Product Ruling

PR 1999/103

Income Tax: Tiwi Islands Acacia Project No 1 (revised Arrangement)

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FOI status:

may be releasedFOI number: I 1020958

Preamble

No guarantee of commercial success

The Australian Taxation Office (ATO) does not sanction or guarantee this product as an investment. Further, we give no assurance that the product is commercially viable, that charges are reasonable, appropriate or represent industry norms, or that projected returns will be achieved or are reasonably based.

Potential investors must form their own view about the commercial and financial viability of the product. This will involve a consideration of important issues such as whether projected returns are realistic, the 'track record' of the management, the level of fees in comparison to similar products, how the investment fits an existing portfolio, etc. We recommend a financial (or other) adviser be consulted for such information.

This Product Ruling provides certainty for potential investors by confirming that the tax benefits set out below in the Ruling part of this document are available, provided that the arrangement is carried out in accordance with the information we have been given, and have described below in the Arrangement part of this document.

If the arrangement is not carried out as described below, investors lose the protection of this Product Ruling. Potential investors may wish to seek assurances from the promoter that the arrangement will be carried out as described in this Product Ruling.

Potential investors should be aware that the ATO will be undertaking review activities in future years to confirm the arrangement has been implemented as described below and to ensure that participants in the arrangement include in their income tax returns income derived in those future years.

Terms of use of this Product Ruling

This Product Ruling has been given on the basis that the person(s) who applied for the Ruling, and their associates, will abide by strict terms of use. Any failure to comply with the terms of use may lead to the withdrawal of this Ruling.

What this Product Ruling is about

1. This Ruling sets out the Commissioner's opinion on the way in which the 'tax law(s)' identified below apply to the defined class of persons, who take part in the arrangement to which this Ruling relates. In this Ruling this arrangement is sometimes referred to as the Tiwi Islands Acacia Project No 1 (revised arrangement), or just simply as 'the Project', or the 'product'.

Tax law(s)

2. The tax law(s) that are dealt with in this Ruling are:

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sections 8-1 and 25-25 of the Income Tax Assessment Act 1997 ('ITAA 1997');

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sections 82KL and 82KZM of the Income Tax Assessment Act 1936 ('ITAA 1936');

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Part IVA of the ITAA 1936.

3. This Ruling does not deal with the consequences or effects of the Goods and Services Tax or any associated 'A New Tax System' legislative reforms, including the proposed changes announced as part of The New Business Tax System or their effect on the various Income Tax Acts (including the provisions set out above). On 21 September 1999, the Government announced a number of changes to the tax system as part of the New Business Tax System. A number of those changes could affect the tax laws dealt with in this Ruling. On 11 November 1999 the Government announced further changes, some of which could also affect the tax laws dealt with in this ruling, especially those to do with 'tax shelters'. Some of those changes apply from the dates of announcement and others are proposed to apply from nominated dates in the future. This Ruling does not deal with the announced changes. We cannot rule on those changes until the relevant legislation is enacted.

Class of persons

4. The class of persons to whom this Ruling applies is those who enter into the arrangement described below on or after the date this Ruling is made. They will have a purpose of staying in the arrangement until it is completed (i.e., being a party to the relevant agreements until their term expires) and deriving assessable income from this involvement as set out in the description of the arrangement. In this Ruling those persons are referred to as 'Growers'.

5. The class of persons to whom this Ruling applies does not include persons who intend to terminate their involvement in the arrangement prior to its completion, or who otherwise do not intend to derive assessable income from it.

Qualifications

6. If the arrangement described in the Ruling is materially different from the arrangement that is actually carried out:

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the Ruling has no binding effect on the Commissioner, as the arrangement entered into is not the arrangement ruled upon; and

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the Ruling will be withdrawn or modified.

7. A Product Ruling may only be reproduced in its entirety. Extracts may not be reproduced. As each Product Ruling is copyright, apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth, available from AusInfo. Requests and inquiries concerning reproduction and rights should be addressed to the Manager, Legislative Services, AusInfo, GPO Box 1920, Canberra ACT 2601.

Date of effect

8. This Ruling applies prospectively from 24 November 1999, the date this Ruling is made. However, the Ruling does not apply to taxpayers to the extent that it conflicts with the terms of settlement of a dispute agreed to before the date of issue of the Ruling (see paragraphs 21 and 22 of Taxation Ruling TR 92/20).

9. If a taxpayer has a more favourable private ruling (which is legally binding), the taxpayer can rely on the private ruling if the income year to which the private ruling relates has ended, or has commenced but not yet ended. However, if the arrangement covered by the private ruling has not begun to be carried out, and the income year to which it relates has not yet commenced, the Product Ruling applies to the taxpayer to the extent of the inconsistency only (see Taxation Determination TD 93/34).

Withdrawal

10. This Product Ruling is withdrawn and ceases to have effect after 30 June 2002. The Ruling continues to apply, in respect of the tax law(s) ruled upon, to all persons within the specified class who enter into the specified arrangement during the term of the Ruling. Thus, the Ruling continues to apply to those persons, even following its withdrawal, for arrangements entered into prior to withdrawal of the Ruling. This is subject to there being no change in the arrangement or in the persons' involvement in the arrangement.

Previous Rulings

11. This Ruling applies to the Project that was ruled on in Product Ruling PR 1999/50. PR 1999/50 is now withdrawn on and from the date this Ruling is made. The former Ruling applies to investors who entered into the arrangement during the period 9 June to 23 November 1999 inclusive. This Ruling applies to Growers wishing to take up an interest or interests that were not sold prior to 24 November 1999.

Arrangement

12. The arrangement that is the subject of this Ruling is described below. This description is based on the following documents. These documents, or relevant parts of them, as the case may be, form part of and are to be read with this description. The relevant documents or parts of documents incorporated into this description of the arrangement are:

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Letter of Application for Product Ruling dated 2 September 1999

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Facsimile from applicant's tax professional adviser dated 19 October 1999;

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Prospectus dated 14 May 1999 in respect of 'the Project' (together with supplementary Prospectus dated 31 May 1999);

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Deed of Constitution dated 16 March 1999 establishing the Project;

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Licence and Management Agreement between First Management Corporation ('FMC') and the Grower;

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'Agreement to Sub-Lease' between Australian Plantation Group Limited and FMC;

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Headlease between Australian Plantation Group Limited and FMC;

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'Sublease consent' between the land owner and Australian Plantation Group;

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Short Term Loan Agreement between FMC and the Grower;

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Loan Agreement and Schedule between First Investment Corporation (FIC) and the Grower;

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Letter from applicant's tax professional adviser dated 9 April 1999;

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Facsimile copy of letter from applicant dated 29 April 1999 forwarded by applicant's tax professional adviser;

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Facsimiles from applicant's tax professional adviser dated 6 May 1999;

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Facsimiles from applicant's tax professional adviser dated 18 and 19 May 1999; and

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Facsimiles from applicant's tax professional adviser dated 25 and 26 May 1999.

Note: certain information received from First Management Corporation Limited and First Investment Corporation has been provided on a commercial-in-confidence basis and will not be disclosed or released under Freedom of Information Legislation.

13. The documents highlighted above are those the Growers enter into. The effect of these agreements is summarised as follows.

14. The arrangement is called the Tiwi Islands Acacia Project No 1 (' the Project ').

15. Growers will be invited by way of prospectus to acquire an interest in the Project.

16. Growers entering into the Project will receive a licence (' Licence ') of land from FMC on the Tiwi Islands in the Northern Territory, this land having been subleased to FMC by Australian Plantation Group Limited (APG) under the 'Agreement to Sub-Lease'.

17. The landowner will lease the land to APG and will consent to APG subleasing the land to FMC, the responsible entity for the Project.

18. The Growers will enter into a Licence and Management Agreement with FMC under which they will be granted the Licence and will have Acacia mangium seedlings planted on their licensed land for eventual felling and sale, approximately 6.5 years after establishment.

19. There are 2,000 hectares of land on offer. The minimum area that may be licensed by each Grower is 1 plantation hectare. Approximately 1,111 trees per hectare will be planted following the execution of the Licence and Management Agreement.

20. A Grower can fund the payment of $6,000 per hectare from their own resources. Alternatively, a Grower may arrange their own finance to make some or all of the payments of $6,000. Alternatively, growers may obtain loans from FMC, FIC or other independent lending institution for the provision to Growers of finance on normal commercial terms to acquire an interest in the Project.

Licence and Management Agreement

21. Under the Licence and Management Agreement, Growers enter into a Licence for one or more hectares. Growers will contract with FMC to establish and maintain the plantation until maturity and to harvest and sell the wood on their behalf.

22. The total afforestation activities will be substantial and will be undertaken in a businesslike manner on a regular basis for and on behalf of the Grower. The services provided by FMC include:

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the acquisition of Acacia mangium seedlings on the Grower's behalf;

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cultivating, maintaining, fertilising, watering, spraying, pruning, thinning out and doing all other things necessary to the trees to produce mature trees;

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keeping down and exterminating upon the land all vermin and animal pests, insects and noxious plants and weeds, and complying with all laws and regulations with respect to the keeping down and exterminating of the same;

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arranging the insurances referred to in the Licence and Management Agreement including tree insurance at the Grower's option;

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employing such staff and labour as are necessary for the aforesaid purposes including, without limitation, engaging the services of such consulting experts as may be necessary to assist the Manager in providing expert advice and assistance with respect to the growing of the trees;

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providing adequate security for the land including, without limitation, constructing and maintaining security fences and fire breaks;

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provide adequate drainage to prevent and combat soil degradation;

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performing any of the duties of the Manager as required under the Licence and Management Agreement and the Constitution;

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land clearing; and

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doing all other things that are necessary or incidental to the carrying out of the Grower's business to produce a viable business of growing of Acacia mangium trees for woodchipping or other suitable purposes.

Fees

23. Under the Licence and Management Agreement, a fee of $6,000 per hectare ('the Initial Fee') is payable in advance in return for both the Licence for a period of 13 months from the Commencement Date ('the Initial Term') and for FMC purchasing the seedlings, land clearing, preparing the land for planting, planting the seedling trees and maintaining the Grower's lot for the Initial Term.

24. Under the Licence and Management Agreement, a Grower will be subject to a presently existing liability to pay the full amount of the Initial Fee upon execution.

25. After the Initial Term, a further fee ('the Final Fee') is payable at maturity of the Project in consideration for the Licence and management services provided by FMC for the balance of the Licence and Management Agreement. That Final Fee will be the sum of an amount equal to 10% of the Net Harvest Proceeds and an amount equal to 33.33 % of the amount by which the actual Net Harvest Proceeds exceed the Net Harvest Proceeds projected in the Prospectus.

26. Other charges include tree insurance fees, which are available at the Grower's option.

27. FMC will hold all of the Fees received by it from the Growers in bank deposits or government or semi-government securities and debentures and investments in short term money markets for the Initial Term, and will draw on those funds as required to meet its obligations under the Licence and Management Agreement.

Land clearing

28. Land clearing expenditure of $90 per hectare will be incurred out of the $6,000 per hectare Initial Fee. The land clearing expenditure comprises:

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$51 per hectare for bulldozing and chaining to fell trees and other vegetative matter, and stump removal; and

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$39 per hectare for burning the felled trees.

Planting

29. During the Initial Term, FMC will be responsible for planting the Acacia mangium trees. FMC will maintain the trees in accordance with good silvicultural practice. FMC will be responsible for arranging the sale, hauling, loading and transporting of trees. FMC is entitled to sell the trees on the stump rather than as cut logs. The harvest period is no earlier than six years and no later than 9.5 years after the Commencement Date.

30. FMC may engage Sylvatech Australia Pty Limited and/or other consultants as required.

31. FMC will arrange for the sales of the trees prior to maturity and will use its best endeavours to obtain the maximum price available for the Grower. FMC will account to the Growers for the gross proceeds of the sale to which the Grower is entitled, after having deducted the Final Fees payable by the Grower in arrears.

Finance

32. Growers will have the following financing options in respect of payment of the Initial Fee:

(a) Cash Option (no finance) - under this option, Growers will satisfy their liability to pay the full amount of the Initial fee in cash on execution of the Licence and Management Agreement.

(b) Long Term Loan Option - under this option, Growers will borrow an amount equal to the Initial Fee from an independent lending institution on its usual terms for full recourse unsecured personal loans. The lender will exercise all of its legal rights against any defaulting Grower. (The loan would be repayable over a period to be agreed between the Grower and the lender). The Manager will not provide the lender with any security in respect of the loan to the Grower.

First Investment Corporation Limited ("FIC"), a company which owns all of the shares in FMC, may be one of the finance companies which provides loans to Growers on commercial terms.

All of these lending arrangements will be subject to the following conditions:

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all loan terms will be of an arm's length nature;

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borrowers will remain fully liable for the balance of the loan outstanding at any time and lenders will take legal action against defaulting borrowers;

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there will be no right to assign;

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there will be no "round robin" characteristics;

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there will be no split loan features of a type referred to in Taxation Ruling TR 98/22;

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there will be no indemnity arrangements or any other collateral agreements in relation to the loan; and

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repayments of principal and payments of interest will not be linked to derivation of income from the Project.

(c)Short Term Loan Option (instalment option) - under this option, Growers will borrow an amount equal to the Initial Fee from the Manager on terms as set out in the Short Term Loan Agreement referred to in paragraph 12. The loans provided under this Short Term Loan Agreement will be on an interest-free basis and will be subject to the following conditions:

(i)

The loan will be repayable by one of the following repayment options:

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in twelve equal monthly instalments of $500 each over a one year period commencing on application;

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in twelve equal monthly instalments of $250 each over a one year period commencing on application plus one payment of $3,000 on 1 October 2000; or

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only $3,000 will be borrowed and this amount will be repayable on 1 October 2000.

(ii)

The election to take the instalment option will nevertheless involve the Grower paying the Initial Fee in full on commencement. The Grower will be liable to repay to the Manager the monies borrowed. The Manager's rights of recourse against the Grower will not be limited in any way.

(iii)

The Manager will exercise all of its rights to recover any unpaid instalments of loan principal (which would include taking legal action against investors who default in their instalment payments).

(iv)

The loans Growers enter into will satisfy the following conditions:

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all loan terms will be of an arm's length nature;

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borrowers will remain fully liable for the balance of the loan outstanding at any time and lenders will take legal action against defaulting borrowers;

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there will be no right to assign;

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there will be no "round robin" characteristics;

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there will be no split loan features of a type referred to in Taxation Ruling TR 98/22;

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there will be no indemnity arrangements or any other collateral agreements in relation to the loan; and

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repayments of principal will not be linked to derivation of income from the Project

33. Growers may incur various borrowing costs within the meaning of section 25-25.

Ruling

Section 8-1

34. For a Grower who invests in the Project, section 8-1 will apply as follows:

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$5,910 of the Initial Fee totalling $6,000 per hectare payable by the Grower on entering into the Licence and Management Agreement will be an allowable deduction for the year of income in which the Licence and Management Agreement is entered into; $90 of the Initial Fee is expenditure of a capital nature and is not deductible under section 8-1; and

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where a Grower borrows funds under a loan, which satisfies the conditions in paragraph 34, to fund its obligation to pay the Initial Fee and incurs interest on such borrowings, the interest will be an allowable deduction in the income year in which the interest is incurred.

Section 25-25

35. For a Grower who invests in the Project, section 25-25 will apply to allow a deduction for any loan establishment fees payable to a lender, where the loan satisfies the conditions in paragraph 32, over the period of the loan or 5 years, whichever is the lesser.

Sections 82KZM, 82KL and Part IVA

36. For a Grower who invests in the Project the following provisions of the ITAA 1936 will apply as indicated:

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the expenditure by the Grower does not fall within the scope of section 82KZM;

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section 82KL does not apply to deny the deductions otherwise allowable; and

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the provisions in Part IVA will not be applied to the arrangement described in this Ruling.

Explanations

Section 8-1

37. Consideration of whether the Initial Fee is deductible under section 8-1 begins with the first limb of the section. This view proceeds on the following basis:

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the outgoings in question must have a sufficient connection with the operations or activities that directly gain or produce the taxpayer's assessable income;

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the outgoings are not deductible under the second limb if they are incurred before the business has commenced; and

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where all that happens in a year of income is a taxpayer contractually commits itself to a venture that may not turn out to be a business, there can be doubt about whether the relevant business has commenced and, hence, whether deductions are allowable under the second limb. However, that does not preclude the application of the first limb in determining whether the outgoings in question have a sufficient connection with the activities to produce assessable income.

38. An afforestation scheme can constitute the carrying on of a business. Where there is a business, or a future business, the gross sale proceeds from the sale of trees from the scheme will constitute gross assessable income. The generation of 'business income' from such a business, or future business, provides the backdrop against which to judge whether the outgoings in question have the requisite connection with the operations that more directly gain or produce this income. These operations will be the planting, tending, maintaining and harvesting of the trees.

39. Generally, a Grower will be carrying on a business of afforestation where:

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the Grower has an identifiable interest in specific growing trees coupled with a right to harvest and sell the trees;

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the afforestation activities are carried out on the Grower's behalf; and

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the weight and influence of the general indicators of a business, as used by the Courts, point to the carrying on of a business.

40. For this Project Growers have, under the Licence and Management Agreement, rights in the form of a Licence over an identifiable area of land consistent with the intention to carry on a business of growing trees. Under the Licence and Management Agreement, Growers receive a licence to use plantation lots and appoint FMC, as Manager, to provide services such as planting, cultivating, tending, fertilising, replanting, maintaining and otherwise caring for the trees according to good silvicultural practice.

41. The specific cost of these services provided in the Initial Term, together with the cost of licensing the land for the Initial Term, will total $5,910 per hectare, which is deductible. There is also provision for land clearing of $90 per hectare, which is capital and not deductible.

42. The Licence and Management Agreement gives Growers more than a chattel interest in the timber on harvest. The documentation contemplates the Growers will have an ongoing interest in the growing trees - the trees are the Growers' property and Growers have an interest in the land.

43. The Licence and Management Agreement gives Growers property rights in the trees, the full right, title and interest in the products and the right to have the products sold for their benefit until the end of the arrangement.

44. Growers have the right to use the land in question for afforestation purposes. They appoint FMC to perform the services specified in the Licence and Management Agreement. The Growers' degree of control over FMC, as evidenced by the Licence and Management Agreement and supplemented by the Corporations Law, is sufficient. Under the Project, Growers are entitled to receive regular progress reports on the state of the tree crop and FMC's activities. Growers are able to terminate arrangements with FMC in certain instances, such as where the Manager fails to perform its services in a proper or efficient manner. The afforestation activities described in the Licence and Management Agreement are carried out on the Growers' behalf.

45. The general indicators of a business, as used by the Courts, are described in Taxation Ruling TR 97/11. Positive findings can be made from the arrangement's description for all the indicators. Growers to whom this Ruling applies intend to derive assessable income from the Project. This intention is related to projections contained in the Prospectus that suggest the Project should return a 'before-tax' profit to the Growers, that is, a 'profit' in cash terms that does not depend in its calculation, on the fees in question being allowed as a deduction.

46. Growers will engage the professional services of a Manager with appropriate credentials. There is a means to identify which trees Growers have an interest in. These services are based on accepted silvicultural practices and are of the type ordinarily found in afforestation ventures that would commonly be said to be businesses.

47. Growers have a continuing interest in the trees from the time they are acquired until harvest. The afforestation activities, and hence the fees associated with their procurement, are consistent with an intention to commence regular activities that have an 'air of permanence' about them. The Growers' afforestation activities will constitute the carrying on of a business.

48. The Initial Fees to the extent of $5,910 per hectare associated with the afforestation activities for the Initial Term will relate to the gaining of income from this business and, hence, have a sufficient connection to the operations by which this income (from the sale of trees) is to be gained from this business. They will, thus, be deductible under the first limb of section 8-1. The tests of deductibility under the first limb of section 8-1 are met to the extent of $5,910 per hectare. A capital component to the extent of $90 per hectare is identifiable and is excluded from deductibility under section 8-1.

Interest deductibility

49. Some Growers may finance the investment through a loan. Whether the interest is deductible under section 8-1 depends on the same reasoning as that applied to whether the Initial Fees will be deductible.

50. The interest incurred on the loan during the years ended 30 June 2000, 30 June 2001 and 30 June 2002, will be in respect of a loan to finance the Grower's operations - the tending, maintenance and harvesting of the trees, and the lease of the land on which the trees will have been planted - that will continue to be directly connected with the gaining of 'business income' from the Project. The interest will, thus, also have a sufficient connection with the gaining of assessable income. No capital, private or domestic component is identifiable in respect of it.

Section 25-25

51. Any loans obtained by Growers will be provided on a full recourse basis and on commercial terms for the purpose of producing assessable income. On this basis, and where the loans also satisfy the other conditions described in paragraph 32, section 25-25 will apply to allow a deduction over the period of the loan for the expenditure incurred in borrowing funds to fund the obligations to pay the Initial Fees.

Expenditure of a capital nature

52. Any part of the expenditure of Growers entering into an afforestation business that is attributable to acquiring an asset or advantage of an enduring kind is generally capital in nature and will not be an allowable deduction under section 8-1. In this Project the costs of land clearing are capital in nature. The component of the Initial Fee relating to these expenditures is not deductible under section 8-1.

53. The Manager has identified the relevant expenditures that are of a capital nature. Growers entering into the Project incur and pay an amount of $90 per hectare for land clearing which is capital in nature.

Section 82KZM

54. Under the Licence and Management Agreement the Initial Fee of $6,000 per hectare will be incurred on execution of that Agreement. The Initial Fee is payable to FMC for providing management services and for granting a Licence to use the land to a Grower only for the Initial Term (being a period of 13 months from the execution of the Agreement).

55. For this Ruling's purposes, no explicit conclusion can be drawn from the arrangement's description that the Initial Fee has been inflated to result in reduced fees being payable for subsequent years. The Initial Fee is expressly stated to be for a number of specified services. There is no evidence that might suggest the services covered by the Initial Fee could not be provided within 13 months of incurring the expenditure in question. Thus, for the purposes of this Ruling, it can be accepted that no part of this Initial Fee is for FMC doing 'things' that are not to be wholly done within 13 months of the Initial Fee of being incurred.

56. On this basis, the basic precondition for section 82KZM's operation is not satisfied and it will not apply to the Initial Fee paid by Growers of $6,000 per hectare.

Section 82KL

57. The operation of section 82KL depends, among other things, on the identification of a certain quantum of 'additional benefit(s)'. Here, there may be a loan provided by the lender to the Grower. Any such loan is to be provided on a full recourse basis and on commercial terms. Insufficient 'additional benefits' will be provided to trigger the application of section 82KL. It will not apply to deny the deduction otherwise allowable under section 8-1.

Part IVA

58. For Part IVA to apply there must be a 'scheme' (section 177A), a 'tax benefit' (section 177C), and a dominant purpose of entering into the scheme to obtain a tax benefit (section 177D). The Project will be a 'scheme' commencing when the Prospectus is issued. The Growers will obtain an initial 'tax benefit' from entering into the scheme in the form of the deduction for the Initial Fee of $5,910 per hectare, the interest on any loan and any loan establishment fees that would not have been obtained but for the scheme. However, it is not possible to conclude that the scheme will be entered into or carried out with the dominant purpose of obtaining these tax benefits.

59. Growers to whom this Ruling applies intend to stay in the scheme for its full term and derive assessable income from the eventual harvesting of the trees. Further, the independent expert's opinion in the Prospectus at page 47 indicates that the Project, as outlined, is achievable with success contingent upon planning, operations and timing. There appears to be no specific indication of features of the Project that might suggest the Project was so 'tax driven' and so designed to produce a tax deduction of a certain magnitude that would attract the operation of Part IVA.

Detailed contents list

60. Below is a detailed contents list for this Ruling:

Commissioner of Taxation
24 November 1999

No draft issued

References

ATO references:
NO 99/3775-7

Related Rulings/Determinations:

PR 98/1
PR 1999/50
TR 92/1
TR 92/20
TR 94/25
TR 95/6
TR 97/16
TR 97/11
TD 93/34

Subject References:
carrying on a business
commencement of business
fee expenses
forestry
interest expenses
land clearing
management fees expenses
plantation forestry
primary production
primary production expenses
producing assessable income
product rulings
public rulings
schemes and shams
taxation administration
tax avoidance
tax benefits under tax avoidance schemes
tax shelters
tax shelters project
timber industry

Legislative References:
ITAA1936 82KL
ITAA1936 82KZM
ITAA1936 Part IVA
ITAA1936 177A
ITAA1936 177C
ITAA1936 177D
ITAA1997 8-1
ITAA1997 25-25