ATO Interpretative Decision
ATO ID 2004/364
Income Tax
Consolidation - extent a tax loss is transferred from a corporate tax entity to a head companyFOI status: may be released
Status of this decision: Decision Current
This ATOID provides you with the following level of protection:
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Is the extent to which a tax loss is transferred from a corporate tax entity to a head company under subsection 707-120(1) of the Income Tax Assessment Act 1997 (ITAA 1997), determined as if a choice is made by the corporate tax entity, under section 36-17 of the ITAA 1997, to deduct the maximum amount of the tax loss that could be deducted in the trial year?
Decision
Yes. The amount of a tax loss that is transferred to the head company of a consolidated group at the joining time by a corporate tax entity is determined as if the corporate tax entity had chosen, under section 36-17 of the ITAA 1997, to deduct the maximum amount of the tax loss that could be deducted in the trial year.
Facts
A company that becomes a member of a consolidated group has a carry-forward tax loss which satisfies the relevant transfer tests in Subdivision 707-A of the ITAA 1997 for the loss in respect of the trial year.
Reasons for Decision
Under subsection 707-120(1) of the ITAA 1997, the tax loss is transferred from the company to the head company of the consolidated group to the extent it could be utilised by the company for the trial year under the assumptions in that subsection. The trial year is defined in subsection 707-120(2) of the ITAA 1997 as the period ending just after the joining time and is the notional loss claim year for transfer testing purposes.
The words 'to the extent' in subsection 707-120(1) of the ITAA 1997 are interpreted to mean 'to the maximum extent'. This gives effect to an object of Subdivision 707-A of the ITAA 1997: that a loss is transferred to the head company of a consolidated group if the joining entity could have utilised the loss had it not joined the group. The company could utilise all of the tax loss if, instead of joining the consolidated group, it continued as a separate entity for income tax purposes provided it continued to satisfy the loss recoupment tests and derived sufficient income.
The assumption in paragraph 707-120(1)(b) of the ITAA 1997 is consistent with this interpretation. Paragraph 707-120(1)(b) of the ITAA 1997 assumes that utilisation of a loss for the trial year is not limited by the joining entity's income or gains for the trial year.
Under section 36-17 of the ITAA 1997, a corporate tax entity can choose the amount of a prior year tax loss it can deduct in a later year of income. The definition of a corporate tax entity in section 960-115 of the ITAA 1997 includes a company as well as certain other types of entities (for example, a corporate limited partnership).
It is inferred that the company is taken to have made the choice under section 36-17 of the ITAA 1997 to deduct all of the tax loss in the trial year. Accordingly, the amount of the tax loss that will be transferred to the head company will be the maximum amount that could have been deducted by the company in the trial year.
As a consequence, this allows the head company as the 'owner' of the tax loss to make a choice under section 36-17 of the ITAA 1997 as to how much of the transferred tax loss it will deduct from its income when it utilises the loss.
Date of decision: 20 April 2004Year of income: Year ended 30 June 2003
Legislative References:
Income Tax Assessment Act 1997
section 36-17
Subdivision 707-A
section 707-120
subsection 707-120(1)
paragraph 707-120(1)(b)
subsection 707-120(2)
section 960-115
Keywords
Consolidated group
Consolidation
Consolidation - losses
Corporate tax entity
Head company
Joining entity
Joining time
Tax loss
Transfer of losses
Trial year
ISSN: 1445-2782