ATO Interpretative Decision

ATO ID 2003/1094

Income Tax

Income tax: On-market share buy-backs - application of section 45B
FOI status: may be released
Status of this decision: Decision Current
CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 section 45B of the Income Tax Assessment Act 1936 (ITAA 1936) apply to a company's on-market share buy-back?

Decision

No. Section 45B of the ITAA 1936 will not apply to the on-market buy-back.

Facts

A company listed on the Australian Stock Exchange (ASX) undertakes an on-market share buy-back. The arrangement does not relate to a demerger. The buy-back is conducted in accordance with the ASX Listing Rules. The amount paid by the company to buy back shares is debited to its share capital account.

Reasons for Decision

Subsection 45B(2) of the ITAA 1936 states that the section applies where:

(a)
there is a scheme where a person is provided with a demerger benefit or a capital benefit by a company
(b)
under the scheme, the relevant taxpayer obtains a tax benefit, and
(c)
it would be concluded that the scheme was entered into for more than an incidental purpose of enabling the relevant taxpayer to obtain a tax benefit. In reaching this conclusion the relevant circumstances of the scheme must be considered.

'Scheme' is defined broadly, including 'any agreement, arrangement, understanding, promise or undertaking' (section 177A of the ITAA 1936). A share buy-back arrangement would come within this definition. 'Capital benefit' includes the distribution to a person of share capital (subsection 45B(5) of the ITAA 1936). Since a share buy-back involves the distribution of share capital, it represents a capital benefit. In this case the share buy-back is not made in relation to a demerger, so that the meaning of 'demerger benefit' does not need to be considered.

The 'relevant taxpayer' in this instance would include any of the shareholders who sell their shares back to the company. Where the relevant taxpayer would have a greater tax liability if they receive a dividend rather than a capital benefit, they obtain a 'tax benefit' (subsection 45B(9) of the ITAA 1936). Some taxpayers, for example, would make a capital gain and could also be entitled to the CGT discount. This may produce less income tax than if dividend income had been included in assessable income and subject to the full rate of personal income tax. Accordingly, it is reasonable to conclude that some taxpayers will obtain a tax benefit from the buy-back.

It is then necessary to consider whether there was a purpose of enabling the vendor shareholders to obtain a tax benefit. The relevant circumstances to consider in reaching this conclusion are listed in subsection 45B(8) of the ITAA 1936. In this instance the on-market buy-back is conducted through the ASX's Stock Exchange Automated Trading System (SEATS) and complies with the ASX Listing Rules. Because shares must be purchased from any willing vendor, the company cannot control whether vendors obtain a tax benefit from the arrangement. All shareholders have an equal and arm's length opportunity to obtain the capital benefit. The money paid by the company for the shares is not attributable to profits of the company. On weighing these factors it would be concluded that there is no more than an incidental purpose that shareholders receive a tax benefit.

Accordingly, the conditions of subsection 45B(2) of the ITAA 1936 are not satisfied. Section 45B of the ITAA 1936 does not apply to an on-market share buy-back arrangement of this kind.

Date of decision:  27 November 2003

Year of income:  Year ended 30 June 2003

Legislative References:
Income Tax Assessment Act 1936
   section 45B
   section 177A

Keywords
Capital benefit
Share buy backs

Siebel/TDMS Reference Number:  3856732

Business Line:  Public Groups and International

Date of publication:  5 December 2003

ISSN: 1445-2782