Product Ruling

PR 2005/112

Income tax: tax consequences of investing in Spark Infrastructure Instalment Limited's Spark Infrastructure Instalment Receipts

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FOI status:

may be released

Preamble

No guarantee of commercial success

The Tax Office 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 and how the product fits an existing portfolio. 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 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, 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 Tax Office 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 law(s)' identified below apply to the defined class of persons, who take part in the arrangement to which this Ruling relates. In this Ruling the arrangement is the purchase of Spark Infrastructure stapled securities (Stapled Securities) from Spark Infrastructure Instalment Limited (Spark Instalment) under Instalment Purchase Arrangements. The consideration for the purchase is payable in two instalments. Each Stapled Security acquired will be evidenced by a Spark Infrastructure Instalment Receipt (Instalment Receipt) until payment of the final instalment.

2. This Ruling does not address the deductibility of interest on loans used to finance the payment of either the First Instalment, Final Instalment or the on-market purchase price.

Tax law(s)

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

•

section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997);

•

section 104-10 of the ITAA 1997;

•

section 104-70 of the ITAA 1997;

•

section 106-60 of the ITAA 1997;

•

section 108-5 of the ITAA 1997;

•

section 109-5 of the ITAA 1997;

•

section 112-30 of the ITAA 1997;

•

section 115-5 of the ITAA 1997;

•

section 116-40 of the ITA 1997;

•

section 26BB of the Income Tax Assessment Act 1936 (ITAA 1936)

•

section 51AAA of the ITAA 1936;

•

section 70B of the ITAA 1936;

•

section 82KL of the ITAA 1936;

•

section 97 of the ITAA 1936;

•

Division 16E of Part III of the ITAA 1936;

•

Schedule 2C, Division 245 of the ITAA 1936; and

•

Part IVA of the ITAA 1936.

Class of persons

4. The class of persons to whom this Ruling applies is those who enter into the arrangement described below, through Application or on-market purchase once the Instalment Receipts are listed for quotation on the Australian Stock Exchange (ASX), on or after the date of this Ruling. They will have at the time of entering into the arrangement, a purpose of staying in the arrangement until it is completed and of deriving assessable income from their involvement as set out in the description of the arrangement. In this Ruling these persons are referred to as 'Holders'.

Qualifications

5. The Commissioner rules on the precise arrangement identified in the Ruling.

6. If the arrangement identified in the Ruling is materially different from the arrangement that is actually carried out:

•

the Ruling has no binding effect on the Commissioner, as the arrangement entered into is not the arrangement ruled upon; and

•

the Ruling will be withdrawn and modified.

7. 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 the:

Commonwealth Copyright Administration

Attorney General's Department

Robert Garran Offices

National Circuit

Barton ACT 2600

or posted at: http://www.ag.gov.au/cca

Date of effect

8. This ruling applies prospectively from 30 November 2005, 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).

9. 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 ended. However, if the arrangement covered by the private ruling has not begun to be carried, and the income year to which it relates has not yet commenced, this Product Ruling applies to the taxpayer to the extent of the inconsistency only (see Taxation Determination TD 93/34).

Withdrawal

10. This Product Ruling is withdrawn and ceases to have effect after 30 June 2007. 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, who entered into the specified arrangement prior to withdrawal of the Ruling. This is subject to there being no material difference in the arrangement or in the persons' involvement in the arrangement.

Arrangement

11. The arrangement that is the subject of this Ruling is described below. The description incorporates the following documents:

•

application for a Product Ruling dated 21 October 2005 received from Deloitte Touche Tohmatsu on behalf of Spark Instalment;

•

draft Prospectus and product disclosure statement (Offer Document) dated 30 October 2005;

•

draft Securities Administration Deed (the Deed) dated 3 November 2005;

•

draft Distribution Deed dated 20 October 2005; and

•

additional information provided on 17 November 2005.

12. In this Ruling, unless otherwise defined, capitalised terms take their meaning as per the Deed.

13. The details of the arrangement subject to this Ruling are summarised as follows:

a.

under the Offer Document Spark Instalment will offer Stapled Securities for purchase at a price, payable by way of Instalment Purchase Arrangements;

b.

the Stapled Security comprises two shares (stapled shares), one CHESS Depositary Interest (stapled CDI), one unit in a trust (stapled unit) and a loan note (stapled loan note) in a utility infrastructure group;

c.

under the Instalment Purchase Arrangements, Applicants:

i

are invited to apply for Stapled Securities;

ii

are required to pay a First Instalment per Stapled Security on Application;

iii

agree to pay Spark Instalment the Final Instalment on the Final Instalment Payment Date; and

iv

agree to pay Spark Instalment interest on the Final Instalment (Instalment Interest) at the Instalment Interest Rate on the Final Instalment Payment Date;

d.

the First Instalment will be equal to 70% of the subscription price of a Stapled Security. The Final Instalment will be payable approximately 15 months after payment of the First Instalment and will be equal to 30% of the subscription price of a Stapled Security;

e.

Instalment Interest will be payable at the rate of approximately 7.5% pa in arrears. Instalment Interest accrues daily and is payable on the Final Instalment Payment Date;

f.

successful Applicants will be registered as a Holder of one Instalment Receipt for each underlying Stapled Security successfully applied for;

g.

each Instalment Receipt evidences:

i

payment of the First Instalment by a Successful Applicant;

ii

the Holder's beneficial ownership in a single Stapled Security; and

iii

the obligation to pay the Final Instalment and Instalment Interest;

h.

until the Final Instalment has been paid, Stapled Securities to which Instalment Receipts relate will be registered in the name of the Security Trustee;

i.

where an Instalment Receipt is purchased on the ASX, the purchaser agrees to be bound by the terms of the Deed, including the obligation to pay the Instalment Interest and the Final Instalment;

j.

Spark Instalment will assign its right to the Final Instalment and Instalment Interest to Select Access Investments (No. 1) Limited (Select Access) for an amount equal to the Final Instalment;

k.

once the Final Instalment and the Instalment Interest are paid, legal title in the Stapled Security will be transferred to the Holder. Failure to pay the Final Instalment or the Instalment Interest will result in an event of default and Select Access will be able to instruct the Security Trustee to sell the Stapled Security to cover the amount of the unpaid Final Instalment or Instalment Interest. If the sale proceeds exceed the amount of the unpaid Final Instalment or Instalment Interest, the excess will be paid to the Holder. On the other hand, if the sale proceeds are less than the amount of the unpaid Final Instalment or Instalment Interest, Select Access will have full recourse to the Holder for the outstanding amount;

l.

while the Instalment Receipts are on issue, the distributions a Holder will derive from the Stapled Security will be interest from the stapled loan note and a return of capital from the stapled trust;

m.

the Security Trustee, as the legal title holder of the Stapled Securities, will be entitled to receive distributions from the Stapled Securities it holds. The Security Trustee will (on the direction of the Holders) direct the issuers of the Stapled Securities to pay any such amounts to the Holder;

n.

only Holders who own an Instalment Receipt at the relevant record date will be entitled to receive the distribution paid on the Stapled Security; and

o.

the Instalment Interest will accrue daily. Only Holders who own an Instalment Receipt at the Obligor Determination Time will be liable to pay the Instalment Interest.

The Participants

14. Spark Instalment is the Issuer of the Instalment Receipts.

15. Select Access will be entitled to receive the Instalment Interest and the Final Instalment when it is assigned the right to the Instalment Interest and Final Instalment.

16. Australian Executor Trustees, as Security Trustee holds the legal title to each Stapled Security for each Holder.

17. The Holders may be individuals, companies, trusts or superannuation funds.

Ruling

18. Subject to the assumptions listed in paragraph 19 of this Ruling:

(a)

the Instalment Interest incurred by the Holder in respect of the Final Instalment is deductible to the Holder under section 8-1 of the ITAA 1997;

(b)

section 51AAA of the ITAA 1936 will not apply to deny a Holder a deduction for the Instalment Interest allowable under section 8-1 of the ITAA 1997;

(c)

section 82KL of the ITAA 1936 will not apply to deny deductibility of the Instalment Interest allowable under section 8-1 of the ITAA 1997;

(d)

Division 16E of Part III of the ITAA 1936 (Division 16E) will apply to the arrangement for the payment of the Final Instalment which constitutes a qualifying security as defined in subsection 159GP(1) of the ITAA 1936;

(e)

a Holder will be entitled to deductions pursuant to section 159GT of the ITAA 1936 for accrual amounts in respect of the Instalment Interest as calculated under Division 16E for the period they are a Holder;

(f)

under subsection 159GT(3) of the ITAA 1936, no deduction will be allowable for the actual payment of the Instalment Interest at the Final Instalment Payment Date, except as provided under Division 16E;

(g)

under section 109-5 of the ITAA 1997, the date of acquisition of the separate securities forming the underlying Stapled Security is, in the case of an Applicant, the date on which the Application is accepted by Spark Instalment, or in the case of an on-market purchaser of an Instalment Receipt, the contract date for the transfer of the Instalment Receipt on the ASX. The mere acquisition of the separate securities by the Applicant or on-market purchaser will not give rise to a capital gain or capital loss for these Holders;

(h)

each of the stapled shares, each stapled CDI and each stapled unit is a CGT asset under section 108-5 of the ITAA 1997;

(i)

for an Applicant, under section 112-30 of the ITAA 1997, the first element of the cost base of the separate securities forming each Stapled Security is, in aggregate, the sum of the First Instalment and Final Instalment;

(j)

for an on-market purchaser, under sections 112-30, 112-35 and subsection 110-45(2) of the ITAA 1997, the first element of the cost base of the separate securities forming each Stapled Security is, in aggregate, the sum of the amount paid for the Instalment Receipt, the amount of the Final Instalment and the amount of the Instalment Interest which is not deductible under section 8-1 of the ITAA 1997;

(k)

for both Applicant and on-market purchaser, under section 112-30 of the ITAA 1997, the first element of the cost base for each asset that comprises a Stapled Security will be that part of the aggregate amount referred to in paragraphs 18(i) or 18(j), as applicable, that is reasonably attributable to that asset;

(l)

the stapled loan note is a CGT asset under section 108-5 of the ITAA 1997 and a traditional security under subsection 26BB(1) of the ITAA 1936. Any gain or loss on disposal on the stapled loan note is to be assessed or deducted under section 26BB of the ITAA 1936 or section 70B of the ITAA 1936 respectively rather than giving rise to a capital gain or a capital loss;

(m)

the return of capital in respect of the stapled unit will result in CGT event E4 happening under section 104-70 of the ITAA 1997. The cost base and reduced cost base of the Holder's stapled unit will be reduced by the amounts of the capital returned;

(n)

no CGT event happens when the legal title to the separate securities forming the underlying Stapled Security is transferred by the Security Trustee to the Holder following payment of the Final Instalment;

(o)

the transfer of the legal title to the stapled loan note by the Security Trustee to the Holder following payment of the Final Instalment does not constitute a disposal of the stapled loan note for the purposes of section 26BB of the ITAA 1936;

(p)

CGT event A1 will happen where the Final Instalment is not paid and the underlying Stapled Security is sold by Select Access (on behalf of the Holder) under the Deed pursuant to section 104-10 of the ITAA 1997;

(q)

the capital proceeds must be apportioned between the various securities to work out whether a capital gain or loss has been made on each security under subsection 116-40(1) of the ITAA 1997;

(r)

any capital gain made by a Holder on disposal of the separate securities forming the underlying Stapled Security received following payment of the Final Instalment will be treated as a discount capital gain pursuant to section 115-5 of the ITAA 1997 where the Holder is an individual, a complying superannuation entity, or a trust and the Holder has acquired the separate securities at least 12 months before their disposal;

(s)

the Holders (and not the Security Trustee) are assessable under section 97 of the ITAA 1997 on all income derived from the underlying Stapled Security while the underlying Stapled Security is the subject of the separate security trust;

(t)

when Spark Instalment assigns its right to the Final Instalment and Instalment Interest from the Holder to Select Access for an amount equal to the Final Instalment, there will be no 'net forgiven amount' for the Holder under the commercial debt forgiveness provisions contained in Schedule 2C, Division 245 of the ITAA 1936; and

(u)

the anti-avoidance provisions contained in Part IVA of the ITAA 1936 will not apply to deny deductibility of the Instalment Interest incurred by the Holder.

Assumptions

19. This Ruling is made on the basis of the following assumptions:

(a)

all of the Holders are Australian residents for taxation purposes;

(b)

the Holders are not traders in investments and are not treated for taxation purposes as either trading in the underlying Stapled Security or carrying on a business of investing in the underlying Stapled Security, or holding the underlying Stapled Security as trading stock or as a revenue asset;

(c)

the dominant purpose of a Holder in entering into the arrangement is to derive assessable income from their investment in the Instalment Receipts;

(d)

under the Arrangement as described in this Ruling, the assessable income derived by a Holder from their investment in the Instalment Receipts will be in excess of deductible outgoings;

(e)

the total amount of capital returned from the stapled unit will not exceed the allocated subscription price (for Applicants) or allocated purchase price (for on-market purchasers) in respect of the stapled unit;

(f)

the arrangement will be executed in the manner described in the Arrangement section of this Ruling;

(g)

all relevant dealings described in the Arrangement section of this Ruling will be at arm's length; and

(h)

the underlying Stapled Securities will not be the subject of any securities lending arrangement entered into by or on behalf of the Holder.

Explanation

Section 8-1 of the ITAA 1997

20. The Stapled Securities will pay interest in respect of the stapled loan note and returns of capital from the stapled unit. Dividends are expected (in later years) in respect of the two stapled shares comprising the Stapled Security.

21. The Holders will incur the Instalment Interest in respect of the Final Instalment. As interest income from the stapled loan note will be in excess of Instalment Interest the essential character of the Instalment Interest expense is for the purpose of deriving assessable income from the Stapled Securities. As such, the Instalment Interest incurred in respect of the acquisition of the Stapled Securities as evidenced by the Instalment Receipt will be deductible in full.

Section 51AAA of the ITAA 1936

22. By acquiring the Instalment Receipt, it is contemplated that a Holder will derive assessable income by the receipt of interest income and capital gains. As the Instalment Interest would have been deductible under section 8-1 of the ITAA 1997 notwithstanding the inclusion of a net capital gain in assessable income, section 51AAA has no application to a Holder acquiring or holding the Instalment Receipts on Record Date.

Section 82KL of the ITAA 1936

23. The operation of section 82KL depends, among other things, on the identification of a certain quantum of 'additional benefits(s)'. Insufficient additional benefits will be provided to trigger the application of section 82KL. Accordingly, it will not apply to deny the deduction otherwise available under section 8-1 of the ITAA 1997.

Division 16E of Part III of the ITAA 1936

24. Instalment Interest on the Final Instalment accrues daily but payment is deferred until the Final Instalment Date. The liability arising under this arrangement is a security for the purposes of Division 16E.

25. At the time that the obligation to pay the Final Instalment is created the security meets the requirements of a qualifying security for the purposes of Division 16E.

26. The Holder will be the 'issuer' of the qualifying security for the purposes of Division 16E.

27. Section 159GT provides deductions for the issuers of qualifying securities. These amounts are referred to as accrual amounts and are based on the issue price of the security, the term of the arrangements and the implicit interest rate as calculated in accordance with the formula in section 159GQB.

28. Under section 159GT deductions in respect of the Instalment Interest will be allowable to the Holder over the term of the arrangement. No amount is allowable as a deduction as a result of the actual payment of Instalment Interest on the Final Instalment Payment Date.

Section 109-5 of the ITAA 1997: time of acquisition

29. Under the Arrangement, the Holders will acquire the separate securities forming the underlying Stapled Securities as a result of CGT event A1 happening. The table in subsection 109-5(2) provides that, in this situation, the Holders acquire these assets for CGT purposes when the disposal contract is entered into or, if none, when the other entity stops being the owner of those assets. The acquisition date for the assets comprising the Stapled Securities is, accordingly, for a Holder who acquires Instalment Receipts by way of Application, the date on which the Application is accepted by Spark Instalment, or for a Holder who is an on-market purchaser of Instalment Receipts, the date on which the contract for the purchase of the Instalment Receipt was entered into.

30. The mere acquisition of the separate securities by the Applicant or on-market purchaser will not give rise to a capital gain or capital loss for these Holders.

Section 112-30 of the ITAA 1997: cost base

31. Each of the securities comprising a Stapled Security, being each of the two stapled shares, the stapled CDI and the stapled unit in a trust, is a CGT asset under section 108-5 of the ITAA 1997.

32. Under section 112-30, the first element of an Applicant's cost base of the separate securities forming each Stapled Security is, in aggregate, the sum of the First Instalment and Final Instalment.

33. Under sections 112-30, 112-35 and subsection 110-45(2) of the ITAA 1997, the first element of an on-market purchaser's cost base of the separate securities forming each Stapled Security is, in aggregate, the sum of the amount paid for the Instalment Receipt, the amount of the Final Instalment and the amount of the Instalment Interest which is not deductible under section 8-1 of the ITAA 1997.

34. Under section 112-30, the first element of a Holder's cost base for each of the assets that comprise a Stapled Security will be that part of the aggregate amount referred to in paragraphs 18(i) or 18(j), as applicable, that is reasonably attributable to that asset.

Sections 26BB and 70B of the ITAA 1936: gains or losses on traditional securities

35. The stapled loan note is a CGT asset under section 108-5 of the ITAA 1997 and comes within the definition of a 'traditional security' in subsection 26BB(1). This is because the stapled loan note is a 'security' held by a Holder that is acquired after May 1989, does not have an 'eligible return' and is not trading stock of the Holder. A 'security' takes its meaning from subsection 159GP(1) of the ITAA 1936 and is widely defined to include, amongst other things, notes and contracts under which a person is liable to pay an amounts or amounts, and whether or not the liability is secured.

36. Accordingly, any gain on disposal of the stapled loan note by the Holder is to be included in assessable income under section 26BB. Similarly any loss on the disposal of the stapled loan note by the Holder will be an allowable deduction under section 70B.

Section 104-70 of the ITAA 1997: return of capital

37. The return of capital in respect of the stapled unit will result in CGT event E4 happening under section 104-70. The cost base and reduced cost base of the Holder's stapled unit will be reduced by the amounts of the capital returned.

Subsection 104-10(7) of the ITAA 1997: time of disposal

38. When the Final Instalment is made, no CGT event will happen as a result of the transfer of the legal title to the underlying Stapled Securities from the Security Trustee to the Holder by virtue of subsection 104-10(7).

Section 26BB of the ITAA 1936: disposal

39. The transfer of the legal title to the stapled loan note by the Security Trustee to the Holder following payment of the Final Instalment does not constitute a disposal of the stapled loan note for the purposes of section 26BB. This is because there is no alienation of the stapled loan note or the right to payment from the Holder.

Section 104-10 of the ITAA 1997: CGT event A1

40. CGT event A1 will happen where the Final Instalment is not paid and the underlying Stapled Security is sold by the Security Trustee (on behalf of Select Access) under the Deed pursuant to section 104-10. In this situation, under section 106-60 of the ITAA 1997, the sale by the Security Trustee will be taken to be done by the Holder.

Subsection 116-40(1) of the ITAA 1997: capital proceeds

41. The capital proceeds must be apportioned between the various securities to work out whether a capital gain or loss has been made on each security under subsection 116-40(1).

Section 115-5 of the ITAA 1997: CGT discount

42. Division 115 allows a taxpayer to reduce the capital gain included in his or her assessable income in certain circumstances. In accordance with section 115-5, a capital gain made by a Holder on disposal of the Instalment Receipt will be treated as a discount capital gain where the Holder is an individual, a complying superannuation entity or a trust and the Holder has acquired the Instalment Receipt at least 12 months before their disposal. Similarly, a capital gain made by a Holder on disposal of the Stapled Securities will be treated as a discount capital gain where the Holder is an individual, a complying superannuation entity or a trust and the Holder has acquired the Stapled Securities at least 12 months before their disposal.

43. In accordance with section 115-5, the 12-month period for the purposes of the CGT discount on disposal of the Instalment Receipt or (where a Stapled Security is transferred to a Holder of an Instalment Receipt) on the disposal of the Stapled Security will commence from the date of acquisition of the Instalment Receipt by the Holder. As noted above, the acquisition time for a Holder is the date of acceptance of the Application, or in the case of an on-market purchaser of an Instalment Receipt, the contract date for the transfer of the Instalment Receipt on the ASX.

44. As any gain on disposal of the stapled loan note will be assessed under section 26BB of the ITAA 1936, section 115-5 will have no practical effect on the disposal of this asset.

Section 97 of the ITAA 1936

45. The Holders are presently entitled to all of the income derived from the underlying Stapled Securities. Therefore, section 97 will apply to assess the Holders on income derived from the underlying Stapled Securities. The Security Trustee will not be subject to tax on this income.

Schedule 2C, Division 245 of the ITAA 1936

46. When Spark Instalment assigns its right to the Final Instalment and Instalment Interest from the Holder to Select Access for an amount equal to the Final Instalment, there will be no 'net forgiven amount' for the Holder pursuant to the commercial debt forgiveness provisions contained in Schedule 2C, Division 245 of the ITAA 1936.

Part IVA of the ITAA 1936

47. Provided that the arrangement ruled on is entered into and carried out as disclosed (see the Arrangement part of this Ruling), it is accepted that the arrangement is an ordinary commercial transaction and Part IVA will not apply.

Detailed contents list

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

Commissioner of Taxation
30 November 2005

Not previously issued as a draft

References

ATO references:
NO 2005/15922

Related Rulings/Determinations:

PR 1999/95
TR 92/1
TR 92/20
TR 97/16
TD 93/34

Subject References:
beneficial ownership
deductions
instalment receipts
stapled securities

Legislative References:
TAA 1953 Pt IVAAA
ITAA 1936 26BB
ITAA 1936 26BB(1)
ITAA 1936 51AAA
ITAA 1936 70B
ITAA 1936 82KL
ITAA 1936 97
ITAA 1936 Pt III Div 16E
ITAA 1936 159GP(1)
ITAA 1936 159GQB
ITAA 1936 159GT
ITAA 1936 159GT(3)
ITAA 1936 Sch 2C Div 245
ITAA 1936 Pt IVA
ITAA 1997 8-1
ITAA 1997 104-10
ITAA 1997 104-10(7)
ITAA 1997 104-70
ITAA 1997 106-60
ITAA 1997 108-5
ITAA 1997 109-5
ITAA 1997 109-5(2)
ITAA 1997 110-45(2)
ITAA 1997 112-30
ITAA 1997 112-35
ITAA 1997 Div 115
ITAA 1997 115-5
ITAA 1997 116-40
ITAA 1997 116-40(1)
Copyright Act 1968