Income Tax Assessment Act 1936

PART X - ATTRIBUTION OF INCOME IN RESPECT OF CONTROLLED FOREIGN COMPANIES  

Division 3 - Control interests, attribution interests, attributable taxpayers and attribution percentages  

Subdivision A - Control interests  

SECTION 350   DIRECT CONTROL INTEREST IN A COMPANY  

350(1)   [Interests held by entity]  

Subject to subsection (7), an entity holds a direct control interest in a company at a particular time equal to the percentage that the entity holds, or is entitled to acquire, at that time of:

(a) the total paid-up share capital of the company; or

(b) the total rights of shareholders to vote, or participate in any decision-making, concerning any of the following:

(i) the making of distributions of capital or profits of the company to its shareholders;

(ii) the constituent document of the company;

(iii) any variation of the share capital of the company; or

(c) the total rights to distributions of capital or profits of the company to its shareholders on winding-up; or

(d) the total rights to distributions of capital or profits of the company to its shareholders, otherwise than on winding-up;

or, if different percentages are applicable under the preceding paragraphs, the greater or greatest of those percentages.

350(2)   [Highest percentage to be applicable]  

If the percentage of total rights to vote or participate in decision-making differs as between differing types of decision-making, the highest of those percentages applies for the purposes of paragraph (1)(b).

350(3)   [Rights to distribution on winding-up]  

For the purposes of the application of subsection (1) to a company, the percentage that an entity holds, or is entitled to acquire, at a particular time (in this subsection called the test time ) in a statutory accounting period of the company, of the total rights to distributions of capital or profits of the company to its shareholders on winding-up is to be worked out by:

(a) ascertaining whichever of the following is applicable:

(i) the capital of the company as at the end of the statutory accounting period;

(ii) the profits of the company for the statutory accounting period; and

(b) assuming that the rights to such distributions that the entity holds, or is entitled to acquire, at the test time were the same at all other times during the statutory accounting period; and

(c) ascertaining the percentage concerned:

(i) at the end of the statutory accounting period instead of at the test time; and

(ii) on that assumption.

350(4)   [Rights to distribution otherwise than on winding-up]  

For the purposes of the application of subsection (1) to a company, the percentage that an entity holds, or is entitled to acquire, at a particular time (in this subsection called the test time ) in a statutory accounting period of the company, of the total rights to distributions of capital or profits of the company to its shareholders, otherwise than on winding-up, is to be worked out by:

(a) ascertaining whichever of the following is applicable:

(i) the capital of the company as at the end of the statutory accounting period;

(ii) the profits of the company for the statutory accounting period; and

(b) assuming that the rights to such distributions that the entity holds, or is entitled to acquire, at the test time were the same at all other times during the statutory accounting period; and

(c) ascertaining the percentage concerned:

(i) at the end of the statutory accounting period instead of at the test time; and

(ii) on that assumption.

350(5)   [Eligible finance shares]  

Eligible finance shares in a company are to be ignored for the purposes of the application of subsection (1) to the company.

350(6)   [Control by less than six Australian entities]  

If, at a particular time, a company is controlled by a group of 5 or fewer Australian entities, either alone or together with associates (whether or not any associate is also an Australian entity), each Australian entity in that group of 5 or fewer holds a direct control interest in the company equal to 100%.

350(7)   [Subsection (1) interest deemed not held]  

An entity that holds a direct control interest in a company at a particular time because of subsection (6) is not to be taken to hold any direct control interest in the company at that time because of subsection (1).