INCOME TAX ASSESSMENT ACT 1936 (ARCHIVE)

PART IIIAA - FRANKING OF DIVIDENDS  

Division 7AA - Franking rebates for certain exempt institutions  

SECTION 160ARDAA   DEFINITIONS  

160ARDAA(1)   [Interpretation]  

In this Division:

ABN
has the meaning given by the A New Tax System (Australian Business Number) Act 1999 .

arrangement
has the same meaning as in the Income Tax Assessment Act 1997 .

associate
has the same meaning as in section 318 .

controller
in relation to an exempt institution, has the meaning given by subsections (2) to (6) (inclusive).

notional trust amount
in relation to an exempt institution, is an amount that would be a trust amount of the institution if section 50-1 of the Income Tax Assessment Act 1997 had not been enacted.

related transaction
in relation to a dividend or notional trust amount, means an act, transaction or circumstance that has occurred, will occur, or may reasonably be expected to occur as part of, in connection with or as a result of:


(a) the payment or receipt of the dividend; or


(b) the arising of the entitlement to, or the distribution or receipt of, the notional trust amount; or


(c) any arrangement entered into in association with:


(i) the payment or receipt of the dividend; or

(ii) the arising of the entitlement to, or the distribution or receipt of, the notional trust amount.

160ARDAA(2)   Controller of exempt institution that is a company.  

An entity is a controller of an exempt institution that is a company if the entity is a controller of the company (for CGT purposes) within the meaning of section 140-20 of the Income Tax Assessment Act 1997 .

160ARDAA(3)   Controller of exempt institution other than a company - basic meaning.  

Subject to subsections (5) and (6), an entity is a controller of an exempt institution that is not a company if:


(a) a group in relation to the entity has the power, by means of the exercise of a power of appointment or revocation or otherwise, to obtain beneficial enjoyment (directly or indirectly) of the capital or income of the institution; or


(b) a group in relation to the entity is able (directly or indirectly) to control the application of the capital or income of the institution; or


(c) a group in relation to the entity is capable, under a scheme, of gaining the beneficial enjoyment referred to in paragraph (a) or the control referred to in paragraph (b); or


(d) the institution or, if the institution is a trust, the trustee of the trust:


(i) is accustomed; or

(ii) is under an obligation; or

(iii) 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 is able (directly or indirectly) to remove or appoint the trustee of the trust if the institution is a trust; or


(f) a group in relation to the entity has more than a 50% stake in the income or capital of the institution; or


(g) entities in a group in relation to the entity are the only entities that, under the terms of:


(i) the constitution of the institution or the terms on which the institution is established; or

(ii) the terms of the trust if the institution is a trust;
can obtain the beneficial enjoyment of the income or capital of the institution.

160ARDAA(4)   [Groups]  

For the purposes of subsection (3), each of the following constitute a group in relation to an entity:


(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.

160ARDAA(5)   Controller of exempt institution that is not a company - deemed absence of control.  

If:


(a) at a particular time, an entity is a controller of an exempt institution that is not a company; and


(b) the Commissioner, having regard to all relevant circumstances, considers that it is reasonable that the entity be taken not to be a controller of the institution at the particular time;

the entity is taken not to be a controller of the institution at the particular time.

160ARDAA(6)   [Matters to be regarded]  

Without limiting paragraph (5)(b), the Commissioner may have regard under that paragraph to the identity of the beneficiaries of the trust at any time before and at any time after the entity began to be a controller of the institution if the institution is a trust.


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