ATO Interpretative Decision
ATO ID 2006/168
Income Tax
Capital Allowances: balancing adjustment event occurring on the granting of a licence to exploit a patented inventionFOI status: may be released
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Does a balancing adjustment event occur for a depreciating asset under section 40-295 of the Income Tax Assessment Act 1997 (ITAA 1997) when an entity is granted a licence to exploit another entity's patent?
Decision
Yes. A balancing adjustment event occurs for a depreciating asset under section 40-295 of the ITAA 1997 because company B is taken to have stopped holding part of a depreciating asset.
Facts
Company A (non-resident of Australia for taxation purposes) enters into a licence agreement with company B (resident for taxation purposes) for the exploitation by company A of company B's patented invention. Company B retains all propriety rights to the patent while company A is granted exclusive rights to exploit the invention protected by the patent in a foreign jurisdiction for a fixed period of time.
The rights company A has been granted in respect of the licence agreement under foreign law are similar to the rights that would have been granted for such an agreement in Australia under Australian law.
Reasons for Decision
A balancing adjustment is required if a balancing adjustment event occurs for a depreciating asset whose decline is worked out under Subdivision 40-B of the ITAA 1997 (section 40-285 of the ITAA 1997).
Paragraph 40-295(1)(a) of the ITAA 1997 provides that a balancing adjustment event occurs when an asset stops being held by an entity. For depreciating assets satisfying the definition of the term 'intellectual property' in subsection 995-1(1) of the ITAA 1997, the granting or assigning of an interest in the asset is treated as if the asset is split into two assets with the holder ceasing to hold the part of the original asset that represents the interest granted or assigned to the other entity (subsection 40-115(3) of the ITAA 1997).
Therefore in the present case, company B's patent is split into:
- •
- the rights company B has retained as owner of a patent, and
- •
- the rights to be possessed by company A under the licence in the foreign jurisdiction.
The rights that company A enjoys are recognised as an item of intellectual property (subsection 995-1(1) of the ITAA 1997) and company B has stopped holding that depreciating asset.
Therefore, a balancing adjustment event occurs when the licence in the patent is granted to company A by company B.
Date of decision: 30 May 2006Year of income: Year ended 30 June 2006
Legislative References:
Income Tax Assessment Act 1997
subsection 40-115(3)
section 40-285
section 40-295
paragraph 40-295(1)(a)
subsection 995-1(1)
ATO ID 2004/493
ATO ID 2006/167
ATO ID 2006/169
Keywords
Balancing adjustment event
Balancing adjustments
Intellectual property rights
Patents
Uniform capital allowances system
ISSN: 1445-2782