Disclaimer
This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of private advice

Authorisation Number: 1012654780599

Ruling

Subject: Employee Share Scheme

Question 1

Will the Employer obtain an income tax deduction, pursuant to section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997), in respect of the non-refundable cash contributions made by the Employer to the Trustee of the Employee Share Trust (EST) to fund the subscription for or on-market acquisition of shares in the Employer (Shares) by the EST?

Answer

Yes

Question 2

Will the Employer obtain an income tax deduction, pursuant to section 8-1 of the ITAA 1997, in respect of costs incurred in relation to the implementation and on-going administration of the EST?

Answer

Yes

Question 3

Are non-refundable cash contributions made by the Employer to the Trustee of the EST, to fund the subscription for or on-market acquisition of Shares by the EST to satisfy ESS interests, deductible to the Employer at a time determined by section 83A-210 of the ITAA 1997, in respect of those ESS interests which are subject to Division 83A of the ITAA 1997?

Answer

Yes

Question 4

If the Trustee of the EST satisfies its obligations under the Performance Rights Plan (PRP) by subscribing for new shares in the Employer, will the subscription proceeds be included in the assessable income of the Employer under sections 6-5 or 20-20 of the ITAA 1997 or trigger a CGT event under Division 104 of the ITAA 1997?

Answer

No

Question 5

Will the Commissioner seek to make a determination that Part IVA of the Income Tax Assessment Act 1936 (ITAA 1936) applies to deny, in part or full, any deduction claimed by the Employer in respect of the non-refundable cash contributions made by the Employer to the Trustee of the EST to fund the subscription for or on-market acquisition of Shares by the EST?

Answer

No

Question 6

Is the provision of performance rights (Rights) by the Employer to Participants under the PRP, a fringe benefit within the meaning of subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Answer

No

Question 7

Will the non-refundable cash contributions made by the Employer to the Trustee of the EST, to fund the subscription for or on-market acquisition of Shares, be treated as a fringe benefit within the meaning of subsection 136(1) of the FBTAA?

Answer

No

Question 8

Will the Commissioner seek to make a determination that section 67 of the FBTAA applies to increase the fringe benefits taxable amount to the Employer, by the amount of tax benefit gained from non-refundable cash contributions made by the Employer to the Trustee of the EST, to fund the subscription for or on-market acquisition of Shares?

Answer

No

This ruling applies for the following periods:

Income Tax

Year ended 30 June 2014

Year ended 30 June 2015

Year ended 30 June 2016

Year ended 30 June 2017

Year ended 30 June 2018

Fringe Benefits Tax

Year ended 31 March 2015

Year ended 31 March 2016

Year ended 31 March 2017

Year ended 31 March 2018

Year ended 31 March 2019

The scheme commences on:

1 July 2013

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

Background

The Employer is an Australian listed company which undertakes its primary business activities through two wholly owned subsidiaries.

The Employer's Remuneration and Incentive Programme

As outlined in its Annual Report, the objective of the Employer's executive remuneration framework is to ensure reward for performance is competitive and appropriate for the results delivered. The framework conforms to market practice and aligns executive and director rewards with achievement of strategic objectives and the creation of value for shareholders.

The Employer's remuneration structure for executive and non-executive employees utilises fixed and variable components. In addition to a base salary, employees are largely remunerated through 'at risk' variable short-term incentive (STI) based payments, including commissions and bonuses payable from the Profit Share Bonus Pool (Profit Share Bonus Payments).

The Employer engaged external executive remuneration experts to assist with a review and update of the existing remuneration policies and practices. After consultation with external experts, the Board came to the view that a bonus based on profits (rather than revenue) would best align employee performance with shareholder interest.

The key modification to the existing policies and procedures will be an increase in the profit pool from 30% to 40% of pre-tax profits, as well as the establishment of long-term incentives (LTI) through the introduction of the Performance Rights Plan (the PRP).

Under the PRP, eligible employees will receive performance rights (Rights) that will vest into shares in the Employer (Shares) equivalent to 25% of the employee's Profit Share Bonus Payment. The PRP will result in the Profit Share Bonus Payments to be made as a combination of cash payments (75%) and Shares (25%).

It is envisaged that the PRP will continue to be a part of the Employer's remuneration strategy for the foreseeable future.

Use of the EST to Facilitate the PRP

It is increasingly common for Australian listed companies to use a trust to facilitate the provision of Shares to employees as part of equity based employee incentive and retention strategies.

In summary, the commercial benefits of using the EST for the Employer include:

Operation of the PRP

1. The Employer has provided a copy of the PRP Rules.

2. The purpose of the PRP is to align employee compensation with returns to shareholders and assist with staff retention. It is targeted at the Employer's executives whose responsibilities provide them with the opportunity to significantly influence long-term shareholder value. The vesting of the Rights is subject to satisfaction of performance hurdles and service condition as set out in the invitation letter to eligible employees.

3. Broadly, the PRP operates as follows:

Operation of the Employee Share Trust (EST)

1. The Employer has provided a copy of the Trust Deed (the Trust Deed).

2. The EST is intended to operate as follows:

Assumptions

• The EST will be established in a manner consistent with the terms of the Trust Deed provided.

• The PRP and the EST are administered in accordance with their terms.

• Rights acquired by Participants will be subject to Subdivision 83A-B or 83A-C of the ITAA 1997.

• The EST will only acquire Shares in respect of the future vesting or exercise of Rights issued to Participants. That is, the EST will not acquire Shares to satisfy the future vesting or exercise of Rights not already on issue.

Relevant legislative provisions

Income Tax Assessment Act 1936 Part IVA,

Income Tax Assessment Act 1936 Section 177A ,

Income Tax Assessment Act 1936 Subsection 177D(2),

Income Tax Assessment Act 1936 Subsection 177F(1),

Income Tax Assessment Act 1997 Section 6-5,

Income Tax Assessment Act 1997 Section 8-1,

Income Tax Assessment Act 1997 Subsection 8-1(1),

Income Tax Assessment Act 1997 Subsection 8–1(2),

Income Tax Assessment Act 1997 Section 20-20,

Income Tax Assessment Act 1997 Subsection 20-20(2),

Income Tax Assessment Act 1997 Subsection 20-20(3),

Income Tax Assessment Act 1997 Subsection 20-25(1),

Income Tax Assessment Act 1997 Section 20-30,

Income Tax Assessment Act 1997 Division 83A,

Income Tax Assessment Act 1997 Section 83A-10,

Income Tax Assessment Act 1997 Subsection 83A-10(1),

Income Tax Assessment Act 1997 Subsection 83A-10(2),

Income Tax Assessment Act 1997 Section 83A-210,

Income Tax Assessment Act 1997 Section 102-20 ,

Income Tax Assessment Act 1997 Division 104 ,

Income Tax Assessment Act 1997 Paragraph 104-35(5)(c),

Income Tax Assessment Act 1997 Paragraph 104-155(5)(c),

Income Tax Assessment Act 1997 Subsection 130-85(4),

Income Tax Assessment Act 1997 Paragraph 130-85(4)(a),

Income Tax Assessment Act 1997 Paragraph 130-85(4)(b),

Income Tax Assessment Act 1997 Paragraph 130-85(4)(c),

Income Tax Assessment Act 1997 Section 974-75,

Income Tax Assessment Act 1997 Subsection 995-1(1),

Fringe Benefits Tax Assessment Act 1986 Section 66,

Fringe Benefits Tax Assessment Act 1986 Section 67 and

Fringe Benefits Tax Assessment Act 1986 Subsection 136(1).

Reasons for decision

Question 1

Summary

Yes. the Employer will obtain an income tax deduction, pursuant to section 8-1 of the ITAA 1997, in respect of the non-refundable cash contributions made by the Employer to the Trustee of the EST to fund the subscription for or on-market acquisition of Shares by the EST.

Detailed reasoning

Subsection 8-1(1) of the ITAA 1997 is a general deduction provision. It states that:

Subsection 8-1(2) of the ITAA 1997 then states:

TR 2014/D1 provides the Commissioner's current view on a broad scope of taxation consequences for employers, trustees and employees who participate in an employee remuneration arrangement (ERT).

Paragraph 9 of TR 2014/D1 states that the essential elements of an ERT to which the draft ruling applies when considering the consequences for the employer and trustee are:

The Employer has established the EST under the terms of the Trust Deed. The EST's sole purpose is of obtaining Shares for the benefit of Participants, including subscribing for or acquiring, allocating, holding, and delivering Shares under the PRP and other employee equity plans for the benefit of Participants. The way in which the EST has been established and operates is in line with the elements of an ERT to which TR 2014/D1 applies.

Where the Employer is carrying on a business for the purpose of gaining or producing assessable income, the question arises as to whether a contribution made to the trustee of an EST is necessarily incurred in carrying on that business so as to satisfy the second limb.

To qualify for a deduction under section 8-1 of the ITAA 1997 a contribution to the trustee of an EST must be incurred.

As a broad guide, a taxpayer incurs an outgoing at the time the taxpayer owes a present money debt that they cannot escape. This must be read subject to the propositions developed by the courts, which are discussed in more detail in Taxation Ruling TR 97/7 Income tax: section 8-1 - meaning of 'incurred' - timing of deductions (TR 97/7) and Taxation Ruling TR 94/26 Income tax: subsection 51(1) - meaning of incurred - implications of the High Court decision in Coles Myer Finance (TR 94/26).

A contribution made to the trustee of an employee share trust is incurred only when the ownership of that contribution passes from an employer to the trustee of the employee share trust and there is no circumstance in which the employer can retrieve any of the contribution - Pridecraft Pty Ltd v. Federal Commissioner of Taxation (Pridecraft) [2004] FCAFC 339; Spotlight Stores Pty Ltd v. Commissioner of Taxation (Spotlight) [2004] FCA 650.

The Trust Deed provides that the Trustee will, in accordance with instructions received from the Employer pursuant to the PRP Rules, acquire, allocate and deliver Shares for the benefit of the Participants provided the Trustee receives sufficient payment to subscribe for or purchase Shares and/or has sufficient unallocated Shares held by the Trust.

The Employer will make contributions to the EST to allow the Trustee to purchase Shares on market or off market, or to subscribe for new shares to allow Rights under the PRP to be satisfied. All funds received by the Trustee from the Employer will constitute accretions to the corpus of the Trust and will not be repaid to the Employer and no Participant will be entitled to receive the funds. The Trust Deed does not confer on the Employer any charge, lien or any other proprietary right or interest in the Shares acquired by the Trustee in accordance with the Trust Deed.

Given these facts, it is considered that the contributions made to the Trustee of the EST by the Employer will be incurred at the time the contributions are made.

Further, to be deductible under section 8-1 of the ITAA 1997, a contribution must have been incurred in gaining or producing assessable income or necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income.

In order to satisfy the second limb of section 8-1 of the ITAA 1997 there must be a relevant connection between the outgoing and the business. An expense will have the relevant connection to the business when it is 'desirable or appropriate in the pursuit of the business ends of the business' (Ronpibon Tin NL and Tongkah Compound NL v. FC of T (Ronpibon) (1949) 78 CLR 47; Magna Alloys & Research Pty Ltd v. Federal Commission of Taxation (Magna Alloys) [1980] FCA 150).

Paragraph 14 of TR 2014/D1 provides that where an employer:

then, such a contribution would ordinarily satisfy the nexus of being necessarily incurred in carrying on that business.

It is considered that the Employer is carrying on a business and when it makes a contribution to the Trustee of the EST, its primary purpose is for the contribution to be applied to the direct provision of remuneration of its employees in the form of Shares.

Broadly, the PRP operates as follows:

Once the disposal restriction period is completed, the Participant may apply pursuant to Schedule 1 of the PRP Rules to:

The Employer expects to make a contribution to the EST at or around the time the Rights vest. It is not expected that the amount contributed to the EST will exceed the amount required by the EST to acquire the Shares needed to satisfy the vested Rights.

The Trustee of the EST must, on receipt of funds, purchase or subscribe for the requisite number of Shares within seven days (Trust Deed).

Consequently, we consider that the contributions to the Trustee of the EST by the Employer for the purpose of remunerating its employees under the PRP is an outgoing in carrying on the Employer's business for the purpose of gaining or producing assessable income.

Where a contribution satisfies either limb of subsection 8-1(1) of the ITAA 1997, it may still be capital or of a capital nature. Pursuant to subsection 8-1(2) of the ITAA 1997, the contribution will not be deductible to an employer under section 8-1 to the extent to which it is capital or of a capital nature.

Whether an outgoing is capital or revenue in nature can generally be determined by reference to the test articulated by Dixon J in Sun Newspapers Ltd and Associated Newspapers Ltd. v. Federal Commissioner of Taxation [1938] HCA 73:

An irretrievable contribution made by the Employer to the Trustee of an EST is of capital or of a capital nature, where the contribution secures for an employer an asset or advantage of an enduring or lasting nature that is independent of year to year benefits that the employer derives from a loyal and contented workforce.

Where a contribution is, ultimately and in substance, applied by the Trustee of an EST to subscribe for equity interests in the employer (for example Shares), the employer has also acquired an asset or advantage of an enduring nature.

The combined operation of subsections 8-1(1) and 8-1(2) of the ITAA 1997 may require apportionment of a loss or outgoing into deductible and non-deductible components, where a single loss or outgoing is incurred for more than one purpose or on items of a differing nature.

Where a contribution is made for the purpose of securing for the employer advantages of both a revenue and capital nature, but the advantages of a capital nature are only expected to be very small or trifling by comparison, apportionment may not be required.

The primary purpose of the Employer in making the contribution is to remunerate employees for their performance in contributing to the ordinary activities of the Employer. Further, the provision of Shares to employees as a result of the Employer making the contributions aligns the future financial benefits of the Participants from ownership of the Shares with benefits accrued by shareholders in the Employer, thus motivating employees to continue to contribute to the ordinary business goals of the Employer.

As discussed above, after the vesting conditions are satisfied, the Employer will make contributions to the Trustee of the EST and the Trustee will apply the funds to acquire Shares within a relatively short period of time of receiving the contributions.

The Shares, once acquired by Trustee, are allocated to the relevant account of each Participant in the EST within a relatively short time frame of receiving the contribution from the Employer. The Participants are beneficially entitled to the Shares in all respects, and are effectively able to attain legal ownership of the Shares from the EST at any time following the procurement allocation of the Shares by the Trustee by lodging a withdrawal notice to the Employer. The withdrawal of Shares is subject to the approval of the Board,

While it is considered that the contribution is made in part for securing a capital advantage, the capital advantage attained will be small or trifling compared to the advantage expected to be secured by rewarding the prior performance of Participants and motivating the Participants to contribute through their employment performance to the income producing activities of the Employer in the future.

The irretrievable contributions made by the Employer to the Trustee for the purposes of procuring Shares to satisfy the Employer's commitments arising under the PRP are primarily outgoings incurred by the Employer in the ordinary course of carrying on its business. Such contributions are not considered capital in nature, or any capital component is sufficiently small or trifling such that the Commissioner would not seek to apportion the deduction.

Accordingly, the non-refundable cash contributions made by the Employer to the Trustee of the EST to fund the subscription for or on-market acquisition of Shares by the EST will be deductible by the Employer under section 8-1 of the ITAA 1997.

Question 2

Summary

Yes. The Employer will obtain an income tax deduction, pursuant to section 8-1 of the ITAA 1997, in respect of costs incurred in relation to the implementation and on-going administration of the EST.

Detailed reasoning

As discussed in question 1 above, section 8-1 of the ITAA 1997 provides that you can deduct from your assessable income any loss or outgoing to the extent that it is incurred in gaining or producing your assessable income or it is necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income.

The Employer will incur costs associated with implementation and on-going administration of the EST by the Trustee. These costs are part of the ordinary recurring cost to the Employer of remunerating its employees and are therefore deductible under section 8-1 of the ITAA 1997. This is consistent with the ATO view expressed in ATO Interpretative Decision ATO ID 2002/961 Income Tax: employer costs for the purpose of administering its employee share scheme are deductible (ATO ID 2002/961).

Question 3

Summary

Yes. Non-refundable cash contributions made by the Employer to the Trustee of the EST, to fund the subscription for or on-market acquisition of Shares by the EST to satisfy ESS interests, are deductible to the Employer at a time determined by section 83A-210 of the ITAA 1997, in respect of those ESS interests which are subject to Division 83A of the ITAA 1997.

Detailed reasoning

The deduction under section 8-1 of the ITAA 1997 would generally be allowable in the income year in which the Employer incurred the outgoing but under certain circumstances, the timing of the deduction is specifically determined under section 83A-210 of the ITAA 1997.

Section 83A-210 of the ITAA 1997 provides that if:

then, for the purpose of determining the income year (if any) in which you can deduct an amount in respect of the provision of the money or other property, you are taken to have provided the money or other property at the acquisition time.

Section 83A-210 of the ITAA 1997 will only apply if there is a relevant connection between the money provided to the Trustee and the acquisition of ESS interests (directly or indirectly) by the employee under an ESS in relation to the employee's employment.

The deductibility of money provided to an EST is considered in ATO Interpretative Decision ATO ID 2010/103 Employee share scheme: timing of deduction for money provided to the trustee of an employee share trust (ATO ID 2010/103). The facts described in ATO ID 2010/103 are comparable to this arrangement and therefore the reasoning in it is relevant to the Employer as explained immediately below.

The arrangement is constituted of the PRP, the Rules that govern the PRP, the creation of the EST under the Trust Deed and the provision of money to the Trustee of the EST to acquire and hold Shares on behalf of Participants under the employee share scheme.

An ESS interest is defined in subsection 83A-10(1) of the ITAA 1997 as either a beneficial interest in a share in the company or a beneficial interest in a right to acquire a beneficial interest in a share in the company.

An employee share scheme is a scheme under which the ESS interests in a company (or subsidiaries of the company) are provided to employees of a company, or their associates, in relation to their employment (subsection 83A-10(2) of ITAA 1997).

Rights granted to an Eligible Employee under the PRP will be ESS interests as each Right represents a right to acquire a beneficial interest in shares in a company (the Employer) and therefore the conditions of section 83A-10 of the ITAA 1997 are satisfied. These ESS interests will also be granted under an employee share scheme as they are granted in relation to the employee's employment. A Share acquired or subscribed for by the Trustee to satisfy a Right, granted under the employee share scheme to an employee in relation to the employee's employment, is itself provided under the same scheme.

The granting of ESS interests, the provision of money to the Trustee under the arrangement, the acquisition and holding of Shares by the Trustee and the allocation of Shares to the participating employees are all interrelated components of the employee share scheme. All the components of the scheme must be carried out so that the scheme can operate as intended.

As established in question 1, the Employer will make irretrievable contributions to the EST and under the terms the Trust Deed, the Trustee will, in accordance with instructions received from the Employer pursuant to the PRP Rules, acquire, allocate and deliver Shares for the benefit of the Participants provided the Trustee receives sufficient payment to subscribe for or purchase Shares and/or has sufficient Unallocated Trust Shares available.

The provision of money by the Employer to the Trustee is considered to be for the purpose of enabling the participating employees, directly or indirectly, as part of the employee share scheme, to acquire the ESS interests. A deduction for the purchase of Shares to satisfy the existing obligations arising from the grant of ESS interests is allowable to the Employer in the year in which the money was paid to the Trustee, under section 8-1 of the ITAA 1997.

However, where the irretrievable contributions are made by the Employer to the Trustee of the EST before the income year in which the ESS interests are granted to the employee, section 83A-210 will apply. Under section 83A-210 of ITAA 1997, if an amount of irretrievable contributions are made to the Trustee under the arrangement to purchase Shares in excess of the obligations for the ESS interests already granted, the amount will be deductible in the income year in which the relevant ESS interests are granted to the participating employees, that is the income year in which the employee acquires the ESS interests.

Question 4

Summary

No. If the Trustee of the EST satisfies its obligations under the PRP by subscribing for new Shares, the subscription proceeds will not be included in the assessable income of the Employer under sections 6-5 or 20-20 of the ITAA 1997 or trigger a CGT event under Division 104 of the ITAA 1997.

Detailed reasoning

Section 6-5 of the ITAA 1997 provides that assessable income includes income according to ordinary concepts which is called ordinary income. The classic definition in Australian law was given by Chief Justice Jordan in Scott v Commissioner of Taxation (1935) 35 SR (NSW) 215. Chief Justice Jordan considered that:

The leading case on ordinary income is Eisner v Macomber 252 US 189 (1919). It was said in that case that:

In GP International Pipecoaters Pty Ltd v Federal Commissioner of Taxation (1990) 170 CLR 124 the High Court of Australia held that whether a receipt is income or capital depends on its objective character in the hands of the recipient. They further stated at page 138 that:

Receipts of a capital nature do not constitute income according to ordinary concepts, whether or not incurred in carrying on a business.

ATO Interpretative Decision ATO ID 2010/155 Income Tax Employee Share Scheme: assessability to an employer of the option exercise price paid by an employee (ATO ID 2010/155) considers the assessability as ordinary income for an employer of the option exercise price paid direct to the employer by the employee. While not considered in the decision as part of the ATO ID, the reasons for decision provide some insight into the assessability of the subscription price as ordinary income of the exercise price received by the employer company. The reasons for decision provide that when the trustee of the EST subscribes to the company for an issue of shares and pays the full subscription price for the shares using contributions provided by the employer in accordance with an employee share scheme, the company is taken to have received a contribution of share capital from the trustee. The subscription price received by the company is a capital receipt of the company, not ordinary income.

The character of the contribution of share capital received by the Employer from the Trustee of the EST can be determined by the character of the right or thing disposed of in exchange for the receipt. Here, the Employer is issuing the Trustee with new shares in itself. The character of the newly issued share is one of capital. Therefore, it can be concluded that the receipt, being the subscription proceeds, takes the character of share capital and therefore is also of a capital nature.

Accordingly, when the Employer receives subscription proceeds from the Trustee of the EST where the EST has subscribed for new shares in the Employer to satisfy obligations to Participants under the PRP, the subscription proceeds received by the Employer are a capital receipt. That is, the subscription proceeds will not be on revenue account, and not ordinary income under section 6-5 of the ITAA 1997.

Section 20-20 of the ITAA 1997

Subsection 20-20(2) of the ITAA 1997 provides that if you receive an amount as a recoupment of a loss or outgoing, it will be assessable income if you received it by way of insurance or indemnity and that amount can be deducted as a loss or outgoing in the current year or earlier income year.

There is no insurance contract in this case, so if the Employer receives an amount for the subscription of shares by the Trustee of the EST the amount will not be received by way of insurance.

Further, the amount will not be an indemnity because the receipt does not arise under a statutory or contractual right of indemnity, and the receipt will not be in the nature of compensation.

Subsection 20-20(3) of the ITAA 1997 makes assessable a recoupment of a loss or outgoing that is deductible, or has been deductible or deducted in a previous income year, where the deduction was claimed under a provision in section 20-30 of the ITAA 1997.

Recoupment is defined in subsection 20-25(1) of the ITAA 1997 to include any kind of recoupment, reimbursement, refund, insurance, indemnity or recovery, however described and a grant in respect of a loss or outgoing.

However, none of the provisions listed in section 20-30 of the ITAA 1997 are relevant to the subscription proceeds received by the Employer.

The subscription proceeds received by the Employer for issuing shares to the Trustee of the EST do not constitute an insurance or indemnity for the purposes of subsection 20-20(2) of the ITAA 1997, nor a recoupment for the purposes of subsection 20-30(3) of the ITAA 1997.

Therefore, the subscription proceeds will not be an assessable recoupment under section 20-20 of the ITAA 1997.

Capital Gains Tax

Section 102-20 of the ITAA 1997 provides that you make a capital gain or loss if and only if a CGT event happens. No CGT events occur when the Trustee of the EST satisfies the obligations under the PRP by subscribing for new shares in the Employer.

The relevant CGT events that may be applicable when the subscription proceeds are received by the Employer are CGT events D1 (creating a contractual or other rights) and H2 (receipt for event relating to a CGT asset).

Subsection 104-35(1) of the ITAA 1997 provides that CGT event D1 happens if you create a contractual or other legal or equitable right in another entity. However, paragraph 104-35(5)(c) of the ITAA 1997 states that CGT event D1 does not happen if a company issues or allots equity interests or non-equity shares in the company. In this case, the Employer will issue shares, being equity interests as defined in section 974-75 of the ITAA 1997, to the Trustee of the EST, therefore CGT event D1 does not happen.

Subsection 104-155(1) of the ITAA 1997 provides that CGT event H2 happens if an act, transaction or event occurs in relation to a CGT asset that you own and the act, transaction or event does not result in an adjustment being made to the asset's cost base or reduced cost base. However, paragraph 104-155(5)(c) of the ITAA 1997 states that CGT event H2 does not happen if a company issues or allots equity interests or non-equity shares in the company. Therefore, CGT event H2 will not occur.

When the Employer receives subscription proceeds for issuing Shares to the Trustee under the PRP, neither a CGT event D1 nor a CGT event H2 happens. Since no CGT event occurs, the Employer does not make a capital gain or capital loss from the issuance of shares to the Trustee.

Therefore, when the Trustee of the EST satisfies the obligations under the PRP by subscribing for new Shares, the subscription proceeds will not be included in the assessable income of the Employer under sections 6-5 or 20-20 of the ITAA 1997, nor trigger a CGT event under Division 104 of the ITAA 1997.

Question 5

Summary

No. The Commissioner will not seek to make a determination that Part IVA of the ITAA 1936 applies to deny, in part or full, any deduction claimed by the Employer in respect of the non-refundable cash contributions made by the Employer to the Trustee of the EST to fund the subscription for or on-market acquisition of the Employer's shares by the EST.

Detailed reasoning

Law Administration Practice Statement PS LA 2005/24 Application of General Anti-Avoidance Rules (PS LA 2005/24) deals with the application of the general anti-avoidance rules, including Part IVA of the ITAA 1936. Before the Commissioner can exercise the discretion in respect of Part IVA under subsection 177F(1) of the ITAA 1936, three requirements must be met. These are:

The PRP was established as part of its remuneration and reward program for employees to further align the interests of staff and shareholders. The structure of the PRP includes the use of an EST that has a range of commercial benefits for the Employer.

The characteristics of the scheme, as described in the Facts, establish that the substance of the scheme is the provision of remuneration in the form of Shares to Participants in the PRP. The scheme will comply with the provisions of Division 83A of the ITAA 1997.

There is nothing in this arrangement to suggest a dominant purpose of seeking to obtain a tax benefit in relation to a scheme. Accordingly, the Commissioner will not make a determination that Part IVA of the ITAA 1936 applies to deny, in part or in full, any deduction claimed by the Employer in relation to the irretrievable contributions made to the EST to fund the acquisition of the Employer's shares under the scheme.

Question 6

Summary

No. The provision of Rights by the Employer to Participants under the PRP is not a fringe benefit within the meaning of subsection 136(1) of the FBTAA.

Detailed reasoning

An employer's liability to fringe benefits tax (FBT) arises under section 66 of the FBTAA which provides that tax is imposed in respect of the fringe benefits taxable amount of an employer for the relevant year of tax. The fringe benefits taxable amount is calculated under the FBTAA by reference to the taxable value of each fringe benefit provided. No amount will be subject to FBT unless a fringe benefit is provided.

In general terms, 'fringe benefit' is defined in subsection 136(1) of the FBTAA as being a benefit provided to an employee or an associate of an employee 'in respect of' the employment of the employee'. However, certain benefits are excluded from being a 'fringe benefit' by virtue of paragraphs (f) to (s) of the 'fringe benefit' definition.

Paragraph (h) of the definition of fringe benefit in subsection 136(1) of the FBTAA, states that a fringe benefit does not include:

The terms 'ESS interest' and 'employee share scheme' are defined in section 83A-10 of the ITAA 1997 (as discussed in question 3).

The Commissioner accepts that the PRP as described in this application is an employee share scheme under which relevant ESS interests (being Rights) are acquired by employees of the company (or 'associates of those employees'), and the acquisition of those ESS interests are in relation to the employee's employment.

Therefore, the provision of Rights by the Employer to Participants under the PRP will not be subject to FBT on the basis that they are ESS interests acquired under an employee share scheme and are thereby excluded from the definition of 'fringe benefit' pursuant to subsection 136(1) of the FBTAA.

Question 7

Summary

No. The irretrievable cash contributions made by the Employer to the Trustee of the EST, to fund the subscription for or on-market acquisition of the Employer shares will not be treated as a fringe benefit within the meaning of subsection 136(1) of the FBTAA.

Detailed reasoning

Paragraph (ha) of the definition of a fringe benefit in subsection 136(1) of the FBTAA states that a fringe benefit does not include:

An 'employee share trust' is defined in subsection 995-1(1) of the ITAA 1997 as having the meaning given by subsection 130-85(4) of the ITAA 1997.

Subsection 130-85(4) of the ITAA 1997 provides that an employee share trust for an 'employee share scheme' (having the meaning given by subsection 83A-10(2) of the ITAA 1997) is a trust whose sole activities are:

The terms 'ESS interest' and 'employee share scheme' as defined in section 83A-10 of the ITAA 1997 were considered in question 3 and it is accepted the PRP will be an employee share scheme under which the ESS interests (being rights or restricted shares) are provided to employees, or associates of employees of the company.

The Employer has established the EST and under the Trust Deed, the EST's sole purpose is to obtain Shares for the benefit of Participants, including subscribing for or acquiring, allocating, holding, and delivering Shares under the PRP. There are some incidental activities undertaken by the Trustee to manage and administer the EST, such as the operation of bank accounts and maintenance of adequate books and records.

Therefore, the EST satisfies the definition of an employee share trust, as defined in subsection 130-85(4) of the ITAA 1997. As such, paragraph (ha) of the definition of fringe benefit in subsection 136(1) of the FBTAA excludes the contributions to the Trustee of the EST from being a fringe benefit.

Accordingly, the irretrievable cash contributions the Employer makes to the Trustee of the EST, to fund the subscription for, or on-market acquisition of Shares in accordance with the Trust Deed are not a fringe benefit under subsection 136(1) of the FBTAA.

Question 8

Summary

No. The Commissioner will not seek to make a determination that section 67 of the FBTAA applies to increase the fringe benefits taxable amount to the Employer, by the amount of tax benefit gained from non-refundable cash contributions made by the Employer to the Trustee of the EST, to fund the subscription for or on-market acquisition of Shares.

Detailed reasoning

Section 67 of the FBTAA is the general anti-avoidance provision in the FBTAA. PSLA 2005/24 provides guidance on the application of section 67 of the FBTAA. Paragraphs 145-148 state:

The Commissioner will only make a determination under section 67 of the FBTAA if the arrangement resulted in the payment of less FBT than would be payable but for entering into the arrangement.

In Miscellaneous Taxation Ruling MT 2021 Fringe benefits tax: response to questions by major rural organisation (MT 2021), at Appendix 1 Question 18, on the application of section 67, the Commissioner states:

Under the PRP, benefits provided to the Trustee by way of irretrievable cash contributions to the EST and to Participants by way of the provision of Rights will not be subject to FBT. Consequently, no amount could reasonably be expected to be included in the aggregate fringe benefits amount attributable to the PRP if the arrangement had not been entered into. Therefore, the fringe benefits tax is not any less than it would have been but for the arrangement.

Accordingly, the Commissioner will not seek to make a determination that section 67 of the FBTAA applies to increase the fringe benefits taxable amount to the Employer by the amount of tax benefit gained from non-refundable cash contributions made by the Employer to the Trustee of the EST, to fund the subscription for or on-market acquisition of Shares.


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