Tax and Superannuation Laws Amendment (2015 Measures No. 1) Act 2015 (70 of 2015)

Schedule 3   Offshore banking units

Part 2   The choice principle

Income Tax Assessment Act 1936

6   After section 121EA


121EAA Activities recorded in domestic books not OB activities

(1) An OBU may, when it does a thing that would otherwise be an OB activity of the OBU, choose to have the thing not be an OB activity .

Accounting records

(2) The OBU recording the thing in the OBU's non-OB accounting records is sufficient evidence of the making of the choice, if the OBU uses money in the thing.

Note 1: The OBU must maintain accounting records, separate from its non-OB accounting records, in respect of money used in its OB activities: see subsection 262A(1A).

Note 2: Subsection (2) of this section and subsection 262A(1A) do not apply if the OBU does not use money in the thing, but the OBU must keep documents containing particulars of the choice: see paragraph 262A(2)(b).

Note 3: Subsection (2) does not prevent the OBU from correcting a mistake in its accounting records.

(3) The OBU's non-OB accounting records are the OBU's accounting records, other than the accounting records maintained in respect of money used in the OBU's OB activities under subsection 262A(1A).


(4) The OBU is treated as having chosen under subsection (1) to have a thing (the transaction ) done by the OBU not be an OB activity if:

(a) it is reasonable to regard the transaction and one or more other things done by the OBU as constituting a single scheme (within the meaning of the Income Tax Assessment Act 1997); and

(b) the OBU chooses under subsection (1) to have any of those other things done by the OBU not be an OB activity.

(5) For the purposes of subsection (4), whether the transaction and one or more other things constitute a single scheme is a question of fact and degree determined having regard to the following (whichever are applicable):

(a) the nature of the transaction and the other things;

(b) their terms and conditions (including those relating to any payment or other consideration for them);

(c) the circumstances surrounding their creation and their proposed exercise or performance (including what can reasonably be seen as the purposes of one or more of the entities involved);

(d) whether they can be dealt with separately or must be dealt with together;

(e) normal commercial understandings and practices in relation to them (including whether they are regarded commercially as separate things or as a group or series that forms a whole);

(f) the objects of this Division.

(6) In applying subsection (5), have regard to the matters mentioned in paragraphs (5)(a) to (f) both:

(a) in relation to the transaction and other things separately; and

(b) in relation to the transaction and other things in combination with each other.