INCOME TAX ASSESSMENT ACT 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-5 - CORPORATE TAXPAYERS AND CORPORATE DISTRIBUTIONS  

Division 166 - Income tax consequences of changing ownership or control of a widely held or eligible Division 166 company  

Subdivision 166-E - Concessional tracing rules  

When identity of foreign stakeholders is not known

SECTION 166-260   Depository entities holding stakes in foreign listed companies  

166-260(1)  
This section modifies how the ownership tests in section 166-145 are applied to the tested company if:


(a) at the *ownership test time, it is the case, or it is reasonable to assume, that persons (none of them companies or trustees) have a *voting stake, a *dividend stake or a *capital stake in the tested company; and


(b) an entity has not, under section 166-225 , 166-230 , 166-240 , 166-245 or 166-255 , been taken to control voting power or have rights in respect of the stake; and


(c) another company (the foreign listed company ) is interposed, at that time, between those persons and the tested company; and


(d) at all times during the income year of the tested company in which the ownership test time occurs, the *principal class of shares in the foreign listed company is listed for quotation in the official list of an *approved stock exchange; and


(e) at the ownership test time:


(i) voting stakes that carry rights to 50% or more of the voting power in the foreign listed company; or

(ii) dividend stakes that carry rights to receive 50% or more of any dividends that the foreign listed company may pay; or

(iii) capital stakes that carry rights to receive 50% or more of any distribution of capital of the foreign listed company;
as the case requires, are directly held by one or more *depository entities (see subsection (3)); and


(f) a law of a foreign country, or a part of a foreign country, in which the approved stock exchange is located, prevents the disclosure of the beneficial owners of some or all of those shares that are held by the depository entities; and


(g) the beneficial owners of some or all of the shares held by the depository entities have not been disclosed to the foreign listed company.

Note 1:

See section 165-255 for the rule about incomplete test periods.

Note 2:

This rule might not apply in all circumstances: see sections 166-275 and 166-280 .

Note 3:

For paragraph (e), Division 167 has special rules for working out rights to voting power, dividends and capital distributions in a company whose shares do not all carry the same rights to those matters.

166-260(2)  
The tests are applied to the tested company as if, at the *ownership test time, for each of those *shares held by a *depository entity whose owners have not been disclosed, the depository entity:


(a) controls, or is able to control, the voting power in the tested company that is carried by those shares at that time; and


(b) *indirectly had the right to receive, for its own benefit:


(i) any *dividends the tested company may pay in respect of those shares at that time; and

(ii) any distributions of capital of the tested company in respect of those shares at that time; and


(c) were a person (other than a company).

Note:

The persons who actually control the voting power and have rights to dividends and capital are taken not to control that power or have those rights: see section 166-265 .

166-260(3)  
If the effect of subsection (2) is that the *depository entity is taken to hold:


(a) a *voting stake that carries rights to less than 10% of the voting power in the tested company; or


(b) a *dividend stake that carries the right to receive less than 10% of any dividends that the tested company may pay; or


(c) a *capital stake that carries the right to receive less than 10% of any distribution of capital of the tested company;

then neither section 166-225 nor section 166-230 applies in respect of that stake.

Note:

Division 167 has special rules for working out rights to voting power, dividends and capital distributions in a company whose shares do not all carry the same rights to those matters.

166-260(4)  
If the *depository entity (the old depository entity ) is subsequently replaced by another depository entity (the new depository entity ), then, at all times that the old depository entity held or is taken to have held a stake in the tested company, the new entity is taken to have held that stake.

166-260(5)  
A depository entity is an entity:


(a) that is a central securities repository; and


(b) that provides custody of share certificates; and


(c) that provides services for the exchange of shares.


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