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Edited version of your written advice

Authorisation Number: 1051294972145

Date of advice: 18 January 2018

Ruling

Subject: Business reorganisation – CGT and Part IVA

Question 1

Will the Commissioner confirm that no CGT event will occur in relation to the goodwill of AusCo tax consolidated group (AusCo TCG) as a result of the commencement of the proposed business reorganisation in Australia as described herein?

Answer

Yes.

Question 2

Will the Commissioner confirm that no capital gain arises under CGT event D1 for AusCo Ltd in relation to the extension of The X Agreement?

Answer

Yes.

Question 3

Will the Commissioner exercise his power and make a determination pursuant to paragraphs 177F(1)(a) and (d) of the Income Tax Assessment Act 1936 to cancel the whole or part of any tax benefits of a kind referred respectively under paragraphs 177C(1)(a) and (bb) obtained, or that would but for paragraphs 177F(1(a) and (d) be obtained, by AusCo Ltd in connection with the Scheme?

Answer

No.

The scheme commences on:

Implementation Date

Relevant facts and circumstances

1. AusCo Ltd (AusCo) is an Australian resident head entity of an income tax consolidated group (AusCo TCG) and is also the ultimate holding company of a global group of companies (AusCo group).

2. The AusCo group started an initiative some time ago to improve its global operations and management. Among others, the initiative involved the establishment of an offshore related entity, ForeignCo Ltd (ForeignCo).

3. Currently, the AusCo TCG manufactures numerous products in Australia for sale and distribution domestically and overseas. These products are manufactured in Australia by a member of the AusCo TCG, SubCo Ltd (SubCo).

4. As part of adopting the initiative in Australia there is a need to undertake the following transactions.

5. Several discrete assets will be transferred by AusCo to ForeignCo for consideration.

6. There will be an extension to the X Agreement to enable it to extend to additional products for no consideration.

7. A new manufacturing and distribution model will be introduced where AusCo or SubCo will be compensated for undertaking certain manufacturing and distribution functions on behalf of ForeignCo.

8. This will involve entering into the relevant legal framework such as manufacturing and distribution agreements that affect the export of certain products on or before the proposed commencement date.

9. Post commencement ForeignCo will have ownership of certain finished products and will sell these to related foreign entities for on sale to their respective domestic market and AusCo will continue to sell to the Australian market.

10. There will be changes to the AusCo group’s supply chain; movement of staff to ForeignCo and expected substantial commercial benefits.

11. As a result there will also be increases in foreign income tax offsets (FITO) allowable, a reduction in Earnings Before Interest and Tax (EBIT) for AusCo, and reduction in the assessable income and the Australian income tax payable, by the Ausco group.

12. Under the new model ForeignCo will undertake all export sales outside the Australian market by supplying the products to related non-Australian group entities who will then sell and distribute product within their respective domestic markets.

Relevant legislative provisions

Income Tax Assessment Act 1997 Division 104

Income Tax Assessment Act 1997 subsection 104-10(1)

Income Tax Assessment Act 1997 subsection 104-10(2)

Income Tax Assessment Act 1997 section 104-20

Income Tax Assessment Act 1997 subsection 104-20(1)

Income Tax Assessment Act 1997 section 104-35

Income Tax Assessment Act 1997 subsection 104-35(1)

Income Tax Assessment Act 1997 subsection 104-35(2)

Income Tax Assessment Act 1997 subsection 104-35(3)

Income Tax Assessment Act 1997 section 108-5

Income Tax Assessment Act 1997 paragraph 108-5(2)(b)

Income Tax Assessment Act 1997 section 116-20

Income Tax Assessment Act 1997 paragraph 116-30(3)(b)

Income Tax Assessment Act 1936 section 177C

Income Tax Assessment Act 1936 section 177CB

Income Tax Assessment Act 1936 section 177D

Income Tax Assessment Act 1936 section 177F

Income Tax Assessment Act 1936 Part X

Reasons for decision

All legislative references in the Reasons for decision are to the Income Tax Assessment Act 1936 unless otherwise stated.

Question 1

Summary

The Commissioner confirms that no CGT event will happen in relation to the goodwill of the AusCo TCG as a result of the implementation of the initiative in Australia.

Detailed reasoning

Whether CGT event A1 applies on the basis that there has been a disposal of goodwill?

Whether there has been a disposal of one of several businesses, or part of a business which itself could constitute a business

Conclusion

Does CGT event C1 happen as a result of the commencement of the initiative in Australia?

Conclusion

Question 2

Summary

The Commissioner confirms that no capital gain arises under CGT event D1 in relation to the extension of the X Agreement.

Detailed reasoning

Section 104-35 – Creating contractual or other rights – CGT event D1

1. CGT event D1 happens when you create a contractual right or other legal or equitable right in another person or entity (subsection 104-35(1)). The time of the event is when the contract is entered into or when the right is created (subsection 104-35(2)).

2. A capital gain arises under CGT event D1 if the capital proceeds from creating the right are more than the incidental costs incurred that relate to the event (subsection 104-35(3)).

3. The capital proceeds from a CGT event include the amount of money and the market value of any property the taxpayer receives, or is entitled to receive, in respect of the event happening (section 116-20).

4. The market value substitution rule does not apply in relation to capital proceeds for CGT event D1 if no capital proceeds are received from that event happening (paragraph 116-30(3)(b)).

5. On our facts, there will be contractual variations under the X Agreement as a result of it being extended to apply to additional products.

6. However, no capital gain can arise under CGT event D1.

7. This is because the AusCo TCG will not receive any capital proceeds upon the variation of the agreement and the market value substitution rule does not apply to CGT event D1 if no capital proceeds are received from that event happening.

Question 3

Summary

The Commissioner will not make a determination under paragraphs 177F(1)(a) and (d) to cancel the whole or part of any tax benefit of a kind referred respectively under paragraphs 177C(1)(a) and (bb) obtained, or that would but for paragraphs 177F(1)(a) and (d) be obtained, by AusCo as a result of the Scheme?

Detailed reasoning

1. Part IVA applies to a scheme, or any part of a scheme, entered into or carried out by a person for the dominant purpose of enabling a taxpayer to obtain a tax benefit in connection with the scheme. If Part IVA applies to a scheme, the Commissioner can make a determination under section 177F to cancel the tax benefit obtained under the scheme.

The Scheme

2. The relevant identified Scheme as described at paragraph 12 of the relevant facts and circumstances entails the new model whereby ForeignCo will undertake all export sales outside the Australian market by supplying the products to related non-Australian group entities who will then sell and distribute product within their respective domestic markets

3. The steps involved in the Scheme include entry into the relevant legal framework that affects the export of certain products.

4. Broadly, subsection 177C(1) provides that a tax benefit exists for the purposes of Part IVA where it would, or might reasonably be expected that, an amount would be included in assessable income; a deduction would not be allowable; a capital loss would not be incurred; or a foreign tax credit would not be allowable; to the taxpayer in a year of income, if the scheme had not been entered into or carried out.

5. Subsection 177D(3) provides that Part IVA only applies to the Scheme if the relevant taxpayer has obtained or would obtain a tax benefit in connection with the scheme.

6. The relevant enquiry in determining the tax benefit would therefore be the difference between what would be, as head of the Ausco TCG, AusCo’s FITO and assessable income under the Scheme entered into or carried out and what would be, or might reasonably be expected to be, AusCo’s FITO and assessable income if the scheme had not been entered into or carried out.

7. Section 177CB refers to two bases upon which the existence of tax benefits can be established, the ‘would have’ and the ‘might reasonably be expected to have’ approaches.

8. The first approach, otherwise known as the annihilation or ‘would have’ approach, is that if the scheme had not been entered into or carried out what ‘would have’ been the tax outcome for AusCo, as head of the AusCo TCG.

9. Under this approach, the postulate would be not to proceed with the Scheme in regard to the export of the relevant products.

10. This approach identified tax benefits for AusCo (as head company of the AusCo TCG) in relation to the omitted amounts of assessable income and increased FITO allowable for the AusCo TCG.

11. In determining objectively whether the sole or dominant purpose in entering into the scheme is to obtain (or would but for section 177(F)) a tax benefit, regard must be had to the eight matters outlined in subsection 177D(2).

12. The first three matters in paragraphs 177D(2) (a), (b) and (c) direct us to examine how the scheme is to be carried out; to focus our attention on the commercial and economic substance of the scheme; and to consider whether timing aspects of the scheme achieve a beneficial tax outcome.

13. Paragraph 177D(2)(h) enquires into the nature of the connection of the relevant taxpayer or any other person in connection with the scheme, and along with the above three matters, consider how the scheme achieves its effect to determine whether the taxpayer had the requisite purpose.

14. The relevant Scheme involves a new model whereby ForeignCo will undertake all export sales outside the Australian market by supplying the products to related non-Australian group entities who will then sell and distribute product within their respective domestic markets. This forms part of the broader commencement of the initiative in other regions.

15. The Scheme requires that the parties enter into the relevant legal framework before the proposed commencement date.

16. The legal framework will facilitate transactional and operational efficiency and affects numerous aspects of the supply chain of the products produced.

17. The timing of the Scheme is consistent with the wider planned commencement of the initiative in Australia and is also aligned with a long period of transition into a more centralised operation for regional activities offshore.

18. Together, all these factors do not indicate any contrivance or artificiality in respect of the Scheme. There is no discrepancy when comparing the intended manner in which the Scheme is to be implemented and the desired practical outcome expected from the scheme.

19. The other three matters in paragraphs 177D(2)(e), (f) and (g) focus on the legal, financial and other non-tax consequences for AusCo and related entities as a result of the Scheme. These factors direct an inquiry into the practical non-tax outcomes to assess whether the sole or dominant purpose of AusCo in entering into the Scheme is to obtain a tax benefit.

20. The changes to the ownership of certain assets, some of the functions performed and certain risks borne by AusCo, SubsidiaryCo, ForeignCo and relevant foreign AusCo group entities, reflect the legal framework of the Scheme.

21. These changes are necessary features of the Scheme in order to achieve the expected economic and financial gains for the AusCo group, including AusCo TCG.

22. Specifically, there will be substantial non-tax commercial gains under the Scheme that are expected to arise from improvements in the operations which are also anticipated to benefit the AusCo group and AusCo TCG.

23. Together these anticipated non-tax consequences and the previous matters in subsection 177D(2) discussed earlier indicate that the Scheme is reasonably expected to result in practical changes in the overall financial, legal and economic position of AusCo group, which includes AusCo and the AusCo TCG.

24. The final matter to be discussed in subsection 177D(2) requires consideration of the tax consequences that would be achieved by the Scheme in evaluating whether AusCo has the sole or dominant purpose in entering into scheme of obtaining the tax benefits (paragraph 177D(2)(d)).

25. The estimated tax benefits for AusCo in entering into the Scheme is the amount not included in the assessable income and the increase in FITO allowable in each income year as a result of entering into or carrying out the Scheme.

26. There will also be a net tax result under the Scheme that would be obtained by AusCo, representing the overall reduction in its Australian income tax payable in contrast with its Australian income tax payable had an alternative scheme been entered into or carried out.

27. Finally, there will be financial benefits worldwide and in Australia from the initiative, including the new manufacturing and distribution models for the relevant income years.

28. The estimated financial benefits as a result of the Scheme are significant when compared with the estimated increase in FITO allowable and the reduction in assessable income and Australian income tax payable for the relevant income years under the scheme.

29. Having regard to the eight matters in subsection 177D(2), we conclude that AusCo does not have a sole or dominant purpose in entering into the Scheme of obtaining a tax benefit. Rather, the Scheme is proposed to be entered into as part of the global reorganisation taking place within the AusCo group and AusCo TCG in order to achieve practical outcomes from the Scheme which has a significant commercial basis.

30. Accordingly, the Commissioner will not exercise his power to make a determination pursuant to paragraphs 177F(1)(a) and (d).


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