Edited version of your written advice

Authorisation Number: 1051218007047

Date of advice: 5 May 2017

Ruling

Subject: Employee Share Scheme

Question 1

Will the entity be entitled to deduct an amount under section 8-1 of the Income Tax Assessment Act 1997 (the “ITAA 1997”) in respect of the irretrievable cash contributions made by the entity to the trustee of the entity's Employee Share Trust to fund the subscription for, or acquisition on-market of, the entity's shares by the Trust?

Answer

Yes

Question 2

Will the entity be entitled to deduct an amount under section 8-1 of the ITAA 1997, in respect of costs incurred by the entity in relation to the implementation and on-going administration of the Trust?

Answer

Yes

Question 3

Will irretrievable cash contributions made by the entity to the Trustee, to fund the subscription for, or acquisition on-market of, the entity's shares by the Trustee, be deductible to the entity under section 8-1 of the ITAA 1997 at a time determined by section 83A-210 of the ITAA 1997 if the contributions are made before the acquisition of the relevant ESS interest?

Answer

Yes

Question 4

If the Trust satisfies its obligation under the incentive plans by subscribing for new shares in the entity, will the subscription proceeds be included in the assessable income of the entity under section 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 (the “ITAA 1936”) applies to deny, in part or full, a deduction claimed by the entity for the irretrievable cash contributions made by the entity to the Trustee to fund the subscription for, or acquisition on-market of, the entity's shares by the Trust?

Answer

No

The rulings for questions 1 to 5 inclusive each apply for the following periods:

Income tax year ended 30 June 2017

Income tax year ended 30 June 2018

Income tax year ended 30 June 2019

Income tax year ended 30 June 2020

Income tax year ended 30 June 2021

Question 6

Will the provision of Performance Rights, Options or shares in the entity under the incentive plans to its employees be a fringe benefit within the meaning of subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (the “FBTAA”)?

Answer

No

Question 7

Will the irretrievable cash contributions made by the entity to the Trustee, to fund the subscription for, or acquisition on-market of, the entity's shares, constitute 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 aggregate fringe benefits amount of the entity by the amount of tax benefit gained from irretrievable cash contributions made by the entity to the Trustee, to fund the subscription for, or acquisition on-market of, the entity's shares?

Answer

No

The rulings for questions 5 and 6 each apply for the following periods:

Fringe benefits tax year ended 31 March 2017

Fringe benefits tax year ended 31 March 2018

Fringe benefits tax year ended 31 March 2019

Fringe benefits tax year ended 31 March 2020

Fringe benefits tax year ended 31 March 2021

Relevant facts

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.

Company background

The entity is listed on the Australian Securities Exchange (ASX). It is the head entity of a Tax Consolidated Group.

Incentive plans

The entity maintains a strong focus on the retention of staff to facilitate the expected growth and expansion of the company over the long term. As such, it has in place various incentive plans which provide its employees with the opportunity to participate in equity ownership so as to provide an incentive to achieve greater success and profitability for the entity, stimulate and reward superior performance and maximise the long-term performance of the entity.

The entity has two employee option plans (collectively referred to as Incentive Plans), and an Employee Share Plan:

● Long Term Incentive Plan (LTIP)

● Employee Share Option Plan (ESOP)

● Employee Share Plan (ESP)

Long Term Incentive Plan

The LTIP is a key part of the entity's executive and senior staff remuneration framework. The key objectives are to:

● assist in the reward, retention and motivation of Participants; and

● align the interests of Participants with shareholders of the Group.

The LTIP offer and grant of Performance Rights or Options does not automatically entitle a Participant to a share. The actual number of shares to which they may become entitled will depend on:

● the degree to which the LTIP performance measures are satisfied;

● satisfaction/waiver of the Vesting Conditions and Exercise Conditions; and

● the operation of the LTIP rules.

The LTIP operates entirely at the discretion of the Board and may be terminated, suspended or amended at any time, in its entirety or in part, in relation to any or all Participants.

The entity provided the LTIP Rules.

Employee Share Option Plan (ESOP)

The entity established ESOP which is governed by the ESOP Rules.

Relevant information provided in respect of the ESOP includes the following:

● Under the ESOP, the entity will contribute funds to the Trust to provide benefits to Participants in the form of shares. It is anticipated that such contributions will be made by the entity when the Participants exercise their Options granted under the ESOP.

● Contributions to the Trust will be a recurring outgoing which forms part of the total remuneration costs of the Participants.

The entity provided the ESOP Rules.

Employee Share Plan

The entity has in place share based compensation in the form of an Employee Share Plan (ESP) whereby up to A$1,000 worth of ordinary fully paid shares are issued by the entity to each eligible employee annually for no cash consideration.

The entity provided the ESP Plan.

Employee Share Trust

The entity established the Employee Share Trust (Trust) for the sole purpose of obtaining shares for the benefit of employees of the entity pursuant to the Incentive Plans.

The entity provided the Employee Share Trust Deed (the Deed).

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 section 66

Fringe Benefits Tax Assessment Act 1986 section 67

Fringe Benefits Tax Assessment Act 1986 subsection 67(1)

Fringe Benefits Tax Assessment Act 1986 subsection 67(2)

Fringe Benefits Tax Assessment Act 1986 subsection 136(1)

Fringe Benefits Tax Assessment Act 1986 paragraph 136(1)(h)

Fringe Benefits Tax Assessment Act 1986 paragraph 136(1)(ha)

Income Tax Assessment Act 1936 Part IVA

Income Tax Assessment Act 1936 section 177A

Income Tax Assessment Act 1936 section 177D

Income Tax Assessment Act 1936 subsection 177D(2)

Income Tax Assessment Act 1936 section 177F

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 paragraph 8-1(2)(a)

Income Tax Assessment Act 1997 Division 20

Income Tax Assessment Act 1997 section 20-20

Income Tax Assessment Act 1997 subsection 20-20(2)

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 Subdivision 83A-B

Income Tax Assessment Act 1997 Subdivision 83A-C

Income Tax Assessment Act 1997 section 83A-205

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 130-85(4)

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

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

Income Tax Assessment Act 1997 section 701-1

Income Tax Assessment Act 1997 section 974-75

Income Tax Assessment Act 1997 subsection 995-1(1)

Reasons for decision

Questions 1 to 5 - application of the single entity rule in section 701-1 of the ITAA 1997

The consolidation provisions of the ITAA 1997 allow certain groups of entities to be treated as a single entity for income tax purposes. Under the single entity rule (SER) in section 701-1 of the ITAA 1997 the subsidiary members of a consolidated group are taken to be parts of the head company. As a consequence the subsidiary members cease to be recognised as separate entities during the period they are members of the consolidated group with the head company of the group being the only entity recognised for income tax purposes.

The meaning and application of the SER is explained in Taxation Ruling TR 2004/11 Income tax: consolidation: the meaning and application of the single entity rule in Part 3-90 of the Income Tax Assessment Act 1997. As a consequence, the actions and transactions of the subsidiary members of the entity's tax consolidated group are treated for income tax purposes as having been undertaken by the entity as the Australian head company of the entity's tax consolidated group.

Questions 6 to 8

The SER in section 701-1 of the ITAA 1997 has no application to the FBTAA. Accordingly the Commissioner has provided a ruling to the entity and each employer of the entity's consolidated group in relation to questions 6 to 8.

Question 1

Detailed Reasoning

Section 8-1 of the ITAA 1997 states:

8-1(1)

You can deduct from your assessable income any loss or outgoing to the extent that:

(a) it is incurred in gaining or producing your assessable income; or

(b) it is necessarily incurred in carrying on a ^*business for the purpose of gaining or producing your assessable income.

8-1(2)

However, you cannot deduct a loss or outgoing under this section to the extent that:

(a) it is a loss or outgoing of capital, or of a capital nature; or

(b) it is a loss or outgoing of a private or domestic nature; or

(c) it is incurred in relation to gaining or producing your * exempt income or your * non-assessable non-exempt income; or

(d) a provision of this Act prevents you from deducting it.

Losses or outgoings

To claim a deduction under subsection 8-1(1) of the ITAA 1997 contributions made to the Trustee by the entity must be irretrievable and non-refundable.

Pursuant to the Deed, the entity will issue its shares to the Trustee or direct the Trustee to acquire its shares on market. The Trustee holds these shares as Incentive Shares on behalf of the Participants for the purposes of the LTIP and ESOP Rules.

Under the Deed, the entity must provide the Trustee with all funds required by the Trustee to enable it to comply with its obligations, including to subscribe for or acquire the entity's shares that it is directed to subscribe for or acquire. These funds are not repayable by the Trustee.

Under the Deed, the Trustee cannot repay funds received by the Trustee from the company. The Trustee must apply the funds received in the acquisition or subscription of the entity's shares under the Deed and the relevant Rules or Terms of Participation. No Participant is entitled to receive such funds from the Trustee.

Under the Deed, upon termination of the Trust the Trustee must distribute any consideration or the entity's shares that the Trust has been directed to provide to Participants. The Trustee must apply any remaining assets held by the Trust for the benefit of another employee share or option trust or any charity nominated by the Trustee. The Deed prohibits the Trustee distributing this surplus to any company in the entity's group.

The terms of the Deed when read together demonstrate that contributions made by the entity to the Trustee will be irretrievable and non-refundable and therefore these contributions are considered to be a loss or outgoing for the purpose of subsection 8-1(1) of the ITAA 1997.

Sufficient nexus

In order for a loss or outgoing to be deductible under subsection 8-1(1) of the ITAA 1997 it must be either incurred in gaining or producing assessable income or necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income. A line of authorities has established that there will be a link between a loss or outgoing and the derivation of income where there is a sufficient nexus. (The Herald and Weekly Times Limited v The Federal Commissioner of Taxation (1932) 48 CLR 113; (1932) 2 ATD 169, Amalgamated Zinc (De Bavay's) Limited v The Federal Commissioner of Taxation (1935) 54 CLR 295;(1935) 3 ATD 288, W. Nevill And Company Limited v The Federal Commissioner of Taxation (1937) 56 CLR 290;4 ATD 187;(1937) 1 AITR 67, Ronpibon Tin No Liability v The Federal Commissioner of Taxation (1949) 78 CLR 47; 4 AITR 236; (1949) 8 ATD 431, Charles Moore and Co (W.A.) Pty Ltd v Federal Commissioner of Taxation (1956) 95 CLR 344;(1956) 6 AITR 379; (1956) 11 ATD 147).

The contributions made by the entity to the Trustee of the Trust are part of the overall employee remuneration costs of the entity. The benefits provided to employees under the incentive plans intend to reward, retain and motivate employees and to encourage participation by employees of the entity through share ownership.

A sufficient nexus exists between the outgoings (being the irretrievable contributions made by the entity to the Trustee of the Trust) and the derivation of assessable income for the purposes of subsection 8-1(1) of the ITAA 1997.

Capital or revenue?

The entity will make periodic contributions to the Trustee of the Trust for the purpose of acquiring and subscribing for ordinary shares in the entity pursuant to the incentive plans.

In ATO ID 2002/1074 Income Tax - deductibility - irretrievable employer contributions paid to the Trustee of its employee share scheme to acquire a share or right under the employee share scheme the view is expressed that a company will be entitled to a deduction for irretrievable contributions made to the trustee of its employee share scheme under section 8-1 of the ITAA 1997.

In Spotlight Stores Pty Ltd v Federal Commissioner of Taxation (2004) 55 ATR 745 and Pridecraft Pty Ltd v Federal Commissioner of Taxation (2004) 58 ATR 210 payments by an employer company to an employee share trust, established to provide incentive payments to employees, were held to be on revenue account and were not capital or of a capital nature.

Apportionment

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 different nature. This would be relevant in the circumstances where the Trustee of the Trust uses contributions made by the entity to the Trustee for the administration of the incentive plans to subscribe for shares in the entity.

A contribution to the trustee of an employee share trust is capital or of a capital nature where the contribution secures for the employer an asset or advantage of an enduring or lasting nature that is independent of the year to year benefits that the employer derives from a loyal and contented workforce.

Where the trustee of an employee share trust, ultimately and in substance, uses a contribution from the employer to subscribe for equity interests in the employer (for example shares), the employer has also acquired an asset or advantage of an enduring nature.

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

In this case, the outgoings incurred by the entity by way of the irretrievable contributions it makes to the Trustee of the Trust in order to carry on its business are either not capital in nature or any capital component is considered to be sufficiently small or trifling such that the Commissioner would not seek to apportion the deduction.

Private or domestic in nature

Nothing in the facts suggest that the irretrievable contributions made by the entity to the Trustee of the Trust are private or domestic in nature, or are incurred in gaining or producing exempt income, or are otherwise prevented from being deductible under a specific provision of the ITAA 1936 or ITAA 1997.

Clawback

The incentive plan rules states that if the Board becomes aware that a Participant acted fraudulently or dishonestly or has wilfully breached their obligations to any member of the entity, then the Board may deem that the Right, Option or Shares be forfeited or that the Participant is required to pay all or part of net proceeds from the sale of the Shares back to the entity.

Although an amount may come back to the employer, the entity chose to implement such a rule to satisfy corporate regulatory requirements that are associated with the remuneration of executive employees.

Amounts returned to the employer from the Participant under this rule would be assessable income of the employer. Therefore, nothing in this clawback provision alters the character of the irretrievable contributions made by the entity to the Trustee of the Trust.

Conclusion

The irretrievable contributions the entity makes to the Trustee of the Trust to fund the acquisition of ordinary shares in the entity in accordance with the Deed and incentive plan rules will be an allowable deduction to the entity under section 8-1 of the ITAA 1997.

Question 2

Detailed reasoning

The entity incurs various costs in relation to the implementation and on-going administration of the Trust. For example, the entity will incur costs associated with the services provided by the Trustee of the Trust, including but not limited to:

● Employee plan record keeping;

● Production and dispatch of holding statements to employees;

● Provision of annual income tax return information for employees;

● Costs incurred in the acquisition of shares on market (e.g. brokerage costs and the allocation of shares to participants);

● Management of employee termination; and

● Other Trustee expenses including the annual audit of the financial statements and annual income tax return of the Trust.

Under the Deed, the Trustee is not entitled to receive from the Trust any fees, commission or other remuneration in respect of its office. The entity may pay to the Trustee from the entity's own resources any such fees and reimburse such expenses incurred by the Trustee as agreed between the entity and the Trustee. The Trustee is entitled to retain for its own benefit any such fee or reimbursement.

The costs incurred by the entity in relation to the implementation and on-going administration of the Trust are deductible under section 8-1 of the ITAA 1997 as either:

● costs incurred in gaining or producing the assessable income of the entity; or

● costs necessarily incurred in carrying on the business of the entity for the purpose of gaining or producing the assessable income of the entity.

The view that the costs incurred by the entity are deductible under section 8-1 of the ITAA 1997 is consistent with ATO ID 2014/42 Employer costs for the purpose of administering its employee share scheme are deductible in which it was decided that such costs are part of the ordinary employee remuneration costs of a taxpayer.

Consistent with the detailed reasoning above in question 1, the costs are revenue and not capital in nature on the basis that they are regular and recurrent employment expenses. The costs are therefore not excluded from being deductible under paragraph 8-1(2)(a) of the ITAA 1997. Accordingly, the entity is entitled to 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 Trust.

Question 3

Detailed Reasoning

The deduction for the irretrievable cash contributions under section 8-1 of the ITAA 1997 would generally be allowable in the income year in which the entity incurred the outgoing. However, 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:

(a) at a particular time, you provide another entity with money or other property:

(i) under an arrangement; and

(ii) for the purpose of enabling an individual (the ultimate beneficiary) to acquire, directly or indirectly, an ESS interest under an employee share scheme in relation to the ultimate beneficiary's employment (including past or prospective employment); and

(b) that particular time occurs before the time (the acquisition time) the ultimate beneficiary acquires the ESS interest;

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 applies under an arrangement where there is a relevant connection between the irretrievable cash contributions, provided to the Trustee, and the acquisition of ESS interests (directly or indirectly) by an employee under an employee share scheme, in relation to the employee's employment and the contributions are made before the acquisition of the ESS interests.

Arrangement

The implementation of the incentive plans, establishment of the Trust and provision of money by the entity to the Trustee, are considered as constituting an arrangement for the purpose of subparagraph 83A-210(a)(i) of the ITAA 1997.

ESS interest

An ESS interest in a company 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.

Under the incentive plans, each right or share provided to a Participant when an offer is made under the incentive plans is an ESS interests as it is a beneficial interest in a share or (or may later become) a right to acquire a beneficial interest in a share in a company.

Employee share scheme

Subsection 83A-10(2) of the ITAA 1997 defines 'employee share scheme' as:

a scheme under which ESS interests in a company are provided to employees, or associates of employees, (including past or prospective employees) of:

(a) the company; or

(b) subsidiaries of the company;

in relation to the employees' employment.

For the purposes of subsection 83A-10(2) of the ITAA 1997, subsection 995-1(1) of the ITAA 1997 defines the term 'scheme' as follows:

(a) any arrangement; or

(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

The incentive plans are employee share schemes for the purposes of Division 83A of the ITAA 1997 as they are arrangements, which provide an ESS interest (i.e. a beneficial interest in a right to acquire a beneficial interest in a share), to a Participant in relation to their employment in the entity in accordance with the Deed.

A share in the entity acquired by the Trustee to satisfy a right provided under an employee share scheme, to an employee in relation to the employee's employment, is itself acquired under the same employee share scheme.

Relevant connection

The making of offers under the incentive plans, the provision of irretrievable cash contributions to the Trustee under the arrangement, the acquisition and holding of the entity's shares by the Trustee and the allocation of the entity's shares to Participants are all interrelated components of the incentive plans. All the components of the scheme, including the provision of irretrievable cash contributions to the Trustee must be carried out so that the scheme can operate as intended. As one of those components, the provision of money to the Trustee necessarily allows the scheme to proceed. Accordingly, the provision of money to the Trustee to acquire the entity's shares is for the purpose of enabling Participants, indirectly as part of the incentive plans, to acquire relevant rights or directly to acquire the entity's shares (that is ESS interests).

If the entity provides irretrievable contributions before a Participant acquires the relevant ESS interests, then section 83A-210 of the ITAA 1997 will apply to determine the timing of a deduction for the irretrievable contributions under section 8-1 of the ITAA 1997. In this instance, the contribution will only be deductible to the entity in the income year when the relevant ESS interests are provided to Participants. This is consistent with the ATO view expressed in ATO Interpretative Decision ATO ID 2010/103 Income Tax- Employee share scheme: timing of deduction for money provided to the trustee of an employee share trust.

Indeterminate rights

Performance Rights and Options provided under the incentive plan are indeterminate rights for the purposes of section 83A-340 of the ITAA 1997. That is because either delivery of a share in the entity or payment of a cash equivalent satisfies the right, at the discretion of the Board. They are not a right to acquire a beneficial interest in a share unless and until the time when the Board determines the proportion of the Performance Rights and Options that will be satisfied by the provision of the entity's shares.

Once this proportion is determined, section 83A-340 of the ITAA 1997 operates to treat these Performance Rights and Options as though they had always been rights to acquire beneficial interests in shares.

If irretrievable contributions are provided to the Trustee before these Performance Rights and Options are acquired (and the Performance Rights and Options do subsequently become ESS interests), then section 83A-340 of the ITAA 1997 operates to deem the Performance Rights and Options to always have been ESS interests. Where this occurs, section 83A-210 of the ITAA 1997 will apply (retrospectively) to modify the timing of the deduction claimed under section 8-1 of the ITAA 1997. In such a case, a deduction to fund the exercise of the Performance Rights and Options would be available to the entity in the income year in which Participants acquire the Performance Rights and Options.

Note

Where the Performance Rights and Options do not become ESS interests because they are ultimately satisfied in cash, the outgoing should not flow through the Trust. This is because the Trust would not be satisfying the sole activities test for the purposes of subsection 130-85(4) of the ITAA 1997.

As discussed in the analysis above, section 83A-210 of the ITAA 1997 will only apply if there is an arrangement under which there is a relevant connection between the irretrievable cash contributions provided to the Trustee and the acquisition of ESS interests (directly or indirectly) by an employee under an employee share scheme in relation to the employees employment and the contributions are made before the acquisition of the ESS interests.

Accordingly, section 83A-210 of the ITAA 1997 will not apply where the entity makes irretrievable contributions to the Trustee to fund the acquisition of the entity's shares where the contribution is made after the acquisition of the relevant ESS interests.

In such a situation, the irretrievable contributions by the entity to the Trustee will be deductible under section 8-1 of the ITAA 1997 in the income year in which the irretrievable contributions are made where relevant rights are ultimately satisfied with the entity's shares.

Question 4

Detailed Reasoning

Ordinary Income

Section 6-5 of the ITAA 1997 provides that a taxpayer's assessable income includes income according to ordinary concepts, which is called ordinary income. Jordan CJ considered the definition of 'income' in Scott v Commissioner of Taxation (1935) 35 SR (NSW) 215 at 219; 3 ATD 142 at 144-145 where his Honour said:

The word “income” is not a term of art, and what forms of receipts are comprehended within it, and what principles are to be applied to ascertain how much of those receipts ought to be treated as income, must be determined in accordance with the ordinary concepts and usages of mankind, except in so far as the statute states or indicates an intention that receipts which are not income in ordinary parlance are to be treated as income, or that special rules are to be applied for arriving at the taxable amount of such receipts…

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

The fundamental relation of “capital” to “income” has been much discussed by economists, the former being likened to the tree or the land, the latter to the fruit or the crop; the former depicted as a reservoir supplied from springs, the latter as the outlet stream, to be measured by its flow during a period of time. …Here we have the essential matter: not a gain accruing to capital, not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested or employed, and coming in, being “derived” that is, received or drawn by the recipient (the taxpayer) for his separate use, benefit and disposal; …that is income derived from property. Nothing else answers the description.

In G.P. International Pipecoaters Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (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. Brennan, Dawson, Toohey, Gaudron and McHugh JJ stated at page 138 that:

To determine whether a receipt is of an income or of a capital nature, various factors may be relevant. Sometimes, the character of receipts will be revealed most clearly by their periodicity, regularity or recurrence; sometimes, by the character of a right or thing disposed of in exchange for the receipt; sometimes, by the scope of the transaction, venture or business in or by reason of which money is received and by the recipient's purpose in engaging in the transaction, venture or business.

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

In an employee share scheme, the trustee subscribes to the company for an issue of shares, it pays the full subscription price for the shares and the company receives a contribution of share capital from the trustee.

The character of the right or thing disposed of in exchange for the receipt can determine the character of the contribution of share capital received by the entity from the Trustee. Under this arrangement, the entity is issuing the Trustee with a new share in itself. The character of the newly issued share is one of capital. Therefore, the receipt, being the subscription proceeds, takes the character of share capital, and accordingly, is of a capital nature. The reasoning in ATO ID 2010/155 Income Tax - Employee Share Scheme: assessability to an employer of the option exercise price paid by an employee supports this view

Accordingly, when the entity receives subscription proceeds from the Trustee of the Trust where the Trustee has subscribed for new shares in the entity to satisfy obligations to Participants of the incentive plans, that subscription price received by the entity is a capital receipt. That is, it will not be on revenue account, and it will not be 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.

The entity will receive an amount for the subscription of shares by the Trustee of the Trust. There is no insurance contract in this case, so the amount received is not by way of insurance.

Further, the amount is not an indemnity because the receipt does not arise under a statutory or contractual right of indemnity, and the receipt is not 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 in the current income year, 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.

Subsection 20-25(1) of the ITAA 1997 defines a recoupment as including any kind of recoupment, reimbursement, refund, insurance, indemnity or recovery, however described and a grant in respect of the loss or outgoing.

The Explanatory Memorandum to the Tax Law Improvement Bill 1997 states that the ordinary meaning of recoupment encompasses any type of compensation for a loss or outgoing.

To the extent section 8-1 of the ITAA 1997 allows a deduction for bad debts or rates or taxes, section 20-30 of the ITAA 1997 will apply such that if there were a recoupment of that deduction, that amount would be assessable. The receipt by the entity is in return for issuing shares to the Trustee of the Trust, not as a recoupment of previously deducted expenditure under section 8-1 of the ITAA 1997 regarding bad debts or rates and taxes that could be subject to section 20-30 of the ITAA 1997.

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

Capital Gains Tax (CGT)

Under section 102-20 of the ITAA 1997, you make a capital gain or loss if and only if a CGT event happens.

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

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 entity is issuing shares, being equity interests as defined in section 974-75 of the ITAA 1997, to the Trustee of the Trust and therefore CGT event D1 does not happen.

In relation to CGT event H2, paragraph 104-155(5)(c) of the ITAA 1997 also 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 does not occur.

As no CGT event occurs, there is no amount assessable as a capital gain to the entity.

Therefore, when the Trustee of the Trust satisfies its obligations under the Deed by subscribing for new shares in the entity, the subscription proceeds will not be included in the assessable income of the entity under section 6-5 of the ITAA 1997 or section 20-20 of the ITAA 1997, and nor will it trigger a CGT event under Division 104 of the ITAA 1997.

Question 5

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 his discretion to make a determination in respect of Part IVA under subsection 177F(1) of the ITAA 1936, three requirements must be met:

1. there must be a scheme within the meaning of section 177A of the ITAA 1936

2. a tax benefit must arise based on whether a tax effect would have occurred, or might reasonably be expected to have occurred, if the scheme had not been entered into or carried out, and

3. having regard to the matters in subsection 177D(2) of the ITAA 1936, the scheme is one to which Part IVA of the ITAA 1936 applies.

On the basis of an analysis of the three requirements, the Commissioner will not seek to make a determination that Part IVA of the ITAA 1936 applies to deny, in part or in full, any deduction claimed by the entity for the irretrievable cash contributions made to the Trustee of the Trust to fund the subscription for, or acquisition on-market of, ordinary shares in the entity.

Question 6

Detailed Reasoning

The liability of an employer to fringe benefits tax (FBT) arises under section 66 of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) which provides that tax is imposed in respect of the fringe benefits taxable amount of an employer for the relevant year of tax. Under the FBTAA, the calculation of the fringe benefits taxable amount is made by reference to the taxable value of each fringe benefit provided.

Without the provision of a 'fringe benefit', no amount will be subject to FBT.

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.

The provision of rights

Certain benefits however are excluded from being a 'fringe benefit' by virtue of paragraphs (f) to (s) of the 'fringe benefit' definition in subsection 136(1) of the FBTAA.

Paragraph (f) of the definition of 'fringe benefit' relevantly states that a fringe benefit does not include:

(f) a payment of salary or wages or a payment that would be salary or wages if salary or wages included exempt income for the purposes of the Income Tax Assessment Act 1936; or

Paragraph (h) of the definition of 'fringe benefit' relevantly states that a fringe benefit does not include:

(h) a benefit constituted by the acquisition of an ESS interest under an employee share scheme (within the meaning of the Income Tax Assessment Act 1997) to which Subdivision 83AB or 83AC of that Act applies.

The Commissioner accepts that the incentive plans are employee share schemes that the rights and share provided under the incentive plans are, or may later become in the case of indeterminate rights, ESS interests and that Subdivision 83A-B or 83A-C applies to those ESS interests.

Accordingly, the provision of rights and shares pursuant to the incentive will not be subject to fringe benefits tax either on the basis that they are acquired by Particpants under an employee share scheme (to which Subdivision 83A-B or 83A-C will apply) and are thereby excluded from being a fringe benefit by virtue of paragraph (h) of the definition of fringe benefit in subsection 136(1) of the FBTAA or on the basis that they are a payment of salary or wages (in the case of rights which are ultimately satisfied with cash) and are thereby excluded from the definition of fringe benefit by paragraph 136(1)(f) of the FBTAA (refer to ATO Interpretative Decision ATO ID 2010/142 Fringe Benefits Tax Employee share scheme: indeterminate rights not fringe benefits).

The provision of the entity's shares

As mentioned above, 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.

The meaning of the phrase 'in respect of' was considered by the Full Federal Court in J and G Knowles and Associates Pty Ltd v. Federal Commissioner of Taxation (2000) 96 FCR 402; 2000 ATC 4151; (2000) 44 ATR 22. Heerey, Merkel and Finkelstein JJ at page 410 stated:

Whatever question is to be asked, it must be remembered that what must be established is whether there is a sufficient or material, rather than a, causal connection or relationship between the benefit and the employment.

The situation is similar to that which existed in Federal Commissioner of Taxation v. McArdle 89 ATC 4051; (1988) 19 ATR 1901 where an employee was granted valuable rights in respect of his employment which he subsequently surrendered in return for a lump sum payment. Davies, Gummow and Lee JJ noted that what had occurred under the surrender agreement was not the granting of a valuable benefit, but the exploitation of rights received from the employer in previous years.

When an employee of the entity or its subsidiaries participates in one of the incentive plans, they obtain a right (being a right to acquire a beneficial interest in a share in the entity) and this right constitutes an ESS interest. When this right is subsequently exercised, any benefit received would be in respect of the exercise of the right, and not in respect of employment (refer ATO Interpretative Decision ATO ID 2010/219 Fringe Benefits Tax Fringe benefit: shares provided to employees upon exercise of rights granted under an employee share scheme).

Therefore, the benefit that arises to an employee upon the exercise of a vested right under the incentive plans (being the provision of a share in the entity) will not give rise to a fringe benefit as a benefit has not been provided in respect of the employment of the employee.

Question 7

Detailed Reasoning

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

(ha) a benefit constituted by the acquisition of money or property by an employee share trust (within the meaning of the Income Tax Assessment Act 1997);

Subsection 995-1(1) of the ITAA 1997 states that the expression an 'employee share trust' has the same meaning given by subsection 130-85(4) of the ITAA 1997.

Subsection 130-85(4) of the ITAA 1997 states:

An employee share trust, for an employee share scheme, is a trust whose sole activities are:

(a) obtaining shares or rights in a company; and

(b) ensuring that ESS interests in the company that are beneficial interests in those shares or rights are provided under the employee share scheme to employees, or to associates of employees, of:

(i) the company; or

(ii) a subsidiary of the company; and

(a) other activities that are merely incidental to the activities mentioned in paragraphs (a) and (b).

Paragraphs 130-85(4)(a) and (b) of the ITAA 1997

The beneficial interest in a share received by a Participant when an ordinary share in the entity is provided to them under the terms of the Deed is an ESS interest within the meaning of subsection 83A-10(1) of the ITAA 1997.

Subsection 83A-10(2) of the ITAA 1997 defines an employee share scheme as being a scheme under which ESS interests in a company are provided to employees, or associates of employees (including past or prospective employees) in relation to the employees' employment.

The incentive plans are employee share schemes within the meaning of subsection 83A-10(2) of the ITAA 1997 because they are schemes under which rights or shares are provided under the incentive plans to employees in relation to the employee's employment.

The entity has established the Trust to acquire ordinary shares in the entity and to allocate those shares to employees in order to satisfy ESS interests acquired by those employees under the incentive plans. The beneficial interest in the entity's share is itself provided under an employee share scheme because it is provided under the same scheme under which the rights and shares are provided to employees in relation to their employment.

Paragraphs 130-85(4)(a) and (b) of the ITAA 1997 are therefore satisfied because:

● the Trust acquires shares in a company, namely the entity; and

● the Trust ensures that ESS interests (as defined in subsection 83A-10(1) of the ITAA 1997, being beneficial interests in the shares of the entity), are provided under an employee share scheme (as defined in subsection 83A-10(2) of the ITAA 1997) by allocating those shares to the employees in accordance with the Deed and incentive plans.

Paragraph 130-85(4)(c) of the ITAA 1997

Undertaking the activities mentioned in paragraphs 130-85(4)(a) and 130-85(4)(b) of the ITAA 1997 will also require that the Trustee undertake incidental activities that are a function of managing the incentive plans.

ATO Interpretative Decision ATO ID 2010/108 Income Tax - Employee share trust that acquires shares to satisfy rights provided under an employee share scheme and engages in other incidental activities sets out a number of activities which are merely incidental for the purposes of paragraph 130-85(4)(c) of the ITAA 1997:

● the opening and operation of a bank account to facilitate the receipt and payment of money;

● the receipt of dividends in respect of shares held by the trust on behalf of an employee, and their distribution to the employee;

● the receipt of dividends in respect of unallocated shares and using those dividends to acquire additional shares for the purposes of the employee share scheme;

● dealing with shares forfeited under an employee share scheme including the sale of forfeited shares and using the proceeds of sale for the purposes of the employee share scheme;

● the transfer of shares to employee beneficiaries or the sale of shares on behalf of an employee beneficiary and the transfer to the employee of the net proceeds of the sale of those shares;

● the payment or transfer of trust income and property to the default beneficiary on the winding up of the trust where there are no employee beneficiaries; and

● receiving and immediately distributing shares under a demerger.

Activities that result in employees being provided with additional benefits (such as the provision of financial assistance, including a loan to acquire the shares) are not considered to be merely incidental.

Paragraph 130-85(4)(c) of the ITAA 1997 is satisfied as all other activities undertaken by the Trustee are merely incidental to managing the incentive plans.

Conclusion

The Trust satisfies the definition of an employee share trust in subsection 130-85(4) of the ITAA 1997 as:

● the Trust acquires shares in a company (being the entity);

● the Trust ensures that ESS interests (as defined in subsection 83A-10(1) of the ITAA 1997, being beneficial interests in the shares of the entity or beneficial interests in the rights to acquire beneficial interests in shares of the entity), are provided under an employee share scheme (as defined in subsection 83A-10(2) of the ITAA 1997) by allocating those shares to the employees in accordance with the Deed and incentive plans; and

● the Deed does not provide for the Trustee to participate in any activities which are not considered to be merely incidental to a function of administering the Trust.

Paragraph (ha) of the definition of fringe benefit in subsection 136(1) of the FBTAA therefore excludes the contributions to the Trustee from being a fringe benefit.

Accordingly, the irretrievable cash contributions made by the entity or any subsidiary member of the entity's tax consolidated group to the Trustee to fund the subscription for, or acquisition on-market of, the entity's shares, will not constitute a fringe benefit within the meaning of section 136(1) of the FBTAA.

Question 8

Detailed Reasoning

As mentioned in the answer to question 5, PS LA 2005/24 has been written to assist those who are contemplating the application of Part IVA or other general anti-avoidance rules to an arrangement, including in a private ruling. It succinctly explains the operation of section 67 of the FBTAA 1986. Notably, paragraphs 145 - 148 of PS LA 2005/24 state:

145. Section 67 is the general anti avoidance provision in the FBTAA. The operation of section 67 is comparable to Part IVA, in that the section requires the identification of an arrangement and a tax benefit, includes a sole or dominant purpose test and is activated by the making of a determination by the Commissioner. The definition of 'arrangement' in subsection 136(1) of the FBTAA is virtually identical to the definition of 'scheme' in section 177A of Part IVA.

146. Subsection 67(1) of the FBTAA is satisfied where a person or one of the persons who entered into or carried out an arrangement or part of an arrangement under which a benefit is or was provided to a person, did so for the sole or dominant purpose of enabling an eligible employer or the eligible employer and an other employer(s) to obtain a tax benefit.

147. An objective review of the transaction and the surrounding circumstances should be undertaken in determining a person's sole or dominant purpose in carrying out the arrangement or part of the arrangement. Section 67 differs from paragraph 177D(b) in Part IVA in that it does not explicitly list the factors that should be taken into account in determining a person's sole or dominant purpose.

148 Subsection 67(2) of the FBTAA provides that a tax benefit arises in respect of a year of tax in connection with an arrangement if under the arrangement:

(i) a benefit is provided to a person

(ii) an amount is not included in the aggregate fringe benefits amount of the employer; and

(iii) that amount would have been included and or could reasonably be expected to be included in the aggregate fringe benefits amount, if the arrangement had not been entered into.

The Commissioner would only seek to make a determination under section 67 of the FBTAA 1986 if the arrangement resulted in the payment of less fringe benefits tax than would be payable but for entering into the arrangement. The point is made effectively in Miscellaneous Taxation Ruling MT 2021 Fringe Benefits Tax-Response to questions by major rural organisation under the heading “Appendix, Question 18” where, on the application of section 67 of the FBTAA 1986, the Commissioner states:

…As mentioned in the explanatory memorandum to the FBT law, section 67 may only apply where there is an arrangement under which a benefit is provided to a person and the fringe benefits taxable amount in respect of that benefit is either nil or less than it would have been but for the arrangement...

Further, paragraph 151 of PS LA 2005/24 states:

151. The approach outlined in this practice statement (refer to paragraphs 69 to 113) to the counterfactual and the sole or dominant purpose test in Part IVA is relevant and should be taken into account by Tax officers who are considering the application of section 67 of the FBTAA 1986.

The provision of benefits to the Trustee of the Trust in the form of irretrievable contributions to the Trust and to Participants as Rights under the incentive plan rules (including shares in the entity received by Participants on their vesting) are excluded from the definition of a fringe benefit for the reasons given above in questions 6 and 7. As these benefits have been excluded from the definition of a fringe benefit, no fringe benefit arises and no fringe benefits tax will be payable under the arrangement which includes the Trust. As there would be no fringe benefits tax payable without the use of the Trust (and nor is it likely fringe benefits tax would be payable under alternative remuneration plans), the fringe benefits tax liability is not any less than it would have been but for entering into the arrangement.

The Commissioner will not seek to make a determination that section 67 of the FBTAA 1986 applies to increase the aggregate fringe benefits amount of the entity, or any subsidiary member of the entity's tax consolidated group, by the amount of the tax benefit gained from the irretrievable cash contributions made to the Trustee of the Trust to fund the subscription for, or acquisition on-market of, shares in the entity.

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