Edited version of your written advice

Authorisation Number: 1051401233066

Date of advice: 24 August 2018

Ruling

Subject: ESS interest and employee share trust

Question 1

Will Company A obtain an income tax deduction, pursuant to section 8-1 of the ITAA 1997, in respect of the irretrievable cash contributions made by Company A or any of the subsidiary members of the Company A tax consolidated group to the Trustee of the EST to fund the subscription for or acquisition of Company A shares on-market by the EST?

Answer

Yes.

Question 2

Will Company A obtain income tax deductions, pursuant to sections 8-1 or 25-5 of the ITAA 1997, in respect of costs incurred in relation to the on-going administration of the EST?

Answer

Yes.

Question 3

Are irretrievable contributions made by Company A (including contributions made by subsidiary members of the Company A income tax consolidated group), to the Trustee of the EST, to fund the subscription for or acquisition on-market of Company A shares by the EST to satisfy ESS interests, deductible to Company A at a time determined by section 83A-210 of the ITAA 1997, in respect of those ESS interests which are subject to Division 83A of the ITAA 1997, where the contributions are made before the acquisition of the relevant ESS interests?

Answer

Yes.

Question 4

If the EST satisfies its obligation under any of the Plans by subscribing for new shares in Company A, will the subscription proceeds be included in the assessable income of Company A under sections 6-5 or 20-20 of the ITAA 1997 or trigger a capital gains tax (CGT) event under Division 104 of the ITAA 1997?

Answer

No.

Question 5

Will the Commissioner seek to make a determination that former Part IVA of the ITAA 1936 applies to deny, in part or in full, any deduction claimed by Company A in respect of the irretrievable contributions made prior to DDMMYY by Company A (including contributions made by subsidiary members of the Company A income tax consolidated group) to the Trustee of the EST to fund the subscription for or acquisition on-market of Company A shares by the EST?

Answer

No.

Question 6

Will the Commissioner seek to make a determination that Part IVA of the ITAA 1936 applies to deny, in part or in full, any deduction claimed by Company A in respect of the irretrievable contributions made on or after DDMMYY by Company A (including contributions made by subsidiary members of the Company A income tax consolidated group) to the Trustee of the EST to fund the subscription for or acquisition on-market of Company A shares by the EST?

Answer

No.

The rulings for questions 1 to 6 inclusive each apply for the following periods:

1 July 2018 to 30 June 2019

1 July 2019 to 30 June 2020

1 July 2020 to 30 June 2021

1 July 2021 to 30 June 2022

1 July 2022 to 30 June 2023

1 July 2023 to 30 June 2024

Question 7

Is the provision of Performance Rights, Options or shares in Company A under the Plans to employees of Company A or any subsidiary member of the Company A income tax consolidated group, a fringe benefit within the meaning of subsection 136(1) of the Fringe Benefit Tax Assessment Act 1986 (FBTAA)?

Answer

No.

Question 8

Will the irretrievable contributions made by Company A or any subsidiary member of the Company A income tax consolidated group, to the Trustee of the EST, to fund the subscription for or acquisition on-market of Company A shares, be treated as a fringe benefit within the meaning of section 136(1) of the FBTAA?

Answer

No.

Question 9

Will the Commissioner seek to make a determination that section 67 of the FBTAA applies to increase the aggregate fringe benefits amount of Company A or any subsidiary member of the Company A income tax consolidated group by the amount of the tax benefit gained from the irretrievable contributions made by Company A or the subsidiary member of the Company A income tax consolidated group to the Trustee of the EST to fund the subscription for or acquisition on-market of Company A shares in accordance with the Trust Deed?

Answer

No.

The rulings for questions 7 to 9 inclusive each apply for the following periods:

1 April 2019 to 31 March 2020

1 April 2020 to 31 March 2021

1 April 2021 to 31 March 2022

1 April 2022 to 31 March 2023

1 April 2023 to 31 March 2024

Relevant facts and circumstances

Company A has implemented a number of equity based compensation plans, namely Plan A and Plan B which are collectively referred to as the Plans.

Company A established the EST pursuant to the Company A Employee Share Trust Deed and entered into between Company A and the Trustee (Trust Deed) facilitate the provision of ordinary shares in Company A under each of the Plans to Australian employees and directors of:

● Company A and certain other entities that form part of the Company A income tax consolidated group;

● Company C and certain other entities that form part of the Company C income tax consolidated group (Company C Group); and

● Company D as trustee for the Company D Unit Trust.

The Trustee is an unrelated entity.

The applicant submits that the EST was implemented to provide Company A with greater flexibility to accommodate the long term incentive arrangements of Company A whilst the business continues to expand in terms of operation and employee numbers in future years. The EST also accommodates capital management flexibility for Company A in that the EST can use the contributions from Company A to either acquire shares in Company A on-market or alternatively, subscribe for new shares in Company A.

Similarly, use of the EST allows for a streamlined approach to the administration of the Plans. The EST can also be used to provide a range of incentives involving shares in Company A as circumstances change in the labour market and can be used in conjunction with the different incentives required to be provided in order to attract, reward and retain key employees. The key features of the Plans and EST are outlined below.

Plan A

The purpose of the Plan A is to attract and retain quality personnel and to further align the interests of staff and shareholders. Plan A has been in place over ten years and has been regularly approved at annual general meetings.

Plan A broadly operates as follows in accordance with the Plan A Rules:

● It is at the employer’s discretion to extend the invitation to certain employees to apply for the number of Options specified in the invitation.

● An option may only be offered under Plan A to:

● a full time or part-time employee of Company A, any of its associated bodies corporate and any other entity the results of which form part of the consolidated financial results of the company for financial reporting purposes;

● an executive director of Company A or any of its associated bodies corporate who has been such a director for a continuous period of at least one year; and

● any other person that provides services to Company A or any associated body corporate who the Board deems to be an employee for the purposes of Plan A.

● An Option is ordinarily granted under Plan A for no consideration. Any monetary consideration payable for an issue of Options must not exceed the lesser of 1 cent and 1% of the exercise price of the Option.

● The maximum number of shares that can be issued under Plan A at exercise must not at any time exceed 5% of the total number of shares in Company A on issue, disregarding issues of Options or issues of shares on the exercise of Options following an offer or invitation to a person situated outside Australia or by an excluded offer or invitation.

● An Option issued pursuant to Plan A is personal to the employee and cannot be assigned, transferred, encumbered or otherwise dealt with by the employee.

● No Option holder has any right pursuant to their award of Options to participate in any other share issue of Company A or of any other entity except in certain circumstances as described the Plan A Rules.

● Subject to any terms or conditions set out in the terms of issue, Options granted under the plan expire after 58 months and carry no dividend or voting rights. When exercisable, each Option is convertible into one ordinary share in Company A (Company A share).

● Subject to any terms or conditions set out in the terms of issue, Options granted are able to be exercised subject to the following vesting periods:

● up to 50% may be exercised after 30 months from the date of grant;

● up to 75% may be exercised after 42 months from the date of grant; and

● up to 100% may be exercised after 54 months and before the end of 58 months from the date of grant.

● Unless stated otherwise in the terms of issue, the exercise price of the Options is determined using the Volume Weighted five day Average Market Price (5 day VWAP) for Company A shares preceding the date of grant.

● If an Option holder ceases to be an employee or director by reason of dismissal, expiry of contract or resignation (other than as a result of the person reaching retirement age or suffering an illness or incapacity), the Options held by that person will lapse unless Company A determines otherwise.

● If an Option holder ceases to be an employee or director by reason of retirement (as defined in the Plan A rules), the Options held by that person will remain capable of exercise in accordance with the time period described above unless the Board determines otherwise.

● Any Option which has not been exercised by the expiry of the exercise period will automatically lapse.

● Administration of Plan A is vested in the Board or through a Committee of the Board as defined in the Plan A Rules.

● Plan A Rules were amended so that the EST must be used to administer Plan A as follows, for Australian resident Participants (as at the date of this ruling the EST will not be used in respect of foreign employees of Company A non-resident companies):

● on exercise of Options the Trustee of the EST will acquire the shares on behalf of each employee, either on market, via a new share issue or allocate shares already acquired by the Trustee to the relevant Participant. Such shares will rank equally with all other shares in Company A;

● while such shares are held on trust in the EST on behalf of the employees, the employees will be entitled to dividend and voting rights;

● employees are absolutely entitled to the shares as against the Trustee from when the shares are allocated to them; and

● by written notice, employees can apply for legal title to the shares held in the EST to be transferred to them or their nominee or to be sold on their behalf with a remittance of the sale proceeds (less any brokerage costs).

Plan B

● Plan B has been established to assist in the reward, retention and motivation of employees, and align the economic interests of eligible employees with those of shareholders by providing an opportunity for eligible employees to earn significant rewards by potentially acquiring an equity interest in Company A based on creating shareholder value.

● Plan B broadly operates as follows in accordance with the Plan B Rules:

● it is at the Board’s discretion to extend an invitation to certain employees to apply for the number of Performance Rights specified in the invitation;

● no consideration will be paid by the employee for the grant of a Performance Right;

● the exercise price in respect of each Performance Right is nil;

● accordingly, where certain vesting conditions and performance conditions, as determined by the Board, are met, eligible employees will receive ordinary shares in Company A;

● once exercised, each Performance Right will entitle the holder to one ordinary share in Company A;

● the number of Performance Rights made available to the employee will depend on various factors such as their position within the Company A income tax consolidated group;

● the Performance Rights will vest if the employee satisfies the relevant vesting and/or performance conditions specified in the invitation letter;

● the employee will forfeit his/her Performance Rights where, for example, an employee commits an act of gross misconduct, ceases employment with Company A in certain circumstances, or fails to meet the performance criteria. However, the Board may in their absolute discretion, decide to allow an employee that is no longer employed by Company A to exercise part or all of the Performance Rights held by the employee that has not yet been exercised (Good Leavers as described in the Plan B Rules);

● Performance Rights are not transferable without written consent of the Board;

● If there are any bonus issues of shares (other than in lieu of a dividend payment) during the period in which an employee holds Performance Rights, on exercise of their Performance Rights, the employee will also receive the appropriate number of bonus shares in addition to their original allocation;

● Participants are not entitled to any voting rights, dividends or to participate in any rights issue as a result of solely holding Performance Rights, until the Performance Rights are exercised and the Trustee holds shares on behalf of those Participants;

● on exercise of Performance Rights, the Trustee of the EST is directed by the Board to acquire shares on behalf of each employee, either on market or via a new share issue or allocate any pre-acquired shares. Such shares will rank equally with all other shares in Company A;

● while such shares are held on trust in the EST, the employees are entitled to dividend and voting rights and to participate in any rights issue. Employees are absolutely entitled to the shares as against the Trustee from when the shares are allocated to them;

● by written notice, employees can apply for legal title to the shares held in the EST to be transferred to them.

Options issued under the Plan A and Performance Rights issued under the Plan B are collectively referred to as Rights.

Operation of the EST

● Pursuant to the Recitals of the Trust Deed, the EST has been established for the sole purpose of subscribing for or acquiring, allocating, holding and delivering Company A shares under the Plans (as well as any future plans established by Company A requiring shares to be held by the Trustee under the terms of the EST).

● The EST is funded by cash contributions from Company A or members of the Company A income tax consolidated group.

● Pursuant to the Trust Deed the Trustee is not permitted to carry out activities that are not matters or things which are necessary or expedient to administer and maintain the EST. In addition, it is not permitted to carry out activities which result in the Participants in the Plans being provided with additional benefits other than the benefits that arise from the relevant plan.

● Pursuant to the Trust Deed the Trustee of the EST is empowered to acquire Company A shares in Company A either on-market or via subscription for new shares in Company A.

● Pursuant to the Trust Deed the Board, on behalf of a Participant, will instruct the Trustee, by way of notice in writing, to subscribe for, purchase and/or allocate the requisite number of Company A shares in Company A specified in the notice.

● Pursuant to the Trust Deed, Company A must provide the necessary funds to the Trustee for the purpose of enabling it to acquire Company A shares as specified in the notice in accordance with the Trust Deed.

● The Trustee will, in accordance with instructions received pursuant to the rules of the Plans, acquire, deliver and allocate Company A shares for the benefit of Participants provided that the Trustee receives, when required and necessary, sufficient payment from a Participant to subscribe for or purchase such shares and/or has sufficient unallocated trust shares available (see the Trust Deed).

● The Trustee (or any other party which the Trustee considers appropriate) will establish and maintain a separate Trust Share Account or record in respect of each Participant in accordance with the Trust Deed.

● While shares in Company A are held in trust, the Participant will be entitled to dividend and voting rights (see the Trust Deed). By written notice, Participants can apply for legal title to the appropriate Company A shares held in the EST to be transferred to them (see the Trust Deed).

● All funds received by the Trustee from Company A will constitute accretions to the corpus of the trust and no Participant will be entitled to receive such funds. The contributions will not be repaid to Company A unless they are used to subscribe for Company A shares (see the Trust Deed).

● Where an amount paid by Company A to the Trustee in respect of the acquisition of Company A shares for the benefit of a Participant is in excess of the amount required by the Trustee to acquire those shares, Company A may require the Trustee to apply such amount to acquire, deliver or allocate the shares in accordance with the Trust Deed, the relevant plan rules or the relevant terms of participation or deposit the funds into any account opened and operated by the Trustee (see the Trust Deed).

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 6-5

Income Tax Assessment Act 1997 Section 8-1

Income Tax Assessment Act 1997 Section 20-20

Income Tax Assessment Act 1997 Section 83A-10

Income Tax Assessment Act 1997 Section 83A-35

Income Tax Assessment Act 1997 Section 83A-205

Income Tax Assessment Act 1997 Section 83A-210

Income Tax Assessment Act 1997 Section 102-5

Income Tax Assessment Act 1997 Section 102-25

Income Tax Assessment Act 1997 Section 104-35

Income Tax Assessment Act 1997 Section 104-155

Income Tax Assessment Act 1997 Subsection 130-85(4)

Income Tax Assessment Act 1997 Section 995-1

Income Tax Assessment Act 1936 Section 177A

Income Tax Assessment Act 1936 Section 177C

Income Tax Assessment Act 1936 Section 177D

Income Tax Assessment Act 1936 Section 177F

Fringe Benefits Tax Assessment Act 1986 Section 67

Fringe Benefits Tax Assessment Act 1986 Section 136

Reasons for decision

Question 1

Subsection 8-1(1) of the ITAA 1997 is a general deduction provision. Broadly, the provision provides an entitlement to a deduction from assessable income for any loss or outgoing, to the extent that it is incurred in gaining or producing your assessable income or it is necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income. However, subsection 8-1(2) of the ITAA 1997 prevents such a deduction to the extent that it is a loss or outgoing of capital, or of a capital nature, is a loss or outgoing of a private or a domestic nature, is incurred in gaining or producing exempt income, or is prevented from being deductible under a specific provision of the ITAA 1997 or the ITAA 1936.

Losses or outgoings

Pursuant to the Trust Deed, Company A must provide the Trustee with all the funds (contributions) required to enable it to subscribe for, or acquire Company A shares in accordance with the Trust Deed. The Trustee will, in accordance with instructions received pursuant to the relevant Plan, acquire, deliver and allocate Company A shares for the benefit of Participants provided that the Trustee receives sufficient payment to subscribe for or purchase such shares and / or has sufficient unallocated trust shares available. These contributions made to the Trustee by Company A or any subsidiary member of the Company A income tax consolidated group will be irretrievable and non-refundable (the Trust Deed provides that funds provided to the Trustee will not be repaid to Company A and no Participant shall be entitled to receive the funds). On this basis, it is concluded that the irretrievable contributions made by Company A or any subsidiary member of the Company A income tax consolidated group are considered to be a loss or outgoing for the purpose of subsection 8-1(1) of the ITAA 1997.

Relevant nexus

The purpose of Company A in establishing and making irretrievable contributions to the Trustee of the EST is to provide benefits to certain eligible employees in the form of shares in Company A.

All the documentation provided indicates that the contributions are made to the Trustee of the EST solely to enable the Trustee to acquire Company A shares for eligible employees of the business.

Accordingly, there is a sufficient nexus between the outgoings (contributions made by either Company A or any subsidiary member of the Company A income tax consolidated group) and the derivation of Company A’s assessable income (The Herald and Weekly Times Limited v The Federal Commissioner of Taxation (1932) 48 CLR 113; (1932) 2 ATD 169), Amalgamated Zinc (De Bavay's) Limited v The Federal Commissioner of Taxation (1935) 54 CLR 295;(1935) 3 ATD 288, W. Nevill And Company Limited v The Federal Commissioner of Taxation (1937) 56 CLR 290;4 ATD 187;(1937) 1 AITR 67, Ronpibon Tin No Liability v The Federal Commissioner of Taxation(1949) 78 CLR 47; 4 AITR 236; (1949) 8 ATD 431, Charles Moore & Co (W.A.) Pty Ltd v Federal Commissioner of Taxation (1956) 95 CLR 344;(1956) 6 AITR 379; (1956) 11 ATD 147).

Capital or Revenue

Company A’s contributions will be recurring and be made from time to time as and when Company A shares and are to be subscribed for or acquired pursuant to the Trust Deed. Therefore, to this end, it is concluded that the contributions are not capital in nature, but rather outgoings incurred by the company in carrying on its business. In support of this conclusion, the Court held in Pridecraft Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 339; 2005 ATC 4001; 58 ATR 210; Spotlight Stores Pty Ltd v Federal Commissioner of Taxation [2004] FCA 650; 2004 ATC 4674; 55 ATR 745 that payments by an employer company to a trust established for the purpose of providing incentive payments to employees were on revenue account and not capital or of a capital nature. This confirms the view expressed in ATO ID 2002/1074 that a company will be entitled to a deduction under section 8-1 of the ITAA 1997 for irretrievable contributions made to the trustee of its employee share scheme.

Apportionment

A contribution to the trustee of an employee share trust is of capital or of a capital nature, where the contribution secures for the employer an asset or advantage of an enduring or lasting nature that is independent of year to year benefits that the employer derives from a loyal and contended workforce.

Where a contribution is, ultimately and in substance, applied to the trustee of an employee share trust to subscribe for equity interests in the employer (for example shares), the employer has also acquired an asset or advantage of an enduring nature.

The combined operation of subsections 8-1(1) and 8-1(2) of the ITAA 1997 may require apportionment of a loss or outgoing into deductible and non-deductible components, where a single loss or outgoing is incurred for more than one purpose or on items of a different nature.

Where a contribution is made for the purpose of securing for the employer advantages of both a revenue and capital nature but the advantages of a capital nature are only expected to be very small or trifling by comparison, apportionment may not be required.

In this case, the outgoings incurred by Company A in carrying on its business are either not capital in nature or any capital component is sufficiently small or trifling such that the Commissioner would not seek to apportion the deduction.

Finally, nothing in the facts suggests that the contributions are private or domestic in nature, or are incurred in gaining or producing exempt income, or are otherwise prevented from being deductible under a specific provision of the ITAA 1997 or the ITAA 1936.

Therefore, when Company A or any of the subsidiary members of the Company A income tax consolidated group makes irretrievable contributions to the Trustee of the EST to fund the acquisition of Company A shares in accordance with the Trust Deed, those contributions will be an allowable deduction to Company A under section 8-1 of the ITAA 1997.

1 It should be noted that although the Court held that the payments were deductible under subsection 51(1) of the ITAA 1936, it found that subsection 177F(1) of Part IVA of the ITAA 1936 applied to cancel the tax benefit arising from the deduction.

Single entity rule

The single entity rule in subsection 701-1(1) of the ITAA 1997 does not affect the answer to the question of whether the contributions made by Company A or any subsidiary member of the Company A income tax consolidated group to the Trustee of the EST are deductible under section 8-1 of the ITAA 1997.

On the basis of the facts and circumstances that form part of this Ruling, the operation of the single entity rule cannot affect the fundamental questions that will determine deductibility. Those questions are:

● were the amounts contributed held for the exclusive benefit of entities who are not members of the Company A income tax consolidated group?

● to what extent are the contributions incurred in gaining or producing Company A’s assessable income and are not of a capital, private or domestic nature?

Therefore, when Company A or a subsidiary member of the Company A income tax consolidated group makes irretrievable cash contributions to the Trustee of the EST to fund the acquisition of Company A shares and in accordance with the Trust Deed, those contributions will be an allowable deduction to Company A under section 8-1 of the ITAA 1997.

Question 2

Company A will incur various costs in relation to the on-going administration of the EST. For example, Company A will incur costs associated with the services provided by the Trustee of the EST. These costs are likely to include:

● employee plan record keeping;

● production and dispatch of holding statements to employees;

● provision of annual income tax return information;

● acquisition of shares and allocation to Participants; and

● management of employee termination.

In addition to the services to be provided by the Trustee of the EST, Company A has incurred costs associated with applying for this private ruling.

In accordance with the Trust Deed,

The Trustee is not entitled to receive from the Trust any fees, commission or remuneration in respect of its performance of its obligations as trustee of the Trust. The Company may pay to the Trustee from the Company’s own resources any fees, commission or remuneration and reimburse any expenses incurred by the Trustee as the Company and the Trustee may agree from time to time. The Trustee is entitled to retain for its own benefit any such remuneration or reimbursement.

Such costs are likely to include brokering costs incurred by the Trustee of the EST (for example, where the Trustee is directed to acquire Company A shares on-market), as well as other Trustee expenses such as the annual audit of the financial statements of the EST.

The costs incurred by Company A in relation to the implementation and on-going administration of the EST are deductible under section 8-1 of the ITAA 1997 as either:

● costs incurred in gaining or producing the assessable income of Company A; or alternatively

● costs necessarily incurred in carrying on Company A’s business for the purpose of gaining or producing the assessable income of Company A.

The view that the costs incurred by Company A are deductible under section 8-1 of the ITAA 1997 is consistent with ATO ID 2002/961 in which it was decided that such costs are part of the ordinary employee remuneration costs of a taxpayer.

Consistent with the analysis above in Question 1 (above), the costs are revenue and not capital in nature on the basis that they are regular and recurrent employment expenses, and are deductible under section 8-1 of the ITAA 1997.

25-5

In relation to costs associated with recognised tax advisers the Commissioner accepts that such costs would be deductible in accordance with and under section 25-5 of the ITAA 1997.

Question 3

The deduction for the irretrievable cash contributions under section 8-1 would generally be allowable in the income year in which Company A incurred the outgoing. However, under certain circumstances, the timing of the deduction is specifically determined under section 83A-210.

Section 83A-210 states that if:

(a) at a particular time, you provide another entity with money or other property:

(i) under an arrangement; and

(ii) for the purpose of enabling an individual (the ultimate beneficiary) to acquire, directly or indirectly, an ESS interest under an employee share scheme in relation to the ultimate beneficiary’s employment (including past or prospective employment); and

(b) that particular time occurs before the time (the acquisition time) the ultimate beneficiary acquires the ESS interest;

then, for the purpose of determining the income year (if any) in which you can deduct an amount in respect of the provision of the money or other property, you are taken to have provided the money or other property at the acquisition time.

Section 83A-210 applies under an arrangement where there is a relevant connection between the irretrievable cash contributions provided to the Trustee and the acquisition of ESS interests (directly or indirectly) by an employee under an employee share scheme in relation to the employee’s employment and the contributions are made before the acquisition of the ESS interests.

Arrangement

The adoption of each of the Plans, their respective plan rules and the associated EST, constitutes an arrangement in these circumstances for the purposes of paragraph 83A-210(a)(i) of the ITAA 1997 and the provision of money to the Trustee necessarily allows each scheme to proceed.

Acquiring an ESS interest ‘…directly or indirectly...’

An employee share scheme is a scheme under which ESS interests in a company are provided to 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).

Rights

Under the Plans, a Participant will acquire a right under an employee share scheme because the conditions of section 83A-10 of the ITAA 1997 are satisfied.

The deductibility of money provided to employee share trusts is considered in ATO ID 2010/103. The facts described in ATO ID 2010/103 are comparable to the present Plans and therefore, the reasoning in it is relevant to them as explained immediately below.

Rights granted to an employee under the Plans will be ESS interests as each Performance Right or Option represents a right to acquire a beneficial interest in a share in a company (in this case Company A). These ESS interests will also be granted under an employee share scheme as they are granted in relation to the employee’s employment. A Company A share acquired by the Trustee to satisfy a right to acquire a share, granted under the employee share scheme to an employee in relation to the employee’s employment, is itself provided under the same scheme.

The granting of the beneficial interests in the Rights, the provision of the money to the Trustee under the arrangement (being any of the Plans), the acquisition and holding of Company A shares by the Trustee and the allocation of those Company A shares to the Participants are all interrelated components of the Plans. All the components of these schemes must be carried out so that the schemes can operate as intended. As one of those components, the provision of money to the Trustee necessarily allows the schemes to proceed.

Accordingly, the provision of money to the Trustee to acquire Company A shares is considered to be for the purpose of enabling the Participants, indirectly as part of the Plans, to acquire Rights (that is, ESS interests).

Timing – acquisition time

Contribution made in an income year prior to the income year that Rights are acquired

The acquisition time for the purposes of paragraph 83A-210(b) of the ITAA 1997 will occur when the Rights are granted to Participants. Accordingly, when Company A or any subsidiary member of the Company A income tax consolidated group makes a cash contribution to the Trustee in an income year before the income year in which the acquisition time for these ESS interests occurs, the timing of the deduction allowable under section 8-1 of the ITAA 1997 will be determined by section 83A-210 of the ITAA 1997 as being the later income year in which these ESS interests (Rights issued under the Plans) are granted (acquired).

Contribution made after the income year in which Rights are acquired

Section 83A-210 of the ITAA 1997 will not apply if Company A or any subsidiary member of the Company A income tax consolidated group makes cash contributions in an income year that is later than the income year in which the Rights are granted (acquired). In this case, the cash contribution will be deductible under section 8-1 of the ITAA 1997 in the income year in which the loss or outgoing is properly incurred (i.e. in the later income year).

Question 4

Ordinary Income

Section 6-5 of the ITAA 1997 provides that your assessable income includes income according to ordinary concepts which is called ordinary income. The classic definition in Australian law was given by Chief Justice Jordan in Scott v Commissioner of Taxation (1935) 35 SR (NSW) 215. Chief Justice Jordan considered that:

The word “income” is not a term of art, and what forms of receipts are comprehended within it, and what principles are to be applied to ascertain how much of those receipts ought to be treated as income must be determined in accordance with the ordinary concepts and usages of mankind, except in so far as the statute states or indicates an intention that receipts which are not income in ordinary parlance are to be treated as income, or that special rules are to be applied for arriving at the taxable amount of such receipts.

The leading case on ordinary income is Eisner v Macomber 252 US 189 (1919). It was said in that case that:

The fundamental relation of “capital” to “income” has been much discussed by economists, the former being likened to the tree or the land, the latter to the fruit or the crop; the former depicted as a reservoir supplied from springs, the latter as the outlet stream, to be measured by its flow during a period of time. …Here we have the essential matter: not a gain accruing to capital, not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested or employed, and coming in, being “derived” that is, received or drawn by the recipient (the taxpayer) for his separate use, benefit and disposal; …that is income derived from property. Nothing else answers the description.

In G.P. International Pipecoaters Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1990) 170 CLR 124 the High Court of Australia held that whether a receipt is income or capital depends on its objective character in the hands of the recipient. Brennan, Dawson, Toohey, Gaudron and McHugh JJ stated at page 138 that:

To determine whether a receipt is of an income or of a capital nature, various factors may be relevant. Sometimes, the character of receipts will be revealed most clearly by their periodicity, regularity or recurrence; sometimes, by the character of a right or thing disposed of in exchange for the receipt; sometimes, by the scope of the transaction, venture or business in or by reason of which money is received and by the recipient’s purpose in engaging in the transaction, venture or business.

Receipts of a capital nature do not constitute income according to ordinary concepts, whether or not incurred in carrying on a business.

In accordance with an employee share scheme, the trustee subscribes to the company for an issue of shares, it pays the full subscription price for the shares and the company receives a contribution of share capital from the trustee.

The character of the contribution of share capital received by Company A from the Trustee of the EST can be determined by the character of the right or thing disposed of in exchange for the receipt. Here, Company A is issuing the Trustee with new shares in itself. The character of the newly issued share is one of capital. Therefore, it can be concluded that the receipt, being the subscription proceeds, takes the character of share capital, and accordingly, is also of a capital nature.

Accordingly, when Company A receives subscription proceeds from the Trustee of the EST where the EST has subscribed for new shares in Company A to satisfy obligations to Participants, that subscription price received by Company A is a capital receipt. That is, it will not be on revenue account, and not ordinary income under section 6-5 of the ITAA 1997.

Section 20-20 of the ITAA 1997

Subsection 20-20(2) of the ITAA 1997 provides that if you receive an amount as a recoupment of a loss or outgoing, it will be assessable income if you received it by way of insurance or indemnity and that amount can be deducted as a loss or outgoing in the current year or earlier income year.

Company A will receive an amount for the subscription of shares by the Trustee of the EST. There is no insurance contract in this case, so the amount is not received by way of insurance.

Further, the amount is not an indemnity because the receipt does not arise under a statutory or contractual right of indemnity, and the receipt is not in the nature of compensation.

Subsection 20-20(3) of the ITAA 1997 makes assessable a recoupment of a loss or outgoing that is deductible, or has been deductible or deducted in a previous income year, where the deduction was claimed under a provision in section 20-30 of the ITAA 1997.

Recoupment is defined to include any kind of recoupment, reimbursement, refund, insurance, indemnity or recovery, however described and a grant in respect of a loss or outgoing.

The Explanatory Memorandum to the Tax Law Improvement Bill 1997 states that the ordinary meaning of recoupment encompasses any type of compensation for a loss or outgoing.

So far as a deduction under section 8-1 of the ITAA 1997 allowed for bad debts or rates or taxes is concerned, section 20-30 of the ITAA 1997 will apply such that if there was a recoupment of that deduction, that amount would be assessable. However, it can be argued that in subscribing for new shares in Company A the EST is acquiring new shares in Company A and this cannot be said to be a recoupment under subsection 20-25(1) of the ITAA 1997.

In any event, the receipt by Company A made in return for issuing shares to the EST would not be a recoupment of previously deducted expenditure under section 8-1 regarding bad debts or rates and taxes to which section 20-30 of the ITAA 1997 could apply.

Therefore, the subscription proceeds will not be an assessable recoupment under section 20-20 of the ITAA 1997.

Capital Gains Tax

Section 102-20 of the ITAA 1997 states that you make a capital gain or loss, if and only if a CGT event happens. No CGT events occur when the EST satisfies its obligations under the Plans by subscribing for new shares in Company A.

The relevant CGT events that may be applicable when the subscription proceeds are received by Company A are CGT events D1 (creating a contractual or other rights) and H2 (receipt for event relating to a CGT asset).

However, paragraph 104-35(5)(c) of the ITAA 1997 states that CGT event D1 does not happen if a company issues or allots equity interests or non-equity shares in the company. In this case, Company A is issuing shares, being equity interests as defined in section 974-75 of the ITAA 1997, to the Trustee, therefore CGT event D1 does not happen.

In relation to CGT event H2, paragraph 104-155(5)(c) of the ITAA 1997 also states that CGT event H2 does not happen if a company issues or allots equity interests or non-equity shares in the company. Therefore, CGT event H2 does not occur.

Since no CGT event occurs, there is no amount that will be assessable as a capital gain to Company A.

Therefore, when the EST satisfies its obligations under the Plans by subscribing for new shares in Company A, the subscription proceeds will not be included in the assessable income of Company A under section 6-5 or section 20-20 ITAA 1997, nor trigger a CGT event under Division 104 of the ITAA 1997.

Question 5

Law Administration Practice Statement PS LA 2005/24 deals with the application of the general anti-avoidance rules, including Part IVA of the ITAA 1936. Before the Commissioner can exercise his discretion to make a determination in respect of Part IVA under subsection 177F(1) of the ITAA 1936, three requirements must be met. These are:

● there must be a scheme within the meaning of section 177A of the ITAA 1936

● a tax benefit must arise based on whether a tax effect would have occurred, or might reasonably be expected to have occurred, if the scheme had not been entered into or carried out, and

● having regard to the matters in paragraph 177D(b) of the ITAA 1936, the scheme is one to which Part IVA of the ITAA 1936 applies (dominant purpose)

On the basis of an analysis of these requirements, the Commissioner will not seek to make a determination that Part IVA of the ITAA 1936 applies to deny, in part or in full, any deduction claimed by Company A in respect of the irretrievable contributions Company A or any subsidiary member of the Company A income tax consolidated group made, prior to DDMMYY, to the Trustee of the EST to fund the subscription for or acquisition on-market of shares in Company A by the EST.

Question 6

For the same reasons expressed in question 5 above, the Commissioner will not seek to make a determination that Part IVA of the ITAA 1936 applies to deny, in part or in full, any deduction claimed by Company A in respect of the irretrievable contributions Company A or any subsidiary member of the Company A income tax consolidated group makes, on or after DDMMYY, to the Trustee of the EST to fund the subscription for or acquisition on-market of shares in Company A by the EST.

Question 7

The provision of Rights

An employer's liability to fringe benefits tax (FBT) arises under section 66 of the FBTAA which provides that tax is imposed in respect of the fringe benefits taxable amount of an employer for the relevant year of tax. The fringe benefits taxable amount is calculated under the FBTAA by reference to the taxable value of each fringe benefit provided.

No amount will be subject to FBT unless a 'fringe benefit' is provided.

In general terms, 'fringe benefit' is defined in subsection 136(1) of the FBTAA as being a benefit provided to an employee or an associate of an employee 'in respect of' the employment of the employee.

However, certain benefits are excluded from being a 'fringe benefit' by virtue of paragraphs (f) to (s) of the 'fringe benefit' definition.

Paragraph (h) of the definition of 'fringe benefit' states that a fringe benefit does not include:

…a benefit constituted by the acquisition of an ESS interest under an employee share scheme (within the meaning of the Income Tax Assessment Act 1997) to which Subdivision 83A-B or 83A-C of that Act applies.

Subsection 83A-10(1) of the ITAA 1997 defines an ESS interest in a company as:

…a beneficial interest in:

(a) a share in the company; or

(b) a right to acquire a beneficial interest in a share in the company.

Subsection 83A-10(2) of the ITAA 1997 defines an employee share scheme as:

…a scheme under which ESS interests in a company are provided to employees, or associates of employees, including past or prospective employees of:

(a) the company, or

(b) subsidiaries of the company

in relation to the employees employment.

The applicant has stated that ESS interests (being the Rights which are rights to acquire a beneficial interest in the share of a company, Company A) will be granted to Participants of the Plans. The ESS interests offered to Participants under the Plans are offered in connection with a Participant’s employment by Company A (i.e. any entity of the Company A income tax consolidated group).

It is therefore accepted that each of the Plans comprises an employee share scheme (that incorporates the use of the EST which is an employee share trust within the meaning of subsection 130-85(4) of the ITAA 1997 – see question 8 below).

Accordingly, the acquisition of ESS interests (being the Rights) pursuant to the Plans will not be subject to fringe benefits tax on the basis that they are acquired under an employee share scheme (to which Subdivision 83A-B or 83A-C of the ITAA 1997 will apply) and are thereby excluded from being a fringe benefit by virtue of paragraph (h) of the definition of fringe benefit in subsection 136(1) of the FBTAA.

The provision of Company A shares upon exercise of Rights

As stated above, in general terms, 'fringe benefit' is defined in subsection 136(1) of the FBTAA as being a benefit provided to an employee or an associate of an employee 'in respect of' the employment of the employee.

The meaning of the phrase 'in respect of' was considered by the Full Federal Court in J & G Knowles & Associates Pty Ltd v. Federal Commissioner of Taxation (2000) 96 FCR 402; 2000 ATC 4151; (2000) 44 ATR 22. Heerey, Merkel and Finkelstein JJ at page 410 stated:

Whatever question is to be asked, it must be remembered that what must be established is whether there is a sufficient or material, rather than a, casual connection or relationship between the benefit and the employment.

The situation is similar to that which existed in Federal Commissioner of Taxation v. McArdle 89 ATC 4051; (1988) 19 ATR 1901 where an employee was granted valuable rights in respect of his employment which he subsequently surrendered in return for a lump sum payment. Davies, Gummow and Lee JJ noted that what had occurred under the surrender agreement was not the granting of a valuable benefit, but the exploitation of rights received from the employer in previous years.

When an employee of the Company A income tax consolidated group accepts to participate in any of the Plans, they obtain a right to acquire a beneficial interest in a share in Company A and this right constitutes an ESS interest. When this right is subsequently exercised, any benefit received would be in respect of the exercise of the right, and not in respect of employment (refer ATO ID 2010/219).

Therefore, the benefit that arises to an employee upon the exercise of a vested Right (being the provision of a share in Company A) will not give rise to a fringe benefit as a benefit has not been provided in respect of the employment of the employee.

Question 8

Paragraph (ha) of the definition of 'fringe benefit' in subsection 136(1) of the FBTAA states that a fringe benefit does not include:

(ha) a benefit constituted by the acquisition of money or property by an employee share trust (within the meaning of the Income Tax Assessment Act 1997);

Employee share trust

Subsection 130-85(4) of the ITAA 1997 states:

An employee share trust, for an employee share scheme, is a trust whose sole activities are:

(a) obtaining shares or rights in a company; and Reasons for decision Case number:

(b) ensuring that ESS interests in the company that are beneficial interests in those shares or rights are provided under the employee share scheme to employees, or to associates of employees, of:

(i) the company; or

(ii) a subsidiary of the company; and

(c) other activities that are merely incidental to the activities mentioned in paragraphs (a) and (b).

A payment of money by Company A or a subsidiary member of the Company A income tax consolidated group to the Trustee of the EST will therefore not be subject to FBT provided that the sole activities of the EST are obtaining shares or rights to acquire shares in Company A.

The right to acquire a share and the beneficial interest in the share that is acquired pursuant to the exercise of the right are both ESS interests within the meaning of subsection 83A-10(1) of the ITAA 1997.

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

Each of the Plans is an employee share scheme within the meaning of subsection 83A-10(2) of the ITAA 1997 because each is a scheme under which rights to acquire shares in the company are provided to employees in relation to the employee’s employment.

Under the Plans, the employer has established the EST to acquire shares in the company and to allocate those shares to employees to satisfy the Rights acquired under Plans. The beneficial interest in the share is itself provided under an employee share scheme because it is provided under the same scheme under which the rights to acquire the shares are provided to the employee in relation to the employee’s employment, being an employee share scheme as defined in subsection 83A-10(2) of the ITAA 1997.

Therefore, paragraphs 130-85(4)(a) and (b) of the ITAA 1997 are satisfied because:

● the EST acquires shares in a company (being Company A); and

● the EST ensures that ESS interests as defined in subsection 83A-10(1) of the ITAA 1997, being beneficial interests in those shares, are provided under an ESS, as defined in subsection 83A-10(2) of the ITAA 1997, by allocating those shares to the employees in accordance with the governing documents of the scheme (i.e. each of the Plans).

Undertaking the activities mentioned in paragraphs 130-85(4)(a) and 130-85(4)(b) of the ITAA 1997 will require a trustee to undertake incidental activities that are a function of managing the employee share scheme and administering the trust.

For the purposes of paragraph 130-85(4)(c) of the ITAA 1997, activities which are merely incidental, as set out in ATO ID 2010/108, include:

● the opening and operation of a bank account to facilitate the receipt and payment of money

● the receipt of dividends in respect of shares held by the trust on behalf of an employee, and their distribution to the employee

● the receipt of dividends in respect of unallocated shares and using those dividends to acquire additional shares for the purposes of the employee share scheme

● dealing with shares forfeited under an employee share scheme including the sale of forfeited shares and using the proceeds of sale for the purposes of the employee share scheme

● the transfer of shares to employee beneficiaries or the sale of shares on behalf of an employee beneficiary and the transfer to the employee of the net proceeds of the sale of those shares

● the payment or transfer of trust income and property to the default beneficiary on the winding up of the trust where there are no employee beneficiaries

● receiving and immediately distributing shares under a demerger.

Activities that result in employees being provided with additional benefits (such as the provision of financial assistance, including a loan to acquire the shares) are not considered merely incidental.

For the purposes of the EST, the powers of the Trustee are set out in the Trust Deed. The Trust Deed limits the powers given to the Trustee under the Trust Deed so as to ensure that the powers of the Trustee under the Trust Deed are exercised in accordance with the purpose of the Trust Deed as evidenced in the Recitals, that is, '..for the sole purpose of obtaining shares for the benefit of Participants.' These provisions collectively make it clear that the Trustee can only use the contributions received exclusively for the acquisition of shares for eligible employees in accordance with the Plans. To this end, all other duties/general powers listed in the Trust Deed are considered to be merely incidental to the functions of the Trustee in relation to its dealing with the shares for the sole benefit of Participants in accordance with the Plans.

Therefore, the EST is an employee share trust as the activities of the EST in acquiring and allocating ESS interests meet the requirements of paragraphs 130-85(4)(a) and 130-85(4)(b) of the ITAA 1997 as concluded above, and its other activities (general powers) are merely incidental to those activities in accordance with paragraph 130-85(4)(c) of the ITAA 1997.

Accordingly, as paragraph (ha) of the definition of fringe benefit in subsection 136(1) of the FBTAA 1986 excludes the contributions to the Trustee of the EST from being a fringe benefit, Company A or a subsidiary member of the Company A income tax consolidated group will not be required to pay FBT in respect of irretrievable contributions made to the Trustee of the EST to fund the acquisition of shares in Company A in accordance with the Trust Deed.

Question 9

Law Administration Practice Statement PS LA 2005/24 (PS LA 2005/24) has been written to assist those who are contemplating the application of Part IVA or other general anti-avoidance rules to an arrangement. It succinctly explains how section 67 of the FBTAA 1986 operates. Most notably, paragraphs 185-188 of PS LA 2005/24 provide as follows:

185. Section 67 is the general anti-avoidance provision in the FBTAA. The operation of section 67 is comparable to Part IVA, in that the section requires the identification of an arrangement and a tax benefit, includes a sole or dominant purpose test and is activated by the making of a determination by the Commissioner. The definition of 'arrangement' in subsection 136(1) of the FBTAA is virtually identical to the definition of 'scheme' in section 177A of Part IVA.

186. Subsection 67(1) of the FBTAA is satisfied where a person or one of the persons who entered into or carried out an arrangement or part of an arrangement under which a benefit is or was provided to a person, did so for the sole or dominant purpose of enabling an eligible employer or the eligible employer and another employer(s) to obtain a tax benefit.

187. An objective review of the transaction and the surrounding circumstances should be undertaken in determining a person's sole or dominant purpose in carrying out the arrangement or part of the arrangement. Section 67 of the FBTAA differs from subsection 177D(2) in Part IVA in that it does not explicitly list the factors that should be taken into account in determining a person's sole or dominant purpose.

188. Subsection 67(2) of the FBTAA provides that a tax benefit arises in respect of a year of tax in connection with an arrangement if under the arrangement:

(i) a benefit is provided to a person;

(ii) an amount is not included in the aggregate fringe benefits amount of the employer; and

(iii) that amount would have been included or could reasonably be expected to have been included in the aggregate fringe benefits amount, if the arrangement had not been entered into.

It is clear, therefore, that the Commissioner would only seek to make a determination under section 67 of the FBTAA 1986 if the arrangement resulted in the payment of less fringe benefits tax than would be payable but for entering into the arrangement.

Further, paragraph 191 of PS LA 2005/24 provides:

191. The approach outlined in this practice statement (refer to paragraphs 75 to 150) to the counterfactual and the sole or dominant purpose test in Part IVA is relevant (except that amendments corresponding to the 2013 amendments of Part IVA have not been made to section 67) and should be taken into account by Tax officers who are considering the application of section 67 of the FBTAA.

Under the existing Plans, if an EST was not used, no fringe benefits tax would be payable and nor is it likely that benefits provided to employees under other alternative remuneration plans would result in fringe benefits tax being payable.

In addition, under the Plan arrangements (with an EST), the benefits provided by way of irretrievable contributions to the EST and the provision of Rights (and the Company A shares received on their vesting) to eligible employees are excluded from the definition of a fringe benefit for the reasons given in the responses to questions 7 and 8 above. Therefore, as these benefits have been excluded from the definition of a fringe benefit, no fringe benefit arises and no fringe benefits tax will be payable by using an EST with the Equity Plans. Also, as there would be no fringe benefits tax payable under the Plans without the use of an EST (and nor likely would fringe benefits tax be payable under other alternative remuneration plans), the fringe benefits tax liability is not any less than it would have been but for the arrangement.

Accordingly, the Commissioner will not make a determination that section 67 of the FBTAA 1986 applies to include an amount in the aggregate fringe benefits amount of Company A or any subsidiary member of the Company A income tax consolidated group in relation to a tax benefit obtained from the irretrievable cash contributions made by Company A or any subsidiary member of the Company A income tax consolidated group to the Trustee of the EST to fund the subscription for or acquisition on-market of shares in Company A.