Income Tax Assessment Act 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-5 - CORPORATE TAXPAYERS AND CORPORATE DISTRIBUTIONS  

Division 165 - Income tax consequences of changing ownership or control of a company  

Subdivision 165-F - Special provisions relating to ownership by non-fixed trusts  

SECTION 165-235   Information about non-fixed trusts with interests in company  
Notice about foreign resident non-fixed trust

165-235(1)    
The Commissioner may give the company a notice in accordance with section 165-240 if the requirements of subsections (2) to (5) of this section are met.

Tax detriment under Division 165

165-235(2)    

In its *income tax return for the income year:

(a) the company must have deducted a *tax loss from a *loss year where it would not be allowed to deduct the tax loss unless it met the conditions in section 165-215 ; or

(b) the company must not have calculated:

(i) its taxable income and tax loss for the income year under Subdivision 165-B ; and

(ii) its *net capital gain and *net capital loss for the income year under Subdivision 165-CB ;

where it would have been required to calculate them unless it met the conditions in section 165-220 ; or

(c) the company must have applied a net capital loss for an earlier income year in working out its net capital gain where it would not have been allowed to apply the loss unless it met the conditions in section 165-215 as applied on the assumption mentioned in subsection 165-96(1) ; or

(d) the company must have deducted a debt that it wrote off as bad in the income year where it would not be allowed to deduct the debt unless it met the conditions in section 165-230 .

Information about non-fixed trust

165-235(3)    

In order to determine whether it meets the conditions concerned, the Commissioner must need information about a *non-fixed trust mentioned in:

(a) if paragraph (2)(a) applies - subsection 165-215(5) ; or

(b) if paragraph (2)(b) applies - subsection 165-220(5) ; or

(c) if paragraph (2)(c) applies - subsection 165-215(5) as applied on the assumption mentioned in subsection 165-96(1) ; or

(d) if paragraph (2)(d) applies - subsection 165-230(5) .

Foreign resident trust

165-235(4)    
When the Commissioner gives the notice:

(a) a trustee of the *non-fixed trust must be a foreign resident; or

(b) the central management and control of the non-fixed trust must be outside Australia.

When notice must be given

165-235(5)    
The Commissioner must give the notice before the later of:

(a) 5 years after the income year; and

(b) the end of the period during which the company is required by section 262A of the Income Tax Assessment Act 1936 to retain records in relation to that income year.