Income Tax Assessment Act 1936

S 6AB(1) amended by No 114 of 2010, s 3 and Sch 1 item 6, by substituting " or 459A " for " , 459A or 529 " , applicable in relation to the 2010-11 year of income for a taxpayer and later years of income.

S 6AB(1) amended by No 143 of 2007 , s 3 and Sch 1 item 21, by omitting " 26D, " after " under section " , applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A .

S 6AB(1) amended by No 15 of 2007, s 3 and Sch 1 items 37 and 38, by substituting " superannuation lump sums and employment termination payments " for " eligible termination payments as defined in subsection 27A(1) " and substituting " section 26D, 102AAZD, 456, 457, 459A or 529 of this Act, or section 305-70 of the Income Tax Assessment Act 1997 " for " section 26D, 27CAA, 102AAZD, 456, 457, 459A or 529 " , applicable to the 2007-2008 income year and later years.

S 6AB(1) amended by No 96 of 2004, No 181 of 1994, No 190 of 1992, No 48 of 1991 and No 5 of 1991.

S 6AB(1A) repealed by No 143 of 2007 , s 3 and Sch 1 item 22, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A . S 6AB(1A) formerly read:

6AB(1A)
A reference in this Act to foreign income includes a reference to an amount worked out under section 295-325 of the Income Tax Assessment Act 1997 .

S 6AB(1A) amended by No 15 of 2007, s 3 and Sch 1 item 39, by substituting " an amount worked out under section 295-325 of the Income Tax Assessment Act 1997 " for " net previous income referred to in subsection 288A(2) " , applicable to the 2007-2008 income year and later years.

S 6AB(1A) inserted by No 181 of 1994.

S 6AB(1B) repealed by No 143 of 2007 , s 3 and Sch 1 item 22, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A . S 6AB(1B) formerly read:

6AB(1B)
A reference in this Act to foreign income includes a reference to an amount worked out under section 295-330 of the Income Tax Assessment Act 1997 .

S 6AB(1B) amended by No 15 of 2007, s 3 and Sch 1 item 40, by substituting " an amount worked out under section 295-330 of the Income Tax Assessment Act 1997 " for " net previous income referred to in subsection 288B(2) " , applicable to the 2007-2008 income year and later years.

S 6AB(1B) inserted by No 181 of 1994.

S 6AB(1C) inserted by No 15 of 2007, s 3 and Sch 1 item 41, applicable to the 2007-2008 income year and later years.

S 6AB(2) substituted by No 143 of 2007 , s 3 and Sch 1 item 23, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A . S 6AB(2) formerly read:

6AB(2)
A reference in this Act to foreign tax is a reference to:

(a) tax imposed by a law of a foreign country, being:

(i) tax upon income; or

(ii) tax upon profits or gains, whether of an income or capital nature; or

(iii) (Repealed by No 96 of 2004)

(iv) any other tax, being a tax that is subject to an agreement having the force of law under the International Tax Agreements Act 1953 ;

but does not include a unitary tax or a credit absorption tax; or

(b) any of the following:

(i) tax that is taken, because of section 160AFCA or 160AFCK , to have been paid in respect of an amount included in assessable income under section 456 ;

(ii) tax that is taken, because of section 160AFCB , to have been paid in respect of an amount included in assessable income under section 457 ;

(iii) (Repealed by No 96 of 2004)

(iv) tax that is taken, because of section 160AFCD , to have been paid in respect of the section 23AI non-assessable part of an attribution account payment (within the meaning of section 160AFCD );

(v) tax that is taken, because of section 160AFCE , 160AFCF , 160AFCG or 160AFCH , to have been paid in respect of an amount included in assessable income under section 529 ;

(vi) tax that is taken, because of section 160AFCJ , to have been paid in respect of the section 23AK non-assessable part of a FIF attribution account payment (within the meaning of section 160AFCJ ).

S 6AB(2) amended by No 96 of 2004, No 66 of 2003, No 22 of 1995, No 190 of 1992 and substituted by No 5 of 1991.

Former s 6AB(2) amended by No 78 of 1988.

S 6AB(3) repealed by No 143 of 2007 , s 3 and Sch 1 item 24, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A . S 6AB(3) formerly read:

6AB(3)
Where a taxpayer has derived an amount of foreign income and:

(a) foreign tax has been paid in respect of that income:

(i) by or through another person under an arrangement with the taxpayer or under the law relating to that tax;

(ii) by a trust estate in which the taxpayer is a beneficiary;

(iii) by a partnership in which the taxpayer is a partner; or

(iv) by deduction; or

(b) foreign tax in respect of that income is levied on, and paid by, the taxpayer's spouse;

the taxpayer shall be deemed, for the purposes of this Act, to have been personally liable for, and to have paid, that foreign tax in respect of that income.

S 6AB(3A) repealed by No 143 of 2007 , s 3 and Sch 1 item 24, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A . S 6AB(3A) formerly read:

6AB(3A)
Except as provided by section 160AFCA , 160AFCB , 160AFCD , 160AFCE , 160AFCF , 160AFCG , 160AFCH , 160AFCJ or 160AFCK , a taxpayer is not taken to have been personally liable for, and to have paid, foreign tax in respect of:

(a) an amount included in assessable income under section 102AAZD , 456 , 457 , 459A or 529 ; or

(b) the section 23AI non-assessable part of an attribution account payment (within the meaning of section 160AFCD ); or

(c) the section 23AK non-assessable part of a FIF attribution account payment (within the meaning of section 160AFCJ ).

S 6AB(3A) amended by No 96 of 2004, No 66 of 2003, No 190 of 1992, No 48 of 1991, and inserted by No 5 of 1991.

S 6AB(4) repealed by No 143 of 2007 , s 3 and Sch 1 item 24, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A . S 6AB(4) formerly read:

6AB(4)
Where:

(a) a taxpayer has, as a beneficiary in a trust estate or by virtue of any other beneficial interest, derived an amount of foreign income (in this subsection referred to as the derived amount ) attributable to another amount of foreign income (in this subsection referred to as the primary amount );

(b) in respect of the primary amount, foreign tax has been paid by any person (directly or by deduction); and

(c) because of the payment of that tax, the derived amount is less than the amount that would otherwise have been the derived amount;

the taxpayer shall be deemed, for the purposes of this Act, to have been personally liable for, and to have paid, in respect of the derived amount, an amount of foreign tax equal to the difference between the amounts referred to in paragraph (c).

S 6AB(5) repealed by No 143 of 2007 , s 3 and Sch 1 item 24, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A . S 6AB(5) formerly read:

6AB(5)
Where, under regulations made by virtue of section 160AFF , or under an agreement having the force of law under the International Tax Agreements Act 1953 , an amount of foreign tax not actually paid is deemed to have been paid, that amount shall, for the purposes of this Act, be deemed to have been paid.

S 6AB(5) amended by No 22 of 1995.

S 6AB(5A) repealed by No 143 of 2007 , s 3 and Sch 1 item 24, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A . S 6AB(5A) formerly read:

6AB(5A)
In spite of anything in this section, a taxpayer is taken, for the purposes of this Act, not to have been personally liable for, or to have paid, foreign tax if:

(a) a refund of the foreign tax becomes liable to be made to the taxpayer or any other person; or

(b) any other benefit becomes liable to be provided to the taxpayer or any other person, where:

(i) the amount of the benefit is worked out by reference to the amount of the foreign tax paid by the taxpayer alone; and

(ii) the benefit does not consist of a reduction in foreign tax payable by the taxpayer or the other person.

S 6AB(5A) inserted by No 170 of 1995.

S 6AB(5B) inserted by No 163 of 2001.

Act No 163 of 2001 (as amended by No 162 of 2005, s 3 and Sch 6 items 26 and 27), contained the following application provisions:

(1) Definitions.  

In this item:

CGT amendments
means the amendments made by items 7 to 32 of this Schedule.

debt and equity test amendments
means the amendments made by this Schedule (other than the CGT amendments).

(2) Application of debt and equity test amendments.  

The debt and equity test amendments apply to transactions that take place on or after 1 July 2001. This is so whether the interest in relation to which the transaction takes place was issued before, or is issued on or after, that date. This subitem has effect subject to subitem (6).

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Subitem 118(2) amended by No 162 of 2005, s 3 and Sch 6 item 26, by omitting " any election made under " before " subitem (6) " , effective 1 July 2001.

(3) Application of the CGT amendments.  

The amendments made by items 7 to 11 of this Schedule apply to:

(a) equity interests issued or allotted; and

(b) options granted;

on or after 1 July 2001.

(4)
The amendments made by items 12 to 32 of this Schedule apply to the conversion of a convertible interest, or the exercise of a right, on or after 1 July 2001.

(5)
Section 130-40 of the Income Tax Assessment Act 1997 applies to all convertible notes acquired before 20 September 1985 as if they were convertible interests.

(6) Application of debt and equity test amendments to interests issued before 1 July 2001.  

If an interest was issued before 1 July 2001, the debt and equity test amendments:

(a) apply only to transactions that take place in relation to the interest on or after 1 July 2004 if the issuer of the interest does not make an election under paragraph (b); and

(b) apply to transactions that take place in relation to the interest on or after 1 July 2001 if the issuer elects to have this paragraph apply to the interest.

(7)
For the purposes of subitem (6), an interest is taken to be issued on or after 1 July 2001 if:

(a) the interest is issued on or after that date; or

(b) the interest is issued before that date; and:

(i) the terms of the interest are altered on or after that date; or

(ii) the interest is rolled over on or after that date; or

(iii) the original term of the interest is extended on or after that date.

In applying subparagraph (b)(i), disregard minor alterations that do not affect rights and obligations in relation to the interest.

(9)
If paragraph (6)(a) applies to an interest:

(a) paragraph 164-10(1)(b) of the Income Tax Assessment Act 1997 applies to the interest as if the second reference in that paragraph to " 1 July 2001 " were instead a reference to " 1 July 2004 " ; and

(b) section 164-15 of the Income Tax Assessment Act 1997 applies to the interest as if the following references were instead references to ``1 July 2004'':

(i) the first reference in subsection 164-15(3) to ``1 July 2001'';

(ii) the reference in subsection 164-15(3) to ``that day'';

(iii) the references in paragraph 164-15(3)(b) and subsection 164-15(4) to ``1 July 2001''.

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Subitem 118(9) substituted by No 162 of 2005, s 3 and Sch 6 item 27, effective 1 July 2001. Subitem 118(9) formerly read:

(9)
If paragraph (6)(a) applies to an interest:

(a) the interest is disregarded for the purposes of paragraph 164-10(1)(b) and subsection 164-15(3) of the Income Tax Assessment Act 1997 ; and

(b) section 164-15 of the Income Tax Assessment Act 1997 applies to the interest as if references in paragraph 164-15(3)(b) and subsection 164-15(4) to 1 July 2001 were references to 1 July 2004.

(10)
An election in relation to an interest is effective for the purposes of paragraph (6)(b) only if:

(a) the election is lodged with the Commissioner within:

(i) 90 days after the day on which this Act receives the Royal Assent; or

(ii) such further time as the Commissioner allows; and

(b) an election under subitem (6) is made in relation to all other interests that:

(i) were issued by the issuer before 1 July 2001; and

(ii) are substantially similar to that interest and in relation to which an election under that subitem can be made; and

(c) the election contains the following information:

(i) the name of the issuer;

(ii) the tax file number of the issuer;

(iii) the legal form of the interest;

(iv) ASX code or other stock exchange listing code allotted to the issue (if applicable);

(v) the date of the issue;

(vi) the face value of the issue;

(vii) the number of interests of that kind on issue when the election is made;

(viii) coupon/dividend rates and terms including contingencies;

(ix) maturity details;

(x) redemption details and terms including contingencies;

(xi) conversion/exercise details.

An election under paragraph (6)(b) cannot be revoked.

(11)
The Commissioner may allow further time under subparagraph (10)(a)(ii) if he or she:

(a) is satisfied that the issuer would otherwise not have sufficient opportunity to make the election; or

(b) otherwise considers it reasonable to do so.

(12)
If:

(a) paragraph (6)(a) applies to an interest; and

(b) on or after 1 July 2001 and before 1 July 2004:

(i) the terms of the interest are altered; or

(ii) the interest is rolled over; or

(iii) the original term of the interest is extended;

then:

(c) the debt and equity test amendments apply to the transactions in relation to the interest that take place after the event referred to in paragraph (b) occurs; and

(d) subitem (9) applies to the interest as if references in that subitem to 1 July 2004 were references to the time when that event occurs.

In applying subparagraph (b)(i), disregard minor alterations that do not affect rights and obligations in relation to the interest.

(13)
A reference in this item to a transaction includes a reference to:

(a) making a return; and

(b) paying a dividend or unit trust dividend; and

(c) making a distribution in relation to a unit trust; and

(d) paying, crediting or lending an amount; and

(e) making a non-share distribution; and

(f) forgiving a debt; and

(g) redeeming, cancelling or buying back an interest; and

(h) converting an interest.

Definition of " credit absorption tax " amended by No 143 of 2007 , s 3 and Sch 1 item 25, by substituting " an offset in respect of the tax under Division 770 of the Income Tax Assessment Act 1997 " for " a credit in respect of the tax under Division 18 of Part III " , applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A .

Definition of " credit absorption tax " inserted by No 78 of 1988.

S 6AB inserted by No 51 of 1986.