Edited version of your written advice

Authorisation Number: 1013076566365

Date of advice: 23 August 2016

Ruling

Subject: Division 7A of Part III of the Income Tax Assessment Act 1936

Question 1

Will the Commissioner exercise the discretion under section 109RB of the Income Tax Assessment Act 1936 (ITAA 1936) to disregard the operation of Division 7A of part III of the ITAA 1936?

Answer

Yes

This ruling applies for the following periods:

Income year ended 30 June 2011

Income year ended 30 June 2012

Income year ended 30 June 2013

Income year ended 30 June 2014

Income year ended 30 June 2015

Income year ended 30 June 2016

The scheme commences on:

1 July 2010

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

The Group used an Account as part of its accounting practices.

The accounts of the Group were reviewed following the retirement of its tax-agent.

The review identified that the Account had given rise to a number of "loans" between entities in the Group.

The Group had used the Account for many years, and the accounting practices were not updated.

Prior to the review, the Group was unaware of the existence of the loans.

The relevant parties have entered into loan agreements that comply with Division 7A of Part III of the ITAA 1936, and the borrower to each loan have made minimum yearly repayments under section 109E.

The Group otherwise complies with Division 7A of Part III of the ITAA 1936.

Relevant legislative provisions

Income Tax Assessment Act 1936 Section 109D

Income Tax Assessment Act 1936 Section 109E

Income Tax Assessment Act 1936 Section 109N

Income Tax Assessment Act 1936 Section 109RB

Income Tax Assessment Act 1936 Subdivision EA of Division 7A of Part III

Income Tax Assessment Act 1936 Subdivision EB of Division 7A of Part III

Reasons for decision

Division 7A of Part III of the Income Tax Assessment Act 1936 (ITAA 1936) operates to treat certain loans and other payments made by a private company to a shareholder or their associate as assessable income (unfranked dividends) of the shareholder or associate.

Section 109D of the ITAA 1936 provides that where a private company makes a loan to a shareholder or their associate in an income year, and the loan is not fully repaid by the lodgement day of that income year, the loan is taken to be a dividend paid to the shareholder or their associate at the end of that income year, unless the provisions in subdivision D of Division 7A of Part III of the ITAA 1936 prevent the loan from being treated as a dividend.

Subdivision EA and Subdivision EB of Division 7A of Part III of the ITAA 1936 also provide for a loan from a trustee of a trust to a shareholder or an associate of a shareholder of a private company to be included in the assessable income of the shareholder or the shareholder's associate, as if it were a dividend paid by the company to the shareholder or the shareholder's associate, where the trustee of the trust makes a loan (including through an interposed entity) to a shareholder or an associate of a shareholder of a private company, and the private company has (or had) a present entitlement to an amount from the trust, and the whole of that amount has not been paid to the company.

The Group accept that Division 7A will operate to treat the "loans" as a dividend, or assessable income.

In circumstances where Division 7A operates with the result that a private company is taken to pay a dividend to a shareholder or their associate, or an amount, as if it were a dividend, is included in the assessable income of a shareholder or their associate, subsection 109RB(2) of the ITAA 1936 provides the Commissioner with discretion to either disregard the operation of Division 7A, or allow the deemed dividend to be franked, where the operation of Division 7A arose because of an honest mistake or inadvertent omission by either the recipient, the private company, or any other entity whose conduct contributed to that result (subsection 109RB(1)).

The Commissioner may exercise the discretion subject to conditions (subsection 109RB(4) of the ITAA 1936).

Honest mistake or inadvertent omission

A mistake in the context of Division 7A is an incorrect view or opinion or misunderstanding about how the division operates; about facts that are relevant to its operation; or about other matters that affect its operation. An omission is a failure to take action that is relevant to, or affects, the operation of Division 7A.

Taxation Ruling TR 2010/8 Income tax: application of subsection 109RB(1) of the Income Tax Assessment Act 1936 requires a consideration of the following matters when determining if Division 7A operated as a result of an honest mistake or inadvertent omission:

7. In each case, it is a question of fact whether an honest mistake or inadvertent omission has occurred. All the facts and circumstances must be considered to determine whether an honest mistake or inadvertent omission occurred.

…

10. In determining whether a person has made an honest mistake or an inadvertent omission, that person's actual state of mind or belief is in issue. However, the available evidence may provide an indication of the person's actual state of mind.

The following circumstances are relevant to determining whether Division 7A operated because of an honest mistake or inadvertent omission:

• The Group used an Account as part of its accounting practices.

• The accounts of the Group were reviewed following the retirement of its tax-agent.

• The review identified that the Account had given rise to a number of "loans" between entities in the Group.

• The Group had used the Account for many years, and the accounting practices were not updated.

• Prior to the review, the Group was unaware of the existence of the loans.

It is accepted that Division 7A operated because of an honest mistake or inadvertent omission.

Applying the factors in subsection 109RB(3) of the ITAA 1936 to determine whether the discretion should be exercised

Subsection 109RB(3) of the ITAA 1936 provides that the Commissioner must have regard to the following relevant factors when making a decision on whether to exercise the discretion in subsection 109RB(2) of the ITAA 1936:

(a) The circumstances that led to the mistake or omission;

(b) The extent to which the recipient, the private company, or other entity whose conduct contributed to Division 7A operating, has taken action to correct the mistake or omission, and if so, how quickly the action was taken;

(c) Whether Division 7A has operated previously in relation to the recipient, the private company, or other entity whose conduct contributed to Division 7A operating, and if so, the circumstances in which it occurred

(d) Any other matters that the Commissioner considers relevant.

The following circumstances are considered relevant in deciding whether the discretion should be exercised:

• The Group used an Account as part of its accounting practices.

• The accounts of the Group were reviewed.

• The review identified that the Account had given rise to a number of "loans" between entities in the Group.

• The Group had used the Account for many years, and the accounting practices were not updated.

• Prior to the review, the Group was unaware of the existence of the loans.

• The relevant parties have entered into loan agreements that comply with Division 7A of Part III of the ITAA 1936, and the borrower to each loan have made minimum yearly repayments under section 109E.

• The Group otherwise complies with Division 7A of Part III of the ITAA 1936.

In these circumstances, the Commissioner will exercise the discretion under subsection 109RB(2) of the ITAA 1936 and disregard the operation of Division 7A of Part III of the ITAA 1936 subject to the minimum yearly repayments required under section 109E of the ITAA 1936 being made in future years until such time as the relevant amalgamated loans are repaid in full.