counted in calculating the aggregate of the associate-inclusive
control interests that a group of entities holds in a company or
trust:
(i) the holding of a direct control interest by an entity;
(ii) an entitlement to acquire that direct control interest;
only one of those things is to be counted.
"(6) If it is necessary for the purposes of this section to decide:
(a) which one of 2 things is to be taken into account for the purposes of
subsection (3) or (5); or
(b) which one of 2 or more entities is to be chosen for the purposes of
paragraph (4) (f); the Commissioner may make that decision. Direct
control interest in a company
"350. (1) Subject to subsection (7), an entity holds a direct control interest
in a company at a particular time equal to the percentage that the entity
holds, or is entitled to acquire, at that time of:
(a) the total paid-up share capital of the company; or
(b) the total rights of shareholders to vote, or participate in any
decision-making, concerning any of the following:
(i) the making of distributions of capital or profits of the
company to its shareholders;
(ii) the constituent document of the company;
(iii) any variation of the share capital of the company; or
(c) the total rights to distributions of capital or profits of the company
to its shareholders on winding-up; or
(d) the total rights to distributions of capital or profits of the company
to its shareholders, otherwise than on winding-up; or, if different
percentages are applicable under the preceding paragraphs, the greater
or greatest of those percentages.
"(2) If the percentage of total rights to vote or participate in
decision-making differs as between differing types of decision-making, the
highest of those percentages applies for the purposes of paragraph (1)(b).
"(3) For the purposes of the application of subsection (1) to a company, the
percentage that an entity holds, or is entitled to acquire, at a particular
time (in this subsection called the `test time') in a statutory accounting
period of the company, of the total rights to distributions of capital or
profits of the company to its shareholders on winding-up is to be worked out
by:
(a) ascertaining whichever of the following is applicable:
(i) the capital of the company as at the end of the statutory accounting
period;
(ii) the profits of the company for the statutory accounting period; and
(b) assuming that the rights to such distributions that the entity holds,
or is entitled to acquire, at the test time were the same at all other
times during the statutory accounting period; and
(c) ascertaining the percentage concerned:
(i) at the end of the statutory accounting period instead of at the test
time; and
(ii) on that assumption.
"(4) For the purposes of the application of subsection (1) to a company, the
percentage that an entity holds, or is entitled to acquire, at a particular
time (in this subsection called the `test time') in a statutory accounting
period of the company, of the total rights to distributions of capital or
profits of the company to its shareholders, otherwise than on winding-up, is
to be worked out by:
(a) ascertaining whichever of the following is applicable:
(i) the capital of the company as at the end of the statutory accounting
period;
(ii) the profits of the company for the statutory accounting period; and
(b) assuming that the rights to such distributions that the entity holds,
or is entitled to acquire, at the test time were the same at all other
times during the statutory accounting period; and
(c) ascertaining the percentage concerned:
(i) at the end of the statutory accounting period instead of at the test
time; and
(ii) on that assumption.
"(5) Eligible finance shares in a company are to be ignored for the purposes
of the application of subsection (1) to the company.
"(6) If, at a particular time, a company is controlled by a group of 5 or
fewer Australian entities, either alone or together with associates (whether
or not any associate is also an Australian entity), each Australian entity in
that group of 5 or fewer holds a direct control interest in the company equal
to 100%.
"(7) An entity that holds a direct control interest in a company at a
particular time because of subsection (6) is not to be taken to hold any
direct control interest in the company at that time because of subsection (1).
Direct control interest in a trust
"351. (1) An entity that is a beneficiary in a trust holds a direct control
interest in the trust at a particular time equal to:
(a) the percentage of the income of the trust represented by the share of
the income to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire; or
(b) the percentage of the corpus of the trust represented by the share of
the corpus to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire; or, if those percentages differ,
the greater of those percentages.
"(2) For the purposes of the application of subsection (1) to a trust:
(a) the percentage of the income of the trust represented by the share of
the income to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire; or
(b) the percentage of the corpus of the trust represented by the share of
the corpus to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire; at a particular time (in this
subsection called the `test time') in a year of income of the trust,
is to be worked out by:
(c) ascertaining whichever of the following is applicable:
(i) the income of the trust for the year of income;
(ii) the corpus of the trust as at the end of the year of income; and
(d) assuming that the share to which the entity is entitled, or that the
entity is entitled to acquire, at the test time was the same at all
other times during the year of income; and
(e) ascertaining the percentage concerned:
(i) at the end of the year of income instead of at the test time; and
(ii) on that assumption.
"(3) Each entity that is an eligible transferor in relation to a trust at
a particular time holds a direct control interest in the trust at that time
equal to 100%.
"(4) An entity that holds a direct control interest in a trust at a
particular time because of subsection (3) is not to be taken to hold any
direct control interest in the trust at that time because of subsection (1).
Indirect control interest in a company or trust
"352. (1) An indirect control interest that an entity (in this section called
the `bottom entity') holds in a company or trust at a particular time is
calculated in accordance with this section.
"(2) An interposed entity is not to be taken into account in calculating an
indirect control interest unless the entity is a CFE.
"(3) If there is only one entity interposed between the bottom entity and the
company or trust, the indirect control interest is calculated by multiplying
the control tracing interest that the bottom entity holds in the interposed
entity by the control tracing interest that the interposed entity holds in the
company or trust.
"(4) If there are 2 entities interposed between the bottom entity and the
company or trust, the indirect control interest is calculated:
(a) by multiplying the control tracing interest that the bottom entity
holds in the first interposed entity by the control tracing interest
that the first interposed entity holds in the second interposed
entity; and
(b) by multiplying the result of the calculation referred to in paragraph
(a) by the control tracing interest that the second interposed entity
holds in the company or trust.
"(5) If there are 3 or more entities interposed between the bottom entity and
the company or trust, the indirect control interest is calculated:
(a) by multiplying the control tracing interest that the bottom entity
holds in the first interposed entity by the control tracing interest
that the first interposed entity holds in the second interposed
entity; and
(b) by multiplying the result of the calculation referred to in paragraph
(a) by the control tracing interest that the second interposed entity
holds in the third interposed entity; and so on, ending with a
multiplication by the control tracing interest that the last
interposed entity holds in the company or trust.
"(6) For the purposes of this section, an entity (in this subsection called
the `second entity') is interposed between 2 other entities (in this
subsection called the `first entity' and the `third entity' respectively) if,
and only if:
(a) the first entity has a control tracing interest in the second entity;
and
(b) the second entity has a control tracing interest in the third entity.
Control tracing interest in a company
"353. (1) Subject to this section, an entity (in this subsection called the
`lower entity') holds a control tracing interest in a company at a particular
time equal to the direct control interest in the company that the lower entity
holds at that time.
"(2) An entity (in this subsection called the `lower entity') holds a control
tracing interest in a company at a particular time equal to 100% if:
(a) the aggregate of the direct control interests in the company held at
that time by the lower entity and its associates is not less than 50%;
or
(b) both of the following conditions are satisfied:
(i) the aggregate of the direct control interests in the company held at
that time by the lower entity and its associates is not less than 40%;
(ii) at that time, the company is not controlled by a group of entities not
being or including the lower entity or any of its associates; or
(c) at that time, the company is controlled by the lower entity, either
alone or together with associates. Control tracing interest in a CFP
"354. Each partner in a CFP holds a control tracing interest in the CFP equal
to 100%. Control tracing interest in a CFT
"355. (1) An entity that is an eligible transferor at a particular time in
relation to a CFT holds a control tracing interest in the CFT at that time
equal to 100%.
"(2) Subject to subsection (4), an entity (in this subsection called the
`lower entity') that is a beneficiary in a CFT holds a control tracing
interest in the trust at a particular time equal to:
(a) the percentage of the income of the CFT represented by the share of
the income to which the lower entity is entitled, or that the lower
entity is entitled to acquire; or
(b) the percentage of the corpus of the CFT represented by the share of
the corpus to which the lower entity is entitled, or that the lower
entity is entitled to acquire; or, if those percentages differ, the
greater of those percentages.
"(3) For the purposes of the application of subsection (2) to a trust:
(a) the percentage of the income of the trust represented by the share of
the income to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire; or
(b) the percentage of the corpus of the trust represented by the share of
the corpus to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire; at a particular time (in this
subsection called the `test time') in a year of income of the trust,
is to be worked out by:
(c) ascertaining whichever of the following is applicable:
(i) the income of the trust for the year of income;
(ii) the corpus of the trust as at the end of the year of income; and
(d) assuming that the share to which the entity is entitled, or that the
entity is entitled to acquire, at the test time was the same at all
other times during the year of income; and
(e) ascertaining the percentage concerned:
(i) at the end of the year of income instead of at the test time; and
(ii) on that assumption.
"(4) If the percentage calculated under subsection (2) is not less than 50%,
the lower entity holds a control tracing interest in the CFT equal to 100%.
"(5) An entity that holds a control tracing interest in a CFT at a particular
time because of subsection (1) is not to be taken to hold any control tracing
interest in the CFT at that time because of subsection (2) or (4).
"Subdivision B - Attribution Interests Direct attribution interest in a CFC or
CFT
"356. (1) An entity holds a direct attribution interest in a CFC at a
particular time equal to the percentage that the entity holds, or is entitled
to acquire, at that time of:
(a) the total paid-up share capital of the CFC; or
(b) the total rights of shareholders to vote, or participate in any
decision-making, concerning any of the following:
(i) the making of distributions of capital or profits of the CFC to its
shareholders;
(ii) the constituent document of the CFC;
(iii) any variation of the share capital of the CFC; or
(c) the total rights to distributions of capital or profits of the CFC to
its shareholders on winding-up; or
(d) the total rights to distributions of capital or profits of the CFC to
its shareholders, otherwise than on winding-up; or, if different
percentages are applicable under the preceding paragraphs, the greater
or greatest of those percentages.
"(2) For the purposes of the application of subsection (1) to a company, the
percentage that an entity holds, or is entitled to acquire, at a particular
time (in this subsection called the `test time') in a statutory accounting
period of the company, of the total rights to distributions of capital or
profits of the company to its shareholders on winding-up is to be worked out
by:
(a) ascertaining whichever of the following is applicable:
(i) the capital of the company as at the end of the statutory accounting
period;
(ii) the profits of the company for the statutory accounting period; and
(b) assuming that the rights to such distributions that the entity holds,
or is entitled to acquire, at the test time were the same at all other
times during the statutory accounting period; and
(c) ascertaining the percentage concerned:
(i) at the end of the statutory accounting period instead of at the test
time; and
(ii) on that assumption.
"(3) For the purposes of the application of subsection (1) to a company, the
percentage that an entity holds, or is entitled to acquire, at a particular
time (in this subsection called the `test time') in a statutory accounting
period of the company, of the total rights to distributions of capital or
profits of the company to its shareholders, otherwise than on winding-up, is
to be worked out by:
(a) ascertaining whichever of the following is applicable:
(i) the capital of the company as at the end of the statutory accounting
period;
(ii) the profits of the company for the statutory accounting period; and
(b) assuming that the rights to such distributions that the entity holds,
or is entitled to acquire, at the test time were the same at all other
times during the statutory accounting period; and
(c) ascertaining the percentage concerned:
(i) at the end of the statutory accounting period instead of at the test
time; and
(ii) on that assumption.
"(4) Eligible finance shares in a company are to be ignored for the purposes
of the application of subsection (1) to the company.
"(5) An entity that is an eligible transferor at a particular time in relation
to a CFT holds a direct attribution interest in the CFT at that time equal to
100%.
"(6) Subsection (5) does not apply if:
(a) the eligible transferor is a natural person (other than a natural
person in the capacity of a trustee); and
(b) the CFT is a non-resident family trust in relation to the natural
person.
"(7) An entity (in this subsection called the `lower entity') that is a
beneficiary in a CFT holds a direct attribution interest in the CFT at a
particular time equal to:
(a) the percentage of the income of the CFT represented by the share of
the income to which the lower entity is entitled, or that the lower
entity is entitled to acquire; or
(b) the percentage of the corpus of the CFT represented by the share of
the corpus to which the lower entity is entitled, or that the lower
entity is entitled to acquire; or, if those percentages differ, the
greater of those percentages.
"(8) An entity that holds a direct attribution interest in a CFT at a
particular time because of subsection (5) is not to be taken to hold any
direct attribution interest in the CFT at that time because of subsection (7).
Indirect attribution interest in a CFC or CFT
"357. (1) An indirect attribution interest that an entity (in this section
called the `bottom entity') holds in a CFC or CFT (in this section called the
`top entity') at a particular time is calculated in accordance with this
section.
"(2) An interposed entity is not to be taken into account in calculating an
indirect attribution interest unless the entity is a CFE.
"(3) If there is only one entity interposed between the bottom entity and the
top entity, the indirect attribution interest is calculated by multiplying the
attribution tracing interest that the bottom entity holds in the interposed
entity by the attribution tracing interest that the interposed entity holds in
the top entity.
"(4) If there are 2 entities interposed between the bottom entity and the top
entity, the indirect attribution interest is calculated:
(a) by multiplying the attribution tracing interest that the bottom entity
holds in the first interposed entity by the attribution tracing
interest that the first interposed entity holds in the second
interposed entity; and
(b) by multiplying the result of the calculation referred to in paragraph
(a) by the attribution tracing interest that the second interposed
entity holds in the top entity.
"(5) If there are 3 or more entities interposed between the bottom entity and
the top entity, the indirect attribution interest is calculated:
(a) by multiplying the attribution tracing interest that the bottom entity
holds in the first interposed entity by the attribution tracing
interest that the first interposed entity holds in the second
interposed entity; and
(b) by multiplying the result of the calculation referred to in paragraph
(a) by the attribution tracing interest that the second interposed
entity holds in the third interposed entity; and so on, ending with a
multiplication by the attribution tracing interest that the last
interposed entity holds in the top entity.
"(6) For the purposes of this section, an entity (in this subsection called
the `second entity') is interposed between 2 other entities (in this
subsection called the `first entity' and the `third entity' respectively) if,
and only if:
(a) the first entity has an attribution tracing interest in the second
entity; and
(b) the second entity has an attribution tracing interest in the third
entity. Attribution tracing interest in a CFC
"358. An entity holds an attribution tracing interest in a CFC at a particular
time equal to the direct attribution interest in the CFC that the entity holds
at that time. Attribution tracing interest in a CFP
"359. An entity that is a partner in a CFP holds an attribution tracing
interest in the CFP at a particular time equal to the percentage that the
entity holds, or is entitled to acquire, at that time of:
(a) the total interests in the profits of the CFP; or
(b) the total interests in the CFP property; or, if those percentages
differ, the greater of those percentages. Attribution tracing interest
in a CFT
"360. (1) An entity that is an eligible transferor at a particular time in
relation to a CFT holds an attribution tracing interest in the CFT at that
time equal to 100%.
"(2) Subsection (1) does not apply if:
(a) the eligible transferor is a natural person (other than a natural
person in the capacity of a trustee); and
(b) the CFT is a non-resident family trust in relation to the natural
person.
"(3) An entity (in this subsection called the `lower entity') that is a
beneficiary in a CFT holds an attribution tracing interest in the CFT at a
particular time equal to:
(a) the percentage of the income of the CFT represented by the share of
the income to which the lower entity is entitled, or that the lower
entity is entitled to acquire; or
(b) the percentage of the corpus of the CFT represented by the share of
the corpus to which the lower entity is entitled, or that the lower
entity is entitled to acquire; or, if those percentages differ, the
greater of those percentages.
"(4) An entity that holds an attribution tracing interest in a CFT at a
particular time because of subsection (1) is not to be taken to hold any
attribution tracing interest in the CFT at that time because of subsection
(3).
"Subdivision C - Attributable Taxpayers and Attribution
Percentages Attributable taxpayer in relation to a CFC or a CFT
"361. (1) An entity (in this subsection called the `test entity') is an
attributable taxpayer in relation to a CFC at a particular time if, at that
time:
(a) the test entity is an Australian entity whose associate-inclusive
control interest in the CFC is at least 10%; or
(b) all of the following subparagraphs apply:
(i) the CFC is a CFC at that time only because of paragraph 340
(c);
(ii) the CFC is controlled by any group of 5 or fewer Australian
entities, either alone or together with associates (whether or
not any associate is also an Australian entity);
(iii) the test entity is an Australian 1% entity and is included in
that group of 5 or fewer Australian entities.
"(2) An entity (in this subsection called the `test entity') is an
attributable taxpayer in relation to a CFT at a particular time if, at that
time, the test entity is an Australian entity whose associate-inclusive
control interest in the CFT is at least 10%. Attribution percentage of an
attributable taxpayer
"362. (1) Subject to this section, the attribution percentage of an
attributable taxpayer in relation to a CFC or CFT at a particular time is the
sum of:
(a) the direct attribution interest in the CFC or CFT held by the taxpayer
at that time; and
(b) the aggregate of the indirect attribution interests in the CFC or CFT
held by the taxpayer at that time.
"(2) If, apart from this subsection, both of the following things would be
counted in calculating the attribution percentage of an attributable taxpayer
in relation to a CFC or CFT at a particular time:
(a) the holding of a direct attribution interest in an entity by any other
entity;
(b) an entitlement to acquire that direct attribution interest; only one
of those things is to be taken into account.
"(3) If:
(a) in calculating the percentage that would be the attribution percentage
of an attributable taxpayer (apart from this subsection and subsection
(5)) in relation to a CFC at a particular time (in this subsection
called the `test time') regard was had to an attribution tracing
interest of an eligible transferor in relation to a CFT, being an
attribution tracing interest determined under subsection 360 (1); and
(b) the attribution percentage referred to in paragraph (a) is greater
than it would have been apart from subsection 360 (1); and
(c) there are other eligible transferors in relation to the CFT at the
test time; and
(d) the attributable taxpayer gives to the Commissioner, in accordance
with a form approved, in writing, by the Commissioner, such
information as is required by the form to be given; the Commissioner
may reduce the attribution percentage referred to in paragraph (a) by
such amount as the Commissioner considers reasonable in the
circumstances.
"(4) If:
(a) in calculating the percentage that would be the attribution percentage
of an attributable taxpayer (apart from this subsection and subsection
(5)) in relation to a CFT (in this subsection called the `attributing
CFT') at a particular time (in this subsection called the `test time')
regard was had to:
(i) a direct attribution interest of the attributable taxpayer in
relation to the attributing CFT, being direct attribution
interest determined under subsection 356 (2); or
(ii) an attribution tracing interest of an eligible transferor in
relation to another CFT (in this subsection called the
`interposed CFT'); and
(b) the attribution percentage referred to in paragraph (a) is greater
than it would have been apart from subsection 356 (2) or 360 (1), as
the case may be; and
(c) at the test time, there are other eligible transferors in relation to
the attributing CFT or the interposed CFT, as the case may be; and
(d) the attributable taxpayer gives to the Commissioner such information,
and produces to the Commissioner such documents, as the Commissioner
requires in connection with the operation of this subsection; the
Commissioner may reduce the attribution percentage referred to in
paragraph (a) by such amount as the Commissioner considers reasonable
in the circumstances.
"(5) If, apart from this subsection, the aggregate of the attribution
percentages of all the attributable taxpayers in relation to a CFC or CFT at a
particular time would exceed 100%, the attribution percentage of each of those
attributable taxpayers is the percentage calculated using the formula:
Individual percentage
----------------------- x 100
Total percentage where: Individual percentage means the percentage that would,
apart from this subsection, be the attribution percentage of the attributable
taxpayer concerned; Total percentage means the aggregate of the percentages
that would, apart from this subsection, be the attribution percentages of all
the attributable taxpayers.
"Division 4 - Attribution Accounts
Attribution account entity
"363. Each of the following is an attribution account entity:
(a) a company that is not a Part X Australian resident;
(b) a partnership;
(c) a trust. Attribution account percentage
"364. The attribution account percentage of a taxpayer in relation to an
entity is the sum of the taxpayer's direct attribution account interest and
indirect attribution account interest or interests in the entity. Attribution
account payment
"365. (1) Each of the following is an attribution account payment:
(a) a dividend paid by a company to a shareholder;
(b) the individual interest of a partner in the net income (within the
meaning of section 90) of a partnership of a year of income;
(c) where a beneficiary of a trust is presently entitled to a share of the
income of the trust - that share of the net income (within the meaning
of section 95) of the trust of a year of income;
(d) the whole or part of the net income of a trust of a year of income
that is assessable to the trustee under section 99 or 99A;
(e) an amount of trust property that would be included in the assessable
income of a beneficiary of a year of income under section 99B if:
(i) the beneficiary were a resident, within the meaning of section 6, at a
time during the year of income; and
(ii) paragraph 99B (2) (c) were replaced by a paragraph referring to any
attribution account payment under paragraph (c) or (d) of this
subsection.
"(2) The attribution account payment is taken to be made:
(a) in a paragraph (1) (b) case - by the partnership to the partner; and
(b) in a paragraph (1) (c) or (e) case - by the trust to the beneficiary;
and
(c) in a paragraph (1) (d) case - by the trust to the trustee; and, in any
such case, to be made at the end of the year of income.
"(3) Where:
(a) an attribution credit arises for a company in relation to a taxpayer
under paragraph 371 (1) (b) as a result of a change of residence
whereby the company becomes a Part X Australian resident; and
(b) the company makes an attribution account payment consisting of a
frankable dividend, within the meaning of Part IIIAA, that has been
franked in accordance with section 160AQF; and
(c) immediately before the attribution account payment is made, there is
an attribution surplus for the company in relation to the taxpayer
that is attributable to the attribution credit; then, for the purposes
of applying section 23AI and Divisions 4 and 5 of this Part in
relation to the taxpayer, the attribution account payment is taken to
be reduced to the extent that it is franked. Direct attribution
account interest in a company
"366. (1) An entity holds a direct attribution account interest in a company
at a particular time equal to the percentage that the entity holds, or is
entitled to acquire, at that time of:
(a) the total paid-up share capital of the company; or
(b) the total rights of shareholders to vote, or participate in any
decision-making, concerning any of the following:
(i) the making of distributions of capital or profits of the company to
its shareholders;
(ii) the constituent document of the company;
(iii) any variation of the share capital of the company; or
(c) the total rights to distributions of capital or profits of the company
to its shareholders on winding-up; or
(d) the total rights to distributions of capital or profits of the company
to its shareholders, otherwise than on winding-up; or, if different
percentages are applicable under the preceding paragraphs, the greater
or greatest of those percentages.
"(2) If the percentage of total rights to vote or participate in
decision-making differs as between differing types of decision-making, the
highest of those percentages applies for the purposes of paragraph (1)(b).
"(3) For the purposes of the application of subsection (1) to a company, the
percentage that an entity holds, or is entitled to acquire, at a particular
time (in this subsection called the `test time') in a statutory accounting
period of the company, of the total rights to distributions of capital or
profits of the company to its shareholders on winding-up is to be worked out
by:
(a) ascertaining whichever of the following is applicable:
(i) the capital of the company as at the end of the statutory accounting
period;
(ii) the profits of the company for the statutory accounting period; and
(b) assuming that the rights to such distributions that the entity holds,
or is entitled to acquire, at the test time were the same at all other
times during the statutory accounting period; and
(c) ascertaining the percentage concerned:
(i) at the end of the statutory accounting period instead of at the test
time; and
(ii) on that assumption.
"(4) For the purposes of the application of subsection (1) to a company, the
percentage that an entity holds, or is entitled to acquire, at a particular
time (in this subsection called the `test time') in a statutory accounting
period of the company, of the total rights to distributions of capital or
profits of the company to its shareholders, otherwise than on winding-up, is
to be worked out by:
(a) ascertaining whichever of the following is applicable:
(i) the capital of the company as at the end of the statutory accounting
period;
(ii) the profits of the company for the statutory accounting period; and
(b) assuming that the rights to such distributions that the entity holds,
or is entitled to acquire, at the test time were the same at all other
times during the statutory accounting period; and
(c) ascertaining the percentage concerned:
(i) at the end of the statutory accounting period instead of at the test
time; and
(ii) on that assumption.
"(5) Eligible finance shares in a company are to be ignored for the purposes
of the application of subsection (1) to the company. Direct attribution
account interest in a partnership
"367. (1) An entity that is a partner in a partnership holds a direct
attribution account interest in the partnership at a particular time equal to
the percentage that the partner holds, or is entitled to acquire, of:
(a) the total interests in the profits of the partnership; or
(b) the total interests in the property of the partnership; or, if those
percentages differ, the greater of those percentages.
"(2) For the purposes of the application of subsection (1) to a partnership:
(a) the percentage that the partner holds, or is entitled to acquire, of
the total interests in the profits of the partnership; or
(b) the percentage that the partner holds, or is entitled to acquire, of
the total interests in the property of the partnership; at a
particular time (in this subsection called the `test time') in an
accounting period of the partnership is to be worked out by:
(c) ascertaining whichever of the following is applicable:
(i) the profits of the partnership for the accounting period;
(ii) the property of the partnership as at the end of the accounting
period; and
(d) assuming that the percentage that the partner holds, or that the
partner is entitled to acquire, at the test time was the same at all
other times during the accounting period; and
(e) ascertaining the percentage concerned:
(i) at the end of the accounting period instead of at the test time; and
(ii) on that assumption. Direct attribution account interest in a trust
"368. (1) A beneficiary in a trust holds a direct attribution account interest
in the trust at a particular time equal to:
(a) the percentage of the income of the trust represented by the share of
the income to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire; or
(b) the percentage of the corpus of the trust represented by the share of
the corpus to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire; or, if those percentages differ,
the greater of those percentages.
"(2) For the purposes of the application of subsection (1) to a trust:
(a) the percentage of the income of the trust represented by the share of
the income to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire; or
(b) the percentage of the corpus of the trust represented by the share of
the corpus to which the beneficiary is entitled, or that the
beneficiary is entitled to acquire at a particular time (in this
subsection called the `test time') in an accounting period of the
trust, is to be worked out by:
(c) ascertaining whichever of the following is applicable:
(i) the income of the trust for the accounting period;
(ii) the corpus of the trust as at the end of the accounting period; and
(d) assuming that the share to which the entity is entitled, or that the
entity is entitled to acquire, at the test time was the same at all
other times during the accounting period; and
(e) ascertaining the percentage concerned:
(i) at the end of the accounting period instead of at the test time; and
(ii) on that assumption.
"(3) Each entity that is an eligible transferor in relation to a trust at a
particular time holds a direct attribution account interest in the trust at
that time equal to:
(a) if paragraph (b) does not apply - 100%; or
(b) if, because there are 2 or more eligible transferors in relation to
the trust, the Commissioner reduces an attribution percentage under
subsection 362 (3) or (4) or subsection 362 (5) applies - such lower
percentage as the Commissioner considers reasonable in the
circumstances.
"(4) An entity that holds a direct attribution account interest in a trust at
a particular time because of subsection (3) is not taken to hold any direct
attribution account interest in the trust at that particular time because of
subsection (1). Indirect attribution account interest in an entity
"369. (1) The indirect attribution account interest that an entity (in this
section called the `bottom entity') holds in another entity (in this section
called the `top entity') is calculated in accordance with this section.
"(2) An interposed entity is not to be taken into account in calculating the
indirect attribution account interest unless the entity is an attribution
account entity.
"(3) If there is only one entity interposed between the bottom entity and the
top entity, the indirect attribution account interest is calculated by
multiplying the direct attribution account interest that the bottom entity
holds in the interposed entity by the direct attribution account interest that
the interposed entity holds in the top entity.
"(4) If there are 2 entities interposed between the bottom entity and the top
entity, the indirect attribution account interest is calculated:
(a) by multiplying the direct attribution account interest that the bottom
entity holds in the first interposed entity by the direct attribution
account interest that the first interposed entity holds in the second
interposed entity; and
(b) by multiplying the result of the calculation in paragraph (a) by the
direct attribution account interest that the second interposed entity
holds in the top entity.
"(5) If there are 3 or more entities interposed between the bottom entity and
the top entity, the indirect attribution account interest is calculated:
(a) by multiplying the direct attribution account interest that the bottom
entity holds in the first interposed entity by the direct attribution
account interest that the first interposed entity holds in the second
interposed entity; and
(b) by multiplying the result of the multiplication referred to in
paragraph (a) by the direct attribution account interest that the
second interposed entity holds in the third interposed entity; and so
on, ending with a multiplication by the direct attribution account
interest that the last interposed entity holds in the top entity.
"(6) For the purposes of this section, an entity (in this subsection called
the `second entity') is interposed between 2 other entities (in this
subsection called the `first entity' and the `third entity' respectively) if,
and only if:
(a) the first entity has a direct attribution account interest in the
second entity; and
(b) the second entity has a direct attribution account interest in the
third entity. Attribution surplus
"370. An attribution surplus for an attribution account entity in relation to
a taxpayer exists at a particular time if the entity's total attribution
credits arising before that time in relation to the taxpayer exceed its total
attribution debits arising before that time in relation to the taxpayer.
Attribution credit
"371. (1) An attribution credit arises for an attribution account entity (in
this section called the `eligible entity') in relation to a taxpayer if:
(a) an amount is included in the taxpayer's assessable income under
section 456 in respect of the attributable income of the eligible
entity for a statutory accounting period; or
(b) an amount is included in the taxpayer's assessable income under
section 457 as a result of a change of residence by the eligible
entity; or
(c) an amount is included in the taxpayer's assessable income under
section 458 in respect of a dividend and the eligible entity is:
(i) the CFC referred to in subsection 458 (1) that receives the dividend;
or
(ii) the CFT referred to in subsection 458 (3); or
(iii) the ultimate recipient referred to in subsection 458 (4) or (5); or
(d) an attribution account payment that requires an attribution debit for
another entity in relation to the taxpayer is made to the eligible
entity.
"(2) Subject to subsections (3) and (4), the amount of the attribution credit
is equal to the amount included in assessable income or to the amount of the
attribution debit, as the case may be.
"(3) Where:
(a) the attribution credit arises under subparagraph (1) (c) (i) as a
result of an amount being included in the taxpayer's assessable income
under subsection 458 (1) in respect of a dividend paid to a CFC; and
(b) the CFC is or will be liable to pay an amount of foreign tax on the
dividend or on amounts that include the dividend; then the amount of
the attribution credit is reduced by the amount of foreign tax, to the
extent that it is attributable to so much of the dividend as equals
the amount included in the taxpayer's assessable income.
"(4) Where:
(a) the attribution credit arises under paragraph (1) (d) in relation to
an attribution account payment consisting of a non-portfolio dividend
paid to the eligible entity, where the eligible entity is a company;
and
(b) the eligible entity is or will be liable to pay an amount of foreign
tax on the attribution account payment or on amounts that include the
attribution account payment; then the amount of the attribution credit
is reduced by the amount calculated using the formula: Attribution
account percentage x Foreign tax where: Attribution account percentage
means the taxpayer's attribution account percentage for the
attribution account entity; Foreign tax means the amount of foreign
tax, to the extent that it is attributable to the attribution account
payment.
"(5) The attribution credit arises:
(a) in a paragraph (1) (a) case - at the end of the statutory accounting
period referred to in that paragraph; or
(b) in a paragraph (1) (b) case - at the time of the change of residence
referred to in that paragraph; or
(c) in a paragraph (1) (c) case - when the dividend referred to in that
paragraph is paid; or
(d) in a paragraph (1) (d) case - when the attribution account payment
referred to in that paragraph is made.
"(6) Where, apart from this subsection, an attribution credit would arise in
relation to an attribution account entity for an Australian partnership or an
Australian trust in respect of an amount included in the assessable income of
the partnership or trust of a year of income under section 456, 457 or 458,
then, subject to subsection (7):
(a) the attribution credit does not arise for the partnership or trust;
and
(b) an attribution credit arises in relation to the attribution account
entity for:
(i) any taxpayer for whom, as a result of the amount being so included, a
tax detriment would arise in circumstances referred to in paragraphs
460 (2) (a) and (b) or paragraphs 460 (3) (a) and (b); and
(ii) any taxpayer where, as a result of the amount being so included, a tax
detriment would arise for the trustee of a trust in which the taxpayer
is a beneficiary, in respect of an amount assessable to the trustee
under section 98 in respect of the taxpayer's share of the net income
of the trust, in circumstances referred to in paragraph 460 (4) (a);
and
(iii) any taxpayer in the capacity of trustee of a trust, where, as a
result of the amount being so included, a tax detriment would arise
for the taxpayer in respect of an amount assessable to the taxpayer
under section 99 or 99A, in circumstances referred to in paragraph 460
(4) (a); and
(c) the amount of the attribution credit referred to in paragraph (b)
equals the amount of the tax detriment, as reduced by any application
of section 460; and
(d) the attribution credit referred to in paragraph (b) arises at the time
when the attribution credit referred to in paragraph (a) would, but
for this subsection, have arisen.
"(7) Subsection (6) does not apply to an Australian trust that is, in relation
to the year of income referred to in that subsection:
(a) a corporate unit trust within the meaning of Division 6B of Part III;
or
(b) a public trading trust within the meaning of Division 6C of that Part;
or
(c) an eligible entity within the meaning of Part IX. Attribution debit
"372. (1) An attribution debit arises for an attribution account entity (in
this section called the `eligible entity') in relation to a taxpayer if:
(a) the eligible entity makes an attribution account payment to the
taxpayer or to another attribution account entity; and
(b) immediately before the eligible entity makes the attribution account
payment, there is an attribution surplus for the eligible entity in
relation to the taxpayer.
"(2) Subject to subsections (3) and (4), the amount of the debit is the lesser
of:
(a) the attribution surplus; and
(b) whichever of the following is applicable:
(i) if the attribution account payment is made to the taxpayer -
the attribution account payment;
(ii) in any other case - the taxpayer's attribution account
percentage (for the attribution account entity to which the
payment is made) of the attribution account payment.
"(3) Where:
(a) the attribution account payment is a non-portfolio dividend; and
(b) the eligible entity, the taxpayer and the entity to which the payment
is made (if the payment is not made to the taxpayer) are members of a
non-portfolio company group when the payment is made; subsection (2)
applies as if the attribution account payment were reduced by the
exempting profits percentage of the payment in relation to the
taxpayer.
"(4) Where:
(a) the attribution account payment is made to an attribution account
entity that is a trust; and
(b) the attribution surplus, for the eligible entity, is in relation to
the taxpayer in the capacity of trustee of the trust (because it is a
surplus that resulted from an attribution credit or credits that arose
under subparagraph 371 (6) (b) (iii)); then the amount of the
attribution debit is the lesser of:
(c) the attribution surplus; and
(d) any amount assessable to the taxpayer under section 99 or 99A in
relation to the net income of the trust of the year of income in which
the attribution account payment is made.
"(5) The attribution debit arises when the attribution account payment is
made. Grossed-up amount of an attribution debit
"373. The grossed-up amount in relation to an attribution debit is:
(a) where subparagraph 372 (2) (b) (i) applied in relation to the debit -
the amount of the debit; or
(b) where subparagraph 372 (2) (b) (ii) applied in relation to the debit -
the amount of the debit, divided by the attribution account percentage
referred to in that subparagraph.
"Division 5 - Attributed Tax Accounts Attributed tax account surplus
"374. An attributed tax account surplus for an attribution account entity in
relation to a taxpayer exists at a particular time if the entity's total
attributed tax account credits arising before that time in relation to the
taxpayer exceed its total attributed tax account debits arising before that
time in relation to the taxpayer. Attributed tax account credit
"375. (1) An attributed tax account credit arises for an attribution account
entity in relation to a taxpayer if:
(a) on the assumption that the reference in section 160AFCA to notional
allowable deductions under section 393 did not include a reference to
deductions in respect of Australian tax, the taxpayer would be taken
by that section to have paid, and to have been personally liable for,
an amount of foreign tax in respect of an amount included in the
taxpayer's assessable income under section 456 in respect of a
statutory accounting period of the entity; or
(b) on the assumption that the reference to Australian tax were omitted
from paragraph 160AFCB (c), the taxpayer would be taken by that
paragraph to have paid, and to have been personally liable for, an
amount of foreign tax as a result of a change of residence by a CFC to
which section 457 applies; or
(c) the taxpayer is taken by paragraph 160AFCB (d) to have paid, and to
have been personally liable for, an amount of foreign tax as a result
of a change of residence by a CFC to which section 457 applies; or
(d) disregarding subparagraph 160AFCC (d) (iii), the taxpayer would be
taken by section 160AFCC to have paid, and to have been personally
liable for, an amount of foreign tax in respect of a dividend paid by
the entity; or
(e) the entity receives an attribution account payment that requires an
attributed tax account debit for another entity in relation to the
taxpayer.
"(2) The amount of the credit is equal to the amount of the foreign tax, or to
the amount of the debit, as the case may be.
"(3) The attributed tax account credit arises:
(a) in a paragraph (1) (a) case - at the end of the statutory accounting
period referred to in that paragraph; or
(b) in a paragraph (1) (b) or (c) case - at the time of the change of
residence referred to in that paragraph; or
(c) in a paragraph (1) (d) case - when the dividend referred to in that
paragraph is paid; or
(d) in a paragraph (1) (e) case - when the attribution account payment
referred to in that paragraph is made. Attributed tax account debit
"376. (1) An attributed tax account debit arises for an attribution account
entity in relation to a taxpayer if:
(a) the entity makes an attribution account payment to another attribution
account entity or to the taxpayer; and
(b) the attribution account payment requires an attribution debit for the
entity in relation to the taxpayer; and
(c) immediately before the entity makes the attribution account payment,
there is an attributed tax account surplus for the entity in relation
to the taxpayer.
"(2) The amount of the attributed tax account debit is the amount calculated
using the formula:
Attribution debit x Attributed tax account surplus
Attribution surplus where: Attribution debit means the amount of the
attribution debit; Attribution surplus means the amount of the attribution
surplus, for the entity making the attribution account payment, in relation to
the taxpayer immediately before the attribution debit arose; Attributed tax
account surplus means the amount of the attributed tax account surplus.
"(3) The attributed tax account debit arises when the attribution account
payment is made.
"Division 6 - Exempting Receipts etc. Exempting receipt of an unlisted country
company
"377. (1) Where a company is a resident of an unlisted country during the
whole or part of an accounting period (which whole or part is in this
subsection called the `qualifying period') of the company, each of the
following is an exempting receipt of the company in relation to the qualifying
period in relation to a taxpayer:
(a) income or profits derived by the company in the qualifying period in
or in connection with carrying on business in a listed country at or
through a permanent establishment of the company in that listed
country, where:
(i) the income or profits are not eligible designated concession income in
relation to any listed country in relation to the qualifying period;
and
(ii) the income or profits are subject to tax in any listed country in a
tax accounting period:
(A) ending before the end of the qualifying period; or
(B) commencing during the qualifying period;
(b) income derived by the company in the qualifying period that is
included in the assessable income of the company of a year of income;
(c) a profit of a capital nature derived by the company in the qualifying
period in respect of the disposal of a taxable Australian asset to
which Part IIIA applies, to the extent that an amount is included in
the assessable income of the company of a year of income under Part
IIIA in respect of the disposal;
(d) if a non-portfolio dividend is paid to the company in the qualifying
period by a company that is a resident of a listed country:
(i) where, on the making of the payment, an attribution debit arises for
the company in relation to the taxpayer - so much (if any) of the
dividend as exceeds thegrossed-up amount of the attribution debit; or
(ii) in any other case - the whole of the dividend;
(e) so much of a frankable dividend, within the meaning of Part IIIAA,
paid to the company in the qualifying period as has been franked in
accordance with section 160AQF;
(f) the exempting profits percentage, in relation to the taxpayer, of a
non-portfolio dividend paid to the company in the qualifying period by
a company that is a resident of an unlisted country;
(g) an amount that is an exempting receipt of the company in relation to
the qualifying period in relation to the taxpayer under subsection
(2).
"(2) Where:
(a) a partnership (in this subsection called the `main partnership') or
trust (in this subsection called the `main trust') derives income or
profits (in this subsection called the `notional exempting receipt')
that, if the main partnership or main trust were a company, would be
an exempting receipt of the company in relation to an accounting
period, in relation to a taxpayer, under paragraph (1) (a), (b) or
(c); and
(b) either:
(i) a company is entitled to:
(A) a share of after-tax profits of the main partnership that
is attributable to the notional exempting receipt; or
(B) a share of after-tax profits of another partnership that
is attributable to the notional exempting receipt because
of a distribution of the profits of the main partnership,
or income of the main trust, either directly or
indirectly through one or more such distributions by
interposed partnerships or trusts; or
(ii) a company receives a distribution of:
(A) income of the main trust that is attributable to the
notional exempting receipt; or
(B) income of another trust that is attributable to the
notional exempting receipt because of a distribution of
profits of the main partnership, or income of the main
trust, either directly or indirectly through one or more
such distributions by interposed partnerships or trusts;
then the share or distribution is an exempting receipt of
the company in relation to the accounting period in
relation to the taxpayer. Exempting profits
"378. (1) The exempting profits in relation to a taxpayer, at a particular
time, of a company resident in an unlisted country are so much of the
distributable profits, at that time, of the company as are attributable to
exempting receipts of the company in relation to any accounting period in
relation to the taxpayer.
"(2) For the purpose of determining under subsection (1) the amount of the
exempting profits of a company in relation to a taxpayer where a dividend has
been previously paid, that dividend is taken to have been paid out of
exempting profits and other distributable profits in proportion to the
respective amounts of those profits. Exempting profits percentage
"379. The exempting profits percentage, in relation to a taxpayer, of a
dividend paid by a company resident in an unlisted country is the percentage
calculated using the formula:
Exempting profits
-------------------- x 100
Distributable profits where: Exempting profits means the amount of the
exempting profits of the company in relation to the taxpayer immediately
before the dividend is paid; Distributable profits means the amount of the
distributable profits of the company immediately before the dividend is paid.
Exempting receipt of a section 6 resident company
"380. Each of the following is an exempting receipt of a company (in this
section called the `Australian company') that is a resident within the meaning
of section 6:
(a) if a non-portfolio dividend is paid to the Australian company by
another company that is a resident of a listed country:
(i) where, on the making of the payment, an attribution debit arises for
the other company in relation to the Australian company - so much (if
any) of the dividend as exceeds the amount of the attribution debit;
or
(ii) in any other case - the whole of the dividend;
(b) the exempting profits percentage, in relation to the Australian
company, of a non-portfolio dividend paid to the Australian company by
another company that is a resident of an unlisted country.
"Division 7 - Calculation of Attributable Income of CFC
"Subdivision A - Basic Principles Separate attributable income for each
attributable taxpayer
"381. Where, at the end of a statutory accounting period (in this Division
called the `eligible period') of a company:
(a) the company is a CFC; and
(b) there are one or more attributable taxpayers in relation to the
company; the attributable income of the company (in this Division
called the `eligible CFC') for the eligible period is calculated
separately for each such attributable taxpayer (in this Division
called the `eligible taxpayer') in accordance with this Division.
Attributable income is taxable income calculated on certain
assumptions
"382. (1) The attributable income is the amount that would be the eligible
CFC's taxable income for the eligible period if certain assumptions were made.
"(2) For the purposes of describing those assumptions, amounts of assessable
income, allowable deductions and exempt income that are to be taken into
account in calculating the taxable income are referred to respectively as
notional assessable income, notional allowable deductions and notional exempt
income. Basic assumptions
"383. The assumptions are:
(a) that the eligible CFC is a taxpayer and a resident, within the meaning
of section 6, during the whole of the eligible period; and
(b) that the eligible period is a year of income, being the year of income
of the eligible taxpayer in which the eligible period ends; and
(c) that this Act is modified in accordance with Subdivisions B to D; and
(d) whichever of the assumptions in section 384 or 385 applies. Additional
assumption for unlisted country CFC
"384. (1) Where the eligible CFC is a resident of an unlisted country at the
end of the eligible period, it is to be assumed:
(a) that the only amounts of notional assessable income are those to which
subsection (2) applies; and
(b) that all other income is notional exempt income.
"(2) The amounts of notional assessable income are:
(a) where the eligible CFC does not pass the active income test for the
eligible period in relation to the eligible taxpayer - amounts that
would be included in its notional assessable income for the eligible
period under this Act as modified in accordance with Subdivisions B to
D if the only income or other amounts derived by it during the
eligible period, and any earlier statutory accounting period, were
adjusted tainted income (within the meaning of section 386); and
(b) amounts included in the notional assessable income of the eligible CFC
for the eligible period under section 102AAZD of this Act as modified
in accordance with Subdivisions B to D; and
(c) amounts included in the notional assessable income of the eligible CFC
for the eligible period under Division 6 of Part III of this Act as so
modified; and
(d) amounts that would be included in the notional assessable income of
the eligible CFC for the eligible period under Division 5 of Part III
of this Act, as modified in accordance with Subdivisions B to D of
this Division, in relation to any partnership if its net income
included only:
(i) where the eligible CFC does not pass the active income test for the
eligible period in relation to the eligible taxpayer - amounts that
would be included if the partnership derived only adjusted tainted
income (within the meaning of section 386); and
(ii) amounts included under section 102AAZD of this Act as modified in
accordance with Subdivisions B to D of this Division; and
(iii) amounts included under Division 6 of Part III of this Act as so
modified. Additional assumption for listed country CFC
"385. (1) Where the eligible CFC is a resident of a listed country at the end
of the eligible period, it is to be assumed:
(a) that the only amounts of notional assessable income are those to which
subsection (2) applies; and
(b) that all other income is notional exempt income.
"(2) Subject to subsection (4), the amounts of notional assessable income
are:
(a) amounts that would be included in the notional assessable income of
the eligible CFC for the eligible period under this Act as modified in
accordance with Subdivisions B to D if the only income or other
amounts derived during the eligible period, and any earlier statutory
accounting period, by the eligible CFC were:
(i) where the eligible CFC does not pass the active income test for the
eligible period in relation to the eligible taxpayer - adjusted
tainted income (within the meaning of section 386) that is eligible
designated concession income in relation to the listed country or any
other listed country; and
(ii) income or other amounts that:
(A) are not eligible designated concession income of the
eligible CFC in relation to the listed country or any
other listed country; and
(B) are not treated as derived from sources in the listed
country for the purposes of the tax law of the listed
country; and
(C) are not subject to tax in the listed country or any other
listed country in a tax accounting period ending before
the end of the eligible period or commencing during the
eligible period; and
(b) amounts included in the notional assessable income of the eligible CFC
for the eligible period under section 102AAZD of this Act as modified
in accordance with Subdivisions B to D; and
(c) amounts included in the notional assessable income of the eligible CFC
for the eligible period under Division 6 of Part III of this Act as so
modified, where either of the following conditions (but not
necessarily the same condition) is satisfied in relation to the listed
country and each other listed country:
(i) the amounts are not subject to tax in that listed country in a tax
accounting period ending before the end of the eligible period or
commencing during the eligible period;
(ii) the amounts are subject to tax in that listed country in such a tax
accounting period and are designated concession income in relation to
the listed country; and
(d) amounts that would be included in the notional assessable income of
the eligible CFC for the eligible period under Division 5 of Part III
of this Act, as modified in accordance with Subdivisions B to D of
this Division, in relation to any partnership if its net income
included only:
(i) where the eligible CFC does not pass the active income test for the
eligible period in relation to the eligible taxpayer - amounts that
would be included if the partnership derived only adjusted tainted
income (within the meaning of section 386) that is eligible designated
concession income in relation to the listed country or any other
listed country; and
(ii) amounts that would be included if the partnership derived only income
or other amounts that:
(A) are not eligible designated concession income of the
partnership in relation to the listed country or any
other listed country; and
(B) are not treated as derived from sources in the listed
country for the purposes of the tax law of the listed
country; and
(C) are not subject to tax in the listed country or any other
listed country in a tax accounting period ending before
the end of the eligible period or commencing during the
eligible period; and
(iii) amounts included under section 102AAZD of this Act as modified in
accordance with Subdivisions B to D of this Division; and
(iv) amounts included under Division 6 of Part III of this Act as so
modified, where either of the following conditions (but not
necessarily the same condition) is satisfied in relation to the listed
country and each other listed country:
(A) the amounts are not subject to tax in that listed country
in a tax accounting period ending before the end of the
eligible period or commencing during the eligible period;
(B) the amounts are subject to tax in that listed country in
such a tax accounting period and are designated
concession income in relation to the listed country.
"(3) For the purposes of paragraph (2) (c) or (d), a reference in that
paragraph to an amount being not subject to tax or subject to tax, as the case
may be, includes a reference to another amount included in the net income of a
partnership or trust, to which the first-mentioned amount is attributable,
being not subject to tax or subject to tax.
"(4) Where the sum of the amounts to which paragraph (2) (a) would otherwise
apply does not exceed the lesser of:
(a) $50,000; and
(b) 5% of the gross turnover of the eligible CFC for the eligible period;
then that paragraph does not apply to those amounts. Adjusted tainted
income
"386. (1) The references in sections 384 and 385 to adjusted tainted income
are references to amounts that would be passive income, tainted sales income
or tainted services income if certain modifications were made to the
provisions of Division 8.
"(2) The modifications are:
(a) that paragraphs 446 (1) (k), (m) and (n) are replaced with the
following:
`(k) amounts derived from the disposal of tainted assets;
(m) amounts derived from the disposal of tainted commodity investments;
(n) amounts derived that are attributable to currency exchange rate
fluctuations, except where under section 439 the amounts would, if
they were currency exchange gains, relate to an active income
transaction;'; and
(b) that paragraph 446 (1) (k) as so replaced does not apply to an amount
derived from the disposal of a tainted asset in the circumstances
referred to in paragraphs 450 (2) (a) to (c) or(5) (a) to (c); and
(c) that paragraph 446 (1) (n) as so replaced does not apply to an amount
derived where, if it were a currency exchange gain, paragraphs 450 (3)
(a) and (b) would apply to it; and
(d) that the reference in subsection 450 (7) to net gains that accrued to
the company in respect of the disposal of tainted assets is replaced
with a reference to amounts derived by the company from the disposal
of tainted assets. Reduction of attributable income because of interim
dividends
"387. (1) Where:
(a) during the eligible period, the eligible CFC pays a dividend to the
eligible taxpayer or to another entity; and
(b) if the dividend is paid to the eligible taxpayer - the whole or part
of the dividend is included in the assessable income of the eligible
taxpayer of a year of income; and
(c) if the dividend is paid to another entity - an amount is included in
the assessable income of the eligible taxpayer of a year of income
under section 458 in respect of the dividend; and
(d) the whole or part of the grossed-up assessable component of the
dividend, or of the grossed-up 458 component of the dividend, as the
case requires, may reasonably be regarded as having been paid out of
the attributable income of the eligible CFC for the eligible period;
then, for the purposes of this Part, the attributable income of the
eligible CFC for the eligible period in relation to the eligible
taxpayer is reduced by an amount equal to the whole or the part of the
grossed-up assessable component of the dividend, or of the grossedup
458 component of the dividend, as the case requires.
"(2) In this section: `grossed-up assessable component', in relation to a
dividend the whole or part of which is included in the assessable income of
the eligible taxpayer, means the amount of the whole or the part divided by
the eligible taxpayer's attribution percentage for the eligible CFC at the
time of payment of the dividend; `grossed-up 458 component', in relation to a
dividend in respect of which an amount is included in the assessable income of
the eligible taxpayer under section 458, means:
(a) where the amount is included under subsection 458 (1) or (3) - the
amount of the dividend, divided by the formula component AP referred
to in that subsection; or
(b) where the amount is included under subsection 458 (4) - the amount of
the dividend, divided by the formula component AP x IP referred to in
that subsection; or
(c) where the amount is included under subsection 458 (5) - the amount of
the dividend, divided by the formula component AP x IT referred to in
that subsection. "Subdivision B - General Modifications of Australian
Tax Law Double tax agreements to be disregarded
"388. In calculating the attributable income of the eligible CFC, the Income
Tax (International Agreements) Act 1953 is to be disregarded, except for the
purpose of references in this Act to that Act. Certain provisions to be
disregarded in calculating attributable income
"389. For the purpose of applying this Act in calculating the attributable
income of the eligible CFC, the following provisions are to be disregarded:
(a) except for the purposes of a reference in any other provision of this
Part - sections 6AC, 20, 23AH, 23AI, 23AJ, 38 to 43 (inclusive) and
128D, subsection 136AF (1A) and sections 136A, 456, 457, 458, 459 and
461;
(b) except for the purposes of a reference in Division 6AAA of Part III or
in any other provision of this Part - Part IIIAA. Elections to be made
by eligible taxpayer
"390. (1) For the purpose of applying this Act in calculating the attributable
income of the eligible CFC, any declaration, election or selection that may be
made, any notice that may be given or any option that may be exercised, by the
eligible CFC apart from this section is not to be made, given or exercised by
the eligible CFC but instead may be made, given or exercised by the eligible
taxpayer.
"(2) The eligible taxpayer may make the declaration, election or selection,
give the notice or exercise the option in the eligible taxpayer's return of
income of the year of income in which the eligible period ends or within such
further period after the lodgment of the return as the Commissioner allows.
"(3) Subsection (1) does not apply to an election under the CGT roll-over
provisions. Income and expenses to be expressed in Australian currency
"391. (1) For the purpose of applying this Act in calculating the attributable
income of the eligible CFC, any amount (in this section called an `eligible
amount') of income wherever derived or of expenditure wherever incurred is to
be expressed in Australian currency.
"(2) Where, according to the accounts of the eligible CFC for the eligible
period, some or all of the eligible amounts of the eligible CFC are not
expressed in Australian currency, then any such eligible amount is to be
converted:
(a) if there is a single or predominant foreign currency in which eligible
amounts of the eligible CFC are expressed in the accounts and
paragraph (b) does not apply:
(i) where the eligible amount is expressed in that currency - to
Australian currency at a rate equal to:
(A) if sub-subparagraph (B) does not apply - the average of
the exchange rates applicable from time to time during
the eligible period; or
(B) if the eligible taxpayer elects in accordance with
subsection (3) - the exchange rate applicable on the last
day of the eligible period; or
(ii) in any other case - first to the single or predominant currency using
any reasonable method and then to Australian currency in accordance
with whichever of sub-subparagraph (i) (A) or (B) applies; or
(b) if the eligible amount is an amount of foreign tax paid by the
eligible CFC:
(i) if the foreign tax was paid by deduction from another amount - to
Australian currency, or to another currency and then to Australian
currency, according to the method applicable under paragraph (a) or
(c) for the conversion of the amount from which it was deducted; or
(ii) in any other case - to Australian currency at the rate of exchange
applicable at the time when the foreign tax was paid; or
(c) if neither paragraph (a) nor (b) applies - to Australian currency
using any reasonable method.
"(3) The eligible taxpayer may, in the eligible taxpayer's first return of
income in which an amount is required to be included in the assessable income
of the eligible taxpayer under section 456 in relation to the attributable
income of the eligible CFC for a statutory accounting period, or within such
further period after the lodgment of the return as the Commissioner allows,
elect that sub-subparagraph (2) (a) (i) (B) is to apply in relation to the
eligible CFC.
"(4) Where the taxpayer does so, that sub-subparagraph applies instead of
sub-subparagraph (2) (a) (i) (A) in calculating the attributable income of the
eligible CFC in relation to the eligible taxpayer for the statutory accounting
period and for all subsequent statutory accounting periods. Notional
assessable amounts are to be pre-tax
"392. (1) An amount included in the notional assessable income of the eligible
CFC is an amount before the payment of any foreign tax or Australian tax in
respect of the amount.
"(2) Where the eligible CFC is taken by subsection 393 (2) to have paid an
amount of foreign tax in respect of a dividend included in its notional
assessable income, the dividend is, for the purposes of this Division, taken
to be increased by the amount of that tax. Notional allowable deduction for
taxes paid
"393. (1) Foreign tax or Australian tax paid by the eligible CFC in respect of
amounts included in the notional assessable income of the eligible CFC for the
eligible period, whether paid before, during or after that period, is a
notional allowable deduction from the notional assessable income of the
eligible CFC for the eligible period.
"(2) Where:
(a) a non-portfolio dividend is included in the notional assessable income
of the eligible CFC for the eligible period; and
(b) the eligible taxpayer is a company; and
(c) the eligible CFC would be taken by section 160AFC to have paid, and to
have been personally liable for, an amount of foreign tax in respect
of the dividend if it were a requirement of that section (in addition
to the other requirements of that section), for companies to be a pair
of companies in a dividend series, that each be related to the
eligible taxpayer; then, for the purposes of subsection (1) of this
section, the eligible CFC is taken to have paid that amount of foreign
tax in respect of the dividend.
"(3) Except as mentioned in subsection (2), the eligible CFC is not taken by
section 160AFC to have paid an amount of foreign tax in respect of the
dividend for the purposes of subsection (1). Notional allowable deduction for
eligible finance share dividends
"394. Where:
(a) the eligible CFC pays an eligible finance share dividend during or
after the eligible period; and
(b) if, on the assumption that the dividend were instead a payment of the
interest, referred to in paragraph 327 (d), to which it may reasonably
be regarded as equivalent, an amount (in this section called the
`interest equivalent') of that interest accruing during the eligible
period would be a notional allowable deduction for the eligible
period; then the interest equivalent is a notional allowable deduction
for the eligible period. Expenditure incurred to produce income or
profits in later statutory accounting periods
"395. In determining whether expenditure incurred by the eligible CFC during
the eligible period for the purpose of gaining or producing income or profits
in a later statutory accounting period is a notional allowable deduction under
a particular provision, it is to be assumed that:
(a) there will be a requirement under this Division to calculate the
attributable income of the eligible CFC for that later statutory
accounting period; and
(b) for that purpose, the eligible CFC will always be a resident of the
listed country or unlisted country, as the case may be. Modified
application of sections 25A and 52
"396. (1) For the purpose of applying this Act in calculating the attributable
income of an eligible CFC, sections 25A and 52 do not apply in respect of the
disposal of a non-taxable Australian asset of the eligible CFC.
"(2) A reference in subsection (1) to a non-taxable Australian asset is a
reference to an asset other than a taxable Australian asset (within the
meaning of Part IIIA).
"(3) The residency assumption is to be ignored in determining whether an asset
is a taxable Australian asset for the purposes of this section. Modified
application of trading stock provisions
"397. For the purpose of applying this Act in calculating the attributable
income of the eligible CFC, Subdivision B of Division 2 of Part III has effect
as if the value of any article of trading stock to be taken into account at
the beginning or end of a year of income were its cost price. Modified
application of depreciation provisions
"398. (1) Where property has been held by the eligible CFC in a
non-attributable income period in relation to the application of a
depreciation provision to the property (in relation to the eligible CFC and
the eligible taxpayer) prior to the eligible period, subsection (2) applies.
"(2) Such amount as the Commissioner considers appropriate to take account of
the holding of the property as mentioned in subsection (1) is, under the
depreciation provision:
(a) a notional allowable deduction to the eligible CFC; or
(b) included in the notional assessable income of the eligible CFC; as the
case requires, for the eligible period in relation to the eligible
taxpayer, in substitution for any amount that would otherwise be so
included or allowable.
"(3) For the purpose of exercising his or her power under subsection (2) to
determine a notional allowable deduction in relation to sections 54 to 62, the
Commissioner must assume that the property was used by the eligible CFC during
any non-attributable income period wholly and exclusively for the purpose of
producing notional assessable income. Modifications of net income of
partnerships and trusts
"399. (1) If, in calculating the attributable income of the eligible CFC, it
is necessary to determine the net income of a partnership or trust under
section 90 or 95, it is to be assumed that:
(a) the modifications of this Act in this Division (other than excluded
modifications) apply to the partnership or the trust in the same way
as they apply to the eligible CFC (except where a provision modified
only applies to companies); and
(b) for the purpose of applying those modifications, the partnership or
trust is taken to be a resident of the same listed or unlisted country
as the eligible CFC; and
(c) the Act is further modified by disregarding subsections 160M (13) and
(14); and
(d) for the purpose of applying Part IIIA of the Act in accordance with
the preceding paragraphs, the trust is a resident trust estate, or a
resident unit trust, as the case may be.
"(2) In this section: `excluded modifications' means modifications made by
paragraphs 402 (2) (a) and 403 (b) and sections 404 and 411 to 418
(inclusive). Modified application of Division 13 of Part III
"400. In calculating the attributable income of the eligible CFC:
(a) for the purposes of section 136AC, the eligible CFC is to be treated
as a resident or a non-resident, within the meaning of that section,
without regard to the residency assumption; and
(b) section 136AF applies as if:
(i) the reference in subsection 136AF (1) to the application of section
136ad in relation to a taxpayer were a reference both to:
(A) the application of that section in relation to any CFC in
calculating its attributable income or in relation to any
trust estate in calculating its attributable income under
Division 6AAA of Part III; and
(B) the actual application of that section in relation to any
taxpayer in calculating the taxable income of the
taxpayer apart from this Part; and
(ii) the references in paragraphs 136AF (1) (a) and (b) to assessable
income or allowable deductions in relation to the relevant taxpayer
were references to notional assessable income or notional allowable
deductions in relation to the eligible CFC. Reduction of disposal
consideration where attributed income not distributed
"401. (1) Where:
(a) it is necessary, for the purposes of applying a provision of this Act
in calculating the attributable income of the eligible CFC in relation
to the eligible taxpayer, to take into account the amount of
consideration received, entitled to be received or taken to be
received, by the eligible CFC in respect of the disposal of an asset,
being an interest in an attribution account entity (in this section
called the `disposal entity'); and
(b) immediately before the disposal takes place, either or both of the
following conditions are satisfied:
(i) there is an attribution surplus for the disposal entity in relation to
the eligible taxpayer;
(ii) there is an attribution surplus for one or more other attribution
account entities in relation to the eligible taxpayer, where each such
entity is one in which the eligible taxpayer has an indirect
attribution account interest held through the disposal entity; then:
(c) for the purpose of calculating the attributable income, the
consideration that, apart from this section, would be taken into
account under the provision referred to in paragraph (a) in respect of
the disposal is, subject to subsection (3), taken to be reduced by the
grossed-up amount of the attribution surplus, or the sum of the
grossed-up amounts of the attribution surpluses, as the case requires;
and
(d) for the purposes of this Act, attribution debits and credits arise in
accordance with subsection (5); and
(e) for the purposes of this Act, attributed tax account debits and
credits arise in accordance with subsection (6).
"(2) For the purposes of this section, where the provision referred to in
paragraph (1) (a) is in Part IIIA of this Act, as applied in accordance with
this Division, references in this section to the disposal of an asset are
references to the disposal of an asset within the meaning of Part IIIA of this
Act as so applied.
"(3) For the purposes of paragraph (1) (c):
(a) a reference to the grossed-up amount of an attribution surplus is a
reference to the amount of the surplus divided by the eligible
taxpayer's attribution account percentage for the eligible CFC; and
(b) where the disposal of the asset causes the eligible taxpayer's
attribution account percentage for an attribution account entity in
relation to which there is an attribution surplus to be reduced by a
proportion, then only that proportion of the attribution surplus is,
subject to this subsection, to be taken into account under that
paragraph; and
(c) where there is only one attribution surplus referred to in that
paragraph and (after any application of paragraph (b) of this
subsection) its grossed-up amount exceeds the consideration in respect
of the disposal, then the surplus is only to be taken into account to
the extent that its grossed-up amount equals the consideration; and
(d) where there are 2 or more attribution surpluses referred to in
paragraph (1) (c) and (after any application of paragraph (b) of this
subsection) the sum of their grossed-up amounts exceeds the
consideration in respect of the disposal, then:
(i) if the taxpayer specifies, in an election for the purposes of this
paragraph, a part of each surplus (after any application of paragraph
(b)) such that the sum of the grossed-up amounts of the parts
specified equals the consideration - only the specified part of each
surplus is to be taken into account under paragraph (1) (c); or
(ii) if subparagraph (i) does not apply - only a proportion of each surplus
(after any application of paragraph (b)) is to be taken into account
under paragraph (1) (c), being the proportion calculated using the
formula:
Consideration
Total grossed-up surplus where: Consideration means the amount of the
consideration; Total grossed-up surplus means the sum of the grossed-up
amounts of the attribution surpluses (after any application of paragraph (b)).
"(4) An election for the purposes of paragraph (3) (d) must be made in the
eligible taxpayer's return of income for the year of income in which the
eligible period ends or within such further period after the lodgment of the
return as the Commissioner allows.
"(5) For the purposes of this Act:
(a) an attribution debit is taken to arise at the time of the disposal
under section 372, in relation to the eligible taxpayer, for each
attribution account entity (in this section called a `surplus entity')
in relation to which there is an attribution surplus to which
paragraph (1) (c) applies; and
(b) the amount of the attribution debit is equal to so much of the surplus
as is taken into account under paragraph (1) (c); and
(c) there is no grossed-up amount in relation to the attribution debit
under section 373; and
(d) an attribution credit equal to the debit is taken to arise, at the
time of the disposal, under section 371 for the eligible CFC in
relation to the eligible taxpayer.
"(6) For the purposes of this Act, sections 375 and 376 have effect as if:
(a) an attribution account payment were made, by the surplus entity
referred to in paragraph (5) (a) of this section, that required the
attribution debit under that paragraph to arise; and
(b) the payment were made to the eligible CFC; and
(c) the payment were made at the time at which the attribution debit and
credit arise.
"(7) In this section: `interest', in relation to an attribution account
entity, means:
(a) if the entity is a company - an interest in shares in the company, or
an entitlement to acquire such an interest; or
(b) if the entity is a partnership - an interest of a partner in the
profits or property of the partnership, or an entitlement of a partner
to acquire such an interest; or
(c) if the entity is a trust - an entitlement of a beneficiary to a share
of the income or corpus of the trust, or an entitlement of a
beneficiary to acquire such an entitlement. Additional notional exempt
income - unlisted or listed country CFC
"402. (1) This section applies where the eligible CFC is a resident of either
a listed country or an unlisted country at the end of the eligible period.
"(2) Each of the following is notional exempt income of the eligible CFC in
relation to the eligible period:
(a) income or other amounts derived by the eligible CFC in the eligible
period that are included in the assessable income of the eligible CFC
of any year of income for the purposes of this Act apart from this
Part;
(b) so much of a frankable dividend, within the meaning of Part IIIAA,
paid to the eligible CFC in the eligible period as has been franked in
accordance with section 160AQF;
(c) the exempting profits percentage, in relation to the eligible
taxpayer, of a non-portfolio dividend paid to the eligible CFC in the
eligible period by a company that is a resident of an unlisted
country;
(d) a non-portfolio dividend paid to the eligible CFC in the eligible
period by another CFC that is a resident of an unlisted country, where
the eligible taxpayer is an attributable taxpayer in relation to that
other CFC when the dividend is paid.
"(3) Where:
(a) a company pays a dividend to the eligible CFC in the eligible period;
and
(b) apart from this subsection, the whole or part of the dividend would be
included in the notional assessable income of the eligible CFC in
relation to the eligible taxpayer for the eligible period; and
(c) on the payment of the dividend by the other company, an attribution
debit arises for that other company in relation to the eligible
taxpayer; then so much (if any) of the whole or the part of the
dividend as does not exceed the grossed-up amount of the attribution
debit is notional exempt income of the eligible CFC for the eligible
period. Additional notional exempt income - unlisted country CFC
"403. Where the eligible CFC is a resident of an unlisted country at the end
of the eligible period, each of the following is notional exempt income of the
eligible CFC in relation to the eligible period:
(a) income or profits derived by the eligible CFC in the eligible period
in or in connection with carrying on business in a listed country at
or through a permanent establishment of the eligible CFC in that
listed country, where:
(i) the income or profits are not eligible designated concession income in
relation to any listed country in relation to the eligible period; and
(ii) the income or profits are subject to tax in any listed country in a
tax accounting period:
(A) ending before the end of the eligible period; or
(B) commencing during the eligible period;
(b) a non-portfolio dividend paid to the CFC in the eligible period by a
company that is a resident of a listed country. Additional notional
exempt income - listed country CFC
"404. Where the eligible CFC is a resident of a listed country at the end of
the eligible period, a dividend paid to it in the eligible period by a company
that is a resident of a listed country is notional exempt income.
"Subdivision C - Modifications relating to Australian
Capital Gains Tax Interpretation
"405. (1) In this Subdivision: `30 June 1990 non-taxable Australian asset' has
the meaning given by section 406.
"(2) An expression used in this Subdivision and in Part IIIA has the same
meaning in this Subdivision as it has in that Part.
"(3) The residency assumption is to be ignored in determining whether an asset
is a taxable Australian asset for the purposes of this Subdivision. Meaning of
`30 June 1990 non-taxable Australian asset'
"406. For the purposes of applying this Act in calculating the attributable
income of the eligible CFC, a reference in this Subdivision to a 30 June 1990
non-taxable Australian asset of the eligible CFC is a reference to an asset
(other than a taxable Australian asset) owned by the eligible CFC at the end
of 30 June 1990. Certain provisions of this Subdivision to be treated as
provisions of Part IIIA
"407. For the purposes of the application of Part IIIA in calculating the
attributable income of the eligible CFC, where the expression `provision of
this Part' or `provisions of this Part' is used in that Part, the expression
is taken to include a reference to any of the provisions of this Subdivision.
Part IIIA not to apply to disposals of taxable Australian assets
"408. For the purposes of applying this Act in calculating the attributable
income of an eligible CFC, Part IIIA does not apply to a disposal of a taxable
Australian asset of the eligible CFC. Losses on disposals before end of 30
June 1990 to be disregarded
"409. For the purposes of applying this Act in calculating the attributable
income of the eligible CFC, capital losses in respect of disposals of assets
before the end of 30 June 1990 are to be disregarded. Modified application of
Part IIIA - general modifications
"410. For the purposes of applying this Act in calculating the attributable
income of the eligible CFC, Part IIIA applies as if the following provisions
were disregarded:
(a) subsection 160M (12);
(b) subsection 160Z (6) and paragraph 160Z (9) (c);
(c) section 160ZFA;
(d) section 160ZP. 30 June 1990 non-taxable Australian assets taken to
have been acquired on that date
"411. (1) Subject to this section, for the purposes of applying this Act in
calculating the attributable income of the eligible CFC, a 30 June 1990
non-taxable Australian asset of the eligible CFC is taken, for the purposes of
Part IIIA, to have been acquired by the eligible CFC on 30 June 1990.
"(2) Where a provision of Part IIIA provides that, if a disposal of an asset
occurs within 12 months after the day (in this subsection called the
`acquisition day') on which the asset was acquired by a taxpayer, a reference
in another provision of that Part to the indexed cost base to the taxpayer in
respect of the asset is to be construed as a reference to the cost base to the
taxpayer in respect of the asset, subsection (1) of this section does not
apply for the purposes of determining the acquisition day for the purposes of
the first-mentioned provision.
"(3) Subsection (1) does not apply for the purposes of determining the cost
base to the eligible CFC of an asset. Cost base of 30 June 1990 non-taxable
Australian asset
"412. (1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, the following provisions have effect.
"(2) The eligible CFC is taken, for the purposes of Part IIIA:
(a) to have paid or given as consideration in respect of the acquisition
of a 30 June 1990 non-taxable Australian asset of the eligible CFC an
amount equal to:
(i) for the purpose of ascertaining whether a capital gain accrued to the
eligible CFC in respect of the disposal of the asset by the eligible
CFC:
(A) the market value of the asset as at the end of 30 June
1990; or
(B) if the cost base to the eligible CFC of the asset as at
30 June 1990 is greater than that market value - that
cost base; or
(ii) for the purpose of ascertaining whether the eligible CFC incurred a
capital loss in respect of the disposal of the asset by the eligible
CFC:
(A) the market value of the asset as at the end of 30 June
1990; or
(B) if that market value is greater than the amount of the
cost base to the eligible CFC of the asset as at 30 June
1990 - that cost base; and
(b) to have paid or given that consideration on 30 June 1990.
"(3) In determining the cost base, indexed cost base or reduced cost base to
the eligible CFC of an asset, no account is to be taken of any liability that
arose before 1 July 1990 or any costs or expenditure that were incurred before
1 July 1990 unless the liability, costs or expenditure consists of
consideration that, under subsection (2), is taken to have been paid or given
on 30 June 1990. Adjustment of cost base as at 30 June 1990 - return of
capital
"413. (1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, the following provisions have effect.
"(2) Where:
(a) 30 June 1990 non-taxable Australian assets of the eligible CFC consist
of shares in a company; and
(b) at any time during the period commencing at the time when the eligible
CFC acquired the shares and ending at the end of 30 June 1990, the
company paid an amount that was not a dividend to the eligible CFC in
respect of the shares; the cost base to the eligible CFC of the shares
as at 30 June 1990 is to be reduced by that amount.
"(3) Where:
(a) a 30 June 1990 non-taxable Australian asset of the eligible CFC
consists of an interest or unit in a trust; and
(b) at any time during the period commencing at the time when the eligible
CFC acquired the interest or unit and ending at the end of 30 June
1990, the trustee of the trust paid an amount to the eligible CFC in
respect of the interest or unit, being an amount that would not have
been notional assessable income of the eligible CFC; the cost base to
the eligible CFC of the interest or unit as at 30 June 1990 is to be
reduced by so much of the amount as is not attributable to a deduction
allowed under Division 10C or 10D of Part III. Rights to acquire
shares or share options
"414. (1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, the following provisions have effect.
"(2) Notwithstanding section 160ZYO, where the eligible CFC, as a shareholder,
exercises rights as mentioned in subsection 160ZYO (2) and those rights are 30
June 1990 non-taxable Australian assets of the eligible CFC, the eligible CFC
is taken, for the purposes of Part IIIA, to have paid or given as
consideration in respect of the acquisition of the new shares or the option
concerned an amount equal to:
(a) for the purpose of ascertaining whether a capital gain accrued to the
eligible CFC in respect of the disposal by the eligible CFC of the new
shares or the option or the shares to which the option relates - the
sum of the amount paid in respect of the exercise of the rights and:
(i) the market value of the rights as at the end of 30 June 1990; or
(ii) if the cost base to the eligible CFC of the rights as at 30 June 1990
is greater than that market value - that cost base; or
(b) for the purpose of ascertaining whether the eligible CFC incurred a
capital loss in respect of the disposal by the eligible CFC of the new
shares or the option or the shares to which the option relates - the
sum of the amount paid in respect of the exercise of the rights and:
(i) the market value of the rights as at the end of 30 June 1990; or
(ii) if that market value is greater than the amount of the cost base to
the eligible CFC of the rights as at 30 June 1990 - that cost base.
"(3) So much of that consideration as is covered by subparagraph (2) (a) (i)
or (ii) or (b) (i) or (ii), as the case requires, is taken to have been paid
or given on 30 June 1990. Rights to acquire units or unit options
"415. (1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, the following provisions have effect.
"(2) Notwithstanding section 160ZYQE, where the eligible CFC, as a unitholder,
exercises rights as mentioned in subsection 160ZYQE (2) and those rights are
30 June 1990 non-taxable Australian assets of the eligible CFC, the eligible
CFC is to be taken, for the purposes of Part IIIA, to have paid or given as
consideration in respect of the acquisition of the new units or the option
concerned an amount equal to:
(a) for the purpose of ascertaining whether a capital gain accrued to the
eligible CFC in respect of the disposal by the eligible CFC of the new
units or the option or the units to which the option relates - the sum
of the amount paid in respect of the exercise of the rights and:
(i) the market value of the rights as at the end of 30 June 1990; or
(ii) if the cost base to the eligible CFC of the rights as at30 June 1990
is greater than that market value - that cost base; or
(b) for the purpose of ascertaining whether the eligible CFC incurred a
capital loss in respect of the disposal by the eligible CFC of the new
units or the option or the units to which the option relates - the sum
of the amount paid in respect of the exercise of the rights and:
(i) the market value of the rights as at the end of 30 June 1990; or
(ii) if that market value is greater than the amount of the cost base to
the eligible CFC of the rights as at 30 June 1990 - that cost base.
"(3) So much of that consideration as is covered by subparagraph (2) (a) (i)
or (ii) or (b) (i) or (ii), as the case requires, is taken to have been paid
or given on 30 June 1990. Company-issued options to acquire unissued shares
"416. (1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, the following provisions have effect.
"(2) Notwithstanding section 160ZYV, where the eligible CFC, as a shareholder,
exercises an option as mentioned in subsection 160ZYV (2) and that option is a
30 June 1990 non-taxable Australian asset of the eligible CFC, the eligible
CFC is taken, for the purposes of Part IIIA, to have paid or given as
consideration in respect of the acquisition of the new shares concerned an
amount equal to:
(a) for the purpose of ascertaining whether a capital gain accrued to the
eligible CFC in respect of the disposal by the eligible CFC of the new
shares - the sum of the amount paid in respect of the exercise of the
option and:
(i) the market value of the option as at the end of 30 June 1990; or
(ii) if the cost base to the eligible CFC of the option as at 30 June 1990
is greater than that market value - that cost base; or
(b) for the purpose of ascertaining whether the eligible CFC incurred a
capital loss in respect of the disposal by the eligible CFC of the new
shares - the sum of the amount paid in respect of the exercise of the
option and:
(i) the market value of the option as at the end of 30 June 1990; or
(ii) if that market value is greater than the amount of the cost base to
the eligible CFC of the option as at 30 June 1990 - that cost base.
"(3) So much of that consideration as is covered by subparagraph (2) (a) (i)
or (ii) or (b) (i) or (ii), as the case requires, is taken to have been paid
or given on 30 June 1990. Unit trust-issued options to acquire unissued units
"417. (1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, the following provisions have effect.
"(2) Notwithstanding section 160ZYXE, where the eligible CFC, as a unitholder,
exercises an option as mentioned in subsection 160ZYXE (2) and that option is
a 30 June 1990 non-taxable Australian asset of the eligible CFC, the eligible
CFC is taken, for the purposes of Part IIIA, to have paid or given as
consideration in respect of the acquisition of the new units concerned an
amount equal to:
(a) for the purpose of ascertaining whether a capital gain accrued to the
eligible CFC in respect of the disposal by the eligible CFC of the new
units - the sum of the amount paid in respect of the exercise of the
option and:
(i) the market value of the option as at the end of 30 June 1990; or
(ii) if the cost base to the eligible CFC of the option as at 30 June 1990
is greater than that market value - that cost base; or
(b) for the purpose of ascertaining whether the eligible CFC incurred a
capital loss in respect of the disposal by the eligible CFC of the new
units - the sum of the amount paid in respect of the exercise of the
option and:
(i) the market value of the option as at the end of 30 June 1990; or
(ii) if that market value is greater than the amount of the cost base to
the eligible CFC of the option as at 30 June 1990 - that cost base.
"(3) So much of that consideration as is covered by subparagraph (2) (a) (i)
or (ii) or (b) (i) or (ii), as the case requires, is taken to have been paid
or given on 30 June 1990. Options
"418. (1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, the following provisions have effect.
"(2) Subsection 160ZZC (3A) applies in relation to an option granted by the
eligible CFC as if a reference in that subsection to 20 September 1985 were a
reference to 1 July 1990.
"(3) Subsection 160ZZC (9) does not apply to an option granted to the eligible
CFC. Modified application of section 160ZZO (transfer of asset between
companies in the same group) "419. For the purposes of applying this Act in
calculating the attributable income of the eligible CFC, section 160ZZO has
effect as if:
(a) paragraph (1) (a) of that section were omitted and the following
paragraph were substituted:
`(a) either of the following subparagraphs applies:
(i) a company (in this section called the "transferor") that is a CFC, and a
resident of a listed country, at a particular time disposed of an asset at
that time to another company (in this section called the "transferee"), where
any of the following sub-subparagraphs apply:
(A) the transferee is a resident of that listed country at
that time;
(B) the transferee is a resident of Australia at that time;
(C) the transferee is a resident of a particular unlisted
country at that time and, immediately before that time,
the asset was used in connection with a permanent
establishment of the transferor in any unlisted country
at or through which the transferor carried on business
immediately before that time;
(ii) a company (in this section also called the "transferor") that is a CFC,
and a resident of an unlisted country, at a particular time, disposes of an
asset at that time to another company, (in this section also called the
"transferee"), where either of the following sub-subparagraphs apply:
(A) the transferee is a resident of an unlisted country at
that time;
(B) the transferee is a resident of Australia at that time;';
and
(b) the residency assumption were disregarded for the purposes of section
(1) (a) of that section as it applies by virtue of this section.
Modified application of section 160ZZOA (transfer of asset from
subsidiary to holding company for no consideration) "420. For the
purposes of applying this Act in calculating the attributable income
of the eligible CFC, section 160ZZOA applies as if:
(a) paragraph (1) (a) of that section were omitted and the following
paragraph were substituted:
`(a) either of the following subparagraphs applies:
(i) a company (in this section called the "transferor") that is a CFC, and a
resident of a listed country, at a particular time after 15 August 1989
disposed of an asset at that time to another company (in this section called
the "transferee"), where any of the following sub-subparagraphs apply:
(A) the transferee is a resident of that listed country at
that time;
(B) the transferee is a resident of Australia at that time;
(C) the transferee is a resident of a particular unlisted
country at that time and, immediately before that time,
the asset was used in connection with a permanent
establishment of the transferor in any unlisted country
at or through which the transferor carried on business
immediately before that time;
(ii) a company (in this section also called the "transferor") that is a CFC,
and a resident of an unlisted country, at a particular time after 15 August
1989, disposed of an asset at that time to another company (in this
section also called the "transferee"), where either of the following
sub-subparagraphs apply:
(A) the transferee is a resident of an unlisted country at
that time;
(B) the transferee is a resident of Australia at that time;
and'; and
(b) the residency assumption were disregarded for the purposes of section
(1) (a) of that section as it applies by virtue of this section.
Elections under CGT roll-over provisions
"421. For the purpose of applying this Act in calculating the attributable
income of the eligible CFC for the eligible period, any election that may be
made, by the eligible CFC, or by the eligible CFC and another entity, apart
from this section, under any of the CGT roll-over provisions:
(a) on or before the date of lodgment of a particular return of income; or
(b) within such further period as the Commissioner allows; is to be given
instead:
(c) before the end of the period of 2 months after the end of the eligible
period; or
(d) within such further period as the Commissioner allows. Adjustment of
disposal consideration where change of residence by eligible CFC from
unlisted to listed country
"422. (1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, in relation to the eligible period in
relation to the eligible taxpayer, the following provisions have effect.
"(2) Where:
(a) because the eligible CFC has changed residence at a particular time
(in this section called the `residence-change time'), during the
eligible period or an earlier statutory accounting period, from an
unlisted country to a listed country, an amount is or has been
included in the eligible taxpayer's assessable income under section
457 (including under that section because of paragraph 58 (1) (d) of
the Taxation Laws Amendment (Foreign Income) Act 1990 ); and
(b) during the eligible period, the eligible CFC disposes (which disposal
is in this section called the `actual disposal') of an asset (in this
section called the `eligible asset') that it has held since the
residence-change time; then the consideration in respect of the actual
disposal of the eligible asset is, for the purposes of Part IIIA,
adjusted in accordance with this section.
"(3) Where:
(a) the result of making the assumption, in subparagraph 457 (2) (a) (i)
of this Act or in paragraph 58 (2) (a) of the
Taxation Laws Amendment (Foreign Income) Act 1990 , that all of the
eligible CFC's assets were disposed of at the residence-change time
for a consideration equal to their market value was:
(i) to increase, by a particular amount (in this section called the `DP
creation/increase amount'), the amount that would otherwise be the
distributable profits referred to in that subparagraph or paragraph;
or
(ii) to create distributable profits of a particular amount (in this
section also called the `DP creation/increase amount') where there
would otherwise not be distributable profits; and
(b) if the eligible asset had been disposed of by the eligible CFC at the
residence-change time for its market value at that time, the eligible
CFC would have made a profit (in this section called the `eligible
asset profit') on the disposal; then the consideration in respect of
the actual disposal of the eligible asset by the eligible CFC is
reduced by the amount calculated using the formula:
Eligible asset profit
Total asset profits x DP creation/increase amount
where: Eligible asset profit means the amount of the eligible asset profit;
Total asset profits means the amount that would result if:
(c) the eligible CFC disposed of all of its assets at the residence-change
time for their market value; and
(d) the total of the profits from only those disposals that would have
resulted in a profit to the eligible CFC were calculated; DP
creation/increase amount means the DP creation/increase amount.
"(4) Where:
(a) the result of making the assumption, in subparagraph 457 (2) (a) (i)
of this Act or in paragraph 58 (2) (a) of the
Taxation Laws Amendment (Foreign Income) Act 1990 , that all of the
eligible CFC's assets were disposed of at the residence-change time
for a consideration equal to their market value was to reduce
(including to nil), by an amount (in this section called the `DP
reduction amount'), the amount that would otherwise be the
distributable profits referred to in that subparagraph or paragraph;
and
(b) if the eligible asset had been disposed of by the eligible CFC at the
residence-change time for its market value at that time, the eligible
CFC would have made a loss (in this section called the `eligible asset
loss') on the disposal; then the consideration in respect of the
actual disposal of the eligible asset by the eligible CFC is increased
by the amount calculated using the formula:
Eligible asset loss x DP reduction amount
Total asset losses where: Eligible asset loss means the amount of the eligible
asset loss; Total asset losses means the amount that would result if:
(c) the eligible CFC disposed of all of its assets at the residence-change
time for their market value; and
(d) the total of the losses from only those disposals that would have
resulted in a loss to the eligible CFC were calculated; DP reduction
amount means the DP reduction amount. Adjustment of disposal
consideration where section 47A applies to rolled-over assets
"423. (1) For the purposes of applying this Act in calculating the
attributable income of the eligible CFC, in relation to the eligible period in
relation to the eligible taxpayer, the following provision has effect.
"(2) Where:
(a) because of Division 17, Part IIIA does not or did not apply to the
disposal of an asset by a CFC to the eligible CFC during the eligible
period or an earlier statutory accounting period; and
(b) the eligible taxpayer was an attributable taxpayer in relation to both
CFCs at the time of the disposal; and
(c) section 47A applies or applied in relation to the disposal of the
asset to deem the other CFC to have paid a dividend to the eligible
CFC; and
(d) an amount in respect of the deemed dividend is included in the
assessable income of the attributable taxpayer under section 458 or
459; and
(e) the eligible CFC disposes of the asset during the eligible period;
then the consideration in respect of the disposal referred to in
paragraph (e) is taken to be reduced by the lesser of:
(f) the amount of the deemed dividend; and
(g) the amount of any capital gain that, disregarding Division 17, would
have accrued to the other CFC in respect of the disposal referred to
in paragraph (a) if the consideration in respect of that disposal had
been equal to the market value of the asset at the time of that
disposal.
"Subdivision D - Modifications Relating to Losses Classes of notional
assessable income
"424. (1) For the purposes of this Subdivision but subject to subsection (2),
each of the following amounts included in notional assessable income
constitutes a single class:
(a) interest income (within the meaning of subsection 160AE (3));
(b) modified passive income (within the meaning of subsection 160AEA (2));
(c) offshore banking income (within the meaning of subsection 160AE (4));
(d) all other amounts.
"(2) Subsection (1) does not apply to an amount included in notional
assessable income under Part IIIA of this Act as modified in accordance with
Subdivision C. Sometimes-exempt income etc.
"425. (1) Where an amount is not included in the eligible CFC's notional
assessable income of a particular class for a statutory accounting period
(being the eligible period or an earlier period) in relation to the eligible
taxpayer because:
(a) the eligible CFC passes the active income test for the period in
relation to the eligible taxpayer; or
(b) subsection 385 (4) applies; then the amount is sometimes-exempt income
of the eligible CFC of that class for the period in relation to the
eligible taxpayer.
"(2) Where an amount would, disregarding sections 430 and 431, only be a
notional allowable deduction, in relation to notional assessable income of a
particular class, of the eligible CFC for a statutory accounting period (being
the eligible period or an earlier period) in relation to the eligible taxpayer
if the eligible CFC's sometimes-exempt income of that class for the period in
relation to the eligible taxpayer were instead notional assessable income,
then the amount is a sometimes-exempt deduction of the eligible CFC of that
class for the period in relation to the eligible taxpayer.
"(3) Where, in relation to notional assessable income of a particular class,
the eligible CFC's sometimes exempt deductions for a statutory accounting
period (being the eligible period or an earlier period) in relation to the
eligible taxpayer exceed its sometimes exempt income for the period in
relation to the taxpayer, the excess is, in relation to notional assessable
income of that class, a (sometimes-exempt income) loss of the eligible CFC for
the period in relation to the eligible taxpayer.
"(4) Where, in relation to notional assessable income of a particular class,
an eligible CFC's sometimes exempt income for a statutory accounting period
(being the eligible period or an earlier period) in relation to the eligible
taxpayer exceeds its sometimes-exempt deductions for the period in relation to
the taxpayer, the excess is, in relation to notional assessable income of that
class, a (sometimes-exempt income) gain of the eligible CFC for the period in
relation to the eligible taxpayer. Creation of loss in relation to a class of
notional assessable income
"426. For the purposes of this Subdivision, if:
(a) disregarding section 430, the amount of the eligible CFC's notional
allowable deductions (other than under section 431) for a statutory
accounting period (being the eligible period or an earlier period) in
relation to notional assessable income of a particular class are
applied as follows:
(i) they are applied first against any notional assessable income of the
eligible CFC of that class for the period;
(ii) any excess is then applied against any (sometimes-exempt income) gain
of that class for the period; and
(b) there is any amount remaining; then the amount remaining is a loss of
the eligible CFC for the period in relation to notional assessable
income of that class. Certain provisions to be disregarded
"427. For the purposes of applying this Act in calculating the attributable
income of the eligible CFC, paragraph 23 (q) and sections 79D, 79E, 79F, 80 to
80G (except for the purposes of a reference to any of those sections in any
other provision of this Act, as applied in accordance with this Division) and
160AFD are to be disregarded.
"428. For the purposes of applying this Subdivision in calculating the
attributable income of the eligible CFC for the eligible period, it is to be
assumed that, for any earlier statutory accounting period (when the eligible
CFC existed) for which there was no requirement to calculate its attributable
income in relation to the eligible taxpayer, there were such a requirement
(except for the purpose of applying section 398). Notional allowable deduction
for (sometimes-exempt income) loss of a particular class
"429. The amount of any (sometimes-exempt income) loss of the eligible CFC for
the eligible period in relation to notional assessable income of a particular
class is a notional allowable deduction for the period from the notional
assessable income of the eligible CFC of that class. Limitation on deductions
for classes of notional assessable income
"430. Where:
(a) apart from this section, there are one or more notional allowable
deductions (other than under section 431) of the eligible CFC for the
eligible period in relation to notional assessable income of a
particular class; and
(b) either:
(i) the eligible CFC did not derive any notional assessable income of that
class in the eligible period; or
(ii) the eligible CFC derived notional assessable income of that class in
the eligible period and its amount is exceeded by the sum of the
deductions; then, for the purposes of this Division, those deductions
are to be reduced respectively:
(c) where subparagraph (b) (i) applies - to nil; or
(d) where subparagraph (b) (ii) applies - by amounts proportionate to
those deductions and equal in total to the amount of the excess
referred to in that subparagraph. Deduction etc. for previous period
loss in relation to a class of notional assessable income
"431. (1) Where there are one or more losses of the eligible CFC, in relation
to notional assessable income of a particular class, of any statutory
accounting period before the eligible period, the losses, to the extent they
have not been previously taken into account under this section in respect of
any such period, are to be taken into account in accordance with this section.
"(2) The losses are to be taken into account as follows:
(a) they are to be applied first against any (sometimes-exempt income)
gain of the class for the eligible period, to the extent that the gain
has not already been applied under section 426 in determining whether
there is a loss for the eligible period;
(b) any excess is then a notional allowable deduction in respect of
notional assessable income of that class for the eligible period, but
only to the extent that the deduction does not exceed the amount of
that notional assessable income as reduced by notional allowable
deductions of that class other than under this section;
(c) where there are 2 or more losses, they are to be taken into account in
the order in which they arose.
"(3) A loss for a statutory accounting period is only to be taken into account
under subsection (2) if the eligible CFC was a CFC at the end of that
statutory accounting period and each following statutory accounting period
before the eligible period.
"(4) A loss for a statutory accounting period is not to be taken into account
under subsection (2):
(a) where the eligible CFC is a resident of a listed country at the end of
the eligible period - if the statutory accounting period is one at
whose end the CFC was not a resident of a listed country or is any
statutory accounting period before such a period; or
(b) where the eligible CFC is a resident of an unlisted country at the end
of the eligible period - if the statutory accounting period is one at
whose end the CFC was not a resident of an unlisted country or is any
statutory accounting period before such a period.
"(5) A loss for a statutory accounting period is not to be taken into account
under subsection (2) if, assuming that it were a loss within the meaning of
section 80 that had been incurred by the eligible CFC, it would not, because
of section 80A or 80DA, be taken into account for the purpose of applying
section 80 in relation to the eligible period.
"Division 8 - Active Income Test
"Subdivision A - Basic Conditions for Passing the Active Income Test Active
income test
"432. (1) Subject to sections 437 and 453, for the purposes of this Part, a
company is taken to pass the active income test in relation to a statutory
accounting period if, and only if:
(a) the company was in existence at the end of the statutory accounting
period; and
(b) there was no time during the statutory accounting period when the
company was in existence when the company was neither a resident of a
particular listed country nor of a particular unlisted country; and
(c) the company has kept accounts for the statutory accounting period and:
(i) the accounts are prepared in accordance with commercially accepted
accounting principles; and
(ii) the accounts give a true and fair view of the financial position of
the company; and
(d) the company has complied with the substantiation requirements set out
in section 451 in relation to the statutory accounting period; and
(e) at all times during the statutory accounting period when the company
was in existence and was a resident of a particular listed country, or
of a particular unlisted country, the company carried on business in
that country at or through a permanent establishment of the company in
that country; and
(f) the tainted income ratio of the company for the statutory accounting
period is less than 0.05.
"(2) Subject to subsection (3), for the purposes of this section, a company is
to be taken to be in existence if it has been incorporated and has not been
dissolved.
"(3) For the purposes of this section, if a company was dormant, within the
meaning of Part VI of the Companies Act 1981, throughout a particular period
(in this subsection called the `dormant period') commencing on the day on
which the company was incorporated, the company is to be taken not to have
been in existence during the dormant period.
"Subdivision B - Tainted Income Ratio
Tainted income ratio
"433. (1) For the purposes of this Part, if a company is a resident of a
particular unlisted country at the end of a statutory accounting period, the
tainted income ratio of the company for the statutory accounting period is
calculated using the formula:
Gross tainted turnover
Gross turnover where: Gross tainted turnover means the gross tainted turnover
of the company of the statutory accounting period; Gross turnover means the
gross turnover of the company of the statutory accounting period.
"(2) For the purposes of this Part, if a company is a resident of a particular
listed country at the end of a statutory accounting period, the tainted income
ratio of the company for the statutory accounting period is calculated using
the formula: Tainted eligible designated concession income Eligible designated
concession income where: Tainted eligible designated concession income means
so much of the gross tainted turnover of the company of the statutory
accounting period as represents eligible designated concession income in
relation to any listed country in relation to the statutory accounting period;
Eligible designated concession income means so much of the gross turnover of
the company of the statutory accounting period as represents eligible
designated concession income in relation to any listed country in relation to
the statutory accounting period.
"(3) For the purposes of this Part, the tainted income ratio of a company for
a statutory accounting period is taken to be less than 0.05 if both the
numerator and the denominator in the applicable fraction are 0.
"(4) For the purposes of this Part, the tainted income ratio of a company for
a statutory accounting period is to be calculated in the currency in which the
profit and loss accounts and the balance-sheet of the company for the
statutory accounting period are prepared. Gross turnover
"434. (1) Subject to section 437, for the purposes of this Part, the gross
turnover of a company of a statutory accounting period is the sum of:
(a) the amount that is shown in the recognised accounts of the company for
the statutory accounting period as the gross revenue derived by the
company, but not including:
(i) amounts that are shown in those recognised accounts as amounts covered
by section 436; or
(ii) amounts that are shown in those recognised accounts as revenue in
respect of the disposal of assets (other than trading stock or
commodity futures contracts, commodity forward contracts or rights or
options in respect of such contracts); or
(iii) amounts that are shown in those recognised accounts as revenue from
disposing of commodity futures contracts, commodity forward contracts
or rights or options in respect of such contracts; or
(iv) amounts that are shown in those recognised accounts as revenue from
currency exchange rate fluctuations; and
(b) the amount that is shown in the recognised accounts of the company for
the statutory accounting period as the amount (if any) by which the
sum of the gains derived by the company in the statutory accounting
period in respect of the disposal of assets (other than trading stock
or commodity futures contracts, commodity forward contracts or rights
or options in respect of such contracts) exceeds the losses incurred
by the company in the statutory accounting period in respect of the
disposal of such assets, but not including amounts that are shown in
those recognised accounts as amounts covered by section 436; and
(c) the amount that is shown in the recognised accounts of the company for
the statutory accounting period as the amount (if any) by which the
gains derived by the company in the statutory accounting period from
disposing of commodity futures contracts, commodity forward contracts
or rights or options in respect of such contracts exceeds the losses
incurred by the company in the statutory accounting period from
disposing of commodity futures contracts, commodity forward contracts
or rights or options in respect of such contracts, but not including
amounts that are shown in those recognised accounts as amounts covered
by section 436; and
(d) the amount that is shown in the recognised accounts of the company for
the statutory accounting period as the amount (if any) by which the
sum of the gains derived by the company in the statutory accounting
period from currency exchange rate fluctuations exceeds the losses
incurred by the company in the statutory accounting period from
currency exchange rate fluctuations, but not including amounts that
are shown in those recognised accounts as amounts covered by section
436.
"(2) Subject only to sections 437, 438 and 440, for the purposes of this
section, where a company has prepared recognised accounts for a statutory
accounting period in accordance with commercially accepted accounting
principles, then, in determining whether a particular amount shown in those
accounts is covered by an expression used in subsection (1) (other than an
exclusion of amounts shown in those recognised accounts as amounts covered by
section 436), the expression concerned is taken to have the same meaning that
it has under those accounting principles. Gross tainted turnover
"435. For the purposes of this Part, the gross tainted turnover of a company
of a statutory accounting period is so much of the gross turnover of the
company of the statutory accounting period as consists of:
(a) passive income of the company of the statutory accounting period; or
(b) tainted sales income of the company of the statutory accounting
period; or
(c) tainted services income of the company of the statutory accounting
period. Amounts excluded from active income test
"436. (1) For the purposes of the application of this Part to a company, the
following amounts are, in accordance with subparagraph 434 (1) (a) (i) and
paragraphs 434 (1) (b), (c) and (d), excluded from the active income test:
(a) income or profits derived by the company that are included in the
assessable income of the company of any year of income;
(b) income or profits derived by the company during a statutory accounting
period where all of the following conditions are satisfied:
(i) the income or profits are derived by the company in carrying on a
business at or through a permanent establishment of the company in a
listed country;
(ii) the income or profits are not eligible designated concession income in
relation to any listed country in relation to the statutory accounting
period;
(iii) the income or profits are subject to tax in a listed country in a tax
accounting period:
(A) ending before the end of the statutory accounting period;
or
(B) commencing during the statutory accounting period;
(c) an amount that, if the company were a resident within the meaning of
section 6, would, or would apart from paragraphs 99B (2) (d) and (e),
have been included in the assessable income of the company under
Division 6 of Part III;
(d) so much of a frankable dividend, within the meaning of Part IIIAA, as
has been franked in accordance with section 160AQF;
(e) a non-portfolio dividend paid to the company by either of the
following companies:
(i) a CFC that is a resident of an unlisted country at the time of the
payment of the dividend;
(ii) a company that is a resident of a listed country at the time of the
payment of the dividend;
(f) the exempting profits percentage of a non-portfolio dividend paid to
the company by a company, other than a CFC, that is a resident of an
unlisted country at the time of the payment of the dividend.
"(2) Where:
(a) the company receives an attribution account payment, being a dividend,
from another entity; and
(b) the whole or part (in this subsection called the `eligible amount') of
the attribution account payment is not excluded from the active income
test, in relation to the company in relation to the statutory
accounting period, under subsection (1); and
(c) on the making of the attribution account payment by the other entity,
an attribution debit arises for that entity in relation to a taxpayer;
then, for the purposes of this Part, so much of the eligible amount as
does not exceed the grossed-up amount of the attribution debit is, in
accordance with subparagraph 434 (1) (a) (i), excluded (in addition to
any other amount that is excluded under subsection (1)) from the
active income test in relation to the company in relation to the
taxpayer.
"Subdivision C - Treatment of Partnership Income Treatment of partnership
income
"437. (1) For each partnership in which a company is a partner at any time
during a statutory accounting period, the following modifications apply for
the purposes of determining the effect of that partnership on the question
whether the company is taken to pass the active income test in relation to the
statutory accounting period:
(a) the partnership is to be treated as an entity separate from the
company;
(b) in spite of anything in section 432, the company is not taken to pass
the active income test in relation to the statutory accounting period
unless:
(i) the partnership has kept accounts for the statutory accounting period
and:
(A) the accounts are prepared in accordance with commercially
accepted accounting principles; and
(B) the accounts give a true and fair view of the financial
position of the partnership; and
(ii) the partnership has complied with the substantiation requirements set
out in section 452 in relation to the statutory accounting period;
(c) for the purposes of this Division, the notional gross tainted turnover
of the partnership of the statutory accounting period, or the notional
gross turnover of the partnership of the statutory accounting period,
is the amount that would be the gross tainted turnover, or the gross
turnover, as the case requires, of the partnership of the statutory
accounting period if:
(i) except for the purposes of determining the associates of the
partnership - the partnership were a company; and
(ii) a reference in this Division to the recognised accounts of the
partnership were a reference to the accounts referred to in paragraph
(b) of this subsection that are prepared by the partnership for the
statutory accounting period; and
(iii) the partnership were a resident of the same particular listed country
or particular unlisted country, of which the company was a resident;
(d) the gross tainted turnover of the company of the statutory accounting
period is to be increased by the amount calculated using the formula:
Notional gross
tainted turnover
of partnership x Partner's interest
where:
Notional gross tainted turnover of partnership means the notional gross
tainted turnover of the partnership for the statutory accounting period;
Partner's interest means the company's percentage interest in the profits of
the partnership for the statutory accounting period;
(e) the gross turnover of the company of the statutory accounting period
is to be increased by the amount calculated using the formula:
Notional gross
turnover of
partnership x Partner's interest
where:
Notional gross turnover of partnership means the notional gross turnover of
the partnership for the statutory accounting period;
Partner's interest means the company's percentage interest in the profits of
the partnership for the statutory accounting period.
"(2) If:
(a) a company is a partner in one or more partnerships at any time during
a statutory accounting period; and
(b) apart from this subsection, paragraph 432 (1) (e) does not apply in
relation to the company in relation to the statutory accounting
period; and
(c) at all times during the statutory accounting period when:
(i) a particular one of those partnerships was in existence; and
(ii) the company was in existence (within the meaning of section 432) and
was a resident of a particular listed country, or of a particular
unlisted country; the partnership carried on business in that country
at or through a permanent establishment of the partnership in that
country; subsection 432 (1) has effect as if paragraph 432 (1) (e) had
applied in relation to the company in relation to the statutory
accounting period.
"Subdivision D - General Interpretive Provisions Roll-overs - asset disposals
"438. (1) This section applies in determining the application of paragraph 434
(1) (b) and section 445 in relation to a non-taxable Australian asset of a
company.
"(2) If a CGT roll-over provision applies to:
(a) the disposal of the asset by an entity (in this section called the
`transferor') to the company (in this section called the
`transferee'); or
(b) the disposal of the asset by the company (in this section also called
the `transferor') to another entity (in this section also called the
`transferee'); the following provisions have effect:
(c) the transferee is taken to have paid, as consideration to acquire the
asset, the sum of:
(i) the consideration (if any) paid or payable by the transferor to
acquire the asset; and
(ii) the expenditure (if any) incurred by the transferor in making capital
improvements to the asset; and
(d) the transferor is not taken to have:
(i) derived any gains; or
(ii) incurred any loss; in respect of the disposal of the asset.
"(3) For the purposes of this section, in determining whether a CGT roll-over
provision applies to the disposal of an asset, Part IIIA has the effect that
it would have if:
(a) the company had failed the active income test in relation to the
statutory accounting period concerned; and
(b) Part IIIA were being applied to calculate the attributable income of
the company for the statutory accounting period in relation to any
taxpayer.
"(4) A reference in this section to a non-taxable Australian asset of a
company is a reference to an asset of the company that is not a taxable
Australian asset within the meaning of Part IIIA. When currency exchange gains
or losses relate to active income transactions
"439. (1) For the purposes of this Part, a currency exchange gain, or a
currency exchange loss, of a company for a statutory accounting period is to
be taken to relate to an active income transaction if, and only if:
(a) the gain or loss was realised under any of the following transactions:
(i) a transaction that:
(A) gives rise to income, gains or a loss of the company; and
(B) is not taken into account in determining the passive
income, tainted sales income or tainted services income
of the company;
(ii) a transaction for the purchase of goods from an entity that, at the
time the gain or loss was realised, was not an associate of the
company;
(iii) a transaction for the purchase of a unit of property where:
(A) if the company were a resident within the meaning of
section 6, depreciation would be allowable to the company
under section 54 in respect of any year of income; and
(B) the unit of property is for use by the company
exclusively or principally for the purpose of producing
income other than passive income, tainted sales income or
tainted services income;
(iv) if the company is an AFI subsidiary that carried on financial
intermediary business at the time the gain or loss was realised - a
transaction under which money was lent to the company;
(v) a transaction that was entered into by the company for the sole
purpose of eliminating or reducing the risk of adverse financial
consequences that might result for the company, under a transaction
covered by any of the preceding subparagraphs, from currency exchange
rate fluctuations; or
(b) both of the following subparagraphs apply:
(i) the gain or loss was realised in the course of carrying on a business
of currency dealing;
(ii) the gain or loss was realised under a transaction and, at the time the
gain or loss was realised, no other party to the transaction was:
(A) an associate of the company; or
(B) a Part X Australian resident.
"(2) In determining whether an amount is passive income for the purposes of
this section, paragraph 446 (1) (n) is to be disregarded. Asset disposals -
revaluations and arm's length amounts
"440. In determining, for the purposes of this Part, whether a company passes
the active income test, the following provisions apply in relation to an asset
of the company (other than trading stock):
(a) the effect of an asset revaluation is to be disregarded;
(b) subject to section 438, if:
(i) any consideration paid or payable by the company in respect of the
acquisition of the asset; or
(ii) any consideration paid or payable to the company in respect of the
disposal of the asset; or
(iii) any expenditure incurred by the company in making capital
improvements to the asset; or
(iv) any other amount payable to or by the company that is relevant to
determining the revenue, gains or losses concerned; is not equal to
the amount (in this paragraph called the `arm's length amount') that
the parties to the transaction concerned could have been reasonably
expected to have paid if the parties had been acting at arm's length
in relation to the transaction - the amount of the consideration or
expenditure is to be taken to be equal to the arm's length amount.
Hire-purchase and other property financing transactions
"441. (1) For the purposes of this Part, in determining whether a company
passes the active income test:
(a) a hire-purchase transaction or any other transaction for the financing
of the acquisition of property is to be treated as a loan of money;
and
(b) income derived under the transaction is to be treated as interest.
"(2) Nothing in subsection (1) limits the generality of the expressions
`interest', `loan' or `payment in the nature of interest'. Assumption of
rights of lender under a loan
"442. In determining whether a company passes the active income test, if the
company assumes the rights of a lender under a loan, this Part has effect,
after that assumption, as if:
(a) the company had provided the loan to the borrower; and
(b) in a case where that assumption was made in the course of carrying on
a particular business - interest, or a payment in the nature of
interest, derived by the company from the loan had been derived from a
loan made in the course of carrying on that business. Net tainted
commodity gains
"443. For the purposes of this Part:
(a) net tainted commodity gains are to be taken to have accrued to a
company in a statutory accounting period if, and only if, the sum of
the tainted commodity gains of the company for the statutory
accounting period exceeds the sum of the tainted commodity losses of
the company for the statutory accounting period; and
(b) the amount of the net tainted commodity gains is equal to the amount
of the excess. Net tainted currency exchange gains
"444. For the purposes of this Part:
(a) net tainted currency exchange gains are to be taken to have accrued to
a company in a statutory accounting period if, and only if, the sum of
the tainted currency exchange gains of the company for the statutory
accounting period exceeds the sum of any tainted currency exchange
losses of the company for the statutory accounting period; and
(b) the amount of the net tainted currency exchange gains is equal to the
amount of the excess. Net gains - disposal of tainted assets
"445. For the purposes of this Part:
(a) net gains are to be taken to have accrued to a company in a statutory
accounting period in relation to the disposal of tainted assets owned
by the company if, and only if, the sum of the gains of the company in
relation to the disposal of tainted assets during the statutory
accounting period exceeds the sum of the losses (if any) of the
company in relation to the disposal of tainted assets during the
statutory accounting period; and
(b) the amount of the net gains is equal to the amount of the excess.
"Subdivision E - Passive Income, Tainted Sales Income
and Tainted Services Income Passive income
"446. (1) Subject to this Division, for the purposes of this Part, the
following amounts are passive income of a company of a statutory accounting
period:
(a) dividends (within the meaning of section 6) paid to the company in the
statutory accounting period;
(b) unit trust dividends (within the meaning of Division 6B or 6C of Part
III) paid to the company in the statutory accounting period;
(c) a distribution made to the company where the distribution is taken to
be a dividend because of section 47;
(d) tainted interest income derived by the company in the statutory
accounting period;
(e) annuities derived by the company in the statutory accounting period;
(f) tainted rental income derived by the company in the statutory
accounting period;
(g) tainted royalty income derived by the company in the statutory
accounting period;
(h) an amount derived by the company in the statutory accounting period as
consideration for the assignment, in whole or in part, of any
copyright, patent, design, trade mark or other like property or right;
(j) income derived from carrying on a business of trading in tainted
assets;
(k) net gains that accrued to the company in the statutory accounting
period in respect of the disposal of tainted assets;
(m) net tainted commodity gains that accrued to the company during the
statutory accounting period;
(n) net tainted currency exchange gains that accrued to the company during
the statutory accounting period.
"(2) In spite of anything in subsection (1), the passive income of a life
assurance company of a statutory accounting period is calculated using the
formula:
Adjusted x Tainted calculated liabilities
passive Calculated liabilities
income where: Adjusted passive income means the amount that, apart from this
subsection, would be the passive income of the company of the statutory
accounting period; Tainted calculated liabilities means so much of the
calculated liabilities of the company at the end of the statutory accounting
period as is referable to life assurance policies that give rise to tainted
services income of the company of any statutory accounting period; Calculated
liabilities means so much of those calculated liabilities as is referable to
all life assurance policies.
"(3) In subsection (2): `calculated liabilities' has the same meaning as in
Division 8 of Part III. "(4) In spite of anything in subsection (1), the
passive income of a general insurance company of a statutory accounting period
is calculated using the formula:
Adjusted x Tainted calculated liabilities
passive Calculated liabilities
income where: Adjusted passive income means the amount that, apart from this
subsection, would be the passive income of the company of thestatutory
accounting period; Tainted calculated liabilities means so much of the
calculated liabilities of the company at the end of the statutory accounting
period as is referable to general insurance policies that give rise to tainted
services income of the company of any statutory accounting period; Calculated
liabilities means so much of those calculated liabilities as is referable to
all general insurance policies.
"(5) In subsection (4): `calculated liabilities', in relation to a general
insurance company, has the same meaning as it has in Division 8 of Part III
when used in relation to a life assurance company; `general insurance policy'
includes a reinsurance policy, but does not include a life assurance policy.
Tainted sales income
"447. (1) Subject to this Division, for the purposes of this Part, the
following amounts are tainted sales income of a company of a statutory
accounting period:
(a) income from the sale of goods by the company where both of the
following conditions are satisfied:
(i) the goods were sold to the company by another entity;
(ii) either of the following sub-subparagraphs applies at the time of the
sale of the goods to the company:
(A) the seller of the goods to the company was an associate
of the company and a Part X Australian resident;
(B) the goods were sold to the company by an associate of the
company who was not a Part X Australian resident, in the
course of a business carried on by the associate at or
through a permanent establishment of the associate in
Australia;
(b) income from the sale of goods by the company where both of the
following conditions are satisfied:
(i) the goods were sold to the company by another entity;
(ii) either of the following sub-subparagraphs applies at the time of the
purchase of the goods from the company:
(A) the purchaser of the goods from the company was an
associate of the company and a Part X Australian
resident;
(B) the purchaser of the goods from the company was an
associate of the company who was not a Part X Australian
resident and the purchase was made in the course of a
business carried on by the purchaser at or through a
permanent establishment of the purchaser in Australia.
"(2) Where:
(a) a company provides any of the following services:
(i) drinks and meals;
(ii) accommodation in a hotel, motel, guest-house or similar place;
(iii) the provision of, or the use of facilities for, entertainment,
recreation or instruction; and
(b) if subparagraph (a) (ii) or (iii) applies - the transaction for the
provision of the services includes the sale of goods of a kind that
are commonly supplied in connection with the services concerned; the
tainted sales income of the company does not include income from the
sale of:
(c) if subparagraph (a) (i) applies - the drink or food concerned; or
(d) if subparagraph (a) (ii) or (iii) applies - the goods referred to in
paragraph (b).
"(3) The tainted sales income of a company of a statutory accounting period
does not include passive income of the company of the statutory accounting
period.
"(4) The tainted sales income of a company of a statutory accounting period
does not include income from the sale of goods by the company where the
company substantially altered the goods with the result that the market value
of the goods was substantially enhanced.
"(5) If, apart from this subsection, goods are purchased or sold by 2 or more
entities acting jointly, subsection (1) is to be applied successively as if
each such entity were the sole purchaser or seller, as the case may be.
Tainted services income
"448. (1) Subject to this Division, for the purposes of this Part, the
following amounts are tainted services income of a company of a statutory
accounting period:
(a) income (other than premium income) from the provision of services by
the company to an entity who was:
(i) an associate of the company; or
(ii) a Part X Australian resident; at the time the income was derived;
(b) income (other than premium income) from the provision of services by
the company to an entity who was not a Part X Australian resident at
the time the income was derived, in connection with a business carried
on by the entity at that time at or through a permanent establishment
of the entity in Australia;
(c) income consisting of life assurance premiums in respect of a life
assurance policy where, at the time the policy was entered into, the
owner of the policy was:
(i) an associate of the company; or
(ii) a Part X Australian resident;
(d) income consisting of premiums (other than life assurance premiums) in
respect of insurance (other than reinsurance) where any of the
following conditions are satisfied at the time the policy was entered
into:
(i) any insured person was:
(A) an associate of the company; or
(B) a Part X Australian resident;
(ii) any insured property was situated in Australia;
(iii) any insured event was an event which could happen only in Australia;
(e) income consisting of premiums in respect of reinsurance where any of
the following conditions are satisfied at the time the policy was
entered into:
(i) the insurer whose risks are directly covered by the reinsurance was:
(A) an associate of the company; or
(B) a Part X Australian resident;
(ii) both of the following sub-subparagraphs apply:
(A) the risks of a particular insurer are covered indirectly
by the reinsurance (through one or more interposed
contracts of reinsurance);
(B) that insurer is an associate of the company;
(iii) both of the following sub-subparagraphs apply:
(A) the risks of a particular insured are covered indirectly
by the reinsurance (through one or more interposed
contracts of insurance or reinsurance);
(B) that insured is an associate of the company.
"(2) The tainted services income of a company of a statutory accounting period
does not include income from the sale of goods by the company.
"(3) Where:
(a) a company provides services directly related to goods sold by the
company; and
(b) either of the following conditions is satisfied:
(i) the company substantially altered the goods with the result that the
market value of the goods was substantially enhanced;
(ii) the company did not acquire the goods from another entity; the tainted
services income of the company does not include income from the
provision of those services.
"(4) Where a company provides any of the following services:
(a) drinks and meals;
(b) accommodation in a hotel, motel, guest-house or similar place;
(c) the provision of, or of the use of facilities for, entertainment,
recreation or instruction; the tainted services income of the company
does not include income from the provision of those services.
"(5) The tainted services income of a company of a statutory accounting period
does not include the passive income of the company of the statutory accounting
period.
"(6) The tainted services income of a company of a statutory accounting period
does not include income where:
(a) the income is not passive income of the company of the statutory
accounting period; and
(b) the income is covered by any of the following subparagraphs:
(i) income derived by the company by way of rent in respect of a lease of
land;
(ii) royalties derived by the company;
(iii) income derived from carrying on a business of trading in assets;
(iv) gains that accrued to the company in the statutory accounting period
in respect of the disposal of assets;
(v) gains that accrued to the company in the statutory accounting period
from disposing of commodity investments;
(vi) currency exchange gains that accrued to the company in the statutory
accounting period;
(vii) in the case of a life assurance company - an amount that, apart from
subsection 446 (2), would be passive income of the company of the
statutory accounting period;
(viii) in the case of a general insurance company - the amount that, apart
from subsection 446 (4), would be passive income of the company of the
statutory accounting period.
"(7) If, apart from this subsection, services are provided to 2 or more
entities acting jointly, this section is to be applied successively as if each
such entity were the sole recipient.
"Subdivision F - Special Rules Relating to AFI Subsidiaries
Carrying On Financial Intermediary Business AFI subsidiaries - interest income
"449. (1) The passive income of a company of a statutory accounting period
does not include tainted interest income where, at the time the income was
derived, the company was an AFI subsidiary whose sole or principal business
was financial intermediary business.
"(2) The tainted services income of a company of a statutory accounting period
does not include income where the following conditions are satisfied:
(a) at the time the income was derived, the company was an AFI subsidiary
whose sole or principal business was financial intermediary business;
(b) the income consisted of interest, or a payment in the nature of
interest, derived by the company from a loan made in the course of
carrying on that business;
(c) the loan was made to the Commonwealth. "(3) The passive income, or the
tainted services income, of a company of a statutory accounting period
does not include income where the following conditions are satisfied:
(a) at the time the income was derived, the company was an AFI subsidiary
whose sole or principal business was financial intermediary business;
(b) the income consisted of interest, or a payment in the nature of
interest, derived by the company from a deposit with a central bank.
"(4) In the application of subsection 448 (1) to income derived by a
company, where the following conditions are satisfied:
(a) at the time the income was derived, the company was an AFI subsidiary
whose sole or principal business was financial intermediary business;
(b) the income consisted of interest, or a payment in the nature of
interest, derived by the company from a loan made in the course of
carrying on that business; a reference in that subsection to the time
the income was derived is to be read as a reference to the time the
loan was made. AFI subsidiaries - asset disposals and currency
transactions
"450. (1) The passive income, or the tainted services income, of a company of
a statutory accounting period does not include income where the following
conditions are satisfied:
(a) at the time the income was derived, the company was an AFI subsidiary
whose sole or principal business was financial intermediary business;
(b) the income was derived from carrying on a business of trading in any
or all of the following tainted assets:
(i) non-share futures contracts;
(ii) non-share forward contracts;
(iii) interest rates swap contracts;
(iv) currency swap contracts;
(v) forward exchange rate contracts;
(vi) forward interest rate contracts;
(vii) a right or option in respect of such a contract;
(viii) any similar financial instrument.
"(2) For the purposes of this Part, in determining the net gains that accrued
to a company in a statutory accounting period in respect of the disposal of
tainted assets, where the following conditions are satisfied in relation to
the disposal of a tainted asset:
(a) at the time of the disposal of the tainted asset, the company was an
AFI subsidiary whose sole or principal business was financial
intermediary business;
(b) the disposal was made in the course of carrying on that business;
(c) the tainted asset is covered by paragraph (1) (b); the disposal of the
tainted asset is to be disregarded. "(3) For the purposes of this Part, in
determining the net tainted currency exchange gains that accrued to a company
during a statutory accounting period, where the following conditions are
satisfied in relation to a particular currency exchange gain or a particular
currency exchange loss:
(a) at the time the currency exchange gain or the currency exchange loss,
as the case may be, was realised, the company was an AFI subsidiary
whose sole or principal business was financial intermediary business;
(b) the currency exchange gain, or the currency exchange loss, as the case
may be, was realised:
(i) in the course of carrying on that business; and
(ii) in the course of currency dealing; that currency exchange gain or that
currency exchange loss, as the case requires, is to be disregarded.
"(4) The passive income of a company of a statutory accounting period does not
include income where the following conditions are satisfied:
(a) at the time the income was derived, the company was an AFI subsidiary
whose sole or principal business was financial intermediary business;
(b) the income was derived from carrying on a business of trading in
either of the following tainted assets:
(i) loans (including deposits with a bank or other financial institution);
(ii) debenture stock, bonds, debentures, certificates of entitlement, bills
of exchange, promissory notes or other securities.
"(5) For the purposes of this Part (other than subsection (7)), in determining
the net gains that accrued to a company in a statutory accounting period in
respect of the disposal of tainted assets, where the following conditions are
satisfied in relation to the disposal of a tainted asset:
(a) at the time of the disposal of the tainted asset, the company was an
AFI subsidiary whose sole or principal business was financial
intermediary business;
(b) the disposal was made in the course of carrying on that business;
(c) the tainted asset is covered by paragraph (4)(b); the disposal of the
tainted asset is to be disregarded.
"(6) For the purposes of this Part, the tainted services income of a company
of a statutory accounting period includes income from trading in assets where
the following conditions are satisfied:
(a) at the time the income was derived, the company was an AFI subsidiary
whose sole or principal business was financial intermediary business;
(b) the assets are covered by paragraph (4) (b);
(c) the assets were acquired from, or disposed of to, another entity where
either of the following conditions are satisfied at the time of the
acquisition or disposal:
(i) the entity was:
(A) an associate of the company; or
(B) a Part X Australian resident;
(ii) the entity was not a Part X Australian resident, but the acquisition
or disposal was in connection with a business carried on by the entity
at or through a permanent establishment of the entity in Australia.
"(7) For the purposes of this Part, the tainted services income of a company
of a statutory accounting period includes net gains that accrued to the
company in the statutory accounting period in respect of the disposal of
tainted assets, where the following conditions are satisfied:
(a) at the time of the disposal of the tainted asset, the company was an
AFI subsidiary whose sole or principal business was financial
intermediary business;
(b) the disposal was made in the course of carrying on that business;
(c) the tainted asset is covered by paragraph (4)(b);
(d) the tainted asset was acquired from, or disposed of to, another entity
where either of the following conditions are satisfied at the time of
the acquisition or disposal:
(i) the entity was:
(A) an associate of the company; or
(B) a Part X Australian resident;
(ii) the entity was not a Part X Australian resident, but the acquisition
or disposal was in connection with a business carried on by the entity
at or through a permanent establishment of the entity in Australia.
"(8) For the purposes of this Part, the tainted services income of a company
of a statutory accounting period includes factoring income where the following
conditions are satisfied:
(a) at the time the income was derived, the company was an AFI subsidiary
whose sole or principal business was financial intermediary business;
(b) the debt to which the factoring income relates was acquired from, or
disposed of to, another entity where either of the following
conditions are satisfied at the time of the acquisition or disposal:
(i) the entity was:
(A) an associate of the company; or
(B) a Part X Australian resident;
(ii) the entity was not a Part X Australian resident, but the acquisition
or disposal was in connection with a business carried on by the entity
at or through a permanent establishment of the entity in Australia.
"Subdivision G - Substantiation Requirements Active income test -
substantiation requirements for company
"451. (1) The substantiation requirements for a company in relation to a
statutory accounting period are as follows:
(a) the company must keep (in Australia or elsewhere) such accounting
records (in this section called the `general accounting records') as
correctly record and explain the matters, transactions, acts and
operations that are relevant to the preparation of the recognised
accounts of the company for the statutory accounting period;
(b) the general accounting records must be so kept as to enable the
recognised accounts of the company for the statutory accounting period
to be prepared;
(c) the company must retain, for the retention period in relation to the
statutory accounting period:
(i) the recognised accounts of the company for the statutory accounting
period; and
(ii) the general accounting records of the company for the statutory
accounting period;
(d) the company must comply with a request made in a notice given to it
under subsection (2) in relation to the statutory accounting period.
"(2) An entity that is an attributable taxpayer in relation to a company,
being a CFC, as at the end of a statutory accounting period of the company
may, by notice in writing served on the company (in this section called the
`taxpayer's notice'), request the company:
(a) to give to the taxpayer, within the period and in the manner specified
in the taxpayer's notice, copies of such of the following documents as
are specified in the notice:
(i) the recognised accounts of the company for the statutory accounting
period;
(ii) the general accounting records of the company for the statutory
accounting period; or
(b) to prepare a document containing particulars of the basis of the
calculation of the tainted income ratio of the company for the
statutory accounting period and to give to the taxpayer, within the
period and in the manner specified in the taxpayer's notice, a copy of
that document; or
(c) if the company was a partner in a partnership at any time during the
statutory accounting period:
(i) to obtain from the partnership, in accordance with a request made in a
notice given to the partnership by the company under subsection 452
(2), copies of specified documents; and
(ii) to give those copies to the taxpayer, within the period and in the
manner specified in the taxpayer's notice.
"(3) The period specified in the taxpayer's notice must end:
(a) later than 60 days after the date of service of the taxpayer's notice;
and
(b) before the end of the retention period in relation to the statutory
accounting period.
"(4) Upon written application made by the taxpayer within the period specified
in the taxpayer's notice, the Commissioner may, by notice in writing served on
the taxpayer, extend the period specified in the taxpayer's notice.
"(5) Where:
(a) an application under subsection (4) is made before the end of the
period specified in the taxpayer's notice; and
(b) at the end of the period, the Commissioner has not notified the
taxpayer of the Commissioner's decision on the application; the
following provisions have effect:
(c) if the Commissioner's decision is not notified to the taxpayer before
the end of the retention period in relation to the statutory
accounting period concerned - the Commissioner is taken to have
extended the period under subsection (4) to the end of the retention
period;
(d) if the Commissioner's decision is notified to the taxpayer before the
end of the retention period in relation to the statutory accounting
period concerned - the Commissioner is taken to have extended the
period under subsection (4) to the end of the day (in this subsection
called the `decision day') on which the Commissioner's decision is
notified to the taxpayer;
(e) if the Commissioner decides to extend the period - subject to
subsection (6), the extended period must end after the decision day.
"(6) The period as extended under subsection (4) must end before the end of
the retention period in relation to the statutory accounting period.
"(7) A reference in this section to the period specified in the taxpayer's
notice is a reference to the period as extended under subsection (4).
"(8) A refusal or failure to comply with the taxpayer's notice is not an
offence.
"(9) Subsection 262A (4) does not apply to records kept or obtained under or
for the purposes of this section. Active income test - substantiation
requirements for partnership
"452. (1) The substantiation requirements for a partnership in relation to a
statutory accounting period are as follows:
(a) the partnership must keep (in Australia or elsewhere) such accounting
records (in this section called the `general accounting records') as
correctly record and explain the matters, transactions, acts and
operations that are relevant to the preparation of the recognised
accounts of the partnership for the statutory accounting period;
(b) the general accounting records must be so kept as to enable the
recognised accounts of the partnership for the statutory accounting
period to be prepared;
(c) the partnership must retain, for the retention period in relation to
the statutory accounting period:
(i) the recognised accounts of the partnership for the statutory
accounting period; and
(ii) the general accounting records of the partnership for the statutory
accounting period;
(d) the partnership must comply with a request made in a notice given to
it under subsection (2) in relation to the statutory accounting
period.
"(2) A company that is a CFC at the end of a statutory accounting period of
the company may, by notice in writing served on a partnership in which the
company was a partner at any time during the statutory accounting period,
request the partnership:
(a) to give to the company, within the period and in the manner specified
in the notice, copies of such of the following documents as are
specified in the notice:
(i) the recognised accounts of the partnership for the statutory
accounting period;
(ii) the general accounting records of the partnership for the statutory
accounting period; or
(b) to prepare a document containing particulars of the basis of the
calculation of:
(i) the notional gross tainted turnover of the partnership for the
statutory accounting period; and
(ii) the notional gross turnover of the partnership for the statutory
accounting period;
and to give to the company, within the period and in the manner specified in
the notice, a copy of that document.
"(3) The period specified in the notice must end:
(a) later than 30 days after the date of service of the notice; and
(b) before the end of the retention period in relation to the statutory
accounting period.
"(4) Upon written application made by the company within the period specified
in the notice, the Commissioner may, by notice in writing served on the
company, extend the period specified in the notice.
"(5) Where:
(a) an application under subsection (4) is made before the end of the
period specified in the notice; and
(b) at the end of the period, the Commissioner has not notified the
company of the Commissioner's decision on the application; the
following provisions have effect:
(c) if the Commissioner's decision is not notified to the company before
the end of the retention period in relation to the statutory
accounting period concerned - the Commissioner is taken to have
extended the period under subsection (4) to the end of the retention
period;
(d) if the Commissioner's decision is notified to the company before the
end of the retention period in relation to the statutory accounting
period concerned - the Commissioner is taken to have extended the
period under subsection (4) to the end of the day (in this subsection
called the `decision day') on which the Commissioner's decision is
notified to the company;
(e) if the Commissioner decides to extend the period - subject to
subsection (6), the extended period must end after the decision day.
"(6) The period as extended under subsection (4) must end before the end of
the retention period in relation to the statutory accounting period.
"(7) A reference in this section to the period specified in the notice is a
reference to the period as extended under subsection (4).
"(8) A refusal or failure to comply with the notice is not an offence.
"(9) Subsection 262A (4) does not apply to records kept or obtained under or
for the purposes of this section. Active income test - substantiation
requirements for attributable taxpayer
"453. (1) Where:
(a) the Commissioner has reason to believe that:
(i) a taxpayer is an attributable taxpayer in relation to a company, being
a CFC, at the end of a statutory accounting period of the CFC; and
(ii) the application of a provision of this Division to the company may be
relevant to the assessment of the taxpayer; and
(b) any of the following subparagraphs applies:
(i) the taxpayer has claimed (whether in a return of income or otherwise)
that the company has passed the active income test in relation to the
statutory accounting period;
(ii) the taxpayer's return of income of any year of income has been
prepared on the basis that the company has passed the active income
test in relation to the statutory accounting period;
(iii) the Commissioner has reason to believe that the company has passed
the active income test in relation to the statutory accounting period;
the Commissioner may, by notice in writing served on the taxpayer (in
this section called the `Commissioner's notice'), request the
taxpayer:
(c) to obtain from the company, in accordance with a request made in a
notice given to the company under subsection 451 (2), copies of such
documents as are specified in the Commissioner's notice; and
(d) if any of those copies are not in the English language - to make
translations of those copies; and
(e) to produce to the Commissioner, within the period and in the manner
specified in the Commissioner's notice:
(i) in all cases - those copies; and
(ii) if paragraph (d) applies - those translations.
"(2) The period specified in the Commissioner's notice must end:
(a) later than 90 days after the date of service of the notice; and
(b) before the end of the retention period in relation to the statutory
accounting period.
"(3) Upon written application made by the taxpayer within the period specified
in the Commissioner's notice, the Commissioner may, by notice in writing
served on the taxpayer, extend the period specified in the Commissioner's
notice.
"(4) Where:
(a) (a) an application under subsection (3) is made before the end of
the period specified in the Commissioner's notice; and
(b) at the end of the period, the Commissioner has not notified the
taxpayer of the Commissioner's decision on the application; the
following provisions have effect:
(c) if the Commissioner's decision is not notified to the taxpayer before
the end of the retention period in relation to the statutory
accounting period concerned - the Commissioner is taken to have
extended the period under subsection (3) to the end of the retention
period;
(d) if the Commissioner's decision is notified to the taxpayer before the
end of the retention period in relation to the statutory accounting
period concerned - the Commissioner is taken to have extended the
period under subsection (3) to the end of the day (in this subsection
called the `decision day') on which the Commissioner's decision is
notified to the taxpayer;
(e) if the Commissioner decides to extend the period - subject to
subsection (5), the extended period must end after the decision day.
"(5) The period as extended under subsection (3) must end before the end of
the retention period in relation to the statutory accounting period.
"(6) A reference in this section to the period specified in the Commissioner's
notice is a reference to the period as extended under subsection (3).
"(7) A refusal or failure to comply with the notice is not an offence.
"(8) If the taxpayer refuses or fails to comply with the notice, then, for the
purposes of the application of this Part (other than this Division) to the
taxpayer, the company is taken not to have passed the active income test in
relation to the statutory accounting period concerned. Assessment on
assumption - retention of accounts etc. and compliance with information
notices
"454. (1) Where:
(a) a statutory accounting period of a company has ended; and
(b) the retention period in relation to the statutory accounting period
has not ended; an assessment may be made of a taxpayer on the
assumption that, after the assessment is made, the following
requirements will be complied with in relation to the statutory
accounting period:
(c) the requirements set out in paragraphs 451 (1) (c) and (d) that are
applicable to the company;
(d) the requirements set out in paragraphs 452 (1) (c) and (d) that are
applicable to a partnership in which the company was a partner at any
time during the statutory accounting period.
"(2) Where:
(a) the assessment is made; and
(b) after the making of the assessment, the Commissioner becomes aware
that the requirements were not complied with in relation to the
statutory accounting period; then, in spite of anything in section
170, the Commissioner may amend the assessment at any time for the
purpose of ensuring that the assessment is made as if subsection (1)
of this section were disregarded. Amendment of assessments
"455. Where:
(a) an assessment has been made in relation to a year of income; and
(b) a provision of this Subdivision that is relevant to the assessment is
dependent on a circumstance that occurs or may occur after the end of
the year of income; section 170 does not prevent the amendment of the
assessment at any time for the purpose of giving effect to this Act in
relation to the occurrence of that circumstance after the end of the
year of income.
"Division 9 - Attribution of Attributable Income and
Other Amounts Assessability in respect of CFC's attributable income
"456. (1) Subject to subsection (2), where a CFC has attributable income for a
statutory accounting period in respect of an attributable taxpayer, the
taxpayer's attribution percentage of the attributable income is included in
the assessable income of the taxpayer of the year of income in which the end
of the statutory accounting period occurs.
"(2) Where section 457 applies in relation to the attributable taxpayer in
relation to one or more changes of residence by the CFC during the statutory
accounting period, then only so much of the attributable income of the CFC as
relates to:
(a) where the CFC is a resident of an unlisted country at the end of the
period:
(i) any part of the period when the CFC was a resident of a listed
country; or
(ii) the part of the period, since the change of residence or last change
of residence, as the case requires, when the CFC was a resident of the
unlisted country; or
(b) where the CFC is a resident of a listed country at the end of the
period - any part of the period when the CFC was a resident of the
listed country or any other listed country; is to be taken into
account under subsection (1). Assessability where CFC changes
residence from unlisted country to listed country or to Australia
"457. (1) Where at any time (in this section called the `residence-change
time') a company that:
(a) is a CFC; and
(b) has an attributable taxpayer; ceases to be resident in an unlisted
country and becomes:
(c) a resident of a listed country; or
(d) a Part X Australian resident; then the attributable taxpayer's
assessable income of the year of income in which the residence-change
time occurs includes the amount calculated under subsection (2).
"(2) The amount is calculated using the formula: (Attribution percent x
Adjusted distributable profits) x Attribution surplus where: Attribution
percent means the attributable taxpayer's attribution percentage, at the
residence-change time, in relation to the CFC; Adjusted distributable profits
means:
(a) where the application of subsection (1) is the first or only
application of the subsection in relation to the CFC and the
attributable taxpayer:
(i) if paragraph (1) (c) applies - the amount that would be the CFC's
distributable profits at the residence-change time if:
(A) all the CFC's assets were disposed of at that time for a
consideration equal to their market value; and
(B) exempting profits of the CFC in relation to the
attributable taxpayer were not taken into account; or
(ii) if paragraph (1) (d) applies - the amount that would be the CFC's
distributable profits at the residence-change time if exempting
profits of the CFC in relation to the attributable taxpayer were not
taken into account; and
(b) in any other case:
(i) if paragraph (1) (c) applies - so much of the amount that would be the
CFC's distributable profits at the residence-change time on the
assumptions in subparagraph (a) (i) of this subsection as is
attributable to the period since the residence-change time referred to
in the previous application of subsection (1) in relation to the CFC
and the attributable taxpayer; or
(ii) if paragraph (1) (d) applies - so much of the amount that would be the
CFC's distributable profits at the residence-change time on the
assumption in subparagraph (a) (ii) of this subsection as is
attributable to the period since the residence-change time referred to
in the previous application of subsection (1) in relation to the CFC
and the attributable taxpayer; Attribution surplus means:
(c) where the application of subsection (1) is the first or only
application of the subsection in relation to the CFC and the
attributable taxpayer - the amount of any attribution surplus for the
CFC in relation to the attributable taxpayer immediately before the
residence-change time; and
(d) in any other case - so much of any attribution surplus, for the CFC in
relation to the attributable taxpayer immediately before the
residence-change time, as has not been taken into account in any
previous application of subsection (1). Assessability in respect of
certain dividends paid by a CFC
"458. (1) Subject to subsection (2), where:
(a) a CFC that is a resident of an unlisted country pays anon-portfolio
dividend to another CFC; and
(b) when the dividend is paid, a taxpayer is an attributable taxpayer in
relation to both CFCs; the assessable income of the taxpayer of the
year of income in which the payment is made includes an amount
calculated using the formula:
AP x (D - GD - EPP - T) where: AP (Attribution Percentage) means the
taxpayer's attribution percentage for the CFC receiving the dividend; D
(Dividend) means the amount of the dividend; GD (Grossed-up Debit) means the
grossed-up amount of any attribution debit, that arose as a result of the
payment, in relation to the taxpayer for the CFC paying the dividend; EPP
(Exempting Profits Percentage) means:
(c) where the taxpayer and both CFCs are members of a non-portfolio
company group when the dividend is paid - the exempting profits
percentage, in relation to the taxpayer, of the dividend; and
(d) in any other case - nil; T (Tax) means any foreign tax paid by
deduction from the dividend by or on behalf of the CFC receiving the
dividend, multiplied by the percentage of the dividend represented by
the formula component D - GD - EPP.
"(2) Subsection (1) does not apply where:
(a) the dividend is taxed in a listed country at the country's normal
company tax rate; or
(b) the CFC receiving the dividend is a resident of an unlisted country,
unless the payment of the dividend arose out of, or was made in the
course of, a scheme (within the meaning of section 177A) that:
(i) was by way of or in the nature of dividend stripping; or
(ii) had substantially the effect of a scheme (within the meaning of
that section) by way of or in the nature of dividend stripping.
"(3) Subject to subsection (6), where:
(a) a CFC that is a resident of an unlisted country pays a dividend to a
CFT; and
(b) the dividend would be a non-portfolio dividend if the CFT were a
company and the shares in respect of which the dividend was paid were
held by the trustee as beneficial owner; and
(c) when the dividend is paid, a taxpayer is an attributable taxpayer in
relation to the CFC and the CFT; the assessable income of the taxpayer
of the year of income in which the payment is made includes an amount
calculated using the formula:
AP x (D - GD - T) where: AP (Attribution Percentage) means the taxpayer's
attribution percentage for the CFT; D (Dividend) means the amount of the
dividend; GD (Grossed-up Debit) means the grossed-up amount of any attribution
debit, that arose as a result of the payment, in relation to the taxpayer for
the CFC; T (Tax) means any foreign tax paid by deduction from the dividend by
or on behalf of the CFT, multiplied by the percentage of the dividend
represented by the formula component D - GD.
"(4) Subject to subsections (6) and (7), where:
(a) a CFC (in this subsection called the `paying entity') that is a
resident of an unlisted country pays a dividend to a partnership; and
(b) when the dividend is paid, a CFC or a CFT (which CFC or CFT is in this
subsection called the `ultimate recipient') has either or both of the
following:
(i) a direct interest in the profits of the partnership by virtue
of being a partner in the partnership;
(ii) an indirect interest in the profits of the partnership by
virtue of the holding or successive holding of interests in
profits of interposed Australian partnerships or present
entitlements to shares of the income of interposed Australian
trusts (or any combination thereof); and
(c) if the partnership were a company, the dividend would be a
non-portfolio dividend; and
(d) when the dividend is paid, a taxpayer is an attributable taxpayer in
relation to the paying entity and the ultimate recipient; the
assessable income of the taxpayer of the year of income in which the
payment is made includes an amount calculated using the formula:
AP x IP x (D - GD - T) where: AP (Attribution Percentage) means the taxpayer's
attribution percentage for the ultimate recipient; IP (Interest in
Partnership) means the percentage of the total interests in the profits of the
partnership represented by the sum of the direct and indirect interests of the
ultimate recipient; D (Dividend) means the amount of the dividend; GD
(Grossed-up Debit) means the grossed-up amount of any attribution debit, that
arose as a result of the payment, in relation to the taxpayer for the paying
entity; T (Tax) means any foreign tax paid by deduction from the dividend by
or on behalf of the partnership, multiplied by the percentage of the dividend
represented by the formula component D - GD.
"(5) Subject to subsections (6) and (7), where:
(a) a CFC (in this subsection called the `paying entity') that is a
resident of an unlisted country pays a dividend to an Australian
trust; and
(b) when the dividend is paid, a CFC or a CFT (which CFC or CFT is in this
subsection called the `ultimate recipient') has either or both of the
following:
(i) a direct interest in the income of the Australian trust by
virtue of being presently entitled to a share of that income;
(ii) an indirect interest in the income of the Australian trust by
virtue of the holding or successive holding of interests in
profits of interposed Australian partnerships or present
entitlements to shares of the income of interposed Australian
trusts (or any combination thereof); and
(c) the dividend would be a non-portfolio dividend if the Australian trust
were a company and the shares in respect of which the dividend was
paid were held by the trustee as beneficial owner; and
(d) when the dividend is paid, a taxpayer is an attributable taxpayer in
relation to the paying entity and the ultimate recipient; the
assessable income of the taxpayer of the year of income in which the
payment is made includes an amount calculated using the formula:
AP x IT x (D - GD - T) where: AP (Attribution Percentage) means the taxpayer's
attribution percentage for the ultimate recipient; IT (Interest in Trust)
means the percentage of the income of the Australian trust represented by the
sum of the direct and indirect interests of the ultimate recipient; D
(Dividend) means the amount of the dividend; GD (Grossed-up Debit) means the
grossed-up amount of any attribution debit, that arose as a result of the
payment, in relation to the taxpayer for the paying entity; T (Tax) means any
foreign tax paid by deduction from the dividend by or on behalf of the
Australian trust, multiplied by the percentage of the dividend represented by
the formula component D - GD.
"(6) Subsection (3), (4) or (5) does not apply where:
(a) in a subsection (3) case - the dividend; or
(b) in a subsection (4) or (5) case - any amount that would, as a result
of the payment of the dividend, be included in the tax base of the CFC
or CFT, or of any partnership or trust, referred to in paragraph (4)
(b) or (5) (b), in respect of the holding of any interest or present
entitlement referred to in that paragraph; is taxed in a listed
country at the country's normal company tax rate.
"(7) Subsection (4) or (5) does not apply where:
(a) the ultimate recipient referred to in that subsection is a CFC; and
(b) when the dividend referred to in that subsection is paid, that CFC and
the paying entity referred to in that subsection are each resident in
an unlisted country; unless the payment of the dividend arose out of,
or was made in the course of, a scheme (within the meaning of section
177A) that:
(c) was by way of or in the nature of dividend stripping; or
(d) had substantially the effect of a scheme (within the meaning of that
section) by way of or in the nature of dividend stripping.
"(8) A reference in subsection (4) or (5) to income of an Australian trust, in
relation to a year of income, does not include a reference to income of a
trust that is, in relation to the year of income:
(a) a corporate unit trust within the meaning of Division 6B of Part III;
or
(b) a public trading trust within the meaning of Division 6C of that Part;
or
(c) an eligible entity within the meaning of Part IX. Assessability in
respect of certain dividends deemed to be paid by a CFC under section
47A
"459. (1) Subject to subsection (4), where:
(a) under section 47A, the whole or a part of a distribution payment in
relation to a distribution time for a distribution benefit is taken to
be a dividend paid at the distribution time by the first company to
the recipient of the benefit; and
(b) section 458 does not apply to the payment of the dividend; and
(c) at the distribution time, the recipient is:
(i) a CFC that is a resident of a listed country; or
(ii) a CFT; and
(d) at the distribution time, the taxpayer is an attributable taxpayer in
relation to the first company and the recipient of the dividend; the
assessable income of the taxpayer of the year of income in which the
distribution time occurred includes an amount calculated using the
formula:
AP x D where: AP (Attribution Percentage) means the taxpayer's attribution
percentage for the CFC or CFT receiving the dividend; D (Dividend) means the
amount of the dividend.
"(2) Subject to subsection (4), where:
(a) under section 47A, the whole or a part of a distribution payment in
relation to a distribution time for a distribution benefit is taken to
be a dividend paid at the distribution time by the first company to
the recipient of the benefit; and
(b) section 458 does not apply to the payment of the dividend; and
(c) the recipient is a partnership; and
(d) a CFC that is a resident of a listed country or a CFT (which CFC or
CFT is in this subsection called the `ultimate recipient') has either
or both of the following:
(i) a direct interest in the profits of the partnership by virtue of being
a partner in the partnership;
(ii) an indirect interest in the profits of the partnership by virtue of
the holding or successive holding of interests in profits of
interposed Australian partnerships or present entitlements to shares
in the income of interposed Australian trusts (or any combination
thereof); and
(e) at the distribution time, a taxpayer is an attributable taxpayer in
relation to the first company and the ultimate recipient; the
assessable income of the taxpayer of the year of income in which the
distribution time occurred includes an amount calculated using the
formula:
AP x IP x D where: AP (Attribution Percentage) means the taxpayer's
attribution percentage for the ultimate recipient; IP (Interest in
Partnership) means the percentage of the total interests in the profits of the
partnership represented by the sum of the direct and indirect interests of the
ultimate recipient; D (Dividend) means the amount of the dividend.
"(3) Subject to subsection (4), where:
(a) under section 47A, the whole or a part of a distribution payment in
relation to a distribution time for a distribution benefit is taken to
be a dividend paid at the distribution time by the first company to
the recipient of the benefit; and
(b) section 458 does not apply to the payment of the dividend; and
(c) the recipient is an Australian trust; and
(d) a CFC that is a resident of a listed country or a CFT (which CFC or
CFT is in this subsection called the `ultimate recipient') has either
or both of the following:
(i) a direct interest in the income of the Australian trust by virtue of
being presently entitled to a share of that income;
(ii) an indirect interest in the income of the Australian trust by virtue
of the holding or successive holding of interests in profits of
interposed Australian partnerships or present entitlements to shares
of the income of interposed Australian trusts (or any combination
thereof); and
(e) at the distribution time, a taxpayer is an attributable taxpayer in
relation to the first company and the ultimate recipient; the
assessable income of the taxpayer of the year of income in which the
distribution time occurred includes an amount calculated using the
formula:
AP x IT x D where: AP (Attribution Percentage) means the taxpayer's
attribution percentage for the ultimate recipient; IT (Interest in Trust)
means the percentage of the income of the Australian trust represented by the
sum of the direct and indirect interests of the ultimate recipient; D
(Dividend) means the amount of the dividend.
"(4) Subsection (1), (2) or (3) does not apply where the dividend referred to
in that subsection is taxed in a listed country at the country's normal
company tax rate.
"(5) In this section: `distribution benefit' has the same meaning as in
section 47A; `distribution payment' has the same meaning as in section 47A;
`distribution time' has the same meaning as in section 47A; `first company'
has the same meaning as in section 47A. Only resident partners, beneficiaries
etc. liable to be assessed as a result of attribution
"460. (1) This section applies where an amount is included under section 456,
457, 458 or 459 in the assessable income of an Australian partnership or an
Australian trust of a year of income, except where the Australian trust is, in
relation to the year of income:
(a) a corporate unit trust within the meaning of Division 6B of Part III;
or
(b) a public trading trust within the meaning of Division 6C of that Part;
or
(c) an eligible entity within the meaning of Part IX.
"(2) Where:
(a) as a result of the amount being so included, there is, apart from this
subsection, a tax detriment for:
(i) a partner in the Australian partnership; or
(ii) a partner in another partnership (in this subsection called the
`ultimate partnership'), where the tax detriment occurred because
there were one or more partnerships or trusts (but not companies)
interposed between the partner and the Australian partnership or the
Australian trust; and
(b) the partner is not, in respect of his or her interest in the net
income or partnership loss of the Australian partnership or the
ultimate partnership, in the capacity of trustee of a trust; and
(c) the tax detriment would be reduced by an amount if it were
recalculated on the assumption that section 92 applied only to so much
of the partner's interest in the net income or partnership loss of the
Australian partnership or the ultimate partnership as is attributable
to periods when the partner was a Part X Australian resident; then,
for the purposes of this Act, the tax detriment is taken to be reduced
by that amount.
"(3) Where:
(a) as a result of the amount being included as mentioned in subsection
(1), there is, apart from this subsection, a tax detriment for:
(i) a beneficiary in the Australian trust; or
(ii) a beneficiary in another trust (in this subsection called the
`ultimate trust'), where the tax detriment occurred because there were
one or more partnerships or trusts (but not companies) interposed
between the beneficiary and the Australian partnership or the
Australian trust; and
(b) the beneficiary is not a partnership and is not, in respect of his or
her share of the net income of the Australian trust or the ultimate
trust, in the capacity of trustee of another trust; and
(c) the tax detriment would be reduced by an amount if it were
recalculated on the assumption that sections 97, 98A and 100 applied
only to so much of the beneficiary's share of the net income of the
Australian trust or the ultimate trust as is attributable to periods
when the beneficiary was a Part X Australian resident; then, for the
purposes of this Act, the tax detriment is taken to be reduced by that
amount.
"(4) Where:
(a) as a result of the amount being included as mentioned in subsection
(1), there is, apart from this subsection, a tax detriment for:
(i) the trustee of the Australian trust; or
(ii) the trustee of another trust (in this subsection called the `ultimate
trust'), where the tax detriment occurred because there were one or
more partnerships or trusts (but not companies) interposed between the
trustee and the Australian partnership or the Australian trust; and
(b) the tax detriment would be reduced by an amount if it were
recalculated on the assumption that:
(i) section 98 applied only to so much of a beneficiary's share of the net
income of the Australian trust or the ultimate trust as is
attributable to periods when the beneficiary was a Part X Australian
resident; and
(ii) sections 99 and 99A applied only to the Australian trust or the
ultimate trust if it were a resident trust estate within the meaning
of Division 6 of Part III; then, for the purposes of this Act, the tax
detriment is taken to be reduced by that amount.
"(5) Where the partner referred to in paragraph (2) (a), the beneficiary
referred to in paragraph (3) (a) or any beneficiary referred to in
subparagraph (4) (b) (i) is a CFC, then subsection (2), (3) or (4), as the
case requires, does not apply in relation to the partner or beneficiary.
"Division 10 - Post-attribution Asset Disposals Reduction of disposal
consideration where attributed income not distributed
"461. (1) Where:
(a) it is necessary, for the purposes of applying a provision of this Act
in the assessment of a taxpayer for a year of income, to take into
account the amount of consideration received, entitled to be received
or taken to have been received, by the taxpayer in respect of the
disposal of an asset, being an interest in an attribution account
entity (in this section called the `disposal entity'); and
(b) immediately before the disposal takes place, either or both of the
following conditions are satisfied:
(i) there is an attribution surplus for the disposal entity in
relation to the taxpayer;
(ii) there is an attribution surplus for one or more other
attribution account entities in relation to the taxpayer, where
each such entity is one in which the taxpayer has an indirect
attribution account interest held through the disposal entity;
then, for the purposes of this Act:
(c) the consideration that, apart from this section, would be taken into
account under the provision referred to in paragraph (a) in respect of
the disposal is, subject to subsection (3), taken to be reduced by the
amount of the attribution surplus, or the sum of the attribution
surpluses, as the case requires; and
(d) an attribution debit is taken to arise at the time of the disposal
under section 372, in relation to the taxpayer, for each attribution
account entity (in this section called a `surplus entity') in relation
to which there is an attribution surplus to which paragraph (1) (c)
applies; and
(e) the amount of the attribution debit is equal to so much of the surplus
as is taken into account under paragraph (1) (c); and
(f) there is no grossed-up amount in relation to the attribution debit
under section 373; and
(g) section 376 has effect as if an attribution account payment were made
by the surplus entity, at the time of the disposal, that required the
attribution debit under paragraph (1) (d) of this section to arise.
"(2) For the purposes of this section, where the provision referred to in
paragraph (1) (a) is in Part IIIA, references in this section to the disposal
of an asset are references to the disposal of an asset within the meaning of
that Part.
"(3) For the purposes of paragraph (1) (c):
(a) where the disposal of the asset causes the taxpayer's attribution
account percentage for a surplus entity to be reduced by a proportion,
then only that proportion of the attribution surplus for the entity
is, subject to this subsection, to be taken into account under that
paragraph; and
(b) where there is only one attribution surplus referred to in that
paragraph and (after any application of paragraph (a) of this
subsection) it exceeds the consideration in respect of the disposal,
then only so much of the surplus as does not exceed the consideration
is to be taken into account under paragraph (1) (c); and
(c) where there are 2 or more attribution surpluses referred to in
paragraph (1) (c) and (after any application of paragraph (a) of this
subsection) their sum exceeds the consideration in respect of the
disposal, then:
(i) if the taxpayer specifies, in an election for the purposes of
this paragraph, a part of each surplus (after any application
of paragraph (a)) such that the sum of the amounts specified
equals the consideration - only the specified part of each
surplus is to be taken into account under paragraph (1) (c); or
(ii) if subparagraph (i) does not apply - only a proportion of each
surplus (after any application of paragraph (a)) is to be taken
into account under paragraph (1) (c), being the proportion
calculated using the formula:
Consideration
Total surplus where: Consideration means the amount of the consideration;
Total surplus means the sum of the attribution surpluses (after any
application of paragraph (a)).
"(4) An election for the purposes of paragraph (3) (c) must be made in the
taxpayer's return of income for the year of income referred to in paragraph
(1) (a) or within such further period after the lodgment of the return as the
Commissioner allows.
"(5) In this section: `interest', in relation to an attribution account
entity, means:
(a) if the entity is a company - an interest in shares in the company, or
an entitlement to acquire such an interest; or
(b) if the entity is a partnership - an interest of a partner in the
profits or property of the partnership, or an entitlement of a partner
to acquire such an interest; or
(c) if the entity is a trust - an entitlement of a beneficiary to a share
of the income or corpus of the trust, or an entitlement of a
beneficiary to acquire such an entitlement.
"Division 11 - Keeping of Records Keeping of records - section 456
"462. Subject to this Division, where:
(a) a person is an attributable taxpayer in relation to a CFC at the end
of a statutory accounting period of the CFC; and
(b) the CFC has attributable income for the statutory accounting period in
respect of the person; the person must keep records (in Australia or
elsewhere) containing particulars of:
(c) the acts, transactions and other circumstances that resulted in the
person being an attributable taxpayer in relation to the CFC at that
time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the CFC held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the
person in relation to the CFC at that time; and
(f) the basis of the calculation of the amount (including a nil amount)
included in the assessable income of the person under section 456 in
relation to the CFC's attributable income for the statutory accounting
period in respect of the person. Keeping of records - section 458
"463. (1) Subject to this Division, where:
(a) subsection 458 (1) applies to the payment of a dividend by a CFC to
another CFC (which other CFC is in this subsection called the
`recipient'); and
(b) at the time of the payment of the dividend, a person is an
attributable taxpayer in relation to both CFCs; the person must keep
records (in Australia or elsewhere) containing particulars of:
(c) the acts, transactions and other circumstances that resulted in the
person being an attributable taxpayer in relation to each CFC at that
time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the recipient held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the
person in relation to the recipient at that time; and
(f) the basis of the calculation of the amount (including a nil amount)
included in the assessable income of the person under subsection 458
(1) in relation to the payment of the dividend.
"(2) Subject to this Division, where:
(a) subsection 458 (3) applies to the payment of a dividend by a CFC to a
CFT; and
(b) at the time of the payment of the dividend, a person is an
attributable taxpayer in relation to the CFC and the CFT; the person
must keep records (in Australia or elsewhere) containing particulars
of:
(c) the acts, transactions and other circumstances that resulted in the
person being an attributable taxpayer in relation to the CFC and the
CFT at that time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the CFT held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the
person in relation to the CFT at that time; and
(f) the basis of the calculation of the amount (including a nil amount)
included in the assessable income of the person under subsection 458
(3) in relation to the payment of the dividend.
"(3) Subject to this Division, where:
(a) subsection 458 (4) applies to the payment of a dividend by a CFC to a
partnership; and
(b) at the time of the payment of the dividend, a person is an
attributable taxpayer in relation to the CFC and the ultimate
recipient referred to in that subsection; the person must keep records
(in Australia or elsewhere) containing particulars of:
(c) the acts, transactions and other circumstances that resulted in the
person being an attributable taxpayer in relation to the CFC and the
ultimate recipient at that time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the ultimate recipient held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the
person in relation to the ultimate recipient at that time; and
(f) the basis of the calculation of the amount (including a nil amount)
included in the assessable income of the person under subsection 458
(4) in relation to the payment of the dividend.
"(4) Subject to this Division, where:
(a) subsection 458 (5) applies to the payment of a dividend by a CFC to an
Australian trust; and
(b) at the time of the payment of the dividend, a person is an
attributable taxpayer in relation to the CFC and the ultimate
recipient referred to in that subsection; the person must keep records
(in Australia or elsewhere) containing particulars of:
(c) the acts, transactions and other circumstances that resulted in the
person being an attributable taxpayer in relation to the CFC and the
ultimate recipient at that time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the ultimate recipient held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the
person in relation to the ultimate recipient at that time; and
(f) the basis of the calculation of the amount (including a nil amount)
included in the assessable income of the person under subsection 458
(5) in relation to the payment of the dividend. Keeping of records -
section 459
"464. (1) Subject to this Division, where:
(a) subsection 459 (1) applies to the payment of a dividend by a CFC (in
this subsection called the `payer') to another CFC or to a CFT (which
other CFC or CFT is in this subsection called the `recipient'); and
(b) at the time of the payment of the dividend, a person is an
attributable taxpayer in relation to the payer and the recipient; the
person must keep records (in Australia or elsewhere) containing
particulars of:
(c) the acts, transactions and other circumstances that resulted in the
person being an attributable taxpayer in relation to the payer and the
recipient at that time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the recipient held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the
person in relation to the recipient at that time; and
(f) the basis of the calculation of the amount (including a nil amount)
included in the assessable income of the person under subsection 459
(1) in relation to the payment of the dividend.
"(2) Subject to this Division, where:
(a) subsection 459 (2) applies to the payment of a dividend by a CFC to a
partnership; and
(b) at the time of the payment of the dividend, a person is an
attributable taxpayer in relation to the CFC and the ultimate
recipient referred to in that subsection; the person must keep records
(in Australia or elsewhere) containing particulars of:
(c) the acts, transactions and other circumstances that resulted in the
person being an attributable taxpayer in relation to the CFC and the
ultimate recipient at that time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the ultimate recipient held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the
person in relation to the ultimate recipient at that time; and
(f) the basis of the calculation of the amount (including a nil amount)
included in the assessable income of the person under subsection 459
(2) in relation to the payment of the dividend.
"(3) Subject to this Division, where:
(a) subsection 459 (3) applies to the payment of a dividend by a CFC to an
Australian trust; and
(b) at the time of the payment of the dividend, a person is an
attributable taxpayer in relation to the CFC and the ultimate
recipient referred to in that subsection; the person must keep records
(in Australia or elsewhere) containing particulars of:
(c) the acts, transactions and other circumstances that resulted in the
person being an attributable taxpayer in relation to the CFC and the
ultimate recipient at that time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the ultimate recipient held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the
person in relation to the ultimate recipient at that time; and
(f) the basis of the calculation of the amount (including a nil amount)
included in the assessable income of the person under subsection 459
(3) in relation to the payment of the dividend. Offence of failing to
keep records
"465. A person who contravenes section 462, 463 or 464 is guilty of an offence
punishable on conviction by a fine not exceeding $3,000. Manner in which
records required to be kept
"466. A person who is required by this Division to keep records must:
(a) keep the records in writing in the English language or so as to enable
the records to be readily accessible and convertible into writing in
the English language; and
(b) keep the records so as to enable the person's liability under this Act
to be readily ascertained. Circumstances where records not required to
be kept - reasonable excuse etc.
"467. This Division does not require a person to keep a record of information
if:
(a) the person did not know, and had no reasonable grounds to suspect,
that section 462 or subsection 463 (1), (2), (3) or (4) or 464 (1),
(2) or (3), as the case requires, was applicable to the person; or
(b) the person did not know that, and made all reasonable efforts to
ascertain whether, section 462 or subsection 463 (1), (2), (3) or (4)
or 464 (1), (2) or (3), as the case requires, was applicable to the
person; or
(c) the person did not know, and made all reasonable efforts to obtain,
the information. Treatment of partnerships
"468. (1) Subject to subsections (2) and (3), the following provisions apply
to a partnership as if the partnership were a person:
(a) sections 462 to 467 (inclusive);
(b) subsections 262A (4) and (5), in so far as those subsections apply to
records kept under or for the purposes of this Division;
(c) Part III of the Taxation Administration Act 1953, in so far as that
Part of that Act relates to the provisions covered by paragraph (a) or
(b) of this subsection.
"(2) Where, by virtue of subsection (1), an offence is taken to have been
committed by a partnership, that offence is taken to have been committed by
each of the partners.
"(3) In a prosecution of a person for an offence by virtue of subsection (2),
it is a defence if the person proves that the person:
(a) did not aid, abet, counsel or procure the act or omission by virtue of
which the offence was taken to have been committed; and
(b) was not in any way, by act or omission, directly or indirectly,
knowingly concerned in, or party to, an act or omission by virtue of
which the offence is taken to have been committed.".
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