ATO Interpretative Decision

ATO ID 2004/889

Income tax

• This ATO ID is currently under review.

Issue

Where a credit union business is voluntarily transferred to another eligible credit union business, pursuant to the provisions of the Financial Sector (Business Transfer and Group Restructure) Act 1999 (FSBTGR Act) is the receiving body taken to have bought debts from the transferring body equal to the amount of the debts as at the effective date of the transfer?

Decision

Yes.

Facts

Entity A, the transferring body, has transferred its business to Entity B, the receiving body, in accordance with the FSBTGR Act. Both entities are authorised deposit-taking institutions for the purposes of the Banking Act 1959.

The parties satisfied all of the relevant procedural and substantive provisions determined by the Australian Prudential Regulation Authority (APRA), including preparation of a statement under section 20 of the FSBTGR Act (section 20 statement). The section 20 statement provided that the consequences for parties of the transfer of assets and liabilities under the FSBTGR Act are taken to be the same as if the transfer involved a sale of the assets of the transferring body to the receiving body.

APRA approved the transfer of business and issued a certificate of transfer pursuant to section 18 of the FSBTGR Act.

Reason for Decision

The FSBTGR Act was enacted to enhance stability in the Australian financial sector by facilitating the merging of eligible entities and otherwise unviable institutions. Under this Act, APRA, in approving the transfer, is required to have regard to the interests of the members of such entities and the financial sector as a whole.

The FSBTGR Act empowers APRA to approve, and in some circumstances to compel amalgamations of eligible entities for the purpose of enhancement of the Australian financial sector. For practical purposes, the aim of the FSBTGR Act is to enable APRA to provide certainty that an endorsed transfer is effective at law to ensure that the rights and liabilities of the transferring entity survive in the new entity.

This certainty is achieved by APRA issuing a certificate of transfer pursuant to section 18 of the FSBTGR Act stating that the transfer is to take effect on the date specified.

Broadly, section 22 of the FSBTGR Act provides that when APRA issues a certificate of transfer, the receiving body becomes the successor in law of the transferring body. In particular, all the assets and liabilities of the transferring body become assets and liabilities of the receiving body without any additional formality. Further, the totality of duties, obligations, immunities, rights and privileges applying to the transferring body apply to the receiving body.

Subject to the relevant circumstances of each case of voluntary total transfer of business sanctioned under the FSBTGR Act as originally enacted, the Commissioner will aim to administer the tax law in such a way that it complements the operation of the FSBTGR Act and promotes the stated objectives of the legislation. In practice this will be accomplished by adopting adjustments on the basis of acceptable valuations.

Amendment History

Year of income:  Year ended 30 June 2002

Legislative References:
Income Tax Assessment Act 1997
   section 25-35

Keywords
Acquisition of business
Bad debts

Siebel/TDMS Reference Number:  294582

Business Line:  Public Groups and International

Date of publication:  19 November 2004

ISSN: 1445-2782