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This edited version has been archived due to the length of time since original publication.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 your written advice

Authorisation Number: 1051314550138

Date of advice: 29 November 2017

Ruling

Subject: Proposed demerger

Question

Will the proposed arrangement satisfy the requirements for demerger relief under Division 125 such that any capital gain or loss that Head Co makes on disposal of the existing units in New Trust to each unitholder of Unit Trust will be disregarded pursuant to section 125-155 of the ITAA 1997?

Answer

Yes

This ruling applies for the following period:

1 July 2017 to 30 June 2018

The scheme commences on:

1 July 2017

Relevant facts and circumstances

The corporate group consists of Australian resident and non-resident entities. The ultimate holding entity of the Group is the Unit Trust.

The units in Unit Trust are held equally by corporate trustees for multiple discretionary trusts. The units in the Unit Trust were acquired prior to 20 September 1985.

Unit Trust is a fixed trust and CGT Event E4 is capable of applying in respect of all of the units in the trust.

Unit Trust is not a complying superannuation entity for the purposes of subsection 125-65(2A) of the ITAA 1997.

Tax consolidated group

The tax consolidated group consists of an Australian group and an overseas group. The head company of the tax consolidated group (‘Head Co’) is wholly owned by the corporate trustee of the ultimate holding entity Unit Trust and is the head company of the tax consolidated group.

Holding Co is a subsidiary of the head company of the tax consolidated group and is the holding company of the overseas group. There is a distributable surplus in the accounts of Holding Co.

Holding Co owns all of the existing units in New Trust (a unit trust). New Trust has numerous subsidiaries which hold investments overseas (‘overseas subsidiaries’). The balance sheets of those subsidiaries in the relevant income year show that the investments make up the majority of the net assets.

New Trust is a fixed trust and CGT Event E4 is capable of applying in respect of all of the units in the trust.

New Trust is not a complying superannuation entity for the purposes of subsection 125-65(2A) of the ITAA 1997.

The proposed demerger

Under the proposed demerger:

Reasons for demerger

A number of commercial reasons have been provided for the demerger.

Relevant legislative provisions

Income Tax Assessment Act 1936 (ITAA 1936)

Section 44

Section 109C

Income Tax Assessment Act 1997 (ITAA 1997)

Section 104-10

Section 125-55

Section 125-60

Section 125-65

Section 125-70

Section 125-155

Section 701-1

Reasons for decision

Summary

The proposed arrangement will satisfy the requirements for demerger relief under Division 125. Any capital gain or loss that Head Co makes on the disposal of the existing units in New Trust to each unitholder of Unit Trust will be disregarded pursuant to section 125-155 of the ITAA 1997

Detailed reasoning

Division 125 of the ITAA 1997

The object of Division 125 is to facilitate the demerging of entities by ensuring that capital gains tax considerations are not an impediment to restructuring a business: section 125-5 of the ITAA 1997.

Section 125-155 of the ITAA 1997 provides that any capital gain or capital loss a demerging entity makes from CGT event A1 happening to its ownership interests in a demerged entity under a demerger is disregarded.

The meaning of the terms ‘ownership interest’, ‘demerger’, ‘demerging entity’ and ‘demerged entity’ are considered below.

‘Ownership interest’

The meaning of ‘ownership interest’ is defined in subsection 125-60(1) of the ITAA 1997 as follows:

The units in New Trust will be ownership interests within the meaning of subsection 125-60(1).

‘Demerger’

A demerger happens to a demerger group. The meaning of ‘demerger group’ is given by section 125-65. Subsection 125-65(1) provides that a demerger group comprises the head entity of the group and one or more demerger subsidiaries. A company or trust is eligible to be a head entity within the meaning of subsection 125-65(3) if no other member of the group owns ownership interests in the company or trust.

In the present case, Unit Trust will be the head entity of the demerger group as no other member of the group owns ownership interests in the trust. The demerger group will also consist of the following entities:

The conditions for a ‘demerger’ are set out in section 125-70 and will be met for the following reasons in the present case:

‘Demerging entity’

Subsection 125-70(7) of the ITAA 1997 defines ‘demerging entity’ as follows:

Head Co will be the demerging entity by virtue of the operation of the single entity rule (‘SER’) in section 701-1 of the ITAA 1997.

The Commissioner's view on the consequences of the SER are expressed in paragraphs 7, 8 and 9 of 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 (‘TR 2004/11’).

Relevantly, paragraph 8 of TR 2004/11 provides that:

Furthermore, in Taxation Determination TD 2004/49 Income tax: consolidation: capital gains: does the single entity rule in section 701-1 of the Income Tax Assessment Act 1997 apply in determining whether the consequences in Subdivision 125-C of the Income Tax Assessment Act 1997 apply to the head company of a consolidated group where one or more subsidiary members hold ownership interests in an entity outside the group that is being demerged? the Commissioner confirms at paragraph 6 that:

In this regard, the SER will deem Head Co to be the entity disposing of the units in New Trust for the purposes of section 104-10 of the ITAA 1997, and thus, it is the demerging entity.

‘Demerged entity’

Subsection 125-70(6) defines ‘demerged entity’ as:

New Trust is the demerged entity for the purposes of subsection 125-70(6) as the Discretionary trusts acquire interests in New Trust under the demerger: paragraph 125-70(6)(b).

Capital gain or loss from CGT event A1 disregarded

CGT event A1 happens to Head Co as the head company of the Australian tax consolidated group in accordance with the SER contained in section 701-1

Under section 125-155 of the ITAA 1997, any capital gain or loss that Head Co (the demerging entity) makes from CGT event A1 happening at the time of the disposal of the existing units in New Trust (its ownership interests) to the unitholders of Unit Trust in proportion to their holdings, will be disregarded because the event happens to its ownership interests in a demerged entity (New Trust) under a demerger.


Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).