Income tax: scrip for scrip roll-over - exchange of units in LSWM Yamba Trust for units in Residential Parks No. 2 Trust
Please note that the PDF version is the authorised version of this ruling.
|LEGALLY BINDING SECTION:|
|What this Ruling is about|
|Date of effect|
|NOT LEGALLY BINDING SECTION:|
|Appendix 1: Explanation|
|Appendix 2: Detailed contents list|
This publication provides you with the following level of protection:
This publication (excluding appendixes) is a public ruling for the purposes of the Taxation Administration Act 1953.
A public ruling is an expression of the Commissioner's opinion about the way in which a relevant provision applies, or would apply, to entities generally or to a class of entities in relation to a particular scheme or a class of schemes.
If you rely on this ruling, the Commissioner must apply the law to you in the way set out in the ruling (unless the Commissioner is satisfied that the ruling is incorrect and disadvantages you, in which case the law may be applied to you in a way that is more favourable for you - provided the Commissioner is not prevented from doing so by a time limit imposed by the law). You will be protected from having to pay any underpaid tax, penalty or interest in respect of the matters covered by this ruling if it turns out that it does not correctly state how the relevant provision applies to you.
What this Ruling is about
1. This Ruling sets out the Commissioner's opinion on the way in which the relevant provision(s) identified below apply to the defined class of entities, who take part in the scheme to which this Ruling relates.
- section 102-5 of the Income Tax Assessment Act 1997 (ITAA 1997)
- section 102-10 of the ITAA 1997
- section 103-5 of the ITAA 1997
- Division 104 of the ITAA 1997
- section 110-25 of the ITAA 1997
- section 110-55 of the ITAA 1997
- subsection 112-20(1) of the ITAA 1997
- subsection 112-30(1) of the ITAA 1997
- Subdivision 115-A of the ITAA 1997
- section 116-20 of the ITAA 1997, and
- Subdivision 124-M of the ITAA 1997.
All legislative references in this Ruling are to the ITAA 1997 unless otherwise indicated.
Class of entities
- participated in the scheme that is the subject of this Ruling
- are a 'resident of Australia' as that term is defined in subsection 6(1) of the Income Tax Assessment Act 1936
- did not hold their units in the Yamba Trust as revenue assets (as defined in section 977-50) nor as trading stock (as defined in subsection 995-1(1)) - that is, the holders held their units broadly on capital account, and
- are not subject to the taxation of financial arrangements (TOFA) rules in Division 230 in relation to gains and losses on their units in the Yamba Trust.
- (Note - Division 230 will generally not apply to individuals, unless they have made an election for it to apply to them)
5. The class of entities defined in this Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 8 to 22 of this Ruling.
- this Ruling has no binding effect on the Commissioner because the scheme entered into is not the scheme on which the Commissioner has ruled, and
- this Ruling may be withdrawn or modified.
Date of effect
7. This Ruling applies from 1 July 2014 to 30 June 2015. The Ruling continues to apply after 30 June 2015 to all entities within the specified class who entered into the specified scheme during the term of the Ruling. However, this Ruling will not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of this Ruling (see paragraphs 75 and 76 of Taxation Ruling TR 2006/10 Public Rulings).
- Class Ruling application dated 15 September 2015
- the Constitution of the LSWM Yamba Trust
- Notice of meeting and explanatory notes dated 14 April 2015
- Replacement Prospectus and Product Disclosure Statement dated 28 May 2015, and
- correspondence from the applicant.
Note: certain information has been provided on a commercial-in-confidence basis and will not be disclosed or released under Freedom of Information legislation.
The Gateway Lifestyle Group
10. The Gateway Lifestyle Group operates 25 Manufactured Home Parks that are located in New South Wales, Victoria and Queensland. The properties are held by various trusts (or in some cases wholly owned sub-trusts) - including the Yamba Trust. Units in the trusts were owned by different syndicates of wholesale investors. Each landholding trust also had a related operating company or trust. None of the relevant entities were listed on the Australian Securities Exchange (ASX).
11. The Gateway Lifestyle Group undertook a corporate restructure, with the object of combining ownership of all of the residential parks, their specific operating companies and the related Gateway Lifestyle Residential Parks Pty Ltd into one stapled structure listed on the ASX.
12. On the Implementation Date (15 June 2015), the unit holders of the Yamba Trust received 1.30 units in Residential Parks No. 2 Trust (RPT2) in exchange for transferring each unit they held in the Yamba Trust to the trustee of RPT2.
13. The unit holders of the Yamba Trust also received an amount of money (the Cash Settlement Adjustment) in addition to the units in RPT2. Broadly, the Cash Settlement Adjustment was determined by the difference between the net asset value of the Yamba Trust at the time of the Transaction and the position upon which the unit exchange ratio was based.
16. Following the exchange of units, all RPT2 unit holders received the number of shares in GLOL corresponding to the number of units they hold, for no further consideration, as an in specie distribution by the trustee of RPT2.
18. Unit holders who did not elect to retain some or all of their New Stapled Securities had the opportunity to sell them under the Cash Sale Facility (a sale mechanism established by the Gateway Lifestyle Group as part of the Transaction).
CGT event A1
27. The capital proceeds from CGT event A1 happening to a unit in the Yamba Trust is the market value of 1.30 units in RPT2 and the amount of any Cash Settlement Adjustment received in respect of the disposal of that unit (subsection 116-20(1)). The market value of a RPT2 unit is worked out as at the time of CGT event A1, which is on the Implementation Date.
Availability of scrip for scrip roll-over if a capital gain is made
28. Subject to the qualification in the following paragraph, a unit holder who made a capital gain from the disposal of their Yamba Trust unit to the trustee of RPT2 may choose to obtain partial scrip for scrip roll-over for that part of the capital gain that is referable to the receipt of RPT2 units (sections 124-781, 124-785 and 124-790).
29. Scrip for scrip roll-over cannot be chosen if any capital gain a unit holder might make from their replacement RPT2 units would be disregarded, except because of a roll-over (paragraph 124-795(2)(a)).
Consequences if scrip for scrip roll-over is chosen
30. If scrip for scrip roll-over is chosen, that part of the capital gain that is referable to the receipt of RPT2 units is disregarded (subsections 124-785(1) and 124-790(1)). Any part of the capital gain that is referable to the receipt of the Cash Settlement Adjustment is not disregarded because it is ineligible proceeds for which roll-over is not available (subsection 124-790(1)).
Consequences if scrip for scrip roll-over is not chosen, or cannot be chosen
31. A unit holder of the Yamba Trust who does not choose roll-over, or cannot choose roll-over, must take into account any capital gain or capital loss from CGT event A1 happening on the disposal of their Yamba Trust units in working out their net capital gain or net capital loss for the income year in which CGT event A1 happens (sections 102-5 and 102-10).
32. A unit holder who makes a capital gain where roll-over is not chosen, or cannot be chosen, can treat the capital gain as a 'discount capital gain' provided that the conditions of Subdivision 115-A are met. In particular, the units in the Yamba Trust that were disposed of to the trustee of RPT2 must have been acquired by the unit holder at least 12 months before the Implementation Date.
Cost base and reduced cost base of RPT2 units received
33. The method for calculating the cost base and reduced cost base of the RPT2 units acquired by a unit holder in exchange for their units in the Yamba Trust depends on whether scrip for scrip roll-over is chosen.
Scrip for scrip roll-over is chosen
34. Where scrip for scrip roll-over is chosen, the first element of the cost base and reduced cost base of a replacement RPT2 unit received is worked out by reasonably attributing to it the cost base and reduced cost base (respectively) of the Yamba Trust unit for which it was exchanged and for which the roll-over was obtained (subsections 124-785(2) and 124-785(4)). The cost base and reduced cost base of the Yamba Trust unit exchanged by a unit holder is reduced by so much of it that is attributable to the Cash Settlement Adjustment (subsection 124-785(3)).
Scrip for scrip roll-over is not chosen, or cannot be chosen
35. Where scrip for scrip roll-over is not chosen, or cannot be chosen, the first element of the cost base and reduced cost base of a replacement RPT2 unit received is equal to the market value of the part of each Yamba Trust unit given in respect of acquiring the RPT2 unit (subsections 110-25(2) and 110-55(2)). The market value is worked out as at the time of the acquisition. The balance of the market value of each Yamba Trust unit, being property given in respect of receiving the Cash Settlement Adjustment, is not included (subsection 112-30(1)).
CGT event E4 happens when GLOL shares are distributed to RPT2 unit holders
36. CGT event E4 happens when the trustee of RPT2 makes a payment to the unit holders of RPT2 (being the shares in GLOL) in respect of their units in RPT2. None of the payment is included in the assessable income of the unit holders (section 104-70).
39. As the unit holders of RPT2 did not pay money or give property to acquire their shares in GLOL, the first element of the cost base and reduced cost base of the unit holders' shares in GLOL is the market value of those shares, at the time they were acquired by the unit holders (subsection 112-20(1)).
40. A unit holder makes a capital gain if the total amount of the non-assessable payment made by the trustee of RPT2 during the income year in respect of a RPT2 unit exceeds the cost base of the unit (subsection 104-70(4)).
42. If the total amount of the non-assessable payment made by the trustee of RPT2 during the income year is not more than the cost base of a RPT2 unit, the cost base and reduced cost base of the unit will be reduced by that total amount (subsection 104-70(6)).
Commissioner of Taxation
11 November 2015
Appendix 1 - Explanation
|This Appendix is provided as information to help you understand how the Commissioner's view has been reached. It does not form part of the binding public ruling.|
44. The main tax consequence that is the subject of this Ruling is the availability of scrip for scrip roll-over under Subdivision 124-M. The roll-over enables the holder of a unit or other interest in a trust to disregard a capital gain from a unit or other interest that is disposed of if the holder receives a replacement interest in another trust in exchange. It also provides special rules for calculating the cost base and reduced cost base of the replacement interest.
45. Subdivision 124-M contains a number of conditions for, and exceptions to, the holder of an interest in a trust being eligible to choose scrip for scrip roll-over. The main requirements that are relevant to the scheme that is the subject of this Ruling are:
- units or other interests are exchanged for units or other interests in another trust
- entities have fixed entitlements to all of the income and capital of the original trust and the acquiring trust
- the exchange is in consequence of an arrangement
- conditions for the roll-over are satisfied
- further conditions, if applicable, are satisfied, and
- exceptions to obtaining scrip for scrip roll-over are not applicable.
- all of the documents and any other material referred to in paragraph 9 of this Ruling, and
- all the facts comprising the scheme as described in this Ruling,
it is considered that for the purposes of paragraph 124-781(1)(b), there are fixed entitlements to all of the income and capital of the Yamba Trust and RPT2 immediately before, during and immediately after the exchange of units that is the subject of this Ruling.
Appendix 2 - Detailed contents list
|What this Ruling is about||1|
|Class of entities||3|
|Date of effect||7|
|The Gateway Lifestyle Group||10|
|CGT event A1||23|
|Availability of scrip for scrip roll-over if a capital gain is made||28|
|Consequences if scrip for scrip roll-over is chosen||30|
|Consequences if scrip for scrip roll-over is not chosen, or cannot be chosen||31|
|Cost base and reduced cost base of RPT2 units received||33|
|Scrip for scrip roll-over is chosen||34|
|Scrip for scrip roll-over is not chosen, or cannot be chosen||35|
|CGT event E4 happens when GLOL shares are distributed to RPT2 unit holders||36|
|Appendix 1 - Explanation||43|
|Appendix 2 - Detailed contents list||48|
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Not previously issued as a draft
ITAA 1936 6(1)
ITAA 1997 102-5
ITAA 1997 102-10
ITAA 1997 103-5
ITAA 1997 Div 104
ITAA 1997 104-10
ITAA 1997 104-10(3)(b)
ITAA 1997 104-10(4)
ITAA 1997 104-70
ITAA 1997 104-70(3)(a)
ITAA 1997 104-70(4)
ITAA 1997 104-70(5)
ITAA 1997 104-70(6)
ITAA 1997 110-25
ITAA 1997 110-25(2)
ITAA 1997 110-55
ITAA 1997 110-55(2)
ITAA 1997 112-20(1)
ITAA 1997 112-30(1)
ITAA 1997 Subdiv 115-A
ITAA 1997 116-20
ITAA 1997 116-20(1)
ITAA 1997 Subdiv 124-M
ITAA 1997 124-781
ITAA 1997 124-781(1)(b)
ITAA 1997 124-783
ITAA 1997 124-785
ITAA 1997 124-785(1)
ITAA 1997 124-785(2)
ITAA 1997 124-785(3)
ITAA 1997 124-785(4)
ITAA 1997 124-790
ITAA 1997 124-790(1)
ITAA 1997 124-795(2)(a)
ITAA 1997 Div 230
ITAA 1997 977-50
ITAA 1997 995-1(1)
Corporations Act 2001 Ch 5C