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Edited version of your written advice
Authorisation Number: 1012638816976
Ruling
Subject: Employee share scheme - indeterminate right
The ruling concerned the following issues and the Commissioner has ruled on each of the questions:
Question 1: Did the Taxpayer meet the definition of a temporary resident in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for tax purposes during their time in Australia from the date on which the 'temporary resident' legislation received Royal Assent on 6 April 2006 through to the date the Taxpayer left Australia?
Answer:
Yes.
Question 2: Does the Taxpayer meet the definition of a non-resident of Australia in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) from the date the Taxpayer left Australia to the date of this ruling request?
Answer:
Yes.
Question 3: Is the Right granted to the Taxpayer an indeterminate right within the meaning of section 83A-340 of the ITAA 1997?
Answer:
Yes.
Question 4: Does section 83A-15 of the Income Tax (Transitional Provisions) Act 1997 (ITTPA 1997) apply to the Right?
Answer:
No.
Question 5: Is the Right subject to Division 83A of the ITAA 1997?
Answer:
Yes.
Question 6: Is the Right subject to former Division 13A of Part III of the ITAA 1936?
Answer:
No.
Question 7: Is the Right acquired under an employee share scheme (ESS) within the meaning of former section 139C of the ITAA 1936?
Answer:
Yes.
Question 8: Is the Right granted to the Taxpayer a 'qualifying right' within the meaning of former section 139CD of the ITAA 1936?
Answer:
No.
Question 9: Is there a taxing point of the Right under former section 139B of the ITAA 1936?
Answer:
No.
Question 10: Will the Commissioner exercise his discretion to allow the Taxpayer to make a late election under former section 139E of the ITAA 1936?
Answer:
No.
Question 11: Will a capital gain or loss upon subsequent sale of the shares acquired from the exercise of the Right be disregarded under section 855-10 of the ITAA 1997 if the Taxpayer is a non-resident at the time of disposal?
Answer:
Yes.
Question 12: Will a capital gain or loss upon subsequent sale of the shares acquired from the exercise of the Right be disregarded under section 768-915 of the ITAA 1997 if the Taxpayer is a temporary resident at the time of disposal?
Answer:
Yes.