Income Tax Assessment Act 1997

Div 376 substituted by No 164 of 2007 , s 3 and Sch 10 item 1, effective 25 September 2007. Act No 164 of 2007 , s 3 and Sch 10 item 92, contained the following savings provisions:

92 Saving provisions relating to amendment at item 1  
(1)
Despite the repeal and substitution of Division 376 of the Income Tax Assessment Act 1997 , that Division continues to apply, in relation to films that commenced principal photography or production of the animated image before 8 May 2007, as if that repeal and substitution had not happened.

(2)
Despite the amendment made by item 1, legislative instruments that:

(a) were made under section 376-105 of the Income Tax Assessment Act 1997 ; and

(b) were in force immediately before the commencement of that item;

continue to have effect, and may be dealt with, in relation to films that commenced principal photography or production of the animated image before 8 May 2007, as if the amendment had not happened.

Div 376 formerly read:

Division 376 - Films generally (tax offset for Australian production expenditure)

Subdivision 376-A - Guide to Division 376

SECTION 376-1 What this Division is about  

This Division gives a film production company a refundable tax offset for certain Australian production expenditure the company incurs on the film but only if that expenditure exceeds a certain amount.

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S 376-1 inserted by No 27 of 2002.

SECTION 376-2 Structure of this Division  
376-2(1)
Subdivision 376-B tells you who can get the tax offset for a film and what conditions must be met to get the offset. It also tells you how to work out the amount of the offset.

376-2(2)
Subdivision 376-C explains what is meant by:

(a) production expenditure on a film; and

(b) qualifying Australian production expenditure on a film.

It also contains some rules for quantifying expenditure.

376-2(3)
Subdivision 376-D deals with a number of administrative matters:

(a) applying for a certificate for a film; and

(b) the issue and revocation of a certificate for a film; and

(c) the making of rules by the Arts Minister (including rules for the establishment of the Film Certification Advisory Board); and

(d) review of decisions of the Arts Minister.

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S 376-2 inserted by No 27 of 2002.

Subdivision 376-B - Tax offset for Australian expenditure in making a film

SECTION 376-5 Film production company entitled to refundable tax offset  
376-5(1)
A company is entitled to a ^* tax offset for an income year in respect of a ^* film if:

(a) the film was ^* completed in the income year; and

(b) the ^* Arts Minister has issued a certificate to the company for the film under section 376-15; and

(c) the company claims the offset in its ^* income tax return for the income year; and

(d) the company:

(i) is an Australian resident; or

(ii) is a foreign resident but does have a ^* permanent establishment in Australia and does have an ^* ABN;

when the company lodges the income tax return and when the tax offset is due to be credited to the company.

The claim referred to in paragraph (c) is irrevocable.

Note:

The tax offset is subject to the refundable tax offset rules in Division 67 (see subsection 67-25(2A) ).

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S 376-5(1) amended by No 41 of 2005.

376-5(2)
The company is not entitled to the ^* tax offset if:

(a) the company or someone else claims a deduction in relation to a unit of industrial property that relates to copyright in the ^* film under Division 10B of Part III of the Income Tax Assessment Act 1936 ; or

(b) either:

(i) a provisional certificate for the film (other than a provisional certificate that has been revoked under subsection 124ZAB(6A) of the Income Tax Assessment Act 1936 ); or

(ii) a final certificate for the film;

has been issued at any time under Division 10BA of Part III of the Income Tax Assessment Act 1936 (whether or not the certificate is still in force).

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S 376-5(2) amended by No 41 of 2005.

S 376-5 inserted by No 27 of 2002.

SECTION 376-10 SECTION 376-10 Amount of the tax offset  
376-10
The amount of the ^* tax offset is 12.5% of the total of the company ' s ^* qualifying Australian production expenditure on the ^* film (worked out using Subdivision 376-C ).

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S 376-10 inserted by No 27 of 2002.

SECTION 376-15 Minister may issue certificate for a film  
376-15(1)
The ^* Arts Minister may issue a certificate to a company that a ^* film satisfies the requirements of this Subdivision if the Minister is satisfied that:

(a) the company:

(i) is an Australian resident; or

(ii) is a foreign resident but does have a ^* permanent establishment in Australia and does have an ^* ABN; and

(b) the film has been ^* completed and was completed on or after 4 September 2001; and

(c) the film was produced for:

(i) exhibition to the public in cinemas; or

(ii) exhibition to the public by way of television broadcasting (including broadcasting by way of the delivery of a television program by a broadcasting service within the meaning of the Broadcasting Services Act 1992 ); or

(iii) distribution to the public as a video recording (whether on video tapes, digital video disks or otherwise); and

(d) the film is:

(i) a ^* feature film or a film of a like nature; or

(ii) a mini-series of television drama; or

(iii) a ^* television series that is not covered by subparagraph (i) or (ii); and

(e) the film is not, or is not to a substantial extent:

(i) if the film is covered by subparagraph (d)(i) or (ii) - a documentary; or

(ii) a film for exhibition as an advertising program or a commercial; or

(iii) a film for exhibition as a discussion program, a quiz program, a panel program, a variety program or a program of a like nature; or

(iv) a film of a public event; or

(v) if the film is covered by subparagraph (d)(i) or (ii) - a film forming part of a drama program series that is, or is intended to be, of a continuing nature; or

(v) a film forming part of a drama program series that is, or is intended to be, of a continuing nature; or

(vi) a training film; and

(ea) if the film is a ^* television series that is not covered by subparagraph (d)(i) or (ii):

(i) for a television series that is predominantly a digital animation or other animation - the ^* making of the television series (other than a pilot episode, if any, or activities mentioned in paragraph 376-25(3)(a)) takes place within a period of not longer than 36 months; or

(ii) otherwise - all principal photography for the television series (other than a pilot episode, if any) takes place within a period of not longer than 12 months; and

(eb) if the film is a ^* television series that is not covered by subparagraph (d)(i) or (ii) - the amount worked out for the film under subsection (3) is at least $1 million; and

(f) the total of the company ' s ^* qualifying Australian production expenditure on the film (worked out using Subdivision 376-C ) is at least $15 million; and

(g) if the total of the company ' s qualifying Australian production expenditure on the film is less than $50 million:

(i) the total of the company ' s qualifying Australian production expenditure on the film is at least 70% of the total of all the company ' s ^* production expenditure on the film; and

(ii) the company either carried out, or made the arrangements for the carrying out of, all the activities that were necessary for the ^* making of the film; and

(iii) the company is the only company that satisfies subparagraph (ii) in relation to the film; and

(h) if the total of the company ' s qualifying Australian production expenditure on the film is at least $50 million:

(i) the company either carried out, or made the arrangements for the carrying out of, all the activities in Australia that were necessary for the making of the film; and

(ii) the company is the only company that satisfies subparagraph (i) in relation to the film.

Note:

Subparagraphs (g)(ii) and (h)(i) - the operation of these subparagraphs is affected by paragraph 376-70(1)(d) (which deals with the situation in which one company takes over the making of a film from another company).

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S 376-15(1) amended by No 162 of 2005 and No 41 of 2005.

376-15(2)
A ^* film is completed when it is first in a state where it could reasonably be regarded as ready to be distributed, broadcast or exhibited to the general public.

Note:

This means that the making of a film includes post-production and editing as well as the shooting of the film.

376-15(3)
For the purposes of paragraph (1)(eb), the amount for a film is worked out by using the formula:

Total QAPE     Duration of film in hours

where:

duration of film in hours
means the total length of the film, measured in hours.

total QAPE
means the total of the company ' s ^* qualifying Australian production expenditure on the film (worked out using Subdivision 376-C).

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S 376-15(3) inserted by No 162 of 2005.

S 376-15 inserted by No 27 of 2002.

SECTION 376-17 Television series  
376-17(1)
A television series is a ^* film made up of 2 or more episodes that:

(a) are produced wholly or principally for exhibition to the public on television under a single title; and

(b) contain a common theme or themes; and

(c) contain dramatic elements that form a narrative structure; and

(d) meet the requirement in subsection (2).

Note:

A documentary can be a television series.

376-17(2)
The requirement is that all of the episodes must be produced wholly or principally for exhibition together, for a national market or national markets.

376-17(3)
To avoid doubt, and without limiting paragraph (1)(c), a ^* film satisfies the requirement in that paragraph if:

(a) the sole or dominant purpose of the film is to depict actual events, people or situations; and

(b) the film depicts those events, people or situations in a dramatic or entertaining way, with a heavy emphasis on dramatic impact or entertainment value.

376-17(4)
A pilot episode to a television series is taken to be a part of the television series.

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S 376-17 inserted by No 162 of 2005.

SECTION 376-20 Company may nominate one person whose remuneration is to be disregarded  
376-20(1)
In its application for the certificate under section 376-15, the company may nominate one person as a person to whom this section applies.

376-20(2)
If the company nominates a person under subsection (1), disregard the following for the purposes of this Division:

(a) the remuneration and other benefits provided to the person for the person ' s services in relation to the ^* making of the ^* film;

(b) travel and other costs associated with the services the person provides in relation to the making of the film.

Note:

This means that the person ' s remuneration and benefits, and associated costs, are disregarded both in working out the total of the company ' s qualifying Australian production expenditure on the film and in working out the company ' s total production expenditure on the film.

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S 376-20 inserted by No 27 of 2002.

Subdivision 376-C - Production expenditure and qualifying Australian production expenditure

Production expenditure
SECTION 376-25 Production expenditure - general test  
376-25(1)
A company ' s production expenditure on a ^* film is expenditure that the company incurs to the extent to which it:

(a) is incurred in, or in relation to, the ^* making of the film; or

(b) is reasonably attributable to:

(i) the use of equipment or other facilities for; or

(ii) activities undertaken in;

the making of the film.

376-25(2)
The making of a ^* film means the doing of the things necessary for the production of the first copy of the film.

376-25(3)
The making of a ^* film includes:

(a) pre-production activities in relation to the film; and

(b) post-production activities in relation to the film; and

(c) any other activities undertaken to bring the film up to the state where it could reasonably be regarded as ready to be distributed, broadcast or exhibited to the general public.

376-25(4)
The making of a ^* film does not include:

(a) developing the proposal for the ^* making of the film; or

(b) arranging or obtaining finance for the film; or

(c) distributing the film; or

(d) promoting the film.

376-25(5)
Without limiting subsection (1), a company ' s production expenditure on a ^* film:

(a) may be expenditure that is incurred in the income year for which the ^* tax offset is sought or in an earlier income year; and

(b) may be expenditure of either a capital or a revenue nature; and

(c) may be expenditure that gives rise to a deduction.

Paragraph (c) has effect subject to item 10 in the table in subsection 376-35(1) (which deals with capital allowances).

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S 376-25(5) amended by No 162 of 2005.

376-25(6)
If:

(a) a company:

(i) ^* holds a ^* depreciating asset; and

(ii) uses the asset, while held, in the ^* making of a ^* film; and

(b) deductions in relation to the asset are available under Division 40 (which deals with capital allowances);

the production expenditure of the company on the film includes an amount equal to the decline in the value of the asset to the extent to which that decline is reasonably attributable to the use of the asset in the making of the film. The decline in value of the asset is to be worked out using Division 40 .

Note:

Under item 10 of the table in subsection 376-35(1), expenditure that sets or increases the cost of the asset does not count as production expenditure.

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S 376-25(6) amended by No 162 of 2005.

S 376-25 inserted by No 27 of 2002.

SECTION 376-30 SECTION 376-30 Production expenditure - special qualifying Australian production expenditure  
376-30
Expenditure of a company is also production expenditure of the company on a ^* film if it is ^* qualifying Australian production expenditure of the company on the film under section 376-45.

Note:

This means that the special qualifying Australian production expenditure is taken into account both in working out the total amount of the company ' s qualifying Australian production expenditure and in working out the total amount of all the company ' s production expenditure on the film. The total amount of all production expenditure is relevant to the test in paragraph 376-15(1)(g) .

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S 376-30 inserted by No 27 of 2002.

SECTION 376-35 Production expenditure - specific exclusions  
376-35(1)
Despite sections 376-25 and 376-30, the following expenditure of a company is not production expenditure of the company on a ^* film:

Expenditure that does not count as production expenditure on a film
Item	This kind of expenditure by the company is not production expenditure...	except to the extent to which the expenditure is...
1	Financing expenditure expenditure incurred by way of, or in relation to, the financing of the *film (including returns payable on amounts invested in the film and expenditure in relation to raising and servicing finance for the film)
2	Development expenditure *development expenditure on the *film	*qualifying Australian production expenditure under item 1 in the table in subsection 376-45(1)
3	Copyright acquisition expenditure expenditure incurred in acquiring copyright, or a licence in relation to copyright, in a pre-existing work for use in the *film	*qualifying Australian production expenditure under item 2 in the table in subsection 376-45(1)
4	General business overheads expenditure incurred to meet the general business overheads of the company that:	*qualifying Australian production expenditure under item 3 in the table in subsection 376-45(1)
	(a)	are not incurred in, or in relation to, the *making of the *film; and
	(b)	are not reasonably attributable to:
		(i)	the use of equipment or other facilities for; or
		(ii)	activities undertaken in;
		the making of the film
5	Publicity and promotion expenditure expenditure incurred in publicising or otherwise promoting the *film (including press expenses, still photography, videotapes, public relations and other similar expenses)	*qualifying Australian production expenditure under item 4 in the table in subsection 376-45(1)
6	Deferments amounts that are payable only out of the receipts, earnings or profits from the *film
7	Profit participation amounts that:
	(a)	depend on the receipts, earnings or profits from the *film; or
	(b)	are otherwise dependent on the commercial performance of the film
8	Residuals amounts payable in satisfaction of the residual rights of a person who is a member of the cast	paid out by the company before the *film is *completed
9	Advances amounts paid by way of advance on a payment to which item 6, 7 or 8 applies to the extent to which it may become repayable by the person to whom it is paid
10	Acquisition of depreciating asset expenditure to the extent to which it sets, or increases, the *cost of a *depreciating asset	*qualifying Australian production expenditure under item 2 in the table in subsection 376-45(1)
	This item has effect subject to subsection 376-25(6).
11	Regulations expenditure specified in regulations

376-35(2)
Despite sections 376-25 and 376-30 , the expenditure of a company is not production expenditure of the company on a ^* film if:

(a) the film is a ^* television series that is not covered by subparagraph 376-15(1)(d)(i) or (ii) ; and

(b) the expenditure is reasonably attributable to the production of a pilot episode to the television series; and

(c) the expenditure, apart from this subsection, would be production expenditure that was not ^* qualifying Australian production expenditure.

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S 376-35(2) inserted by No 162 of 2005.

S 376-35 inserted by No 27 of 2002.

Qualifying Australian production expenditure

SECTION 376-40 SECTION 376-40 Qualifying Australian production expenditure - general test  
376-40
A company ' s qualifying Australian production expenditure on a ^* film is the company ' s ^* production expenditure on the film to the extent to which it is incurred for, or is reasonably attributable to:

(a) goods and services provided in Australia; or

(b) the use of land located in Australia; or

(c) the use of goods that are located in Australia at the time they are used in the ^* making of the film.

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S 376-40 inserted by No 27 of 2002.

SECTION 376-45 Qualifying Australian production expenditure - specific inclusions  
376-45(1)
The following expenditure of a company is also qualifying Australian production expenditure of the company on a ^* film:

Special Australian expenditure
Item	Type of expenditure
1	Australian development expenditure
	*development expenditure on the *film to the extent to which it is incurred for, or is reasonably attributable to:
	(a)	goods and services provided in Australia; or
	(b)	the use of land located in Australia; or
	(c)	the use of goods that are located in Australia at the time they are used in the *making of the film
	[ see subsection (2)]
2	Expenditure incurred in acquiring Australian copyright
	expenditure incurred to acquire copyright, or a licence in relation to copyright, in a pre-existing work for use in the *film if the copyright is held by a qualified person (within the meaning of section 32 of the Copyright Act 1968 )
3	Australian business overheads
	general business overheads of the company that:
	(a)	are not incurred in or in relation to the *making of the *film; and
	(b)	are not reasonably attributable to:
		(i)	the use of equipment or other facilities for; or
		(ii)	activities undertaken in;
		the making of the film;
	to the extent to which they:
	(c)	are incurred for, or are reasonably attributable to:
		(i)	goods and services provided in Australia; or
		(ii)	the use of land located in Australia; or
		(iii)	the use of goods that are located in Australia at the time they are used in the making of the film; and
	(d)	represent a reasonable apportionment of those overheads between the making of the film and the other activities undertaken by the company
	This item has effect subject to subsection (3).
4	Expenditure incurred in producing Australian copyrighted promotional material
	expenditure incurred in producing material for use in publicising or otherwise promoting the *film if the copyright in the material is held by a qualified person (within the meaning of section 32 of the Copyright Act 1968 )
5	Travel to Australia
	expenditure of the company in relation to a person ' s travel to Australia to undertake activities in Australia in relation to the *making of the *film if the remuneration paid to the person for those activities is *qualifying Australian production expenditure of the company
6	Regulations
	expenditure prescribed by the regulations

376-45(2)
Legal costs will be covered by item 1 in the table in subsection (1) only if they relate to:

(a) writers ' contracts; or

(b) chain of title and other copyright issues.

376-45(3)
General business overheads of the company are covered by item 3 in the table in subsection (1) only to the extent to which they do not exceed the lesser of:

(a) 2% of the total of all the company ' s ^* production expenditure on the ^* film; or

(b) $500,000.

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S 376-45 inserted by No 27 of 2002.

SECTION 376-50 SECTION 376-50 Qualifying Australian production expenditure - specific exclusions  
376-50
Despite sections 376-40 and 376-45, the following expenditure of a company is not qualifying Australian production expenditure of a company on a ^* film:

(a) expenditure that is incurred at a time when:

(i) the company is a foreign resident; and

(ii) the company does not have both a ^* permanent establishment in Australia and an ^* ABN;

(b) expenditure in relation to:

(i) remuneration and other benefits provided to a person for the person ' s services in relation to the ^* making of the film; or

(ii) travel and other costs associated with the services a person provides in relation to the making of the film;

if the person:

(iii) is not a member of the cast; and

(iv) enters Australia to work on the film for less than 2 consecutive calendar weeks;

(c) expenditure prescribed by the regulations.

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S 376-50 amended by No 41 of 2005 and inserted by No 27 of 2002.

SECTION 376-55 SECTION 376-55 Qualifying Australian production expenditure - treatment of services embodied in goods  
376-55
If:

(a) a company incurs expenditure for the provision of what is essentially a service; and

(b) the results of the service are provided to the company by being embodied in goods that are delivered to the company; and

(c) the service that is embodied in the goods was predominantly performed outside Australia;

the service is not provided to the company in Australia merely because the goods are delivered to the company in Australia.

Note:

Paragraph (b) - a document, for example, might set out legal or other professional advice or a computer disk might contain a program that has been made or data that has been compiled.

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S 376-55 inserted by No 27 of 2002.

Expenditure generally

SECTION 376-60 SECTION 376-60 Expenditure to be worked out in Australian dollars  
376-60
(Repealed by No 133 of 2003)

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S 376-60 repealed by No 133 of 2003, s 3 and Sch 4 item 57, effective 17 December 2003. No 133 of 2003 contains the following transitional provision:

78 Transitional - sections 20, 102AAX and 391 of the Income Tax Assessment Act 1936 and sections 103-20 and 376-60 of the Income Tax Assessment Act 1997  
(1)
Despite the repeals of sections 20, 102AAX and 391 of the Income Tax Assessment Act 1936 and sections 103-20 and 376-60 of the Income Tax Assessment Act 1997 by this Schedule, those sections continue to apply, in relation to a transaction, event or thing:

(a) that involves an amount in a foreign currency; and

(b) to which section 960-50 of the Income Tax Assessment Act 1997 does not apply;

as if those repeals had not happened.

(2)
Despite the following amendments:

(a) the amendment of section 102AAW of the Income Tax Assessment Act 1936 by this Schedule;

(b) the amendment of section 389 of the Income Tax Assessment Act 1936 by this Schedule;

sections 102AAW and 389 of the Income Tax Assessment Act 1936 continue to apply, in relation to the former section 20 of the Income Tax Assessment Act 1936 , as if those amendments had not been made.

S 376-60 formerly read:

Expenditure to be worked out in Australian dollars  
376-60(1)
Expenditure that is incurred in foreign currencies is to be converted into Australian dollars for the purposes of quantifying both:

(a) the total of all of a company ' s ^* production expenditure on a ^* film; and

(b) the total of the company ' s ^* qualifying Australian production expenditure on a film.

376-60(2)
The conversion rate to be used is the average of the exchange rates applicable from time to time during the period that:

(a) starts on the earliest day on which:

(i) principal photography takes place; or

(ii) the production of the animated image commences; and

(b) ends when the ^* film is ^* completed.

S 376-60 inserted by No 27 of 2002.

SECTION 376-65 SECTION 376-65 Expenditure to be worked out on an arm ' s length basis  
376-65
For the purposes of this Division, if any 2 or more parties to:

(a) an ^* arrangement under which a company incurs expenditure in relation to a ^* film; or

(b) any act or transaction directly or indirectly connected with expenditure that a company incurs in relation to a film;

do not deal with each other at ^* arm ' s length in relation to the arrangement, or in relation to the act or transaction, the expenditure is taken to be only so much (if any) of the expenditure as would have been incurred if they had been dealing with each other at arm ' s length in relation to the arrangement, or in relation to the act or transaction.

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S 376-65 inserted by No 27 of 2002.

SECTION 376-70 Expenditure incurred by prior production companies  
376-70(1)
For the purposes of this Division, if a company (the incoming company ) takes over the ^* making of a ^* film from another company (the outgoing company ):

(a) expenditure incurred in relation to the film by the outgoing company is taken to have been incurred in relation to the film by the incoming company; and

(b) for the purposes of determining the extent to which that expenditure is ^* qualifying Australian production expenditure of the incoming company, the incoming company is taken:

(i) to have been an Australian resident at any time when the outgoing company was an Australian resident; and

(ii) to have had a ^* permanent establishment in Australia at any time when the outgoing company had a permanent establishment in Australian; and

(iii) to have had an ^* ABN at any time when the outgoing company had an ABN; and

(c) expenditure that the incoming company incurs in order to be able to take over the making of the film is to be disregarded for the purposes of this Division; and

(d) any activities carried out, and arrangements made, by the outgoing company in relation to the film are taken, for the purposes of subparagraphs 376-15(1)(g) (ii) and (h)(i), to have been carried out or made by the incoming company in relation to the film.

376-70(2)
For the purposes of subsection (1):

(a) expenditure incurred on the ^* film by the outgoing company includes expenditure that the outgoing company is itself taken to have incurred on the film because of the operation of subsection (1); and

(b) the outgoing company is taken:

(i) to have been an Australian resident at any time when the outgoing company is taken to have been an Australian resident because of the operation of subsection (1); and

(ii) to have had a ^* permanent establishment in Australia at any time when the outgoing company is taken to have had a permanent establishment in Australia because of the operation of subsection (1); and

(iii) to have had an ^* ABN at any time when the outgoing company is taken to have had an ABN because of the operation of subsection (1); and

(c) activities carried out by the outgoing company in relation to the film include activities that the outgoing company is taken to have carried out in relation to the film because of the operation of subsection (1); and

(d) arrangements made by the outgoing company for the carrying out of activities in relation to the film include arrangements that the outgoing company is taken to have made because of the operation of subsection (1).

Note:

If Company A starts out making a film and then Company B takes over the making of the film, Company B is taken to have incurred the expenditure that Company A incurred on the film. If Company C subsequently takes over the making of the film from Company B, Company C is taken to have incurred the expenditure that Company B incurred on the film (including the expenditure of Company A that is attributed to Company B).

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S 376-70 inserted by No 27 of 2002.

Subdivision 376-D - Certificates for films

SECTION 376-75 Production company may apply for certificate  
376-75(1)
Once a ^* film is ^* completed, a company may apply to the ^* Arts Minister for the issue of a certificate to the company for the film under section 376-15.

376-75(2)
The application must be made in accordance with the rules determined by the ^* Arts Minister under section 376-105 so far as they relate to the requirements for applications.

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S 376-75 inserted by No 27 of 2002.

SECTION 376-80 SECTION 376-80 Refusal to issue certificate  
376-80
If the ^* Arts Minister decides not to issue a certificate for a ^* film, the Minister must give the applicant written notice of the decision (including reasons for the decision).

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S 376-80 inserted by No 27 of 2002.

SECTION 376-85 Issue of certificate  
376-85(1)
A certificate issued to a company under section 376-15 must:

(a) be in writing; and

(b) specify the company ' s ^* ABN.

376-85(2)
The ^* Arts Minister must give the Commissioner notice of the issue of a certificate for a ^* film within 30 days after issuing the certificate.

376-85(3)
The notice under subsection (2) must specify:

(a) the company ' s name; and

(b) the company ' s address; and

(c) other matters agreed to between the ^* Arts Minister and the Commissioner.

The notice must be accompanied by a copy of the certificate.

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S 376-85 inserted by No 27 of 2002.

SECTION 376-90 Revocation of certificate  
376-90(1)
The ^* Arts Minister may revoke a certificate issued to a company for a ^* film under section 376-15 if the Minister is satisfied that the issue of the certificate was obtained by fraud or serious misrepresentation.

376-90(2)
If the ^* Arts Minister revokes a certificate under subsection (1), the Minister must give the company to whom the certificate was issued written notice of the revocation (including reasons for the decision to revoke the certificate).

376-90(3)
If a certificate is revoked under subsection (1), it is taken, for the purposes of this Division, never to have been issued.

Note:

This means that if an assessment of a company ' s income tax is issued on the basis that the company is entitled to a tax offset for a film and the certificate for the film is then revoked, the assessment will be amended to take account of the fact that the company was never entitled to the tax offset.

376-90(4)
Subsection (3) does not apply for the purposes of:

(a) the operation of this section or section 376-95; or

(b) a review by a court or the ^* AAT of the decision to revoke the certificate.

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S 376-90 inserted by No 27 of 2002.

SECTION 376-95 Notice of decision  
376-95(1)
This section applies to a notice of a decision given under section 376-80 or 376-90.

376-95(2)
The notice of the decision is to include the statements set out in subsections (3) and (4).

376-95(3)
There must be a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975 , an application may be made to the ^* AAT, by (or on behalf of) any entity whose interests are affected by the decision, for review of the decision.

376-95(4)
There must also be a statement to the effect that a request may be made under section 28 of that Act by (or on behalf of) such an entity for a statement:

(a) setting out the findings on material questions of fact; and

(b) referring to the evidence or other material on which those findings were based; and

(c) giving the reasons for the decision;

except where subsection 28(4) of that Act applies.

376-95(5)
If the ^* Arts Minister fails to comply with subsection (3) or (4), that failure does not affect the validity of his or her decision.

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S 376-95 inserted by No 27 of 2002.

SECTION 376-100 SECTION 376-100 Review of decisions by the Administrative Appeals Tribunal  
376-100
Applications may be made to the ^* AAT for review of:

(a) a decision made by the ^* Arts Minister to refuse an application for a certificate under section 376-15; or

(b) a decision made by the Arts Minister under section 376-90 to revoke a certificate.

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S 376-100 inserted by No 27 of 2002.

SECTION 376-105 Minister may make rules  
Rules establishing the Film Certification Advisory Board

376-105(1)
The ^* Arts Minister may, by legislative instrument, make rules:

(a) establishing a Film Certification Advisory Board to:

(i) consider applications under section 376-75 and advise the Minister on whether to issue certificates under section 376-15; and

(ii) perform such other functions in relation to the operation of this Division as are specified in the rules; and

(b) specifying the membership of the Board and the terms and conditions of appointment to the Board; and

(c) specifying procedures to be followed by the Board in performing its functions.

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S 376-105(1) amended by No 58 of 2006 , s 3 and Sch 7 item 261, by inserting " , by legislative instrument, " after " The *Arts Minister may " , effective 22 June 2006.

Rules providing for provisional certificates

376-105(2)
The ^* Arts Minister may, by legislative instrument, make rules providing for the issue of provisional certificates.

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S 376-105(2) amended by No 58 of 2006 , s 3 and Sch 7 item 261, by inserting " , by legislative instrument, " after " The *Arts Minister may " , effective 22 June 2006.

Rules about applications

376-105(3)
The ^* Arts Minister may, by legislative instrument, make rules specifying how applications for certificates (including provisional certificates) are to be made, including:

(a) the form in which applications are to be made; and

(b) the information to be provided in applications; and

(c) methods for verifying such information; and

(d) procedures for providing, at the Minister ' s request, additional information in support of an application.

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S 376-105(3) amended by No 58 of 2006 , s 3 and Sch 7 item 261, by inserting " , by legislative instrument, " after " The *Arts Minister may " , effective 22 June 2006.

376-105(4)
Rules under paragraph (3)(c) can include rules requiring reports by auditors or independent line producers.

376-105(5)
(Repealed by No 58 of 2006 )

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S 376-105(5) repealed by No 58 of 2006 , s 3 and Sch 7 item 262, effective 22 June 2006. S 376-105(5) formerly read:

376-105(5)
The rules must be in writing.

376-105(6)
(Repealed by No 58 of 2006 )

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S 376-105(6) repealed by No 58 of 2006 , s 3 and Sch 7 item 262, effective 22 June 2006. S 376-105(6) formerly read:

376-105(6)
Rules made under subsection (1), (2) or (3) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901 .

S 376-105 inserted by No 27 of 2002.

Subdivision 376-E - Review of operation of this Division

SECTION 376-110 Review of operation of this Division  
376-110(1)
The ^* Arts Minister must cause a review of the operation of this Division to be conducted and completed before 4 September 2006.

376-110(2)
The review:

(a) must include:

(i) an evaluation of the success of the ^* tax offset provided for by this Division as an incentive for attracting high quality, high budget *film production to Australia, taking into account the net cost of the offset; and

(ii) an assessment of the impact of the tax offset on the Australian film production industry (including an assessment of the opportunities it generates for employment and skills transfer); and

(b) must allow an opportunity for people and organisations involved in the film industry to make written submissions to the persons conducting the review.

376-110(3)
The persons who conduct the review must give the ^* Arts Minister a written report of the review.

376-110(4)
The ^* Arts Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days after the day on which the report is given to the Minister.

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S 376-110 inserted by No 27 of 2002.

Subdiv 376-C substituted by No 164 of 2007 , s 3 and Sch 10 item 1, effective 25 September 2007. For former wording and savings provisions see note under Div 376 heading.

S 376-170(2) amended by No 147 of 2011, s 3 and Sch 9 item 23, by inserting table items 5 - 7, applicable in respect of the producer offset to: (a) films for which production assistance (other than development assistance) has been approved by the film authority on or after 1 July 2011; or (b) in any other case, films for which production expenditure is first incurred in, or in relation to, pre-production of the film on or after 1 July 2011.

S 376-170(3A) inserted by No 84 of 2018, s 3 and Sch 3 item 1, effective 1 October 2018 and applicable in relation to films commencing principal photography on or after 1 July 2018.

S 376-170(4) amended by No 127 of 2021, s 3 and Sch 1 item 24, by substituting " for a series other than a drama series, or a season of a series other than a drama series " for " for a series or a season of a series " in para (c), effective 1 January 2022 and applicable in respect of the tax offset under section 376-55 (the producer offset) to films commencing principal photography on or after 1 July 2021.

S 376-170(4) amended by No 147 of 2011, s 3 and Sch 9 items 24 and 25, by substituting " subject to subsection (4A), the following " for " the following " in para (b) and " episode in which the 65th commercial hour of the series is reached " for " 65th episode of the series " in para (c), applicable in respect of the producer offset to: (a) films for which production assistance (other than development assistance) has been approved by the film authority on or after 1 July 2011; or (b) in any other case, films for which production expenditure is first incurred in, or in relation to, pre-production of the film on or after 1 July 2011.

S 376-170(4) amended by No 41 of 2011, s 3 and Sch 5 item 416, by repealing para (a)(i), effective 27 June 2011. Para (a)(i) formerly read:

(i) the Film Finance Corporation Australia Limited;

S 376-170(4) amended by No 13 of 2008, s 3 and Sch 1 item 4, by inserting para (a)(v), effective 1 July 2008.

S 376-170(4A) amended by No 85 of 2013, s 3 and Sch 1 item 10, by substituting " * documentary " for " documentary " , applicable in relation to films commencing principal photography on or after 1 July 2012.

S 376-170(4A) inserted by No 147 of 2011, s 3 and Sch 9 item 26, applicable in respect of the producer offset to: (a) films for which production assistance (other than development assistance) has been approved by the film authority on or after 1 July 2011; or (b) in any other case, films for which production expenditure is first incurred in, or in relation to, pre-production of the film on or after 1 July 2011.

S 376-170(5) amended by No 147 of 2011, s 3 and Sch 9 item 27, by substituting " 2011 " for " 2007 " , applicable in respect of the producer offset to: (a) films for which production assistance (other than development assistance) has been approved by the film authority on or after 1 July 2011; or (b) in any other case, films for which production expenditure is first incurred in, or in relation to, pre-production of the film on or after 1 July 2011.

S 376-170 inserted by No 164 of 2007 , s 3 and Sch 10 item 1, effective 25 September 2007. For savings provisions see note under Div 376 heading.