Edited version of your private ruling

Authorisation Number: 1012430642994

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Ruling

Subject: Return of capital - application of section 45B

Question 1

Will Capital Gains Tax (CGT) event G1 under section 104-135 of the Income Tax Assessment Act 1997 (ITAA 1997) happen when the taxpayer makes a payment to the shareholders in respect of the shares?

Answer

Yes

Question 2

Will the proposed return of capital be a dividend as defined in section 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Answer

No

Question 3

Will the Commissioner make a determination under subsection 45A(2) of the ITAA 1936 that section 45C of the ITAA 1936 applies to the proposed return of capital, deeming the capital benefits to be a dividend and hence assessable for income tax purposes?

Answer

No

Question 4

Will the Commissioner make a determination under subsection 45B(3) of the ITAA 1936 that section 45C of the ITAA 1936 applies to the proposed return of capital, deeming the scheme to be a dividend and hence assessable for income tax purposes?

Answer

No

Question 5

Will the Commissioner make a determination under section 45C(3) of the ITAA 1936 that a franking debit should arise to the company in respect of the capital benefit?

Answer

No

The scheme commences on:

1 July 2012

Relevant facts and circumstances

General Background

The taxpayer is a private company, primarily involved in investments in commercial properties and equity investments.

Proposed return of capital

As a consequence of the sale of its largest investment, the taxpayer has determined that the company now has surplus capital and proposes to use some of the sale proceeds to fund a return of capital to all its shareholders in proportion to their shareholdings. The taxpayer has determined that after the return of this surplus capital the company will still be in a position to provide the desired annual returns to shareholders moving forward through dividend payments and capital growth.

The return of capital will be made on the basis that the sale has released a significant portion of the major capital investment in the asset and the capital is surplus to the requirements of the taxpayer.

The proposed return of capital has been calculated using the 'slice approach' set out in paragraph 73 of Law Administration Practice Statement PSLA 2008/10.

The proposed return of capital is to be debited to the share capital account and will be an equal share capital reduction with no shares being cancelled. Ownership interests will remain the same as before the distribution.

The taxpayer has not previously made a return of capital to shareholders.

The taxpayer provided the audited net asset value as at 30 June 2012, which represents the market value of the taxpayer.

The taxpayer plans to continue paying annual dividends to its shareholders depending upon the Net Earnings of the Group. The taxpayer proposes no special dividend with respect to this sale.

The taxpayer has advised there have been no transactions undertaken that would taint the share capital account.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)
Income Tax Assessment Act 1936 Subsection 44(1)
Income Tax Assessment Act 1936 Section 45A
Income Tax Assessment Act 1936 Section 45B

Income Tax Assessment Act 1936 Paragraph 45B(2)(a)

Income Tax Assessment Act 1936 Paragraph 45B(2)(b)

Income Tax Assessment Act 1936 Paragraph 45B(2)(c)

Income Tax Assessment Act 1936 Paragraph 45B(8)(a)

Income Tax Assessment Act 1936 Paragraph 45B(8)(b)

Income Tax Assessment Act 1936 Paragraph 45B(8)(c)

Income Tax Assessment Act 1936 Paragraph 45B(8)(d)

Income Tax Assessment Act 1936 Paragraph 45B(8)(e)

Income Tax Assessment Act 1936 Paragraph 45B(8)(f)

Income Tax Assessment Act 1936 Paragraph 45B(8)(g)

Income Tax Assessment Act 1936 Paragraph 45B(8)(h)

Income Tax Assessment Act 1936 Paragraph 45B(8)(i)

Income Tax Assessment Act 1936 Paragraph 45B(8)(j)

Income Tax Assessment Act 1936 Paragraph 45B(8)(k)

Income Tax Assessment Act 1936 Section 45C

Income Tax Assessment Act 1936 Subsection 177D(b)

Income Tax Assessment Act 1936 Paragraph 177D(b)(i)

Income Tax Assessment Act 1936 Paragraph 177D(b)(ii)

Income Tax Assessment Act 1936 Paragraph 177D(b)(iii)

Income Tax Assessment Act 1936 Paragraph 177D(b)(iv)

Income Tax Assessment Act 1936 Paragraph 177D(b)(v)

Income Tax Assessment Act 1936 Paragraph 177D(b)(vi)

Income Tax Assessment Act 1936 Paragraph 177D(b)(vii)

Income Tax Assessment Act 1936 Paragraph 177D(b)(viii)

Income Tax Assessment Act 1997 Subsection 104-135(3)

Income Tax Assessment Act 1997 Paragraph ITAA 1997 104-135(3)(1)

Income Tax Assessment Act 1997 Paragraph ITAA 1997 104-135(3)(3)

Income Tax Assessment Act 1997 Paragraph ITAA 1997 104-135(3)(4)

Further issues for you to consider

Reasons for decision

Question 1

Summary

CGT event G1 will happen when the taxpayer makes a payment to the shareholders in respect of the shares.

Detailed reasoning

Section 104-135 of the ITAA 1997 contains the rules dealing with CGT event G1. CGT event G1 happens if:

a) a company makes a payment to a taxpayer in respect of a share the taxpayer owns in the company; and

b) some or all of the payment is not a dividend, or an amount that is a distribution by a liquidator which is taken to be a dividend under section 47 of the ITAA 1936; and

c) the payment is not included in the taxpayer's assessable income.

CGT event G1 will happen when the taxpayer pays a return of capital to a shareholder in respect of a share they own at the Record Date and continue to own at the time of that payment (section 104-135 of the ITAA 1997). The payment does not occur as a result of a disposal or cancellation of shares, nor will the payment be a dividend or deemed dividend under section 47 of the ITAA 1936.

If the return of capital is equal to or less than the cost base of the share at the time of the payment, the cost base and reduced cost base of the share will be reduced (but not below nil) by the amount of the payment (subsection 104-135(4) of the ITAA 1997). Given the return of capital is expected to be less than the cost base of the shares, based on the facts provided no shareholder will make a capital gain (subsection 104-135(3)).

If a shareholder did make a capital gain when CGT event G1 happens, the cost base and reduced cost base of the share is reduced to nil. A shareholder cannot make a capital loss when CGT event G1 happens (subsection 104-135(3) of the ITAA 1997).

Question 2

Summary

The proposed return of capital will not be a dividend as defined in section 6(1) of the ITAA 1936.

Detailed reasoning

Subsection 44(1) of the ITAA 1936 includes in a shareholder's assessable income any dividends, as defined in subsection 6(1) of the ITAA 1936, paid to the shareholders out of profits derived by the company from any source (if the shareholder is a resident of Australia) and from an Australian source (if the shareholder is a non-resident of Australia).

The term 'dividend' in subsection 6(1) of the ITAA 1936 includes any distribution made by a company to any of its shareholders. However, paragraph (d) specifically excludes a distribution from the definition of 'dividend' if the amount of the distribution is debited against an amount standing to the credit of the share capital account of the company.

The term 'share capital account' is defined in section 975-300 of the ITAA 1997 as an account which the company keeps of its share capital, or any other account created after 1 July 1998 where the first amount credited to the account was an amount of share capital.

Subsection 975-300(3) of the ITAA 1997 states that an account is not a share capital account, except for certain limited purposes, if it is tainted. Section 197-50 of the ITAA 1997 states that a share capital account is tainted if an amount to which Division 197 applies is transferred to the account and the account is not already tainted.

The proposed return of capital will be debited entirely against the amount standing to the credit of the taxpayer's share capital account. The taxpayer has confirmed no amount has been transferred to the share capital account from another account. As the share capital account of the taxpayer is not tainted within the meaning of Division 197 of the ITAA 1997, paragraph (d) of the definition of 'dividend' in subsection 6(1) of the ITAA 1936 will apply. Accordingly, the proposed return of capital will not be a dividend as defined in subsection 6(1).

Question 3

Summary

The Commissioner will not make a determination under subsection 45A(2) of the ITAA 1936 that section 45C of the ITAA 1936 applies to the proposed return of capital.

Detailed reasoning

Section 45A of the ITAA 1936 applies where capital benefits are streamed to some shareholders (the Advantaged Shareholders), who would derive a greater benefit from the receipt of capital than other shareholders (the Disadvantaged Shareholders) and these Disadvantaged Shareholders receive, or are likely to receive, dividends.

A reference to the 'provision of a capital benefit to a shareholder in a company' is defined in paragraph 45A(3)(b) of the ITAA 1936 to include the distribution to the shareholder of share capital. The taxpayer will provide its shareholders with a 'capital benefit' as defined in paragraph 45A(3)(b). The capital benefit will be provided to all shareholders and in direct proportion to the number of shares held. No shareholders are advantaged over other shareholders.

Therefore, section 45A of the ITAA 1936 will not apply to the proposed return of capital. Accordingly, the Commissioner will not make a determination under subsection 45A(2) that section 45C of the ITAA 1936 applies in relation to the whole, or a part, of the proposed return of capital.

Question 4

Summary

The Commissioner will not make a determination under subsection 45B(3) of the ITAA 1936 that section 45C of the ITAA 1936 applies to the proposed return of capital, deeming the scheme to be a dividend and hence assessable for income tax purposes.

Detailed reasoning

Section 45B of the ITAA 1936 applies where certain capital payments, including a return of capital, are paid to shareholders in substitution for dividends. It allows the Commissioner to make a determination that section 45C of the ITAA 1936 applies to a capital benefit. Specifically, the provision applies where:

there is a scheme under which a person is provided with a capital benefit by a company (paragraph 45B(2)(a));

under the scheme a taxpayer (the relevant taxpayer), who may or may not be the person provided with the capital benefit, obtains a tax benefit (paragraph 45B(2)(b)); and

having regard to the relevant circumstances of the scheme, it would be concluded that the person, or one of the persons, entered into the scheme or carried out the scheme or any part of the scheme for a purpose, other than an incidental purpose, of enabling the relevant taxpayer to obtain a tax benefit (paragraph 45B(2)(c)).

Each of these conditions is considered below.

Scheme

A 'scheme' for the purposes of section 45B of the ITAA 1936 is taken to have the same meaning as provided in subsection 177A(1) of Part IVA of the ITAA 1936. That definition is widely drawn and includes any agreement, arrangement, understanding, promise undertaking, scheme, plan or proposal. The taxpayer's proposed return of capital would be captured within this broad definition.

The phrase 'provided with a capital benefit' is defined in subsection 45B(5) of the ITAA 1936. It states that a person is provided with a capital benefit if:

· an ownership interest in a company is issued to the person;

· there is a distribution to the person of share capital; or

· the company does something in relation to an ownership interest that has the effect of increasing the value of the ownership interest (which may or may not be the same interest) held by that person.

As the proposed return of capital will be debited to the taxpayer's share capital account, the taxpayer will provide shareholders with a capital benefit under paragraph 45B(5)(b) of the ITAA 1936 in the form of distributions of share capital.

Tax benefit

A relevant taxpayer 'obtains a tax benefit' as defined in subsection 45B(9) of the ITAA 1936 if:

· the amount of tax payable; or

· any other amount payable under the ITAA 1936 or the ITAA 1997,

would, apart from the operation of section 45B, be less than the amount that:

· would have been payable; or

· be payable at a later time than it would have been payable,

if the capital benefit had instead been a dividend.

Ordinarily, a return of capital would be subject to the CGT provisions of the income tax law. Unless the amount of the distribution exceeds the cost base of the shares, there will only be a cost base reduction under CGT event G1 (section 104-135 of the ITAA 1997). It is only to the extent (if any) that the distribution exceeds the cost base of the shares that a capital gain arises. By contrast, a dividend would generally be included in the assessable income of a resident shareholder. Therefore, shareholders will obtain a tax benefit from the proposed return of capital.

Relevant circumstances

Paragraph 45B(2)(c) of the ITAA 1936 requires the Commissioner to consider the 'relevant circumstances' of the scheme as set out in subsection 45B(8) of the ITAA 1936. A consideration of these circumstances determines whether any part of the scheme will be entered into for a purpose, other than an incidental purpose, of enabling the relevant taxpayer (an ordinary shareholder of the taxpayer) to obtain a tax benefit. Each of the circumstances must be considered in order to determine whether or not, individually or collectively, they reveal the existence of the requisite purpose.

The test of purpose is an objective one. The question is whether it would be concluded that a person who enters into or carries out the scheme does so for the purpose of obtaining a tax benefit for the relevant taxpayer in respect of the capital benefit. The purpose does not have to be the most influential or prevailing purpose, but it must be more than an incidental purpose.

The relevant circumstances contained in subsection 45B(8) of the ITAA 1936 cover the circumstances of the company and the tax profile of the shareholders. In this instance, because the proposed return of capital will be made to all shareholders, regardless of individual circumstances, paragraphs 45B(8)(c) to 45B(8)(h) of the ITAA 1936 do not incline for or against the requisite purpose. The circumstances covered by paragraphs 45B(8)(i) and 45B(8)(j) of the ITAA 1936, pertaining to the provision of ownership interests and demerger respectively are not relevant. The relevant matters are those covered by the circumstances described in paragraphs 45B(8)(a), 45B(8)(b) and 45B(8)(k) of the ITAA 1936, which are considered in detail below.

Paragraph 45B(8)(a) of the ITAA 1936- Appropriate capital and profit allocation

Paragraph 45B(8)(a) of the ITAA 1936 refers to the extent to which the capital benefit is attributable to capital and profits (realised and unrealised) of the company or an associate (within the meaning of section 318 of the ITAA 1936) of the company.

Paragraph 1.35 of the Explanatory Memorandum to Taxation Laws Amendment (Company Law Review) Bill 1998 provides the following guidance on the expected operation of this test:

if a company makes a profit from a transaction, for example the disposal of business assets, and then returns capital to shareholders equal to the amount of the profit, that would suggest that the distribution of capital is a substituted dividend. On the other hand, if a company disposed of a substantial part of its business at a profit and distributed an amount of share capital which could reasonably be regarded as the share capital invested in that part of the business, the distribution of capital would not be seen as a substituted dividend because no amount would be attributable to profits.

In this case, the taxpayer proposes to return to shareholders part of the share capital that was realised upon the sale of the asset. The taxpayer believes a portion of the proceeds generated from the sale are excess to its capital requirements and therefore proposes to distribute them back to its shareholders.

A reasonable allocation of the share capital of the taxpayer invested in the asset has been undertaken using the 'slice approach.'

PS LA 2008/10 paragraph 73 states a 'reasonable approach' should be taken in determining the extent to which share capital was invested in the disposed assets and is available to be distributed to shareholders. The Commissioner accepts the proposed capital return is a reasonable allocation of the share capital of the taxpayer that was invested in the asset.

No part of the proposed capital return is attributable to profits, realised or unrealised of the taxpayer. The taxpayer proposes to continue its policy of annual dividend payments as a means of distributing profits to shareholders. The proposed capital return represents surplus capital following an isolated transaction being the sale of a major asset.

Therefore, this factor does not incline towards the requisite purpose.

Paragraph 45B(8)(b) of the ITAA 1936- Pattern of distributions

Paragraph 45B(8)(b) of the ITAA 1936 directs attention to the pattern of distributions of dividends, bonus shares and returns of capital or share premium by the company or an associate (within the meaning in section 318 of the ITAA 1936) of the company. The inference here is that an interruption to the normal pattern of profit distribution and its replacement with a capital return would suggest dividend substitution.

The taxpayer has a history of annual dividend payments.

The taxpayer plans to continue to make annual dividend payments subject to the Group having sufficient attributable profits.

The shareholders of the taxpayer have determined that following the sale of the Group's largest investment, and after taking into account the ability of the Group to continue to generate the desired annual returns, the Group has surplus capital and is in a position to return that capital to shareholders.

In the Commissioner's view, the proposed return of capital is not an interruption to the normal profit distribution pattern, but rather a mechanism to return accumulated capital to shareholders which is considered excess to current requirements.

This factor does not incline towards the requisite purpose.

Paragraph 45B(8)(k) of the ITAA 1936- Part IVA matters

This circumstance requires regard to be had to any of the matters referred to in subparagraphs 177D(b)(i) to 177D(b)(viii) of the ITAA 1936.

The incorporation of the Part IVA factors into section 45B of the ITAA 1936 does not introduce a different (dominant) purpose test into section 45B. The matters are applied in the context of the 'more than incidental purpose test' in section 45B.

The eight matters in paragraph 177D(b) of the ITAA 1936 are matters by reference to which a scheme is able to be examined from a practical perspective in order to identify and compare its tax and non-tax objectives. The matters include the manner in which the scheme is carried out, its form and substance, and its financial and other implications for the persons involved.

The taxpayer has demonstrated that the scheme, being a proposed return of capital to its shareholders, seeks to legitimately return an amount of excess share capital raised. The return will release capital which the taxpayer has stated is excess to its current needs. In this case, the practical implications of the scheme are consistent with it being, in form and substance, a return of capital.

Accordingly, the Commissioner will not make a determination under subsection 45B(3) of the ITAA 1936 that section 45C of the ITAA 1936 applies to the proposed return of capital.

Question 5

Summary

The Commissioner will not make a determination under section 45C(3) of the ITAA 1936 that a franking debit should arise to the company in respect of the capital benefit.

Detailed reasoning

As the Commissioner will not make a determination under subsection 45A(2) of the ITAA 1936 or subsection 45B(3) of the ITAA 1936 in relation to the scheme as described, section 45C of the ITAA 1936 will not deem any part of the proposed return of capital to be an unfranked dividend for the purposes of the ITAA 1936 or the ITAA 1997.

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