Division 11A - Dividends, interest and royalties paid to non-residents and to certain other persons  

Subdivision A - General  


128H(1)   [Application to Commissioner]  

An entity that has raised a loan the interest on which could, subject to the issue of a certificate under subsection (2) in respect of the loan, be interest referred to in section 128G may apply to the Commissioner in writing for the issue of such a certificate.

128H(2)   [Conditions for issue]  

Where an application is made in accordance with subsection (1) and the Commissioner is satisfied that:

(a) the applicant was an Australian entity throughout the period of 60 days that ended:

(i) in the case of a loan raised by the offering of securities for subscription - on the sixtieth day before the earliest day on which any person was or persons were invited to subscribe to the loan; or

(ii) in any other case - on the sixtieth day before the day on which the contract for the making of the loan was made;

(b) the loan moneys have been employed, and are intended to be employed, only for a qualifying use or for making moneys available for a qualifying use;

(c) in a case in which an amount being the whole or part of the loan moneys has been lent, or is intended to be lent, for use for the purposes of an enterprise in which there is substantial Australian participation, that amount did not exceed, or will not exceed, an amount that can reasonably be regarded, having regard to the extent of that participation, as an appropriate amount to be contributed (in addition to any other contribution) by the Australian entity or Australian entities concerned to the funds required for the purposes of that enterprise; and

(d) every entity (other than the applicant) that has lent or otherwise expended, or that will lend or otherwise expend, any of the loan moneys in the course of the arrangements by which any of the loan moneys have been or will be made available for the purposes of a qualifying use was or will be an Australian entity throughout the period 60 days ending on the sixtieth day before the day on which it received or receives the moneys that it so lends or otherwise expends;

the Commissioner shall issue to the applicant a certificate containing particulars of the loan and stating that the loan complies with this subsection, but otherwise he shall refuse the application.

128H(3)   [Delay in making arrangements]  

For the purposes of paragraph (2)(b), the Commissioner may disregard a deposit or investment of any loan moneys during the period of a temporary delay that was reasonably involved in the making of arrangements for a qualifying use of those moneys.

128H(4)   [Substituted period]  

At the request of the applicant, the Commissioner may, by reason of special circumstances, apply paragraph (2)(a) or (d) as if another period was, or other periods were, substituted for either or both of the periods referred to in the paragraph.

128H(5)   [Refusal by Commissioner]  

Where an application is made for a certificate under this section in relation to a loan and it appears to the Commissioner that the loan was raised in accordance with arrangements, being arrangements made having regard to the operation of section 128G , under which the person to whom the loan was made, or some other person, was to make moneys other than the loan moneys available, or to arrange for moneys other than the loan moneys to be made available, by way of loan or otherwise, for a purpose that would not constitute a qualifying use in relation to the loan moneys, the Commissioner may refuse the application.

128H(6)   [Notice of refusal]  

If the Commissioner refuses the application, he shall serve by post or otherwise on the applicant notice in writing that the application has been refused.

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