CHAPTER 3
-
SPECIALIST LIABILITY RULES
PART 3-10
-
FINANCIAL TRANSACTIONS
History
Part 3-10 inserted by No 72 of 2001.
Division 250
-
Assets put to tax preferred use
History
Div 250 inserted by
No 164 of 2007
, s 3 and Sch 1 item 1, effective 25 September 2007.
No 164 of 2007
, s 3 and Sch 1 item 71 contains the following application provision:
Application
(1)
Subject to subitems (4), (6) and (8), Division 250 applies in relation to a tax preferred use of an asset if, and only if, the tax preferred use:
(a)
starts on or after 1 July 2007; and
(b)
does not occur under a legally enforceable arrangement that was entered into before 1 July 2007.
(2)
This subitem applies to an asset that is put to a tax preferred use if:
(a)
the tax preferred use starts on or after 1 July 2007; and
(b)
the tax preferred use occurs under a legally enforceable arrangement that was entered into before 1 July 2007; and
(c)
but for this subitem:
(i)
section
51AD
would apply to the asset in relation to a taxpayer; or
(ii)
Division
16D
would apply to the asset; and
(d)
you elect to have this subitem apply to the asset.
(3)
An election under paragraph (2)(d) in relation to an asset that is put to a tax preferred use:
(a)
must be made by the day you lodge your income tax return for the income year in which the tax preferred use starts; and
(b)
must be made for the whole of the arrangement period for the tax preferred use of the asset; and
(c)
must extend to all assets that are, or are to be, put to a tax preferred use under the arrangement under which the asset is put to that use; and
(d)
is irrevocable.
(4)
If subitem (2) applies:
(a)
section
51AD
and Division
16D
do not apply to the asset; and
(b)
Division 250 applies to the tax preferred use of the asset.
(5)
This subitem applies to an asset that is put to a tax preferred use if:
(a)
the tax preferred use starts on or after 1 July 2007; and
(b)
the tax preferred use occurs under a legally enforceable arrangement that was entered into before 1 July 2007; and
(c)
immediately before 1 July 2007:
(i)
section
51AD
did not apply to the asset in relation to a taxpayer; and
(ii)
Division
16D
did not apply to the asset; and
(d)
the arrangement referred to in paragraph (b) is materially altered on or after 1 July 2007; and
(e)
but for this subitem and subitem (6):
(i)
section
51AD
would apply to the asset in relation to a taxpayer immediately after the alteration; or
(ii)
Division
16D
would apply to the asset immediately after the alteration.
For the purposes of applying paragraph (c), assume that the asset was in existence and was being put to the tax preferred use immediately before 1 July 2007.
(6)
If subitem (5) applies:
(a)
section
51AD
and Division
16D
do not apply to the asset; and
(b)
Division 250 applies to the tax preferred use of the asset after the alteration instead.
(7)
This subitem applies to an asset that is put to a tax preferred use if:
(a)
the tax preferred use started before 1 July 2007; and
(b)
immediately before 1 July 2007:
(i)
section
51AD
did not apply to the asset in relation to a taxpayer; and
(ii)
Division
16D
did not apply to the asset; and
(c)
the arrangement under which the tax preferred use of the asset occurs is materially altered on or after 1 July 2007; and
(d)
but for this subitem and subitem (8):
(i)
section
51AD
would apply to the asset in relation to a taxpayer immediately after the alteration; or
(ii)
Division
16D
would apply to the asset immediately after the alteration.
(8)
If subitem (7) applies:
(a)
section
51AD
and Division
16D
do not apply to the asset; and
(b)
Division 250 applies to the tax preferred use of the asset after the alteration instead.
(9)
For the purposes of applying subparagraphs (5)(c)(ii) and (e)(ii) and (7)(b)(ii) and (d)(ii), disregard the operation of section
159GL
of the
Income Tax Assessment Act 1936
.
(10)
For the purposes of applying Division 250 to the tax preferred use of an asset in accordance with subitem (6) or (8), the
arrangement period
for the tax preferred use of the asset is taken to start on the day on which the alteration referred to in paragraph (5)(d) or (7)(c) occurs.
(11)
Section
51AD
does not apply to an asset for the income year commencing on 1 July 2007, or a later income year, if:
(a)
the asset is put to a tax preferred use under a legally enforceable arrangement; and
(b)
the arrangement was entered into before 1 July 2007; and
(c)
the tax preferred use of the asset starts on or after 1 July 2003 and before 1 July 2007.
…
(13)
In this item:
arrangement
has the same meaning as in the
Income Tax Assessment Act 1997
.
asset
includes property (within the meaning of section
51AD
and Division
16D
).
Division 16D
means Division
16D
of Part
III
of the
Income Tax Assessment Act 1936
.
Division 250
means Division 250 of the
Income Tax Assessment Act 1997
.
section 51AD
means section
51AD
of the
Income Tax Assessment Act 1936
.
tax preferred use
has the same meaning as in the
Income Tax Assessment Act 1997
.
Subdivision 250-B
-
When this Division applies to you and an asset
History
Subdiv 250-B inserted by
No 164 of 2007
, s 3 and Sch 1 item 1, effective 25 September 2007. For application provision, see note under Div
250
heading.
Tax preferred use of asset
SECTION 250-60
Tax preferred use
of an asset
250-60(1)
An asset is
put to a tax preferred use
at a particular time if:
(a)
an *end user (or a *connected entity) holds, at that time, rights as lessee under a lease of the asset; and
(b)
either or both of the following subparagraphs is satisfied at that time:
(i)
the asset is, or is to be, used by or on behalf of an end user who is a *tax preferred end user because of paragraph
250-55(a)
(tax preferred entity);
(ii)
the asset is, or is to be, used wholly or principally outside Australia and an end user of the asset is a tax preferred end user because of paragraph
250-55(b)
(foreign resident or business).
If this subsection applies, the
tax preferred use
of the asset is the lease referred to in paragraph (a).
Note:
For particular arrangements that are treated as leases, see section
250-80
.
History
S 250-60(1) amended by No 88 of 2013, s 3 and Sch 7 item 205, by substituting
"
(foreign resident or business)
"
for
"
(non-resident)
"
in para (b)(ii), applicable in relation to end users of assets on or after 1 July 2007.
250-60(2)
An asset is also
put to a tax preferred use
at a particular time if:
(a)
at that time the asset is, or is to be, used (whether or not by you) wholly or partly in connection with:
(i)
the production, supply, carriage, transmission or delivery of goods; or
(ii)
the provision of services or facilities; and
(b)
either or both of the following subparagraphs is satisfied at that time:
(i)
some or all of the goods, services or facilities are, or are to be, produced for or supplied, carried, transmitted or delivered to or for an *end user who is a *tax preferred end user because of paragraph
250-55(a)
(tax preferred entity) but is not an *exempt foreign government agency;
(ii)
the asset is, or is to be, used wholly or principally outside Australia and an end user of the asset is a tax preferred end user because of paragraph
250-55(b)
(foreign resident or business).
If this subsection applies, the
tax preferred use
of the asset is the production, supply, carriage, transmission, delivery or provision referred to in paragraph (a).
History
S 250-60(2) amended by No 88 of 2013, s 3 and Sch 7 item 206, by inserting
"
or business
"
in para (b)(ii), applicable in relation to end users of assets on or after 1 July 2007.
S 250-60(2) amended by
No 97 of 2008
, s 3 and Sch 3 item 132, by substituting
"
(foreign resident)
"
for
"
(non-resident)
"
in para (b)(ii), effective 3 October 2008.
250-60(3)
To avoid doubt, the facilities referred to in subsection (2) include:
(a)
hospital or medical facilities; or
(b)
prison facilities; or
(c)
educational facilities; or
(d)
(Repealed by No 41 of 2011)
(e)
transport facilities; or
(f)
the supply of water, gas or electricity; or
(g)
housing or accommodation; or
(h)
premises from which to operate a *business or other undertaking.
History
S 250-60(3) amended by No 41 of 2011, s 3 and Sch 5 items 155 to 157, by substituting
"
facilities
"
for
"
facilities
"
, repealing para (d), and omitting
"
other
"
from para (e), effective 27 June 2011. Para (d) formerly read:
(d)
*land transport facilities; or
250-60(4)
If the asset is being *put to a tax preferred use:
(a)
the
members of the tax preferred end user group
are:
(i)
the *tax preferred end user; and
(ii)
the *connected entities of the tax preferred end user; and
(b)
the
members of the tax preferred sector
are:
(i)
the tax preferred end user (and connected entities); and
(ii)
any *tax preferred entity (or a connected entity); and
(iii)
any entity that is a foreign resident.
History
S 250-60(4) amended by
No 97 of 2008
, s 3 and Sch 3 item 133, by substituting
"
that is a foreign resident
"
for
"
that is not an Australian resident
"
in para (b)(iii), effective 3 October 2008.
S 250-60 inserted by
No 164 of 2007
, s 3 and Sch 1 item 1, effective 25 September 2007. For application provision, see note under Div
250
heading.