INCOME TAX ASSESSMENT ACT 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-1 - CAPITAL GAINS AND LOSSES: GENERAL TOPICS  

Division 118 - Exemptions  

Subdivision 118-F - Venture capital investment  

Operative provisions

SECTION 118-440   Meaning of permitted entity value  

118-440(1)  


An entity exceeds the permitted entity value immediately before a proposed investment is made in the entity if, at that time, the sum of the following exceeds the amount provided for under subsection (9):


(a) the total value of the entity ' s assets;


(b) the total value of the assets of any other entity *connected with the entity to the extent that they are not reflected in the value of any assets referred to in paragraph (a).

Note:

The time the entity makes the investment is, for a share acquired by converting a convertible note or convertible preference share or for a unit in a unit trust acquired by converting a convertible note, the time when the entity last acquired the convertible note or convertible preference share: see subsections 118-425(15) and 118-427(16) .

118-440(2)  
The total value of the assets of an entity is the total value of its assets (both current and non-current) as shown in:


(a) the last audited accounts prepared for the entity for the purposes of the Corporations Act 2001 that relates to a period ending less than 18 months before that time; or


(b) if there are no such audited accounts - a statement, prepared in accordance with the *accounting standards and audited by the entity ' s auditor, showing that value as at a time no longer than 12 months before that time.

118-440(2A)  


However, for the purposes of this section, the total value of its assets at that time is the sum of the values of those assets provided for by section 118-450 if:


(a) there are no such audited accounts; and


(b) the entity does not have an auditor at that time; and


(c) the entity is not required under subsection 118-425(5) or 118-427(6) to have an auditor at that time.

118-440(3)  


In applying paragraphs (1)(b), (5)(b) and (7)(c), ignore the total value of the assets of an entity that is *connected with the entity first-mentioned in subsection (1) (the target entity ) either immediately before or immediately after the investment referred to in that subsection if it is so connected only because of *eligible venture capital investments made in both of those entities by the same *VCLP, *ESVCLP, *AFOF or *eligible venture capital investor.

118-440(4)  


In applying paragraphs (1)(b), (5)(b) and (7)(c), ignore the total value of the assets of an entity that, immediately after the investment is made, is not *connected with the target entity.

118-440(5)  


Despite the previous provisions of this section, the target entity exceeds the permitted entity value immediately before the time (the investment time ) when the *VCLP, *ESVCLP, *AFOF or *eligible venture capital investor made the investment in the target entity if:


(a) the target entity was *connected with an entity (the linked entity ) in which the VCLP, ESVCLP, AFOF or eligible venture capital investor had made an *eligible venture capital investment at some time in the period of 12 months before the investment time; and


(b) the sum of the total value of the assets of the target entity and of any entity *connected with the target entity (at the investment time) and the linked entity and of any entity connected with the linked entity (at the time that the entity making the investment made its investment in the linked entity) exceeds the amount provided for under subsection (9).

118-440(6)  


The Commissioner may determine that subsection (5) does not apply if the Commissioner is satisfied that:


(a) the activities of the target entity are not the same as, not an integral part of and not a necessary support for the activities of the linked entity; and


(b) the making of the investment in the target entity is not part of a *scheme to acquire interests in all or a substantial part of a group of companies that are *connected with each other.

118-440(7)  


Despite the previous provisions of this section, the target entity exceeds the permitted entity value immediately before the investment time if:


(a) the target entity was *connected with an entity (also the linked entity ) in which the *VCLP, *ESVCLP, *AFOF or *eligible venture capital investor had made an *eligible venture capital investment more than 12 months before the investment time; and


(b) the activities of the target entity are the same as, are an integral part of or are a necessary support for the activities of the linked entity; and


(c) the sum of the total value of the assets of the target entity and of any entity *connected with the target entity (at the investment time) and the linked entity and of any entity connected with the linked entity (at the time that the entity making the investment made its investment in the linked entity) exceeds the amount provided for under subsection (9).

118-440(8)  


In applying paragraphs (5)(b) and (7)(c), ignore the total value of the assets of an entity that is *connected with the linked entity either immediately before or immediately after the investment in the linked entity if it is so connected only because of *eligible venture capital investments made in both of those entities by the same *VCLP, *ESVCLP , *AFOF or *eligible venture capital investor.

118-440(9)  


The amount in relation to a proposed investment is:


(a) if an *ESVCLP is to make the proposed investment - $50 million; or


(b) in any other case - $250 million.


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