Income Tax Assessment Act 1936
View history note
Hide history noteDiv 18 repealed by No 143 of 2007 , s 3 and Sch 1 item 64, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 559A .
Div 18 substituted by No 51 of 1986.
Div 18 amended by No 108 of 1981, No 87 of 1978, No 117 and No 80 of 1975, No 126 of 1974, No 164 and No 51 of 1973, No 47 of 1972, No 85 and No 76 of 1967, No 50 of 1966, No 143 of 1965, No 110 of 1964 and No 94 of 1961.
(Repealed by No 143 of 2007 )
S 160AFD repealed by
No 143 of 2007
, s 3 and Sch 1 item 64, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s
559A
. S 160AFD formerly read:
SECTION 160AFD LOSSES OF PREVIOUS YEARS
160AFD(1)
Where a resident taxpayer has incurred one or more overall foreign losses in respect of a class of assessable foreign income in respect of any of the 7 pre-1990 years of income before a particular year of income, the amount that, but for this section, would be the taxpayer's assessable foreign income of that class of the particular year of income is, for the purposes of this Act, reduced by an amount calculated using the formula:
Total loss
−
Recouped loss
where:
Total loss means the amount of the loss, or the sum of the amounts of the losses, less the total of any amounts by which the loss or sum is taken to be reduced under Subdivision 245-E of Schedule 2C in its application to the particular year of income or any previous year of income.
Recouped loss means so much of the Total loss as has been taken into account, in any previous application of this subsection, in reducing the taxpayer's assessable foreign income of that class.
S 160AFD(1) amended by No 76 of 1996.
160AFD(2)
Where a resident taxpayer has incurred one or more overall foreign losses in respect of a class of assessable foreign income in respect of any of the post-1989 years of income before a particular year of income, the amount that, but for this section, would be the taxpayer's assessable foreign income of that class of the particular year of income is, for the purposes of this Act, reduced by an amount calculated using the formula:
| Total loss − Recouped loss |
where:
Total loss means the amount of the loss, or the sum of the amounts of the losses, less the total of any amounts by which the loss or sum is taken to be reduced under Subdivision 245-E of Schedule 2C in its application to the particular year of income or any previous year of income.
Recouped loss means so much of the Total loss as has been taken into account, in any previous application of this subsection, in reducing the taxpayer's assessable foreign income of that class.
S 160AFD(2) amended by No 76 of 1996.
160AFD(3)
Where, because of the application of either subsection (1) or (2) or of both subsections (1) and (2), a taxpayer's assessable foreign income of a particular class of a year of income is to be reduced by 2 or more losses, the losses are to be taken into account in accordance with the following principles:
(a) any loss or losses under subsection (1) are to be taken into account before any under subsection (2);
(b) any losses under the same subsection are to be taken into account in the order in which they were incurred.
160AFD(4)
Where the amount of a taxpayer's assessable foreign income of a particular class of a year of income is reduced under subsection (1) or (2), any foreign tax paid by the taxpayer in respect of the amount is, for the purposes of this Act, to be calculated as if the amount were so reduced.
160AFD(5)
This section has effect whether or not the law of the foreign country concerned allows the income of a taxpayer of a particular year to be reduced because of losses incurred in previous years.
160AFD(6)
Where:
(a) apart from this subsection, an overall foreign loss in respect of a class of assessable foreign income incurred by a taxpayer in respect of a year of income would be taken into account for the purpose of applying subsection (1) or (2) in relation to the particular year of income referred to in that subsection; and
(b) if that loss were a tax loss of the taxpayer for the year of income for which the taxpayer incurred that loss, the taxpayer could not deduct it for the particular year of income because of Subdivision 165-A or 175-A of the Income Tax Assessment Act 1997 ;
then the overall foreign loss is not to be taken into account for the purpose of applying subsection (1) or (2) of this section in relation to the particular year of income.
S 160AFD(6) amended by No 83 of 2004.
160AFD(6A)
If:
(a) apart from this subsection, an overall foreign loss in respect of a class of assessable foreign income incurred by a taxpayer in respect of a year of income would be taken into account for the purpose of applying subsection (1) or (2) in relation to the particular year of income referred to in that subsection; and
(b) if that loss were a tax loss incurred by the taxpayer within the meaning of section 272-140 of Schedule 2F , it would not, because of Division 266 or 267 of that Schedule, be allowable as a deduction from the assessable income of the particular year of income;
then the overall foreign loss is not to be taken into account for the purpose of applying subsection (1) or (2) of this section in relation to the particular year of income.
S 160AFD(6A) inserted by No 17 of 1998.
160AFD(6B)
If:
(a) apart from this subsection, an overall foreign loss in respect of a class of assessable foreign income incurred by a taxpayer in respect of a year of income would be taken into account for the purpose of applying subsection (1) or (2) in relation to the particular year of income referred to in that subsection; and
(b) assuming subsection 270-10(1) of Schedule 2F referred:
(i) to the loss being taken into account in relation to the particular year of income as mentioned in paragraph (a) of this subsection, instead of to a deduction being allowable for an income year; and
the requirements of that subsection (including after any application of subsection 270-10(2) of that Schedule) would be met in relation to the loss;
(ii) to the trust deriving an amount of assessable income of the class to which the loss related instead of to the trust deriving an amount of assessable income;
then the overall foreign loss is not to be taken into account for the purpose of applying subsection (1) or (2) of this section in relation to the particular year of income.
S 160AFD(6B) inserted by No 17 of 1998.
160AFD(7)
Where:
(a) there are one or more foreign income deductions of a taxpayer in relation to a class of assessable foreign income in relation to a year of income; and
(b) either:
(i) the taxpayer did not derive any assessable foreign income of that class during the year of income; or
(ii) the taxpayer derived assessable foreign income of that class during the year of income and its amount is exceeded by the sum of the foreign income deductions;
the taxpayer is taken, for the purposes of this section, to have incurred an overall foreign loss in respect of the class of assessable foreign income for the year of income equal to:
(c) where subparagraph (b)(i) applies - the amount of the deductions; or
(d) where subparagraph (b)(ii) applies - the amount of the excess referred to in that subparagraph.
160AFD(8)
For the purposes of this section, each of the following kinds of assessable foreign income constitutes a single class:
(a) interest income;
(b) modified passive income;
(c) offshore banking income;
(d) all other assessable foreign income.
160AFD(9)
In this section:
"assessable foreign income"
, in relation to a taxpayer in relation to a year of income, means:
(a) foreign income that is included in the assessable income of the taxpayer of the year of income; or
(b) where:
(i) during the year of income, the taxpayer derives a profit or gain of a capital nature from sources in a foreign country; and
the whole or the part of the profit or gain;
(ii) the whole or part of the profit or gain is included in the assessable income of the taxpayer of the year of income other than under Part 3-1 or 3-3 of the Income Tax Assessment Act 1997 (about CGT);
Definition of ``assessable foreign income'' amended by No 46 of 1998.
"foreign income deduction"
, in relation to a taxpayer in relation to a class of assessable foreign income in relation to a year of income, means any deduction other than:
(a) a deduction under section 532 or 533 ; or
(b) a debt deduction (to the extent that it is not attributable to the taxpayer's overseas permanent establishment);
that, disregarding section 79D , is allowed or allowable from the assessable income of the taxpayer of that year of income, to the extent that the deduction relates to assessable foreign income of that class of any year of income.
Definition of ``foreign income deduction'' amended by No 162 of 2001 and No 138 of 1994.
"post-1989 year of income"
means the year of income commencing on 1 July 1989 or any later year of income;
"pre-1990 year of income"
means any year of income before the year of income commencing on 1 July 1989.
S 160AFD(9) amended by No 101 of 2006 , s 3 and Sch 2 item 399, by amending references to repealed inoperative provisions, effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive .
S 160AFD substituted by No 5 of 1991.
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