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This edited version has been archived due to the length of time since original publication.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

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Edited version of your private ruling

Authorisation Number: 1012288498506

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Ruling

Subject: Employee share scheme - options, provisional allocation, and value share award

Question 1:

Will your assessable income in respect of a particular tranche of pre-assignment options granted to you before 1 July 2009 include the discount given in relation to the options for the financial year in which the tranche of options are exercised by you, or the financial year in which the underlying company shares are sold by you if that sale occurs within 30 days of exercising the options, but only to the extent the discount relates to services provided by you in Australia by virtue of section 83A-5(4) of the Income Tax (Transitional Provisions) Act 1997 (IT(TP)A 1997) and having regard to 768-910(1)(b) of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer:

Yes

Question 2:

Will your assessable income in respect of a particular tranche of options granted to you after 1 July 2009 include the discount given in relation to the options for the financial year in which the tranche of options becomes exercisable, or the financial year in which the underlying company shares are sold by you if that sale occurs within 30 days of the tranche becoming exercisable, but only to the extent the discount relates to services provided by you in Australia by virtue of section 83A-110(2) of the ITAA 1997 and having regard to 768-910(1)(b) of the ITAA 1997?

Answer:

Yes

Question 3:

With respect to the provisional allocations, do you acquire an 'ESS interest' within the meaning of that term in section 83A-10(1) of the ITAA 1997 when you are granted a provisional allocation under the employee share plan?

Answer:

Question 4:

With respect to the provisional allocations, do you acquire an 'ESS interest' within the meaning of that term in section 83A-10(1) of the ITAA 1997 at the time shares are released to you following the release date?

Answer:

Yes

Question 5:

If, in relation to the provisional allocations, the 'ESS interests' are the shares, will your assessable income include the discount given in relation to the shares for the financial year in which the shares are released to you, but only to the extent the discount relates to services provided by you in Australia by virtue of section 768-910(1)(b) of the ITAA 1997?

Answer:

Yes

Question 6:

If, in relation to the provisional allocations, the Commissioner does not confirm that the 'ESS interests' will be the shares, will he confirm that:

(a) an 'ESS deferred taxing point' occur with respect to the provisional allocation when the shares are released to you (or, in relation to provisional allocations acquired on or after 1 July 2009, when the shares are sold if that occurs within 30 days of the release); and

(b) your assessable income include the discount given in relation to the provisional allocations for the financial year in which the shares are released (or, in relation to provisional allocations acquired on or after 1 July 2009, the financial year in which the shares are sold if that occurs within 30 days of the release), but only to the extent the discount relates to services provided by you in Australia by virtue of section 768-9l0(l)(b) of the ITAA 1997?

Answer:

Not applicable

Question 7:

With respect to the value share awards, will you acquire an 'ESS interest' within the meaning of that term in section 83A-10(l) of the ITAA 1997 when you are granted value share awards under the employee share plan?

Answer:

Question 8:

With respect to the value share awards, will you acquire an 'ESS interest' within the meaning of that term in section 83A-10(1) of the ITAA 1997 at the time the shares are released to you following the committee making a determination to do so?

Answer:

Yes

Question 9:

If, in relation to the value share awards, the 'ESS interests' are the shares, will your assessable income include the discount given in relation to the shares for the financial year in which the shares are released to you, but only to the extent the discount relates to services provided by you in Australia by virtue of section 768-910(1)(b) of the ITAA 1997?

Answer:

Yes

Question 10:

If, in relation to the value share awards, the Commissioner does not confirm that the 'ESS interests' are the shares, will he confirm that:

(a) an 'ESS deferred taxing point' will occur with respect to the value share awards when the shares are released to you (or, in relation to value share awards granted on or after 1 July 2009, when the shares are sold if that occurs within 30 days of the release); and

(b) your assessable income includes the discount given in relation to the value share awards for the financial year in which the shares are released to you (or, in relation to value share awards granted on or after 1 July 2009, when the shares are sold if that occurs within 30 days of the release), but only to the extent the discount relates to services provided by you in Australia by virtue of section 768-910(l)(b) of the ITAA 1997?

Answer:

Not applicable

This ruling applies for the following periods:

the financial years ended 30 June 2008 to 30 June 2016

The scheme commences on:

1 July 2008

Relevant facts and circumstances

You work for an overseas public limited company that operates in Australia. You are working in Australia for this company and are on a temporary resident visa.

The company operates an employee share plan under which eligible employees are offered the opportunity to acquire awards under that plan, including a provisional share award allocation and value share awards. You are a participant in the employee share plan.

At the time of commencing your assignment to Australia, you held options, provisional allocations and value share awards which had not yet been satisfied with shares. These are collectively referred to as pre-assignment awards (or pre-assignment options, pre-assignment provisional allocations and pre-assignment value share awards). You will also be eligible to receive options, provisional allocations and value share awards during your assignment to Australia.

You have not made any election under section 139E of the Income Tax Assessment Act 1936 (ITAA 1936) with respect to pre-assignment awards acquired prior to 1 July 2009.

You have not made a section 139E election in relation to the options. Immediately after acquiring the options you did not hold a legal or beneficial interest in more than 5% of the company's shares and were not in a position to control the casting of more than 5% of the maximum number of votes that might be cast at the company's general meeting.

Options

The options are a right to acquire ordinary shares after payment of a specified exercise price determined on the grant date. They are exercisable based on certain conditions being met.

Provisional allocation

The provisional allocation is an allocation of shares. These grants do not constitute the acquisition of an interest in the company shares or a right to acquire them. The interest to the participants only arises when granted by the rulee on the award date.

Value share awards

The value share awards are an award over an increment of the company's ordinary shares for each specified monetary amount of additional value created. This is broadly the amount by which the company's market capitalisation exceeds the median total shareholder return achieved by certain of the company's competitors. They do not constitute the acquisition of an interest in the company shares or the right to them until they are released to them. They are released when the committee or the trustee exercises their discretion to do so.

You did not pay to be granted the options, provisional allocation, and value share awards.

The remuneration committee of the board of directors of the company will be responsible for overseeing all awards granted to you during your assignment in Australia. Most of the tranches of provisional allocations granted to you prior to the commencement of your assignment, and one of the tranches of value share awards, were granted by a non-resident trustee.

Assumptions

(a) You will remain employed by the company until shares are released to you in respect of your pre-assignment awards and any awards granted to you during your Australian assignment

(b) during the period of your assignment, you will perform your services in Australia, and

Relevant legislative provisions

subsection 6-5(1) of the ITAA 1997

subsection 6-5(2) of the ITAA 1997

section 6-10 of the ITAA 1997

subsection 6-15(1) of the ITAA 1997

section 10-5 of the ITAA 1997

Division 83A of the ITAA 1997

subsection 83A-10(1) of the ITAA 1997

subsection 83A-10(2) of the ITAA 1997

section 83A-20 of the ITAA 1997

subsection 83A-25(1) of the ITAA 1997

subsection 83A-25(2) of the ITAA 1997

section 83A-35 of the ITAA 1997

section 83A-110 of the ITAA 1997

subsection 83A-120(3) of the ITAA 1997

subsection 83A-120(4) of the ITAA 1997

subsection 83A-120(7) of the ITAA 1997

section 83A-340 of the ITAA 1997

section 768-910 of the ITAA 1997

subsection 768-910(1) of the ITAA 1997

paragraph 768-910(1)(b) of the ITAA 1997

subsection 768-910(3) of the ITAA 1997

subsection 995-1(1) of the ITAA 1997

Division 83A of the IT(TP)A 1997

subsection 83A-5(2) of the IT(TP)A 1997

Division 13A of the ITAA 1936

subsection 139CB of the ITAA 1936

section 139CD of the ITAA 1936

section 109D of the ITAA 1936

subsection 109D(3) of the ITAA 1936

paragraph 109D(3)(a) of the ITAA 1936

section 139E of the ITAA 1936

Reasons for decision

Question 1:

Will your assessable income in respect of a particular tranche of pre-assignment options granted to you before 1 July 2009 include the discount given in relation to the options for the financial year in which the tranche of options are exercised by you, or the financial year in which the underlying company shares are sold by you if that sale occurs within 30 days of exercising the options, but only to the extent the discount relates to services provided by you in Australia by virtue of section 83A-5(4) of the IT(TP)A 1997 and having regard to 768-910(1)(b) of the ITAA 1997?

Assessable income

Subsection 6-5(1) of the ITAA 1997 includes in a taxpayer's assessable income all income according to ordinary concepts. Subsection 6-5(2) of the ITAA 1997 further states that the assessable income of an Australian resident taxpayer includes the ordinary income derived directly or indirectly from all sources, whether in or out of Australia, during the financial year.

If an amount is not ordinary income, the amount may still be included in the taxpayer's assessable income by virtue of section 6-10 of the ITAA 1997, other assessable income (statutory income).

Particular types of other assessable income are listed in section 10-5 of the ITAA 1997. This section of the act lists certain amounts to include in your assessable income that are:

· not ordinary income; and

· are included in assessable income by a specific provision of either the ITAA 1997 or ITAA 1936.

If an amount is not ordinary income and is not statutory income, it is not assessable income (subsection 6-15(1) of the ITAA 1997).

Foreign sourced income earned by a temporary resident

The foreign source income exemption for temporary residents, contained in Subdivision 768-R of the ITAA 1997, provides an exemption from 1 July 2006 for most foreign income derived by residents of Australia for tax purposes who qualify as temporary residents of Australia.

Non-assessable non-exempt income is:

a. the ordinary income derived directly or indirectly from a source by you, other than in Australia if you derive it

b. the statutory income (other than a net capital gain) from a source by you, other than in Australia if you derive it

while you are a temporary resident under subsection 768-910(1) of the ITAA 1997.

In particular, section 768-910 of the ITAA 1997 provides that ordinary income derived from a foreign source, excluding employment related income, is exempt from income tax in Australia when derived by a temporary resident of Australia.

However income from a foreign source that you earn while you are a temporary resident of Australia and is remuneration for employment or services provided is not non-assessable non-exempt income (subsection 768-910(3) of the ITAA 1997).

A temporary resident is defined in subsection 995-1(1) of the ITAA 1997 as a person who neither them or their spouse are a resident of Australia under the Social Security Act 1991 and they hold a temporary visa granted under the Migration Act 1958.

Ordinary income, other than employment related income, you derived from a foreign source is therefore exempt from income tax in Australia under section 768-910 of the ITAA 1997 from the time when you became a temporary resident. However from that time any employment related income from a foreign source is assessable in Australia.

Employee share scheme

Division 83A of the ITAA 1997 relates to the taxation of discounts received and gains made on ESS interests acquired under employee share schemes on or after 14 December 2009. Division 13A of Part III of the Income Tax Assessment Act 1936 (ITAA 1936) provided for the taxation treatment of shares and rights acquired under employee share schemes up until that time. Some transitional provisions are contained in Division 83A of the Income Tax (Transitional Provisions) Act 1997 (IT(TP)A 1997).

Division 83A of the IT(TP)A 1997 states when Division 83A of the ITAA 1997 applies to an ESS interest.

Paragraph 83A-5(2)(a) of the IT(TP)A 1997 provides that Subdivision 83A-C of the ITAA 1997 applies in relation to the ESS interest if:
(a) all of the following subparagraphs apply:

(i) at the pre-Division 83A time, subsection 139B(3) of the Income Tax Assessment Act 1936 applied in relation to the interest;

(ii) the interest was acquired (within the meaning of former Division 13A) before 1 July 2009;

(iii) the cessation time mentioned in subsection 139B(3) of the Income Tax Assessment Act 1936, as in force at the pre-Division 83A time, for the interest did not occur before 1 July 2009.

Subparagraph 83A-5(4)(b)(i) of the IT(TP)A 1997 provides that (subject to subsection 83A-120(3) of the ITAA 1997) the ESS deferred taxing point is the cessation time mentioned in subparagraph 83A-5(2)(a)(iii). Subsection 83A-120(3) deals with disposal of the ESS interest, in regard to rights to acquire shares, if disposed of within 30 days after a certain time.

The cessation time mentioned in subparagraph 83A-5(2)(a)(iii) of the ITAA 1997 is the cessation time in former subsection 139B(3) of the ITAA 1936.

The cessation time of a right in former subsection 139B(3) of the ITAA 1936 is the year of income in which the cessation time in former section 139CB of the ITAA 1936 occurs.

The cessation time in former section 139(CB)(1) of the ITAA 1936 is the earliest of:

(a) the time when the taxpayer disposes of the right (other than by exercising it);

(b) the time when the employment in respect of which the right was acquired ceases;

(c) subject to subsection (3), if the right is exercised and there is a restriction preventing the taxpayer from disposing of the share acquired as a result of the exercise of the right or a condition that could result in the taxpayer forfeiting ownership of the share - the time when the last such restriction or condition ceases to have effect;

(d) subject to subsection (3), if the right is exercised and there is no such restriction or condition - the time when the right is exercised;

(da) if subsection (3) applies - the time when the taxpayer disposes of the share referred to in paragraph (3)(b);

(e) the end of the 10 year period starting when the taxpayer acquired the right.

If subsection 83A-5(4) of the IT(TP)A 1997 provides that where Subdivision 83A-C of the ITAA 1997 applies to an amount, it is not included in the taxpayer's assessable income under subsection 83A-110(1) of the ITAA 1997 (subparagraph 83A-5(4)(b)(i) of the IT(TP)A 1997) to the extent that it relates to employment outside Australia.

You have stated that you are a temporary resident of Australia here on a subclass 457 visa. You said that you have not made an election under section 139E of the ITAA 1936. In your situation, you held options at the time of commencing your assignment in Australia on 16 December 2011 that were granted to you before 1 July 2009. Accordingly, as the share options were received as part of your remuneration package from your employer, they were acquired under an employee share scheme as defined in subsection 83A-10(2) of the ITAA 1997.

The conditions in subsection 83A-5(2) of the IT(TP)A 1997 were met in regard to the pre-assignment options granted to you. This means that Subdivision 83A-C of the ITAA 1997 would apply. Therefore the discount given in relation to your options should be included in your assessable income in the financial year in which the cessation time occurs, or the date of disposal of the shares, if they are disposed of within 30 days after the cessation time, to the extent that they relate to your services provided in Australia.

Due to the assumptions that you:

· will continue to be employed by the company until the shares are released to you in respect of your pre-assignment awards and any granted during your Australian assignment

· you will perform your services in Australia during the period of your assignment

· the options are not exercisable after the tenth anniversary of grant, and

· you did not made any election under section 139E with respect to the pre-assignment awards acquired before 1 July 2009

· your cessation time will be when the rights are exercised.

Question 2:

An employee share scheme is a scheme under which ESS interests in a company are provided to employees (including past or prospective employees) of a company, or their associates, in relation to their employment (subsection 83A-10(2) of the ITAA 1997). An ESS interest is a beneficial interest in a share in a company or a right to acquire a beneficial interest in a share in a company (subsection 83A-10(1) of the ITAA 1997).

Subdivision 83A-B includes a discount received by a taxpayer on an ESS interest they acquire under an employee share scheme in their assessable income for the financial year in which they acquire the interest. A discount in regard to a share is the difference between the market value of the share or right and the consideration given for it.

Section 83A-20 of the ITAA 1997 provides that Subdivision 83A-B applies to an ESS interest if a taxpayer acquires the interest under an employee share scheme at a discount. Note 1 to section 83A-20 provides that Subdivision 83A-B does not apply if Subdivision 83A-C applies.

Section 83A-105 of the ITAA 1997 provides that Subdivision 83A-C applies and Subdivision 83A-B does not apply to an ESS interest that is a beneficial interest in a right to acquire a beneficial interest in a share if all of the following conditions are satisfied:

Subdivision 83A-B would, apart from this section, apply to the interest.

When the taxpayer acquires the interest they are employed by the company.

When the taxpayer acquires the interest all the interests available for acquisition under the employee share scheme relate to ordinary shares.

When the taxpayer acquires the interest the predominant business of the company is not the acquisition, sale or holding of shares, securities or other investments.

Immediately after the taxpayer acquires the interest they do not hold a beneficial interest in more than 5% of the shares in the company and are not in a position to cast or control the casting of more than 5% of the maximum number of votes that might be cast at a general meeting of the company.

When the taxpayer acquires the interest there is a real risk that under the conditions of the scheme they will forfeit or lose the interest (other than by disposing of it, exercising the right or letting the right lapse) or forfeit or lose the beneficial interest in the share (other than by disposing of it).

By the operation of subsection 83A-20(2) of the ITAA 1997, a taxpayer does not acquire a share under an employee share scheme where the share is acquired as a result of the exercise of a right acquired under an employee share scheme.

When an employee acquires rights under an employee share scheme there is a real risk that under the conditions of the scheme the employee will forfeit or lose the rights if they cease employment before the vesting date of the rights where that date is 12 months or more from the date the rights were granted (ATO Interpretative Decision ATO ID 2010/61).

You said that you are a temporary resident of Australia here on a subclass 457 visa and have not made an election under section 139E of the ITAA 1936. In your situation, you held options at the time of commencing your assignment in Australia that were granted to you after 1 July 2009. The share options were received as part of an employee share scheme.

The rights you receive after 1 July 2009 meet the conditions in section 83A-105 of the ITAA 1997 and therefore Subdivision 83A-C applies. The discount given on the granting of your options should be included in your assessable income under subsection 83A-110(2) of the ITAA 1997, in the financial year when you are able to exercise the options, to the extent that they relate to your services provided in Australia.

Question 3:

An ESS interest in a company is either a beneficial interest in a share in a company or the right to acquire a beneficial interest in a company under subsection 83A-10(1) of the ITAA 1997.

Class Ruling CR 2012/39 gives the Commissioner's view on a similar scheme to that made available by the company to you. This ruling applies to residents of Australia and not temporary residents. At paragraph 30 it states that according to the rules of the trust deeds the provisional allocation does not entitle the participants to an interest in the trust fund.

CR 2012/39 paragraph 33 explains that the provisional allocation only gives the participant 'a right to require the proper exercise of the Trustee's absolute discretion (to release the shares) and due administration of the trust'. This is not a right to require property as referred to in section 83A-340 of the ITAA 1997 (paragraph 37 of CR 2012/39). They have 'not acquired a beneficial interest in a right that later becomes a right to acquire a beneficial interest in a share' (paragraph 37 and 40 of CR 2012/39).

It is not until the trustee exercises their discretion and the shares are released that the participant has a beneficial interest in a share or in a right to acquire a share. Therefore at the time of the provisional allocation the participant does not acquire an ESS interest.

You are an employee of an overseas public limited company that operates in Australia and a temporary resident of Australia. At the time of commencing your assignment to Australia, you held pre-assignment provisional allocations which had not yet been satisfied with shares. You will also be eligible to receive provisional allocations during your assignment to Australia.

At the time of acquiring these provisional allocations you did not acquire an ESS interest in the company.

Question 4:

An ESS interest in a company arises when you acquire a beneficial interest in a share in a company or the right to acquire a beneficial interest in a company under subsection 83A-10(1) of the ITAA 1997.

CR 2012/39 paragraph 26 states that a participant acquires ESS interests at the time that the shares that were provisionally allocated to the participant are released (section 83A-10(1) of the ITAA 1997).

In your case you will acquire an ESS interest when the shares are released to you.

The release of these shares is subject to the discretion of the committee and conditional on your continued employment with the company and satisfying the performance target.

Therefore you will acquire an ESS interest in the company at the release date of any provisional allocation of shares, if you acquire shares then.

Question 5:

The assessable income of the participant in the employee share plan who receives provisionally allocated shares includes the discount given in relation to the shares under subsection 83A-25(1) of the ITAA 1997 in the financial year when they are released to the participant (paragraph 27 of CR 2012/39).

The discount amount included in your assessable income is treated as being from a source other than an Australian source if it relates to your employment outside Australia (subsection 83A-25(2) of the ITAA 1997). Australian source in relation to income is defined in subsection 995-1(1) of the ITAA 1997 as income that is derived from a source in Australia. For a temporary resident this would be the same, including a discount from Australian source income in your assessable income.

You will include in your assessable income the discount from any provisional allocations to shares which have been released to you in the financial year in which they are released, to the extent that they relate to your services provided in Australia.

Question 6:

If, in relation to the provisional allocations, the Commissioner does not confirm that the 'ESS interests' will be the shares, will he confirm that:

Not applicable as it has been determined that the ESS interests will be the shares.

Question 7:

An ESS interest in a company is either a beneficial interest in a share in a company or the right to acquire a beneficial interest in a company under subsection 83A-10(1) of the ITAA 1997.

Value share awards are similar to the provisional allocation of shares. Subdivision 83A-C of the ITAA 1997 does not apply to the value share award as at the time of their release there is not a real risk of their forfeiture. Section 83A-35 of the ITAA 1997 (and the reduction of $1,000) does not apply to these released shares as they are not subject to a minimum holding period (paragraph 51 of the CR 2012/39).

In the information provided with the private ruling application it stated that the value share awards did not constitute the acquisition of an interest in company shares or the right to them until they are released to them. It also said that they 'are released when the committee or the trustee exercises their discretion to do so'.

The value share awards are not an ESS interest when they are granted to you as they do not give you a beneficial interest in the company.

Question 8:

As an ESS interest in a company arises when you acquire a beneficial interest in a share in a company or the right to acquire a beneficial interest in a company (subsection 83A-10(1) of the ITAA 1997).

Therefore you acquire an ESS interest in the company when any value share awards are released to you following the committee's determination.

Question 9:

For your shares released from the value share awards in the company (allocated to you on or after 1 July 2009) the taxing point will be when you acquire an ESS interest at a discount, that is when the shares were released to you. At this point you include the discount on the value share awards in your assessable income for that financial year, to the extent the discount relates to services provided by you in Australia.

Question 10:

If, in relation to the value share awards, the Commissioner does not confirm that the 'ESS interests' are the shares, will he confirm that:

Not applicable as it has been determined that the ESS interests will be the shares.

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