Taxpayer Alert

TA 2009/13

Managed Investment Schemes: Purported partnership participation

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FOI status: may be released

This Taxpayer Alert describes an arrangement where a purported partnership is inserted into an investment in an afforestation, agricultural or horticultural Managed Investment Scheme (MIS) in order to generate deductions for the newly inserted partners. In addition to other taxation issues, because of the inserted partnership, the implementation of the arrangement is likely to be materially different from that described in any relevant product rulings for the underlying MIS.

Schemes of the type described in this alert are not covered by Tax Office product rulings or other tax clearances.

Description

The alert applies to arrangements with features substantially equivalent to the following:

1.

A person (the representative) becomes an authorised representative of a financial services licensee to market and sell specific Managed Investment Scheme (MIS) interests.

2.

The representative, or their associate, executes the MIS documentation in their own name to create a MIS interest. The representative, or their associate, does not indicate in any of this documentation that they are acting on behalf of other parties, i.e. any partnership.

3.

To fund the cost of acquiring the MIS interests the representative, or their associate, applies for loans covering 100% of the initial subscription price from a finance entity associated with the MIS. The loan is provided by the finance entity for 100% of the initial subscription costs, subject to security over the relevant MIS interest and is made on a "low-doc" basis.

4.

The representative receives commissions from the MIS manager or financial services licensee for the sale of the relevant MIS interest.

5.

Subsequently, the representative organises groups of individual investors, to invest in these MIS interests on the basis that they will purportedly be partners in a partnership (the 'partnership'). The representative advises these investors that they will be covered by relevant Product Rulings for the particular MIS.

6.

There is limited or no documentation supporting the formation of the 'partnership' or the ongoing obligations and rights of investors. In some cases, investors are allegedly admitted to the 'partnership' later, even after the income year in which the expenditure is incurred.

7.

The investors do not execute any MIS documentation themselves, nor are their details provided to the Responsible Entity for the relevant MIS.

8.

The representative may be the tax agent for the investors and may administer the 'partnership'.

9.

Repayments on the loan to acquire the MIS interest are initially planned to be met by:

a.

tax refunds from investors claiming deductions for:

(i)

a share of the loss from the 'partnership' arising from the initial subscription, and

(ii)

subsequent year interest claims for the loan to acquire the MIS interest,

b.

the input tax credits claimed in respect of the initial subscription price,

c.

purportedly assigned commissions received by the representative for selling the MIS interests, and

d.

returns from investment of the tax refunds, input tax credits and commissions received before the periodic repayments of loan and interest.

There may be no other mechanism to repay the balance of the loan or meet interest commitments.

10.

The representative may retain a bonus or other fee from the income earned from the investments of the above funds or from the MIS interest itself, prior to applying the balance in repayment of the loan.

11.

The representative may seek to assign the 'partnership' interests to other entities before the MIS produces income.

12.

Subsequently, the 'partnership' defaults on loan repayments; the financier follows collection procedures and may ultimately take ownership of the MIS interest to mitigate losses, including recovery of the outstanding loan balance.

13.

Due to the above features, investors in the 'partnership' may not have either a legal liability for the loans or a legal entitlement to any income from the MIS interests.

Diagram of a typical arrangement

Features which concern us

The ATO considers that arrangements substantially of this type give rise to taxation issues, including whether:

1.

such an arrangement, or certain steps within it, may be a sham;

2.

there is any 'partnership' under general or taxation law, either in the first year of income or at any later time;

3.

interests in the MIS have been taken up by or on behalf of any such 'partnership';

4.

investors are entitled to deductions under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) or under section 92 of the Income Tax Assessment Act 1936 (ITAA 1936) in respect of losses;

5.

investors are entitled to offset losses from investment in the MIS against other assessable income as governed by Division 35 of the ITAA 1997;

6.

investors are entitled to a share of the income from the MIS which is assessable under section 6-5 of the ITAA 1997;

7.

the tax treatment of any disposal of an MIS interest is subject to sections 82KZMGA or 82KZMGB of the ITAA 1936;

8.

commission fees received by the representative are assessable under section 6-5 of the ITAA 1997;

9.

the representative is entitled to deductions under section 8-1 of the ITAA 1997 for amounts contributed to the 'partnership';

10.

the arrangement constitutes a scheme to which the general anti-avoidance rules in Part IVA of the ITAA 1936 may apply;

11.

investors or the representative are entitled to input tax credits under section 11-20 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act);

12.

any entity involved in the arrangement is a promoter of a tax exploitation scheme for the purposes of Division 290 of Schedule 1 to the Taxation Administration Act, 1953 (TAA);

13.

any entity involved in the arrangement has implemented a product ruling scheme in a materially different way for the purposes of Division 290 of Schedule 1 to the TAA;

14.

any criminal offences have been committed by investors, the representative or any associates in relation to the arrangement; and

15.

a registered tax agent involved in the arrangement may have their registration suspended or cancelled by the Tax Agents' Board under section 251K of the ITAA 1936.

Indeed we have seen cases where there appears to have been backdating of the documents, and we are considering criminal prosecution action.

The ATO is currently reviewing these arrangements.

Date of Issue: 21 May 2009

Date of Effect: 21 May 2009

Related Practice Statements:
PS LA 2008/6
PS LA 2008/15

Subject References:
partnership losses
managed investment schemes

Legislative References:
Income Tax Assessment Act 1997
Section 6-5
Section 8-1
Div 35
Income Tax Assessment Act 1936
Part IVA
Section 82KZMGA
Section 82KZMGB
Section 92
Section 251K
Taxation Administration Act 1953
Schedule 1 Div 290
A New Tax System (Goods and Services Tax) Act 1999
Section 11-20

Authorised by:
Stephanie Martin