Edited version of private advice

Authorisation Number: 1051908579163

Date of advice: 12 October 2021

Ruling

Subject: Employee share scheme

Question 1

Will Company A (as head entity of the Company A income tax consolidated group) be entitled to deduct an amount under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for irretrievable cash contributions made by Company A (or a subsidiary member of the Company A income tax consolidated group) to the trustee (Trustee) of the Employee Share Trust A (Trust) to fund the subscription for, or acquisition on-market of, ordinary shares in Company A (Shares) to satisfy employee share scheme (ESS) interests issued pursuant to the Plans in respect of Participants whose activities are related to generating assessable income for Company A?

Answer

Yes

Question 2

(a)  Will the irretrievable cash contributions made by Company A (or a subsidiary member of the Company A income tax consolidated group) to the Trustee of the Trust, to fund the subscription for, or acquisition on-market of, Shares by the Trustee to satisfy ESS interests issued pursuant to the Plans, be deductible to Company A under section 8-1 of the ITAA 1997 at the time determined by section 83A- 210 of the ITAA 1997, if the contributions are made before the acquisition of the relevant ESS interests by the ultimate beneficiaries?

Answer

Yes.

(b)  Will the irretrievable contributions made by Company A (or a subsidiary member of the Company A income tax consolidated group) to the Trustee of the Trust, to fund the subscription for, or acquisition on-market of, Shares by the Trustee to satisfy ESS interests issued pursuant to the Plans, be deductible to Company A under section 8-1 of the ITAA 1997 in the income year when the contributions are made, if the contributions are made after the acquisition of the relevant ESS interests by the ultimate beneficiaries?

Answer

Yes.

Question 3

Will the Commissioner seek to make a determination that Part IVA of the Income Tax Assessment Act 1936 (ITAA 1936) applies to deny, in part or in full, any deduction claimed by Company A for the irretrievable cash contributions made to the Trust to fund the subscription for, or acquisition on-market of Shares by the Trustee, pursuant to the Plans?

Answer

No

Question 4

Will the provision of ESS interests to employees of Company A (or its subsidiaries) under the Plans constitute a fringe benefit within the meaning of subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Answer

No

Question 5

Will the irretrievable cash contributions made by Company A (or a subsidiary member of the Company A income tax consolidated group) to the Trustee of the Trust, to fund the subscription for, or acquisition on-market of, Shares pursuant to the Plans, constitute a fringe benefit within the meaning of subsection 136(1) of the FBTAA?

Answer

No

The rulings for questions 1 to 3 inclusive each apply for the following periods:

Income tax year ended 30 June 20XX

Income tax year ended 30 June 20XX

Income tax year ended 30 June 20XX

Income tax year ended 30 June 20XX

Income tax year ended 30 June 20XX

The rulings for questions 4 and 5 inclusive each apply for the following periods:

Fringe benefits tax year ended 31 March 20XX

Fringe benefits tax year ended 31 March 20XX

Fringe benefits tax year ended 31 March 20XX

Fringe benefits tax year ended 31 March 20XX

Fringe benefits tax year ended 31 March 20XX

The scheme commences on:

The date the Trust Deed is executed.

Relevant facts and circumstances

The Employee Share Trust A (theTrust) Deed (Trust Deed).

The Plan Rules consisting of:

•         Employee Option Plan (EOP Rules)

•         Employee Equity Plan (EEP Rules)

•         Executive Incentive Plan (EIP Rules)

collectively referred to as the Plan Rules

The template invitation letters for grants of:

•         share options under the Employee Option Plan (EOP)

•         shares under the Employee Equity Plan (EEP)

•         shares under the Executive Incentive Plan (EIP)

The template employee communications document for Senior EIP participants (SEIP).

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.

Summary

Company A (the Company) is the parent entity of the Company A Group (Group). The principal activities of the Group are the delivery of internet and telecommunications services to Australian residences and businesses.

The Company is listed on the Australian Securities Exchange, reporting to a financial year ending 30 June.

The following Australian employing entities (Employing Entities) of the Group employ staff and may make contributions to the Company in relation to their employees who participate in the Plans:

•         Company A

•         Company B

•         Company C

•         Company D

Key terms of the Plans

As part of its strategy to attract and retain key talent, the Company operates the EEP, EOP and EIP, (collectively referred to as the Plans) for eligible employees of the Group in accordance with Division 83A of the ITAA 1997.

The table below summarises the key terms of the Plans operated by the Company (note Shares refers to ordinary shares of the Company).

The Company is intending to make initial allocations of Shares under the EIP shortly after commencement of the financial year ending 30 June 20XX.

Employee Share Trust

Establishment of the Trust

The Company is establishing the Trust to facilitate the acquisition, holding of, and allocation of Shares to participants in accordance with employee equity plans that the Company operates from time to time (including the Plans).

The Company (or any other member of the Group) cannot be a beneficiary of the Trust.

The Trustee is expected to be Company E which is currently a member of the income tax consolidated group.

The Company intends to only make contributions to the Trust to fund the acquisition of Shares once awards have been granted or offers to be allocated Shares have been made to a participant.

Reasons for the establishment and use of the Trust

The reasons for using the Trust include:

•         A company is unable to hold its own shares under Australian corporate law. The Trust is a vehicle which enables Shares to be held for the purpose of the Plans

•         The Trust will facilitate the acquisition of Shares, either on market or by the new issue of Shares by the Company

•         The Trust provides an arm's length vehicle for acquiring and holding Shares in the Company, either by way of a new issue or acquiring on-market - i.e., providing flexibility relating to capital management

•         The Trust will be an efficient structure for giving effect to disposal restrictions (or vesting conditions, where applicable). As the Trustee is the legal owner, employees have no ability to deal in the Shares

•         Contributing to the Trust to acquire Shares before awards vest, may enable the Company to hedge against a potential increase in costs to satisfy awards due to share price growth, as well as the potential for insufficient Shares being available on-market immediately prior to vesting

•         The Trust provides the flexibility to acquire and hold Shares that will be allocated to employees under the Plans. When vesting conditions are not met and awards lapse, the Trust enables Shares held for such lapsed awards to be 'recycled' to satisfy other grants of awards

•         The Trust establishes independent records and accounts for participating employees.

Obligations of the Trustee

Under the Trust Deed, the sole activities of the Trustee are to:

•         acquire and hold Shares for the purpose of providing them to participants of the Plans on vesting of awards or to make a grant of Shares

•         the administration of the Trust.

Allocating Shares to the Trust

Under the terms of the Trust Deed, the Company will instruct the Trustee to subscribe for, purchase or allocate a number of Shares specified in the notice. This instruction may occur at any time, depending on the Company's capital management strategy.

In determining whether to request the Trustee to subscribe for or purchase Shares on-market, matters the Company's Board will take into account include:

•         the Company's current capital management strategy

•         the dilution impact any issue of new Shares will have

•         the liquidity (trade volume) of the Company's Shares

•         the Board's expectations regarding the Company's Share price movements and volatility over the short and longer term

•         trading restrictions or anticipated activity that may prompt restrictions regarding trading of the Company's Shares.

The Trustee will, in accordance with instructions received and pursuant to the Trust Deed acquire, deliver and allocate Shares to participants provided that the Trustee receives sufficient payment from the Company to subscribe for or purchase Shares and / or has sufficient unallocated Shares available in the Trust.

In respect of awards subject to vesting conditions, no interest in the Shares will arise until vesting conditions are met.

The Company must make irretrievable contributions to the Trust as required under the Trust Deed. In determining the amount of funds to be contributed to the Trust at any point in time, matters the Board may take into account include:

•         the number of awards granted to employees under the Plans

•         the number of Shares held by the Trust at the relevant time

•         the likelihood of awards vesting

•         the Board's expectations regarding the Company's Share price performance and volatility over the short and longer term.

Contributions to the Trust

All funds received by the Trustee from the Company in the form of contributions will constitute accretions to the corpus of the Trust and no participant will be entitled to receive a distribution of or from such funds. The funds will not be returned or repayable to the Company except where they are used for subscribing for Shares in the Company (i.e., the contributions will be irretrievable).

The Trustee will not be permitted to acquire any Share or deliver any Share to any participant, if to do so would contravene applicable law (including rules around insider trading) or would not be consistent with the operation of the Plans. Generally, it will not be permitted to carry out activities that are not matters or things which are necessary or expedient to administer and maintain the Trust. It will not be permitted to carry out activities which result in the participants being provided with additional benefits other than the benefits that arise under the Trust Deed.

It is the intention that the Trust be used to administer awards or Shares granted under the Plans (and any new employee equity plans operated by the Company). Accordingly, the existing Plans incorporate the use of the Trust to facilitate the provision of Shares in respect of grants which have been made previously and new grants.

The Company or any member of the Group will not be beneficiaries under the Trust Deed and any funds the Company contributes to the Trust, other than specifically in the form of a loan, may not be refunded, repaid or returned to the Company (or any member of the Group) other than by way of the Trustee paying the issue price where it subscribes for Shares in the Company.

The Company (or any member of the Group) will have no interest in the Shares held by the Trust.

Where the awards are ultimately satisfied in cash, the outgoing will not flow through the Trust.

The Trust will be administered in accordance with the Trust Deed.

The Trust is intended to remain in place for the foreseeable future whilst the Company continues to use employee equity plans to remunerate its employees.

Reasons for decision

These reasons for decision accompany the Notice of private ruling for Company A, Company B, Company C and Company D.

While these reasons are not part of the private ruling, we provide them to help you to understand how we reached our decision.

Unless specified otherwise, all legislative references are to the Income Tax Assessment Act 1997 (ITAA 1997).

Questions 1 to 3 - application of the single entity rule in section 701-1

The consolidation provisions of the ITAA 1997 allow certain groups of entities to be treated as a single entity for income tax purposes. Under the single entity rule (SER) in section 701-1 the subsidiary members of an income tax consolidated group are taken to be parts of the head company. As a consequence, the subsidiary members cease to be recognised as separate entities during the period that they are members of the income tax consolidated group with the head company of the group being the only entity recognised for income tax purposes.

The meaning and application of the SER is explained in Taxation Ruling TR 2004/11 Income tax: consolidation: the meaning and application of the single entity rule in Part 3-90 of the Income Tax Assessment Act 1997.

As a consequence of the SER, the actions and transactions of the subsidiary members of the Company A income tax consolidated group (ITCG) are treated, for income tax purposes, as having been undertaken by Company A as the head company of the ITCG.

Questions 4 and 5

The SER in section 701-1 has no application to the Fringe Benefits Tax Assessment Act 1986 (FBTAA). The Commissioner has therefore provided a ruling to Company A and each of the Employing Entities that is a subsidiary member of the ITCG in relation to questions 4 and 5.

Question 1

For present purposes, subsection 8-1(1) will allow you to deduct from your assessable income any loss or outgoing to the extent that it is necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income. However, pursuant to subsection 8-1(2), you cannot deduct a loss or outgoing to the extent that it is a loss or outgoing of capital, or of a capital nature.

The Company carries on a business providing services to Australian residences and businesses which produces assessable income. The company operates an employee share scheme (ESS) as part of its remuneration strategy.

Under the Plans, the Company grants options, shares or rights to employees and makes irretrievable contributions to the Trust (in accordance with the Plan Rules and the Deed) which the Trustee will use to acquire shares (either on-market or by subscription) for allocation to Participants to satisfy their options/rights/shares.

Incurred in carrying on a business

The Company must provide the Trustee with all the funds required to act as requested by the Group.

The contributions made by the Company are irretrievable and non-refundable to the Company in accordance with the Deed as:

•         On termination of the Trust, the Company and any member of the Group do not have any entitlement to any part of the Trust Fund, including any shares that form part of the Trust Fund, at any time and

•         The Company may not acquire any interest in the Capital (or corpus) or be entitled to any Income of the Trust Fund.

The Company has granted (and will in the future grant) rights/options/shares under the Plans as part of its remuneration and reward program for Participants. The costs incurred by the Company for the acquisition of shares to satisfy rights/options/shares arise as part of these remuneration arrangements, and contributions to the Trust are part of an on-going series of payments in the nature of remuneration of its employees.

Not capital or of a capital nature

The costs will be an outgoing incurred for periodic funding of a bona fide employee share scheme for employees of the Company. Costs incurred are likely to be in relation to more than one grant of Awards (rather than being one-off), and the Company intends to satisfy outstanding Awards using shares acquired by the Trust. This indicates that the irretrievable contributions to the Trust are ongoing in nature and are part of the broader remuneration expenditure of the Company.

While the contributions may secure an enduring or lasting benefit for the employer that is independent of the year-to-year benefits that the employer derives from a loyal and contented workforce, that enduring benefit is considered to be sufficiently small. Therefore, the payments are not capital, or of a capital nature.

Accordingly, the Company as head of the ITCG will be entitled to deduct an amount under section 8-1 for irretrievable cash contributions it makes to the Trustee of the Trust to acquire shares in the Company to satisfy ESS interests issued pursuant to the Plans.

Question 2a

Section 83A-210 applies to determine the timing of the deduction, but only in respect of the contribution provided to the trust to purchase shares in excess of the number required to grant the relevant Awards to the employees arising in the year of income from the grant of Awards, under an ESS. Further information is available in ATO Interpretative Decision ATO ID 2010/103 Income Tax- Employee share scheme: timing of deduction for money provided to the trustee of an employee share trust.

The EOP is an employee share scheme for the purposes of subsection 83A-10(2) as it is a scheme under which ESS interests (i.e., a beneficial interest in a right to acquire a beneficial interest in a share) are provided to employees (i.e., Participants) in relation to their employment with the Company (or the Group).

The EEP is an employee share scheme for the purposes of subsection 83A-10(2) as it is a scheme under which ESS interests (i.e., a beneficial interest in a share) are provided to employees (i.e., Participants) in relation to their employment with the Company (or the Group).

The EIP is also an employee share scheme for the same reasons as described above, however, it also includes securities that can be cash settled. These are discussed below under indeterminate rights.

These Plans contain a number of interrelated components which includes the provision of irretrievable cash contributions by the Company to the Trustee of the Trust. These contributions enable the Trustee to acquire Shares for the purpose of enabling each Participant to acquire ESS interests as per the Plans.

The irretrievable cash contribution can only be deducted from the assessable income of the Company in the income year when the relevant beneficial interest in a right to a beneficial interest in a share/beneficial interest in a share in the Company, is acquired by a Participant under the Plans.

Indeterminate rights

Rights granted under the EIP can be indeterminate rights for the purposes of section 83A-340. That is because the Board has the discretion to satisfy the Right by either a Share or making a payment of a cash equivalent amount. In this circumstance, the Right is not a right to acquire a beneficial interest in a share unless and until the time when the Board determines it will be satisfied by the provision of a Share.

Once it determines it will be satisfied by provision of a Share, section 83A-340 operates to treat these Rights as though they had always been rights to acquire beneficial interests in shares.

If irretrievable contributions are provided to the Trustee before these Rights are acquired (and they do subsequently become ESS interests), then section 83A-340 operates to deem the Rights to always have been ESS interests. Where this occurs, section 83A-210 will apply (retrospectively) to modify the timing of the deduction claimed under section 8-1. In such a case, a deduction for the contribution to fund the Rights would be available to the Company in the income year in which Participants acquire the Rights.

Note: where the Rights do not become an ESS interest because they are ultimately satisfied in cash, the outgoing should not flow through the Trust. Where the outgoing flows through the Trust, the Trust would not satisfy the sole activities test for the purposes of subsection 130-85(4).

Question 2(b)

Consistent with the analysis in question 2(a) (above), where the contribution is made after the acquisition of the relevant ESS interests, irretrievable contributions made by the Company to the Trustee of the Trust to fund the subscription for or acquisition on-market of Shares by the Trust to satisfy the ESS interests granted to Participants will be deductible under section 8-1 in the income year in which the contribution is made by the Company.

Question 3

Part IVA of the Income Tax Assessment Act 1936 (ITAA 1936) is a general anti-avoidance provision which gives the Commissioner the power to cancel a 'tax benefit' that has been obtained, or would, but for section 177F of the ITAA 1936, be obtained, by a taxpayer in connection with a scheme to which Part IVA applies.

The Commissioner generally accepts that a general deduction may be available where an employer provides money or other property to an employee share trust where the conditions of Division 83A are met.

In this case, the scheme does not contain the elements of artificiality or unnecessary complexity and the commercial drivers sufficiently explain the entry into the use of the EST arrangement.

Therefore, having regard to the eight factors set out in subsection 177D(2) of the ITAA 1936, the Commissioner has concluded that the scheme is not being entered into or carried out for the dominant purpose of enabling Company A to obtain a tax benefit.

Question 4

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.

In general terms, a '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.

In particular, paragraph (h) of subsection 136(1) of the FBTAA excludes the following from being a 'fringe benefit':

(h) 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;

The Commissioner accepts that the Plans are employee share schemes, the options/shares provided under the Plans are ESS interests and that Subdivision 83A-B or 83A-C applies to those ESS interests.

Accordingly, the provision of options/shares under the Plans will not be subject to FBT on the basis that they are acquired by Participants under an employee share scheme (to which Subdivision 83A-B or 83A-C 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.

In addition, when an option is later exercised, it will not give rise to a fringe benefit as any benefit received would be in respect of the exercise of the option and not in respect of employment (refer ATO Interpretative Decision ATO ID 2010/219 Fringe Benefits Tax Fringe benefit: shares provided to employees upon exercise of rights granted under an employee share scheme).

Indeterminate rights under the Plans

At the time the Rights are granted under the Plans, it may be unclear if paragraph (h) of the definition of fringe benefit in subsection 136(1) of the FBTAA applies because those Rights may be satisfied in cash instead of Shares. Hence, they may not be ESS interests within the meaning of subsection 83A-10(1).

However, where the Rights are ultimately satisfied with Shares instead of cash, the indeterminate rights will, pursuant to section 83A-340, be treated as if they had always been ESS interests. In these circumstances, they will constitute the acquisition of ESS interests acquired under an ESS within the meaning of subsection 83A-10(2) to which Subdivision 83A-C applies. Accordingly, the Rights that are satisfied with Shares will be excluded from the definition of a fringe benefit by paragraph 136(1)(h) of the FBTAA.

Where an employee's indeterminate rights are ultimately satisfied with cash instead of Shares, the granting of the Rights will be viewed as a series of steps in the payment of salary or wages; and not a separate benefit to the payment of salary or wages which are excluded from the definition of a fringe benefit by paragraph 136(1)(f) of the FBTAA.

This outcome is consistent with ATO Interpretative Decision ATO ID 2010/142 Fringe Benefits Tax Employee share scheme: indeterminate rights not fringe benefits.

Question 5

One benefit excluded from being a 'fringe benefit', pursuant to paragraph (ha) of subsection 136(1) of the FBTAA, is a benefit constituted by the acquisition of money or property by an employee share trust within the meaning of the ITAA 1997.

In examining whether the requirements of subsection 130-85(4) are met, it is the activities of the trustee in relation to a particular trust that is relevant. To qualify as an employee share trust, a trustee's activities must be limited to those described in paragraphs 130-85(4)(a), (b) and (c).

Paragraph 130-85(4)(a) and (b) are satisfied because:

•         The Trust acquires Shares in the Company and

•         The Trust ensures that ESS interests as defined in subsection 83A-10(1) (being options/rights/shares under the Plans as discussed in the explanation to question 4) are provided under an ESS (as defined in subsection 83A-10(2)) by allocating those Shares to the employees in accordance with the Trust Deed and the Plans.

Paragraph 130-85(4)(c) provides that a trustee can engage in activities that are merely incidental to those described in paragraphs 130-85(4)(a) and (b). The phrase 'merely incidental' takes its ordinary meaning, with further guidance drawn from the context and purpose of the legislation in which it appears. 'Merely incidental' is not defined in the legislation and has not been judicially considered in the context of subsection 130-85(4). The Macquarie Dictionary defines 'merely' to mean 'only as specified, and nothing more'. 'Incidental' is defined as 'happening or likely to happen in fortuitous or subordinate conjunction with something else'.

The Commissioner's views on the types of activities that are merely incidental and not merely incidental are set out in Taxation Determination TD 2019/13 Income tax: what is an 'employee share trust'?.

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 to be merely incidental.

In the present case, the activities that the Trustee is permitted to undertake under the Trust Deed are indicative of those required to administer an employee share trust and are merely incidental to the primary purposes stated in paragraphs 130-85(4)(a) and (b). This is consistent with the objects of the Trust, namely for the sole purpose of acquiring and holding shares or rights to acquire shares, providing beneficial interests in those shares under the plan to beneficiaries and conducting other activities merely incidental to those activities and are in line with the definition of an employee share trust under subsection 130-85(4).

Therefore, the irretrievable cash contributions made by the Company to the Trustee of the Trust to fund the subscription for or acquisition on-market of Shares by the Trust and/or fund the ongoing administration of the Trust will not be a fringe benefit.