Product Ruling

PR 2003/38

Income tax: Film Investment - 'Beyond Group Television Investment Fund'

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FOI status:

may be released

No guarantee of commercial success

The Australian Taxation Office (ATO) does not sanction or guarantee this product. Further, we give no assurance that the product is commercially viable, that charges are reasonable, appropriate or represent industry norms, or that projected returns will be achieved or are reasonably based.

Potential participants must form their own view about the commercial and financial viability of the product. This will involve a consideration of important issues such as whether projected returns are realistic, the 'track record' of the management, the level of fees in comparison to similar products, how this product fits an existing portfolio, etc. We recommend a financial (or other) adviser be consulted for such information.

This Product Ruling provides certainty for potential participants by confirming that the tax benefits set out below in the Ruling part of this document are available provided that the arrangement is carried out in accordance with the information we have been given and have described below in the Arrangement part of this document.

If the arrangement is not carried out as described below, participants lose the protection of this Product Ruling. Potential participants may wish to seek assurances from the promoter that the arrangement will be carried out as described in this Product Ruling.

Potential participants should be aware that the ATO will be undertaking review activities to confirm the arrangement has been implemented as described below and to ensure that the participants in the arrangement include in their income tax returns income derived in those future years.

Terms of Use of this Product Ruling

This Product Ruling has been given on the basis that the person(s) who applied for the Ruling, and their associates, will abide by strict terms of use. Any failure to comply with the terms of use may lead to the withdrawal of this Ruling.

What this Product Ruling is about

1. This Ruling sets out the Commissioner's opinion on the way in which the 'tax laws' identified below apply to the defined class of persons who take part in the arrangement to which this Ruling relates. In this Ruling this arrangement is sometimes referred to as 'the Fund', 'the Projects' or 'the arrangement'.

Tax laws

2. The tax laws dealt with in this Ruling are:

•

Division 10B of Part III of the Income Tax Assessment Act 1936 ('ITAA 1936');

•

Division 5 of Part III (ITAA 1936);

•

Section 82KL of the (ITAA 1936);

•

Section 79D of the (ITAA 1936);

•

Part IVA of the (ITAA 1936);

•

Section 6-5 of the Income Tax Assessment Act 1997 ('ITAA 1997');

•

Section 17-5 of the (ITAA 1997);

•

Division 35 of the (ITAA 1997); and

•

Section 995-1 of the (ITAA 1997).

Unless otherwise stated, all legislative references that follow are in relation to the ITAA 1936.

Goods and Services Tax

3. In this Ruling, where applicable, all fees and expenditure referred to include Goods and Services Tax ('GST') set out in the A New Tax System (Goods and Services Tax) Act 1999 ('GST Act'). A person or entity is entitled to claim input tax credits for the GST included in its expenditure provided that the acquisition is a creditable acquisition under Division 11 of the GST Act.

Business Tax Reform

4. The Government is currently evaluating further changes to the tax system in response to the Ralph Review of Business Taxation and continuing business tax reform is expected to be implemented over a number of years. Although this Ruling deals with the laws enacted at the time it was issued, future tax changes may affect the operation of those laws and, in particular, the tax deductions that are allowable. Where tax laws change, those changes will take precedence over the application of this Ruling and, to that extent, this Ruling will be superseded.

5. Taxpayers who are considering investing in the Project are advised to confirm with their taxation adviser that changes in the law have not affected this Product Ruling since it was issued.

Note to promoters and advisers

6. Product Rulings were introduced for the purpose of providing certainty about tax consequences for investors in projects such as this. In keeping with that intention, the Tax Office suggests that promoters and advisers ensure that potential investors are fully informed of any changes in tax laws that take place after the Ruling is issued. Such action should minimise suggestions that potential investors have been negligently or otherwise misled.

Class of persons

7. The class of persons to which this Ruling applies is those persons who enter into the arrangement described below on or after the date this Ruling is made. They will have a purpose of staying in the arrangement until it is completed, i.e. being a party to the relevant agreements until their terms expire, and deriving assessable income from this involvement as a result (as set out in the description of the arrangement). In this Ruling, each of these persons, referred to as 'Investors', will have accepted an offer made under subsections 708(1) - (11) of the Corporations Act 2001.

8. The class of persons to which this Ruling applies does not include persons who intend to terminate their involvement in the arrangement prior to its completion, or who otherwise do not intend to derive assessable income from it.

Qualifications

9. The Commissioner rules on the precise arrangement identified in the Ruling. If the arrangement described in the Ruling is materially different from the arrangement that is actually carried out, the Ruling has no binding effect on the Commissioner. The Ruling will be withdrawn or modified.

10. A Product Ruling may only be reproduced in its entirety. Extracts may not be reproduced. As each Product Ruling is copyright, apart from any use as permitted under the Copyright Act 1968, no Product Ruling may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to:

Commonwealth Copyright Administration

Intellectual Property Branch

Department of Communications, Information Technology and the Arts

GPO Box 2154

Canberra ACT 2601

or by e-mail: commonwealth.copyright@dcita.gov.au.

Date of effect

11. This Ruling applies prospectively from 4 June 2003 the date this Ruling is made. However, the Ruling does not apply to taxpayers to the extent that it conflicts with the terms of settlement of a dispute agreed to before the date of issue of the Ruling (see paragraphs 21 and 22 of Taxation Ruling TR 92/20).

12. If a taxpayer has a more favourable private Ruling (which is legally binding), the taxpayer can rely on the private Ruling if the income year to which the private Ruling relates has ended, or has commenced but not yet ended. However, if the arrangement covered by the private Ruling has not begun to be carried out, and the income year to which it relates has not yet commenced, the Product Ruling applies to the taxpayer to the extent of the inconsistency only (see Taxation Determination TD 93/34).

Withdrawal

13. This Product Ruling is withdrawn on 30 June 2005 and ceases to have effect on and from that date. The Ruling continues to apply, in respect of the tax laws ruled upon, to all persons within the specified class who enter into the specified arrangement during the term of the Ruling. Thus, the Ruling continues to apply to those persons, even following its withdrawal, for arrangements entered into prior to withdrawal of the Ruling. This is subject to there being no change in the arrangement, or the persons' involvement in the arrangement.

Arrangement

14. The arrangement is the Beyond Group Television Investment Fund and is described below. This description is based on the following documents. These documents, or relevant parts of them, as the case may be, form part of and are to be read with this description. The relevant documents or parts of documents incorporated into this description of the arrangement are:

•

Application for a Product Ruling and Product Ruling Checklist dated 18 March 2003 from the Applicant's representative in respect of the Beyond Group Television Investment Fund as constituted by documents received in the ATO on 20 March 2003, 26 March 2003, 27 March 2003 and 26 May 2003 and additional correspondence dated 10 April 2003, 25 April 2003, 28 April 2003, 13 May 2003, 14 May 2003, 19 May 2003, 21 May 2003 and 26 May 2003;

•

Film Investment Joint Venture Agreement between Zero Bond Financial Services Pty Limited (the 'Manager') and each Investor in the form received in the ATO on 26 May 2003 under which each of the Investors agrees to acquire a copyright interest in each of a television series ('Television Series') and a number of documentaries ('Documentaries') (together 'the Projects');

•

Series Acquisition Agreement between the Series Production Company, the Manager, and each Investor for the acquisition of an interest in the copyright of the Television Series in the form received in the ATO on 26 May 2003;

•

Documentary Acquisition Agreement between the Documentary Production Company, the Manager, and each Investor for the acquisition of an interest in the copyright of each Documentary in the form received in the ATO on 26 May 2003;

•

Umbrella Distribution Agreement between Beyond TV Properties Ltd (the 'Distributor'), Beyond Distribution Pty Ltd (the 'Australian Distributor'), both Production Companies ('PCs'), the Manager, and each Investor in the form received in the ATO on 26 May 2003; and

•

Beyond Group Television Investment Fund Information Memorandum in the form received in the ATO on 26 May 2003 ('Information Memorandum').

15. The documents highlighted are those which Investors enter into or become a party to. There are no other agreements, whether formal or informal, and whether or not legally enforceable, that an Investor, or any associate of an Investor, will be a party to.

16. In accordance with the above documents, the minimum investment is AUS$500,000 except where an investor accepts an offer that was made under section 708 of the Corporations Act 2001. This Ruling does not apply unless the investor:

•

invests a minimum of AUS $500,000;

•

has accepted a 'personal offer' under subsections 708(1)-(7) of the Corporations Act 2001;

•

is a 'sophisticated investor' for the purposes of subsections 708(8)-(9) of the Corporations Act 2001;

•

has accepted an offer made by a licensed dealer where the offer meets the requirements of subsection 708(10) of the Corporations Act 2001; or

•

is a 'professional investor' for the purposes of paragraphs (a), (b) or (h) of subsection 708(11) of the Corporations Act 2001.

The above categories are explained in paragraphs 28 to 35 of this Product Ruling.

The Participants

17. The parties involved in the arrangement are:

•

Zero Bond Financial Services Pty Limited ('Manager'), which offers the investment in the Fund to the Investors and which enters into the documents (other than the Investment Agreement) on behalf of each Investor;

•

each Investor, being a purchaser of a number of copyright interests who licences them to derive assessable income;

•

Beyond TV Properties Ltd ('Distributor'), the overseas distributor;

•

Beyond Distribution Pty Ltd ('Australian Distributor'), the Australian distributor; and

•

each Production Company ('PC') which makes one of the Projects, the Production Company.

The Fund

18. The Manager will make an invitation to the specially selected persons to invest in the Projects in the Fund. The offer will close, Copyright Interests will be allocated and documents will executed on or before 30 June 2003. Investment will involve an Investor paying to the Manager an amount ('Investment'), together with Application Moneys equal to 2% of the Investment amount (to cover non-deductibles).

19. The Manager will apply 100% of each Investment to investment in the television series and the documentaries, all of which are 'Australian films' for the purposes of Division 10B ('Television Fund').

20. Depending on the level of funds raised under the offer, a varying number of Projects will be acquired being a mix of Television Series and Documentaries. The Manager has the final choice of which Projects are selected for acquisition and which Projects are not selected for acquisition.

21. Each of the parties above will enter in a Distribution Agreement (with the Manager contracting on behalf of each of the Investors severally). It will cover each of the Projects and will provide for licence fees to be paid semi-annually based on the performance of the Projects. The Distributor will provide a distribution guarantee which will guarantee that Investors will receive by 30 June 2010 (on a cumulative basis) from all territories under the Distribution Agreement an amount equal to the level of presales obtained with arm's length third parties at the time of entry into the Distribution Agreement or 70% of the cost of acquiring the Copyright Interests in the Projects (whichever is the greater).

22. In addition, the Distributor and the Australian Distributor may enter into a credit insurance arrangement with an arm's length financial institution for the purpose of enhancing the credit obligations of the third party broadcasters and sub-distributors and of the Distributor and Australian Distributor. It is understood that any such arrangement will be entered into with an OECD bank in the ordinary course of business and at commercial rates. The credit insurance will only protect Investors and/or the Manager against an insolvency issue or contractual default of a third party broadcaster or sub-distributor or the Distributor or the Australian Distributor.

23. Investors are expected to derive assessable income from the Projects from the year ending 30 June 2003 through to the end of the year ending 30 June 2013.

Investment Agreement

24. The Investment Agreement sets out the terms and conditions under which the Investors agree to invest in the Projects.

25. Under the Investment Agreement, each of the Investors agree to invest in the Projects and to authorise the execution on their behalf of a number of other documents including the Distribution Agreement, the Documentary Acquisition Agreement and the Series Acquisition Agreement and grant to the Manager a power of attorney for that purpose.

Acquisition Agreements

26. Each of the Series Acquisition Agreement and the Documentary Acquisition Agreement makes provision for the acquisition by the Investors of part or all of the copyright in the relevant Projects covered by the agreement.

Distribution Agreements

27. The funding of the distribution guarantee under the Distribution Agreement is not attributable in any way or form whether directly or indirectly to any money raised or expended in relation to the acquisition of the Projects. This includes the fees payable to the producer, director and any other person who receives payment out of any moneys contributed to the cost of producing the Projects.

Corporations Act 2001

28. For this Ruling to apply, an offer for an interest in the Projects must have been made to, and accepted by, an Investor under one of four exclusions in subsections 708(1)-(11) of the Corporations Act 2001. These provisions set out situations where a prospectus or similar disclosure document is not required.

29. Under subsections 708(1)-(7) an Investor may participate in the Projects by accepting a 'personal offer' for an interest in the Projects. Offers under these provisions cannot be accepted by more than 20 Investors in any 12 month period and these Investors, in aggregate, must not invest more than $2 million dollars.

30. An offer will be a personal offer where it can only be accepted by the person to whom it is made, and it is made to a person who is likely to be interested in the offer because of previous contact, or professional or other connection with the person making the offer, or because they have indicated that they are interested in offers of that kind (subsection 708(2)).

31. Offers made under the other three exclusions in section 708 (see below) are not counted for the purposes of the 20 investors limit.

32. Alternatively, an Investor who is a 'sophisticated investor' may accept an offer for interests in the project under subsections 708(8) and (9). Under subsection 708(8), an Investor in a managed investment scheme, referred to below as 'the person' or 'the person to whom the offer is made', will be a 'sophisticated investor' where:

•

the minimum amount payable for the interests in the Projects on acceptance of the offer by the person to whom the offer is made is at least $500,000;

•

the amount payable for the interests in the Projects on acceptance by the person to whom the offer is made and the amounts previously paid by the person for interests in the project of the same class that are held by the person add up to at least $500,000; or

•

it appears from a certificate given by a qualified accountant no more than 6 months before the offer is made that the person to whom the offer is made:

a)

has net assets of at least $2.5 million; or

b)

has a gross income for each of the last two financial years of at least $250,000 a year.

33. An Investor may also participate in the project where the offer is made by a licensed dealer under subsection 708(10). Under this provision the dealer must be satisfied that the person to whom the offer is made has previous experience in investing which allows them to assess the merits of the offer, the value of the interests in the project, the risks involved in accepting the offer, their own information needs and the adequacy of the information provided.

34. The licensed dealer must provide a written statement of reasons for being so satisfied. Where an Investor is accepted into the project under this provision he or she must sign an acknowledgment that they did not receive a prospectus in relation to the offer.

35. Under subsection 708(11) an offer may be made to and accepted by a person who is considered to be a professional investor. An Investor who participates in the project under this provision will be, at the time the offer is made:

•

a person who is a licensed or exempt dealer and who is acting as a principal;

•

a person who is a licensed or exempt investment adviser and who is acting as a principal; or

•

a person who controls at least $10 million for the purposes of investment in securities.

Finance

36. There is no finance facility offered by the Manager or any other party to the arrangement. Investors can fund their investment in the Fund themselves, or borrow from an independent lender. Regardless of the source of loan funds, this Ruling will not apply to Investors if the Manager accepts their investment subject to finance approval by a lending institution and the full amount payable at the time of the investment is not paid to the Manager on or before 30 June 2003.

37. This Ruling does not apply if a finance arrangement entered into by an Investor to fund the Investor's investment in the arrangement includes or has any of the following features:

•

there are split loan features of a type referred to in Taxation Ruling TR 98/22;

•

there are indemnity arrangements or other collateral agreements in relation to the loan designed to limit the borrower's risk;

•

'additional benefits' are or will be granted to the borrowers for the purpose of section 82KL or the funding arrangements transform the Project into a 'scheme' to which Part IVA may apply;

•

the loan or rate of interest is non-arm's length;

•

repayments of the principal and payments of interest are linked to the derivation of income from the Project;

•

the funds borrowed, or any part of them, will not be available for the conduct of the Project but will be transferred (by any mechanism, directly or indirectly) back to the lender or any associate of the lender;

•

lenders do not have the capacity under the loan agreement, or a genuine intention, to take legal action against defaulting borrowers; or

•

entities associated with the Project are involved or become involved, in the provision of finance to Investors for the Project.

Ruling

Application of this Ruling

38. This Ruling only applies where two or more Investors contribute to the Fund.

Assessable Income

39. In relation to the Fund, the Investors who acquire Copyright will comprise a tax law partnership for the purposes of Division 5 of Part III of the ITAA 1936 (see definition of 'partnership' in section 995-1 of the ITAA 1997).

40. Investors will receive income jointly from their commercial exploitation of their Copyright interests. Section 90 of ITAA 1936 provides that the net income of a partnership is calculated as if the partnership was a resident taxpayer, and is the assessable income less all allowable deductions. The Partnership will be required to lodge a partnership return for each year of income, as required by section 91 of the ITAA 1936. The licence fees received by a Partnership in respect of the Australian Films, less any GST payable on those licence fees, will be assessable income of the Partnership under section 6-5 of the ITAA 1997 in the income year in which they are received from the Distributor.

41. The licence fees received by the Australian Distributor, less any GST payable on those licence fees, will be assessable income of the Australian Distributor in the income year in which they are received.

42. Section 17-5 of the ITAA 1997 excludes from assessable income an amount relating to GST payable on a taxable supply.

43. Amounts received in foreign currencies will be converted for Australian tax purposes into Australian dollars in accordance with subsection 20(3).

Division 10B

44. An Investor in a Project is entitled to an income tax deduction under Division 10B. In the case of the documentaries, where the documentary is finished and in the case of the series, where the episode is completed on or before 30 June 2003, this deduction will be equal to 50% of the Investment in that Project (being the cost of the copyright interest to the Investor) in the year ending 30 June 2003 and 50% of the Investment in that Project in the year ending 30 June 2004.

Division 35 ITAA 1997

45. Division 35 of the ITAA 1997 will not apply on the basis that any losses which may arise are attributable to a passive investment which does not constitute a business activity.

Section 79D

46. Section 79D does not apply to deny or defer the deductions otherwise allowable.

Section 82KL

47. Section 82KL does not apply to deny the deductions otherwise allowable.

Part IVA

48. Part IVA will not apply to deny or defer deductibility or to accelerate assessability of the above amounts.

Assumptions

49. This Ruling is made subject to the following assumptions in respect of each Project:

(a)

An Investor will incur capital expenditure on the purchase of Copyright (paragraph 124L(1)(b));

(b)

An Investor's interest in the Copyright amounts to ownership of the Copyright for the purposes of Division 10B (subsection 124K(1));

(c)

The Project will be completed and the Partnership will use the Copyright for the purpose of producing assessable income (section 124L(1));

(d)

A certificate, issued by the Department of Communication, Intellectual Technology and the Arts, will be in existence in relation to the Television Series and Documentaries (subsection 124K(1));

(e)

The Investors will not exercise the discretion contained in subsection 124UA(2);

(f)

The effective life of the Copyright in the series is two years (subsection 124UA(1));

(g)

No pre-sale arrangements, distribution rights agreements, distribution guarantee agreements, or other like agreements, have been, or will be, entered into in circumstances where such agreements would put funds into the hands of the Investors, by loan or otherwise, to enable them to expend capital moneys by way of contribution to the cost of acquiring copyright interests in the television series and the documentaries ('Australian Films');

(h)

The dominant purpose of the Investors is to make a commercial return from their investment in the Projects and the arrangements will be executed in the manner described in this Ruling; or

(i)

Copyright Interests are acquired at an arms length value from the Producers.

Explanation

Assessable Income

50. The licence fees received by a Partnership of Investors from any of the Projects, less any GST payable on those licence fees, will be assessable income of the Partnership under section 6-5 of the ITAA 1997 in the income year in which they are received from the Distributor. The amounts received are payments for the right to use the rights attaching to that unit of industrial property possessed by the Investors in respect of a particular period.

51. Section 17-5 of the ITAA 1997 excludes from assessable income an amount relating to GST payable on a taxable supply.

Division 10B

52. Each episode of the television series is an 'Australian film' within the meaning of section 124K. Hence, each episode will have an effective life of two years. Similarly each of the documentaries is an 'Australian film' within the meaning of section 124K. Hence, each of the documentaries will have an effective life of two years.

53. Each Investor in entering into the Distribution Agreement through the Manager on or prior to 30 June 2003 is using a unit of industrial property for the purpose of producing assessable income.

54. Each Investor and each PC will be dealing with each other at arm's length. There are no other arrangements between them.

55. To the extent that copyright in respect of an episode in the television series or in one of the documentaries comes into existence prior to 1 July 2003, the Investors will be entitled to claim a deduction in respect of the cost to them of that episode or documentary (as the case may be) with 50% being allowable in the year ending 30 June 2003 and 50% being allowable in the year ending 30 June 2004.

56. The foregoing means that the requirements of section 124M which permits an annual deduction over the effective life of the unit of industrial property are satisfied. Reference should be made particularly to IT 2629, paragraphs 17 to 20.

Division 35

57. Subsection 35-5(2) of the ITAA 1997 specifically provides that Division 35 of the ITAA 1997, which regulates the deduction of losses from non-commercial business activities, is not intended to apply to 'activities that do not constitute carrying on a business, for example, the receipt of income from passive investments'.

58. The transactions covered by the arrangement amount to an acquisition of passive investments and the deriving of income from those investments. Hence, Division 35 of the ITAA1997 does not apply to any of the Projects.

Section 79D

59. Section 79D does not apply where there are no 'foreign income deductions' (as defined in section 160AFD(9)).

60. The transactions covered by the arrangement do not give rise to 'foreign income deductions' because the deductions under Division 10B do not relate to any 'assessable foreign income' (as defined in section 160AFD(9)). This is because the income derived by the Investors under the Distribution Agreement will have an Australian source and will not be 'assessable foreign income'.

Section 82KL

61. The operation of section 82KL depends, amongst other things, on the identification of a certain quantum of 'additional benefit(s)'. Insufficient 'additional benefits' will be provided under the Television Fund Projects to trigger the operation of section 82KL.

Part IVA

62. For Part IVA to apply, there must be:

•

a 'scheme' (section 177A);

•

a 'tax benefit' (section 177C); and

•

a dominant purpose of entering into the scheme to obtain a tax benefit' from entering into the scheme, in the form of a deduction allowable under the provisions in Division 10B, that would not have been obtained but for the scheme. It is not possible to conclude, from the arrangement outlined in this ruling, that a scheme will be entered into or carried out with the dominant purpose of obtaining a tax benefit.

63. An Investor to whom this Ruling applies intends to stay in the scheme for its full term and derive assessable income from the exploitation of the Copyrights of the Projects. There are no facts that would suggest that Investors have the opportunity of obtaining a tax advantage other than the tax advantages identified in this Ruling. There is no non-recourse financing or round robin characteristics, and no indication that the parties are not dealing with each other at arm's length, or if any parties are not at arm's length, that any adverse tax consequences result. Further, there are no features of the Projects, as described in the arrangement set out above, that suggest that the Projects are so 'tax driven' and 'so designed to produce a tax deduction of a certain magnitude', that the operation of Part IVA is attracted.

Detailed contents list

64. Below is a detailed contents list for this Product Ruling:

Commissioner of Taxation
4 June 2003

Not previously released in draft form.

References

ATO references:
NO 2003/02802

Related Rulings/Determinations:

IT 2629
PR 1999/95
TR 92/1
TR 92/20
TR 97/16
TR 98/22
TD 93/34

Subject References:
NCL provisions
product rulings
schemes and shams
tax avoidance
Australian films
Film income
Film industry
Tax administration

Legislative References:
ITAA 1936 subsection 20(3)
ITAA 1936 82KL
ITAA 1936 79D
ITAA 1936 Div 5 of Part III
ITAA 1936 90
ITAA 1936 91
ITAA 1936 DIV 10B of Part III
ITAA 1936 124K
ITAA 1936 124K(1)
ITAA 1936 Div 10B of 124K(1)
ITAA 1936 124L
ITAA 1936 124L(1)
ITAA 1936 124L(1)(b)
ITAA 1936 Div 10 of 124L(1)
ITAA 1936 124M
ITAA 1936 124UA(1)
ITAA 1936 124UA(2)
ITAA 1936 160AFD(9)
ITAA 1936 Part IVA
ITAA 1936 177A
ITAA 1936 177C
ITAA 1997 6-5
ITAA 1997 17-5
ITAA 1997 Div 35
ITAA 1997 35-5(2)
ITAA 1997 995-1
Copyright Act 1968
TAA 1953 Part IVAAA
ANTS(GST)A 99 Div 11
Corporations Act 2001
Corporations Act 2001 708
Corporations Act 2001 708(1)-(11)
Corporations Act 2001 708(1)-(7)
Corporations Act 2001 708(2)
Corporations Act 2001 708(8)
Corporations Act 2001 708(8)(a)
Corporations Act 2001 708(8)-(9)
Corporations Act 2001 708(9)
Corporations Act 2001 708(10)
Corporations Act 2001 708(11)
Corporations Act 2001 708(11)(a)
Corporations Act 2001 708(11)(b)
Corporations Act 2001 708(11)(h)