INCOME TAX ASSESSMENT ACT 1936

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

Division 2 - Types of entity  

Subdivision C - Eligible transferors in relation to trusts  

SECTION 345   DEEMED TRANSFERS OF PROPERTY OR SERVICES  

345(1)   [Entity causes another to transfer]  

For the purposes of this Subdivision, where an entity (in this subsection called the ``prime entity'' ) causes another entity to actually transfer property or services to a trust, the prime entity (instead of the other entity) is to be taken to have transferred the property or services to the trust.

345(2)   [Transfer re marketing or placement of units]  

For the purposes of this Subdivision, where:


(a) the trustee of a trust issues units in the trust to an entity (in this subsection called the ``first entity'' ) in the first entity's capacity as a manager, underwriter or dealer in relation to the marketing or placement of the units; and


(b) in the course of the marketing or placement of the units, the units are disposed of by the first entity to another entity (in this subsection called the ``second entity'' ); and


(c) at a particular time (in this subsection called the ``second entity's transfer time'' ), the second entity transfers property or services to the first entity as consideration for the acquisition of the units; and


(d) the first entity has actually transferred, or actually transfers, property or services (in this subsection called the ``original property or services'' ) to the trust for the sole purpose of acquiring the units;

the second entity is taken to have transferred the original property or services (instead of the first entity) at the second entity's transfer time.

345(3)   [Reference to unit in unit trust]  

A reference in subsection (2) to a unit in a trust is a reference to an interest (however described) in any of the income or property of the trust.

345(4)   [Operation of subsection (5)]  

Subsections (1) and (2) do not limit the operation of subsection (5).

345(5)   [Transfer under a scheme]  

Where, under a scheme:


(a) an entity (in this subsection called the ``scheme entity'' ) actually transfers property or services to another entity; and


(b) property or services are actually transferred to a trust at a particular time otherwise than by the scheme entity;

the Commissioner may, for the purposes of this Subdivision, treat the property or services mentioned in paragraph (b) as having been transferred by the scheme entity (instead of by any other entity) to the trust at that time.

345(6)   [Transfer by partnership]  

Where:


(a) apart from subsections (8), (10) and (11), a partnership transfers property or services to a trust at a particular time (in this subsection called the ``transfer time'' ); and


(b) at a later time (in this subsection called the ``cessation time'' ), the partnership ceases to exist for the purposes of this Act;

then, for the purpose of determining whether an entity that was a partner in the partnership immediately before the cessation time is an eligible transferor in relation to the trust at a time after the cessation time, each such partner is to be taken to have transferred the original property or services to the trust at the transfer time.

345(7)   [Operation of subsection (6)]  

Nothing in subsection (6) affects the application of this Subdivision to the transfer made by the partnership concerned.

345(8)   [Discretionary trust being wound-up or ceases to exist]  

For the purposes of this Subdivision, if:


(a) apart from this subsection and subsections (6), (10) and (11), a discretionary trust (in this subsection called the ``transferor trust'' ) transfers property or services (in this subsection called the ``original property or services'' ) to another trust (in this subsection called the ``transferee trust'' ) at a particular time (in this subsection called the ``transfer time'' ); and


(b) at a later time (in this subsection called the ``cessation time'' ), the transferor trust commences to be wound up or ceases to exist for the purposes of this Act; and


(c) apart from this subsection and subsections (6), (10) and (11), one or more other entities transferred property or services to the transferor trust at or before the transfer time;

each of those other entities is to be taken to have transferred the original property or services to the transferee trust at the transfer time.

345(9)   [Operation of subsection (8)]  

Nothing in subsection (8) affects the application of this Subdivision to the transfer mentioned in paragraph (8)(a).

345(10)   [Entity being wound-up or ceases to exist]  

For the purposes of this Subdivision, where:


(a) any of the following subparagraphs applies:


(i) any of the following events occurs in relation to a company (which company is in this subsection called the ``transferor'' ):

(A) the company passes a resolution for its winding-up;

(B) an order is made for the winding-up of the company;

(C) any similar event;

(ii) a partnership (in this subsection also called the ``transferor'' ) ceases to exist for the purposes of this Act;

(iii) either of the following sub-subparagraphs applies in relation to the trustee of a trust (in this subsection also called the ``transferor'' ):

(A) the trust commences to be wound-up;

(B) the trust estate ceases to exist for the purposes of this Act; and


(b) an actual transfer of property or services is made to a trust (in this subsection called the ``transferee'' ) as a consequence of the transferor being wound-up or ceasing to exist;

the transferor is taken to have transferred to the transferee the property or services concerned.

345(11)   [Defunct entities]  

Where:


(a) the following subparagraphs apply to an entity (in this subsection called the ``defunct entity'' ):


(i) the defunct entity is a company, partnership or trust;

(ii) the defunct entity transferred property or services (in this subsection called the ``original property or services'' ) to a trust (including a transfer that was taken to have been made because of another application or applications of this subsection) at a particular time (in this subsection called the ``transfer time'' );

(iii) if the defunct entity is a company - the company passes a resolution for its winding-up, an order is made for the winding-up of the company or a similar event occurs;

(iv) if the defunct entity is a partnership - the partnership ceases to exist for the purposes of this Act;

(v) if the defunct entity is a trust - the trust commences to be wound up or ceases to exist for the purposes of this Act; and


(b) the Commissioner is satisfied that an entity (in this subsection called the ``successor entity'' ) has benefited or is capable (whether by the exercise of a power of appointment or otherwise) of benefiting (either directly or indirectly through one or more interposed companies, partnerships or trusts) as a result of a transfer of property or services made by the defunct entity or a transfer of property or services made as a consequence of the defunct entity being wound up or ceasing to exist; and


(c) the Commissioner is of the opinion that it is appropriate to apply this subsection to the successor entity;

then, for the purpose of determining whether the successor entity is an eligible transferor in relation to the trust referred to in subparagraph (a)(ii) at a time after the transfer time, the successor entity is to be taken to have transferred the original property or services to that trust.


View surrounding sectionsView surrounding sectionsBack to top


This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.