Income Tax Assessment Act 1936
This section applies in respect of a company that, whether in the same year of income or in different years of income, streams the provision of capital benefits and the payment of dividends to its shareholders in such a way that:
(a) the capital benefits are, or apart from this section would be, received by shareholders (the advantaged shareholders ) who would, in the year of income in which the capital benefits are provided, derive a greater benefit from the capital benefits than other shareholders; and
(b) it is reasonable to assume that the other shareholders (the disadvantaged shareholders ) have received, or will receive, dividends.
However, it does not apply if section 45 applies in relation to the streaming or in the circumstances set out in subsection (5).Commissioner to determine that section 45C applies 45A(2)
The Commissioner may make, in writing, a determination that section 45C applies in relation to the whole, or a part, of the capital benefits. A determination does not form part of an assessment.
Subsection (6) limits the determination to a part of the capital benefit in certain cases.Meaning of provision of capital benefit 45A(3)
A reference to the provision of a capital benefit to a shareholder in a company is a reference to any of the following:
(a) the provision to the shareholder of shares in the company;
(b) the distribution to the shareholder of share capital or share premium;
(c) something that is done in relation to a share that has the effect of increasing the value of a share (which may or may not be the same share) held by the shareholder.
For the purposes of this section, a non-share distribution to an equity holder is taken to be the distribution to the equity holder of share capital to the extent to which it is a non-share capital return.
The circumstances in which a shareholder would, in a year of income, derive a greater benefit from capital benefits than another shareholder include, but are not limited to, any of the following circumstances existing in relation to the first shareholder and not in relation to the other shareholder:
(a) some or all of the shares in the company held by the shareholder were acquired, or are taken to have been acquired, before 20 September 1985;
(b) the shareholder is a non-resident;
(c) the cost base (for the purposes of Part IIIA ) of the relevant share is not substantially less than the value of the applicable capital benefit;
(d) the shareholder has a net capital loss for the year of income in which this capital benefit is provided;
(e) the shareholder is a private company who would not have been entitled to a rebate under former section 46F if the shareholder had received the dividend that was paid to the disadvantaged shareholder;
(f) the shareholder has income tax losses.
This section does not apply where the capital benefit provided to the advantaged shareholders is the provision of shares and it is reasonable to assume that the disadvantaged shareholders have received, or will receive, fully franked dividends. Determination limited in certain cases 45A(6)
If the capital benefit provided to the advantaged shareholders is the provision of shares and it is reasonable to assume that the disadvantaged shareholders have received, or will receive, partly franked dividends, the Commissioner may only make a determination under subsection (2) in relation to so much of the capital benefit as the Commissioner considers relates to the unfranked part of the dividend.
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