Income Tax Assessment Act 1936
(Repealed by No 101 of 2006)
View history note
Hide history noteS 46B repealed by No 101 of 2006, s 3 and Sch 3 item 6, effective 1 January 2008. S 46B formerly read:
then, notwithstanding sections
46
and
46A
, the relevant shareholder is not entitled to, and shall not be allowed, a rebate under section
46
or
46A
in respect of the relevant dividend. S 46B(1) amended by No 108 of 1987 and No 172 of 1978. S 46B(2) substituted by No 172 of 1978. S 46B(3) substituted by No 172 of 1978. S 46B(4) amended by No 108 of 1987 and No 172 of 1978. For the purposes of this section, the question whether property was acquired on or after 20 September 1985 shall be determined in the same manner as the question when a CGT asset was acquired is determined for the purposes of the
Income Tax Assessment Act 1997
.
S 46B(5A) amended by No 46 of 1998 and inserted by No 108 of 1987.
SECTION 46B REBATE NOT ALLOWABLE IN CERTAIN CIRCUMSTANCES
46B(1)
Where:
(a)
a dividend (in this section referred to as the
relevant dividend
) was paid after 7 April 1978 to a shareholder (in this section referred to as the
relevant shareholder
) in respect of shares in a company (in this section referred to as the
relevant company
);
(b)
before the time when the relevant dividend was paid, another person (in this section referred to as the
associated person
) acquired property (in this section referred to as the
associated property
), being:
(i)
shares in the relevant company;
(ii)
shares in another company that, at the time of acquisition of the shares in that other company or at any time after the time of acquisition of the shares in that other company and before the time when the relevant dividend was paid, was related to the relevant company; or
(iii)
a beneficial interest in a trust estate, being a trust estate that, at the time of acquisition of the beneficial interest or at any time after the time of acquisition of the beneficial interest and before the time when the relevant dividend was paid, was related to the relevant company;
(c)
the associated property was acquired by the associated person:
(i)
as trading stock;
(ii)
in such circumstances that:
(A)
any profit that would arise on a disposal of the associated property would, in whole or in part, be included in the assessable income of the associated person; or
(B)
any loss that would arise from a disposal of the associated property would, in whole or in part, be allowable as a deduction to the associated person; or
(iii)
on or after 20 September 1985; and
(d)
the Commissioner is satisfied that:
(i)
the payment of the relevant dividend to the relevant shareholder and the acquisition of the associated property by the associated person arose out of, or were made in the course of, a transaction, operation, undertaking, scheme or arrangement; and
(ii)
that transaction, operation, undertaking, scheme or arrangement was by way of dividend stripping or was similar to a transaction, operation, undertaking, scheme or arrangement by way of dividend stripping,
46B(2)
For the purposes of this section
-
(a)
a company shall be taken to be related to the relevant company at any time if, and only if, at that time, a reduction in the value of any shares in the relevant company could reasonably be expected to result in a reduction in the value of any shares in the first-mentioned company; and
(b)
a trust estate shall be taken to be related to the relevant company at any time if, and only if, at that time, a reduction in the value of any shares in the relevant company could reasonably be expected to result in a reduction in the value of any of the property of the trust estate.
46B(3)
Unless the contrary intention appears
-
(a)
a reference in this section to a share shall be read as including a reference to
-
(i)
an interest in a share; and
(ii)
a right or option (including a contingent right or option) to acquire a share or an interest in a share; and
(b)
a reference in this section to a beneficial interest in a trust estate shall be read as including a reference to a right or option (including a contingent right or option) to acquire a beneficial interest in a trust estate.
46B(4)
Subject to subsection (5A), for the purposes of this section, a person who acquires shares or a beneficial interest in a trust estate in pursuance of an agreement shall be taken to have acquired the shares or the beneficial interest, as the case may be, at the time when the agreement was entered into.
46B(5)
The reference in subsection (4) to an agreement shall be read as including a reference to an agreement that is not enforceable by legal proceedings, whether or not it was intended to be so enforceable.
46B(5A)
[
Whether property acquired on or after 20/9/85]
46B(6)
For the purposes of this section, an arrangement or understanding, whether formal or informal and whether express or implied, shall be deemed to be an agreement.
46B(7)
The reference in subsection (1) to a dividend that was paid after 7 April 1978 shall be read as not including a reference to a dividend that was declared on or before that date.
46B(8)
For the purposes of subsection (7) -
(a) where an amount that is paid or credited is, or any assets that are distributed are, for the purposes of this Act, deemed to be a dividend paid by a company, that dividend shall be taken to have been declared at the time when the amount was in fact paid or credited, or the assets were in fact distributed, as the case may be; and
(b) where, by virtue of a provision of the constituent document of a company, a dividend may become payable by the company without having been declared, any such dividend that has become payable shall be taken to have been declared at the time when it became payable.
46B(9)
Notwithstanding anything in any other provision of this Act, the Commissioner may at any time amend an assessment for the purpose of taking into account an acquisition of shares or a beneficial interest in a trust estate by a person that, by virtue of subsection (4), is deemed to have taken place before the end of the year of income to which the assessment relates, but nothing in this subsection limits the power of the Commissioner to amend an assessment in accordance with any other provision of this Act.
S 46B(9) substituted by No 46 of 1986. Former s 46B(9) amended by No 172 of 1978.
Archived:
S 46C repealed as inoperative by No 101 of 2006 , s 3 and Sch 1 item 62, effective 14 September 2006. For application and savings provisions and for former wording see the CCH Australian Income Tax Legislation archive .