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This edited version has been archived due to the length of time since original publication.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

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your written advice

Authorisation Number: 1051385347123

Date of advice: 18 June 2018

Ruling

Subject: Capital raising

    1. Will each Note be treated as an equity interest (as defined in subsection 995-1(1) of the ITAA 1997) under section 974-70 of the ITAA 1997?

    2. Will the Distributions made on the Notes be frankable non-share dividends within the meaning of sections 202-30 and 202-40 of the ITAA 1997?

    3. Will a franking debit arise as a result of the application of the linked distribution provisions in section 204-15 of the ITAA 1997?

    4. Will the Commissioner make a determination under paragraph 204-30(3)(a) of the ITAA 1997 to give rise to a franking debit to the Issuer in relation to distributions made in respect of either the Notes or a previously issued equity instrument?

    5. Will the Commissioner make a determination under paragraph 177EA(5)(a) of the ITAA 1936 to give rise to a franking debit for the Issuer in relation to Distributions made in respect of the Notes?

    6. Will the Commissioner make a determination under subsection 45C(3) of the ITAA 1936 in relation to the transaction?

    7. Will the Notes be subject to the commercial debt forgiveness provisions in Division 245 of the ITAA 1997?

    8. Will an assessable profit or gain arise for the Issuer under sections 6-5 or 6-10 of the ITAA 1997 in relation to the issue of the Notes, the issue of ordinary shares on exchange of the Notes, or redemption of the Notes?

    9. Will the Issuer be required to recognise gains and losses under Division 230 of the ITAA 1997 in relation to the Notes?

    10. Will the share capital account of the Issuer become tainted within the meaning of Division 197 of the ITAA 1997 upon the issue of the Notes, by the issue of ordinary shares on exchange of the Notes, or on redemption of the Notes?

Decision

The Commissioner ruled that:

    1. Yes, each Note will be treated as an equity interest in the Issuer (as defined in subsection 995-1(1) of the ITAA 1997) under section 974-70 of the ITAA 1997.

    2. Yes, the Distributions made on the Notes will be frankable non-share dividends within the meaning of sections 202-30 and 202-40 of the ITAA 1997.

    3. No, a franking debit will not arise as a result of the application of the linked distribution provisions in section 204-15 of the ITAA 1997.

    4. No, the Commissioner will not make a determination under paragraph 204-30(3)(a) of the ITAA 1997 to give rise to a franking debit to the Issuer in relation to distributions made in respect of either the Notes or a previously issued equity instrument.

    5. No, the Commissioner will not make a determination under paragraph 177EA(5)(a) of the ITAA 1936 to give rise to a franking debit for the Issuer in relation to Distributions made in respect of the Notes.

    6. No, the Commissioner will not make a determination under subsection 45C(3) of the ITAA 1936 in relation to the transaction.

    7. No, the Notes will not be subject to the commercial debt forgiveness provisions in Division 245 of the ITAA 1997.

    8. No, an assessable profit or gain will not arise for the Issuer under either section 6-5 or 6-10 of the ITAA 1997 in relation to the issue of the Notes, the issue of ordinary shares on exchange of the Notes, or redemption of the Notes.

    9. No, the Issuer will not be required to recognise gains and losses under Division 230 of the ITAA 1997 in relation to the Notes.

    10. No, the share capital account of the Issuer will not become tainted within the meaning of Division 197 of the ITAA 1997 upon the issue of the Notes, by the issue of ordinary shares on exchange of the Notes, or on redemption of the Notes.


Back to top