Tax and Superannuation Laws Amendment (Employee Share Schemes) Act 2015 (105 of 2015)

Schedule 1   Improvements to taxation of employee share schemes

Part 1   Main amendments

Income Tax Assessment Act 1997

11   At the end of Subdivision 83A-B

Add:

83A-45 Further conditions for reducing amounts included in assessable income

Employment

(1) This subsection applies to an *ESS interest in a company if, when you acquire the interest, you are employed by:

(a) the company; or

(b) a *subsidiary of the company.

Employee share scheme relates only to ordinary shares

(2) This subsection applies to an *ESS interest you acquire under an *employee share scheme if, when you acquire the interest, all the ESS interests available for acquisition under the scheme relate to ordinary *shares.

Integrity rule about share trading and investment companies.

(3) This subsection applies to an *ESS interest in a company unless, when you acquire the interest:

(a) the predominant business of the company (whether or not stated in its constituent documents) is the acquisition, sale or holding of *shares, securities or other investments (whether directly or indirectly through one or more companies, partnerships or trusts); and

(b) you are employed by the company; and

(c) you are also employed by any other company that is:

(i) a *subsidiary of the first company; or

(ii) a holding company (within the meaning of the Corporations Act 2001) of the first company; or

(iii) a subsidiary of a holding company (within the meaning of the Corporations Act 2001) of the first company.

Minimum holding period

(4) This subsection applies to an *ESS interest you acquire under an *employee share scheme if, at all times during the interest's *minimum holding period, the scheme is operated so that every acquirer of an ESS interest (the scheme interest ) under the scheme is not permitted to dispose of:

(a) the scheme interest; or

(b) a beneficial interest in a *share acquired as a result of the scheme interest;

during the scheme interest's minimum holding period.

Note: This subsection is taken to apply in the case of a takeover or restructure: see subsection 83A-130(3).

(5) An *ESS interest's minimum holding period is the period starting when the interest is acquired under the *employee share scheme and ending at the earlier of:

(a) 3 years later, or such earlier time as the Commissioner allows if the Commissioner is satisfied that:

(i) the operators of the scheme intended for subsection (4) to apply to the interest during the 3 years after that acquisition of the interest; and

(ii) at the earlier time that the Commissioner allows, all *membership interests in the relevant company were disposed of under a particular *scheme; and

(b) when the acquirer of the interest ceases being employed by the relevant employer.

10% limit on shareholding and voting power

(6) This subsection applies to an *ESS interest in a company if, immediately after you acquire the interest:

(a) you do not hold a beneficial interest in more than 10% of the *shares in the company; and

(b) you are not in a position to cast, or to control the casting of, more than 10% of the maximum number of votes that might be cast at a general meeting of the company.

(7) For the purposes of subsection (6), you are taken to:

(a) hold a beneficial interest in any *shares in the company that you can acquire under an *ESS interest that is a beneficial interest in a right to acquire a beneficial interest in such shares; and

(b) be in a position to cast votes as a result of holding that interest in those shares.