INCOME TAX ASSESSMENT ACT 1936

PART X - ATTRIBUTION OF INCOME IN RESPECT OF CONTROLLED FOREIGN COMPANIES  

Division 1 - Preliminary  

SECTION 327A   WIDELY DISTRIBUTED FINANCE SHARES  

327A(1)   Meaning of ``widely distributed finance shares''.  

For the purposes of this Part, a share in a company is a widely distributed finance share if both:


(a) either:


(i) the company is an eligible listed company; or

(ii) the aggregate of the eligible share interests in the company held by an eligible listed company is 90% or more; and


(b) the share is a recognised finance share.

327A(1A)   Extended meaning of ``widely distributed finance shares'' - funding of transitional finance shares.  

For the purposes of this Part, if:


(a) apart from this subsection, shares (in this subsection called the ``test shares'' ) in a company are not widely distributed finance shares; and


(b) as a result of the operation of subsection 327B(3) in relation to the shares:


(i) the shares are taken to be widely distributed finance shares for the purposes of section 327B ; and

(ii) shares in another company are transitional finance shares;

the test shares are taken to be, and to have been, widely distributed finance shares.

327A(2)   Meaning of ``eligible listed company''.  

For the purposes of this section, a company is an eligible listed company at a particular time during a statutory accounting period of the company if:


(a) shares in the company (other than shares entitled to a fixed rate of dividend whether with or without a further right to participate in profits) are listed for quotation in the official list of a stock exchange in Australia or elsewhere; and


(b) none of the following subparagraphs apply:


(i) at any time during the statutory accounting period, a single entity, or less than 21 entities, held, or were entitled to acquire, 75% or more of the paid-up share capital of the company (other than capital represented by shares entitled to a fixed rate of dividend only);

(ii) at any time during the statutory accounting period, a single entity, or less than 21 entities held, or were entitled to acquire, 75% or more of the total rights (other than rights arising in respect of shares entitled to a fixed rate of dividend only) of shareholders to vote, or participate in any decision-making, concerning any of the following:

(A) the making of distributions of capital or profits of the company to its shareholders;

(B) the constituent document of the company;

(C) any variation of the share capital of the company;

(iii) 75% or more of the total amount of all of the dividends paid by the company (other than dividends paid in respect of shares entitled to a fixed rate of dividend only) during the statutory accounting period was paid to a single entity or to less than 21 entities;

(iv) dividends (other than dividends paid in respect of shares entitled to a fixed rate of dividend only) were not paid by the company during the statutory accounting period but it would be concluded that, if such dividends had been paid by the company during the statutory accounting period, 75% or more of those dividends would have been paid to a single entity or to less than 21 entities.

327A(3)   Meaning of ``recognised finance shares''.  

For the purposes of this section, shares in a company are recognised finance shares if all the following conditions are satisfied:


(a) the shareholder is not an associate of the company;


(b) having regard to:


(i) the manner in which the amount of dividends in respect of the shares are to be calculated; and

(ii) the conditions applicable to the payment of dividends in respect of the shares; and

(iii) any other relevant matters;
the payment of the dividends in respect of the shares may reasonably be regarded as equivalent to the payment of interest on a loan;


(c) having regard to:


(i) the arrangements under which the shares were offered for subscription; and

(ii) the ordinary business practices of brokers, agents, underwriters or other persons who took part in the arrangements for the issue of the shares; and

(iii) the arrangements that were made for dealing with applications that were made for subscription of the shares; and

(iv) any circumstances indicating the existence, at the time of the issue of the shares, of any arrangement for any of the shares to be offered for subscription, or purchased after subscription, by entities connected:

(A) with each other; or

(B) with the company issuing the shares; or

(C) with a person by whom the amounts raised by the subscription, or amounts derived directly or indirectly from those amounts, were intended to be used;
it is reasonable to regard the shares as having been issued with a view to public subscription or purchase or other wide distribution among investors.

327A(4)   Meaning of ``eligible share interest''.  

For the purposes of this section, a person holds an eligible share interest in a company at a particular time equal to the percentage of the company's total paid-up share capital (excluding recognised finance shares) beneficially owned by the person at that time.

327A(5)   Extended meaning of ``eligible share interest'': tiers of companies.  

For the purposes of this section, if:


(a) a person holds an eligible share interest (including an eligible share interest that is taken to be held because of one or more previous applications of this subsection) in a company (in this subsection called the ``first level company'' ); and


(b) the first level company holds an eligible share interest in another company (in this subsection called the ``second level company'' );

the person is taken to hold an eligible share interest in the second level company equal to the percentage calculated using the formula:


First level percentage   ×   Second level percentage

where:

`` First level percentage '' means the percentage of the eligible share interest held by the person in the first level company;

`` Second level percentage '' means the percentage of the eligible share interest held by the first level company in the second level company.

327A(6)   Definitions.  

In this section:

"eligible listed company"
has the meaning given by subsection (2);

"eligible share interest"
has the meaning given by subsections (4) and (5);

"recognised finance share"
has the meaning given by subsection (3).


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