Income Tax Assessment Act 1936
Archived:
S 25 repealed as inoperative by No 101 of 2006 , s 3 and Sch 1 item 52, effective 14 September 2006. For application and savings provisions and for former wording see the CCH Australian Income Tax Legislation archive .
(Repealed by No 133 of 2009)
View history note
Hide history noteS 26AAC repealed by No 133 of 2009, s 3 and Sch 1 item 15, applicable in relation to the ESS interests mentioned in subsections
83A-5(1)
and
(2)
of the
Income Tax (Transitional Provisions) Act 1997
. S 26AAC formerly read:
S 26AAC(1) amended by No 147 of 2005. S 26AAC(2) amended by No 147 of 2005. and a reference in this section to the acquisition by a taxpayer of a share or a right to acquire a share shall be construed accordingly. S 26AAC(4) amended by No 169 of 1995. S 26AAC(4AA) amended by No 147 of 2005, No 122 of 1997 and inserted by No 169 of 1995. S 26AAC(4A) inserted by No 153 of 1988. S 26AAC(4B) inserted by No 153 of 1988. unless: S 26AAC(4C) inserted by No 153 of 1988. S 26AAC(4D) inserted by No 153 of 1988. S 26AAC(4E) amended by No 101 of 1992 and inserted by No 153 of 1988. S 26AAC(4F) inserted by No 153 of 1988. the taxpayer shall be deemed for the purposes of this section (other than subsections (4A), (4B), (4C), (4D) and (4F)): S 26AAC(6) amended by No 153 of 1988. the assessable income of the taxpayer of the year of income during which the associate disposed of the right as mentioned in paragraph (c) includes the amount, if any, received by the associate as consideration for the right less the amount, if any, paid or payable by the taxpayer as consideration for the right. the assessable income of the taxpayer of the year of income during which the taxpayer disposed of the right as mentioned in paragraph (b) includes the amount, if any, received by the taxpayer as consideration for the right less the amount, if any, paid or payable by the taxpayer as consideration for the right. S 26AAC(8A) inserted by No 52 of 1986. S 26AAC(8B) amended by No 101 of 1992 and inserted by No 52 of 1986. S 26AAC(8C) inserted by No 52 of 1986. then, notwithstanding paragraph (8C)(a), the assessable income of the taxpayer of the year of income referred to in paragraph (b) of this subsection shall be deemed not to have included, or not to include, as the case may be, the amount referred to in that paragraph. S 26AAC(8D) inserted by No 52 of 1986. the amount that would have been so included in the assessable income of the deceased person shall be included in the assessable income of the trust estate of the year of income during which the trustee acquired the share and shall be deemed to be income to which no beneficiary is presently entitled. S 26AAC(10) repealed as inoperative by
No 101 of 2006
, s 3 and Sch 1 item 54, effective 14 September 2006. For
application and savings provisions
and for former wording see the
CCH Australian Income Tax Legislation archive
. the amount referred to in paragraph (a) that would, but for this subsection, be included in the assessable income of the taxpayer shall be reduced by so much of that amount as does not exceed the amount referred to in paragraph (b). S 26AAC(11A) substituted by No 46 of 1998 and inserted by No 52 of 1986. the amount referred to in paragraph (b) that would, but for this subsection, be included in the assessable income of a person or of a trust estate shall be reduced by so much of that amount as does not exceed the amount referred to in paragraph (a). S 26AAC(12A) substituted by No 46 of 1998 and inserted by No 52 of 1986. the amount referred to in paragraph (b) that would, but for this section, be included in the assessable income of the trust estate shall be reduced by so much of that amount as does not exceed the amount referred to in paragraph (a). S 26AAC(13A) substituted by No 46 of 1998 and inserted by No 52 of 1986. S 26AAC(14) amended by No 108 of 1981. the acquisition of the share by the taxpayer shall be deemed for the purposes of this section (other than subsections (4A), (4B), (4C), (4D) and (4F)) to have taken place at the time when the right of the taxpayer to dispose of the share ceases to be so restricted, the time when the taxpayer ceases to be so liable to be divested of his ownership of the share or the time immediately before the taxpayer disposes of the share, whichever first happens. S 26AAC(15) amended by No 153 of 1988. S 26AAC(15A) amended by No 122 of 1997, No 101 of 1992 and inserted by No 52 of 1986. S 26AAC(15B) amended by No 122 of 1997, No 101 of 1992 and inserted by No 52 of 1986. then, notwithstanding subsection (5), the assessable income of the taxpayer of the year of income referred to in paragraph (b) of this subsection shall be deemed not to have included, or not to include, as the case may be, the amount referred to in that paragraph. S 26AAC(15C) inserted by No 52 of 1986. S 26AAC(18) inserted by No 52 of 1986. S 26AAC(18A) inserted by No 153 of 1988. S 26AAC(18B) amended by No 55 of 2001 and inserted by No 153 of 1988.
employee
permanent employee
with at least 12 months service (whether continuous or non-continuous).
SECTION 26AAC SHARES AND RIGHTS ACQUIRED UNDER SCHEMES FOR THE ACQUISITION OF SHARES BY EMPLOYEES
26AAC(1)
For the purposes of this section and section
26AAD
, a taxpayer shall be taken to have acquired a share in a company, or a right to acquire a share in a company, under a scheme for the acquisition of shares by employees if:
(a)
in the case of a share, the share was acquired by the taxpayer:
(i)
in respect of, or for or in relation directly or indirectly to, any employment of, or services rendered by, the taxpayer or a relative of the taxpayer; or
(ii)
as a result of the exercise or operation of a right to acquire the share, being a right that was acquired by the taxpayer in respect of, or for or in relation directly or indirectly to, any employment of, or services rendered by, the taxpayer or a relative of the taxpayer; or
(b)
in the case of a right, the right was acquired by the taxpayer in respect of, or for or in relation directly or indirectly to, any employment of, or services rendered by, the taxpayer or a relative of the taxpayer.
26AAC(2)
Where a taxpayer who has acquired a right to acquire a share in a company in respect of, or for or in relation directly or indirectly to, any employment of, or services rendered by, the taxpayer or a relative of the taxpayer disposes of, and re-acquires, the right on one or more occasions, each such re-acquisition of the right shall be taken, for the purposes of this section and section
26AAD
, to be an acquisition of the right in respect of, or for or in relation directly or indirectly to, that employment of, or those services rendered by, the taxpayer or that relative of the taxpayer, as the case may be.
26AAC(3)
A reference in this section to a share in a company, or a right to acquire a share in a company, having been acquired by a taxpayer in respect of, or for or in relation directly or indirectly to, any employment of, or services rendered by, the taxpayer or a relative of the taxpayer includes, but is not limited to, a reference to such a share or right having been acquired by a taxpayer:
(a)
in pursuance of an agreement, arrangement or understanding under which a company was to issue shares in the company to employees of the company or of another company or to relatives of those employees; or
(b)
in pursuance of the terms of a trust deed under which a trustee is required or authorized to sell, or otherwise to transfer, shares in a company to employees of the company or of another company or to relatives of those employees.
26AAC(4)
Subject to subsection (4AA), this section applies to and in relation to an acquisition by a taxpayer of a share in a company, or of a right to acquire a share in a company, if, and only if:
(a)
in the case of a share, the share was acquired by the taxpayer after 17 September 1974 otherwise than as a result of the exercise or operation of a right that:
(i)
being a right that had not previously been acquired and disposed of by the taxpayer
-
was acquired by the taxpayer on or before that date; or
(ii)
being a right that had previously been acquired and disposed of by the taxpayer, was first acquired by the taxpayer on or before that date; or
(b)
in the case of a right to acquire a share:
(i)
where the right had not previously been acquired and disposed of by the taxpayer
-
the right was acquired by the taxpayer after 17 September 1974; or
(ii)
where the right had previously been acquired and disposed of by the taxpayer
-
the right was first acquired by the taxpayer after that date;
26AAC(4AA)
This section and section
26AAD
do not apply to an acquisition by a taxpayer of a share in a company, or of a right to acquire a share in a company, if:
(a)
an amount is, or apart from section
139BA
would be, included in the assessable income of a taxpayer under Division
13A
in relation to the acquisition; or
(aa)
the consideration for the acquisition is equal to, or more than, the market value of the share or right (within the meaning of Subdivision
F
of Division
13A
) at the time of the acquisition; or
(b)
in the case of a share
-
the share was acquired as a result of the exercise of a right and this section did not apply in relation to the acquisition of the right.
26AAC(4A)
For the purposes of this section, a taxpayer shall be taken to have acquired an ESAS share in a company (in this section called the
issuing company
), or to have acquired an ESAS right to acquire a share in a company (in this section also called the
issuing company
), if:
(a)
the share or right was acquired under a scheme (in this subsection called the
acquisition scheme
) for the acquisition of shares by employees;
(b)
in the case of a share
-
the share was acquired by the taxpayer on or after 1 July 1988:
(i)
in respect of, or for or in relation directly or indirectly to, any employment of the taxpayer by the issuing company or a related company; or
(ii)
as a result of the exercise or operation of a right to acquire the share, being a right that was acquired, or first acquired, by the taxpayer on or after 1 July 1988 in respect of, or for or in relation directly or indirectly to, any employment of the taxpayer by the issuing company or a related company;
(c)
in the case of a right
-
the right was acquired by being issued to the taxpayer on or after 1 July 1988 in respect of, or for or in relation directly or indirectly to, any employment of the taxpayer by the issuing company or a related company;
(d)
the Commissioner is satisfied that all of the following conditions were satisfied in relation to the acquisition scheme as at the time the share or right was acquired:
(i)
both:
(A)
the acquisition scheme; and
were operated on a non-discriminatory basis;
(B)
any scheme for the provision of financial assistance in respect of acquisitions of shares or rights under the acquisition scheme;
(ii)
all the shares available for acquisition under the scheme were ordinary shares;
(iii)
all the rights available for acquisition under the scheme were rights to acquire ordinary shares;
(iv)
the scheme was operated so that no employee would be permitted to dispose of a share or right (whether by assignment, declaration of trust or otherwise) before the earlier of the following times:
(A)
the end of the period of 3 years after the time of the acquisition of the share or right;
(B)
the time when the employee ceased, or first ceased, to be employed by a member of the group constituted by the issuing company and any related companies;
(v)
neither shares nor rights were available for acquisition under the acquisition scheme by persons other than permanent employees of the issuing company or of related companies; and
(e)
no deduction is allowable to the issuing company or a related company in any year of income in respect of expenditure incurred in relation to the acquisition of shares or rights under the acquisition scheme.
26AAC(4B)
For the purposes of subsection (4A), a scheme shall be taken to be operated on a non-discriminatory basis if, and only if:
(a)
participation in the scheme is open to all permanent employees of the issuing company and related companies;
(b)
in the case of an acquisition scheme
-
the following conditions are satisfied in relation to all offers to acquire shares or rights under the scheme:
(i)
the time for acceptance of each offer is reasonable;
(ii)
the following features of each offer are the same for all permanent employees of the issuing company and related companies:
(A)
the consideration for the acquisition concerned (whether that consideration is determined by reference to the value of the share or right or otherwise);
(B)
the number of shares or rights, the minimum number of shares or rights or the maximum number of shares or rights, offered to each employee, as applicable;
(C)
the time for acceptance of the offer;
(D)
the steps taken for the circulation of information about the offer; and
(c)
in the case of a scheme for the provision of financial assistance by way of the making of a loan to acquire shares or rights under the acquisition scheme
-
the following conditions are satisfied in relation to all loans made to acquire shares or rights to which a particular offer under the acquisition scheme relates:
(i)
the time for taking up each loan is reasonable;
(ii)
both of the following features of each loan are the same for all permanent employees of the issuing company and related companies:
(A)
the terms and conditions of the loan;
(B)
the loan amount, the minimum loan amount, or the maximum loan amount, offered to each employee, as applicable.
26AAC(4C)
Subsection (4F) applies to a taxpayer in relation to a year of income and in relation to:
(a)
all of the ESAS rights to acquire shares in a particular issuing company, being rights acquired by the taxpayer during the year of income; and
(b)
all of the ESAS shares in a particular issuing company, being shares acquired by the taxpayer during the year of income;
(c)
the taxpayer elects that subsection (4F) does not apply to the taxpayer in relation to that year of income; or
(d)
the taxpayer was not employed by the issuing company or a related company on the last day of the year of income.
26AAC(4D)
Where, apart from this subsection, subsection (4F) would apply to a taxpayer in relation to a year of income and in relation to 2 or more issuing companies:
(a)
if the taxpayer elects that subsection (4F) shall apply in relation to only one of those companies
-
subsection (4F) does not apply in relation to the remaining companies; or
(b)
in any other case
-
subsection (4F) does not apply in relation to any of those companies.
26AAC(4E)
An election by a taxpayer under subsection (4C) or (4D) must be made on or before the date of lodgment of the return of income of the taxpayer for the year of income to which the election relates, or before such later date as the Commissioner allows.
26AAC(4F)
Where this subsection applies to a taxpayer in relation to a year of income:
(a)
the taxpayer shall be taken to have made an election under subsection (8A) in relation to all of the ESAS rights to acquire shares in a particular company, being rights acquired by the taxpayer during the year of income;
(b)
the taxpayer shall be taken to have made an election under subsection (15A) in relation to all of the ESAS shares in a particular company, being shares acquired by the taxpayer during the year of income; and
(c)
the aggregate of the amounts that would, apart from this subsection, be included in the assessable income of the taxpayer of the year of income under subsection (5) and paragraph (8C)(a) in respect of those shares and those rights (which aggregate is in this subsection called the
aggregate discount amount
) shall be reduced by the amount obtained by multiplying whichever is the lesser of the following amounts:
(i)
$2,000;
by whichever is the lesser of the following percentages:
(ii)
the aggregate of:
(A)
in the case of shares
-
the values of the shares when they were acquired by the taxpayer; and
as the case requires (which aggregate is in this subsection called the
aggregate value
);
(B)
in the case of rights to acquire shares
-
the amounts that would have been the value of the shares if they had been acquired by the taxpayer at the time the rights were acquired by the taxpayer;
(iii)
10%;
(iv)
the percentage calculated by dividing the aggregate discount amount by the aggregate value.
26AAC(5)
Where a taxpayer has acquired during the year of income a share in a company under a scheme for the acquisition of shares by employees, the assessable income of the taxpayer of the year of income includes the value of that share at the time when it was acquired by the taxpayer less the sum of:
(a)
the amount, if any, paid or payable by the taxpayer as consideration for the share; and
(b)
if the taxpayer acquired the share as a result of the exercise or operation of a right (whether that right was unconditional or subject to conditions) to acquire the share
-
the amount, if any, paid or payable by the taxpayer as consideration for the right.
26AAC(6)
Where:
(a)
a taxpayer has acquired a right (whether that right was unconditional or was subject to conditions) to acquire a share in a company under a scheme for the acquisition of shares by employees;
(b)
as a result of a disposition or successive dispositions of the right, the right was subsequently acquired by an associate of the taxpayer without having been, at any time since it was first acquired by the taxpayer, in the ownership of a person other than the taxpayer or an associate of the taxpayer; and
(c)
as a result of the exercise or operation of the right, that associate of the taxpayer acquired a share in the company,
(d)
to have acquired the share under a scheme for the acquisition of shares by employees and to have so acquired the share at the time when it was acquired by the associate; and
(e)
to have paid as consideration for the share the amount, if any, paid or payable by the associate as consideration for the share.
26AAC(7)
Where:
(a)
a taxpayer has acquired a right (whether that right was unconditional or was subject to conditions) to acquire a share in a company under a scheme for the acquisition of shares by employees;
(b)
as a result of a disposition or of successive dispositions of the right, the right was subsequently acquired by an associate of the taxpayer without having been, at any time since it was first acquired by the taxpayer, in the ownership of a person other than the taxpayer or an associate of the taxpayer; and
(c)
the associate has disposed of the right to a person, not being the taxpayer or another associate of the taxpayer,
26AAC(8)
Where a taxpayer:
(a)
has acquired a right (whether that right was unconditional or was subject to conditions) to acquire a share in a company under a scheme for the acquisition of shares by employees (including a right that has been previously acquired and disposed of by the taxpayer but not including a right that has, at any time since it was first acquired by the taxpayer, been in the ownership of a person other than the taxpayer or an associate of the taxpayer); and
(b)
has disposed of that right to a person not being an associate of the taxpayer;
26AAC(8A)
Where a taxpayer has acquired a right (whether that right was unconditional or was subject to conditions) to acquire a share in a company under a scheme for the acquisition of shares by employees, being a right issued after 19 September 1985, the taxpayer may elect that subsection (8C) is to apply in relation to that right.
26AAC(8B)
An election under subsection (8A) in relation to a right must be made on or before the date of lodgment of the return of income of the taxpayer for the year of income in which the right was acquired, or before such later date as the Commissioner allows.
26AAC(8C)
Where a taxpayer has made an election under subsection (8A) in relation to a right:
(a)
the assessable income of the taxpayer of the year of income during which that right was issued to the taxpayer includes the value of that right at the time when it was issued to the taxpayer less the amount, if any, paid or payable by the taxpayer as consideration for the right;
(b)
no amount shall be included in the assessable income of the taxpayer of any year of income in respect of that right by virtue of any other provision of this section; and
(c)
no amount shall be included in the assessable income of the taxpayer of any year of income by virtue of subsection (5) in respect of a share acquired by the taxpayer as a result of the exercise or operation of the right.
26AAC(8D)
Where:
(a)
a taxpayer has made an election under subsection (8A) in relation to a right;
(b)
by virtue of paragraph (8C)(a), an amount has been included, or would, but for this subsection, be included, in the assessable income of the taxpayer of a year of income in respect of that right; and
(c)
by virtue of any conditions or restrictions (being conditions or restrictions applicable only to rights to acquire shares in the company acquired under a scheme for the acquisition of shares by employees) attached to, or to the issue of, the right, the taxpayer has been divested of ownership of the right;
26AAC(9)
Where:
(a)
the trustee of the estate of a deceased person has acquired a share in a company as a consequence of the exercise or operation of a right to acquire the share, being a right owned by the deceased person at the time of his death; and
(b)
an amount would have been included in the assessable income of the deceased person under this section if he had not died and had acquired the share on the day on which it was acquired by the trustee for a consideration equal to the consideration, if any, paid by the trustee for the share;
Archived:
26AAC(11)
Where, as a result of a disposition of a right to acquire a share in a company:
(a)
an amount would, but for this subsection, be included by virtue of this section in the assessable income of a taxpayer of a year of income; and
(b)
an amount has been, or will be, included by virtue of another section of this Act in the assessable income of any year of income of the taxpayer or of an associate of the taxpayer (including, in the case of an associate being a trustee, the assessable income of the trust estate);
26AAC(11A)
Subsection (11) does not apply to a disposal of a right to acquire a share in a company if that disposal would result in a capital gain or capital loss for the purposes of Part
3-1
of the
Income Tax Assessment Act 1997
.
26AAC(12)
Where:
(a)
as a result of the acquisition by a taxpayer or by an associate of a taxpayer of a share in a company, an amount has been, or will be, included by virtue of this section in the assessable income of the taxpayer of a year of income; and
(b)
as a result of the first disposition of the share after the acquisition referred to in paragraph (a), an amount would, but for this subsection, be included by virtue of another section of this Act in the assessable income of any year of income of the taxpayer or of an associate of the taxpayer (including, in the case of an associate being a trustee, the assessable income of the trust estate);
26AAC(12A)
Subsection (12) does not apply to a disposal of a right to acquire a share in a company if that disposal would result in a capital gain or capital loss for the purposes of Part
3-1
of the
Income Tax Assessment Act 1997
.
26AAC(13)
Where:
(a)
an amount is included in the assessable income of a trust estate by virtue of subsection (9) as a result of the acquisition by the trustee of a share in a company; and
(b)
as a result of the first disposition of the share after the acquisition referred to in paragraph (a), an amount would, but for this subsection, be included by virtue of another section of this Act in the assessable income of the trust estate of any year of income;
26AAC(13A)
Subsection (13) does not apply to a disposal of a right to acquire a share in a company if that disposal would result in a capital gain or capital loss for the purposes of Part
3-1
of the
Income Tax Assessment Act 1997
.
26AAC(14)
A reference in this section to an associate of a taxpayer is a reference to any of the following persons:
(a)
a relative of the taxpayer;
(b)
a trustee of a trust estate, where the taxpayer or any relative of the taxpayer benefits or is capable of benefiting under the trust;
(c)
a partner of the taxpayer;
(d)
a company, where:
(i)
the company is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the taxpayer or of a relative of the taxpayer; or
(ii)
the taxpayer is, the persons who are associates of the taxpayer by virtue of paragraphs (a), (b) and (c) are, or the taxpayer and the persons who are associates of the taxpayer by virtue of those paragraphs are, in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the company.
26AAC(15)
Where:
(a)
a taxpayer acquires a share in a company under a scheme for the acquisition of shares by employees; and
(b)
by reason of any conditions or restrictions (being conditions or restrictions applicable only to shares in the company acquired under such a scheme) attached to, or to the issue of, the share (including conditions or restrictions in relation to the payment of moneys in respect of the share) the right of the taxpayer to dispose of the share is restricted or the taxpayer is liable to be divested of his ownership of the share;
26AAC(15A)
A taxpayer may elect that subsection (15) is not to apply in relation to a share, being a share acquired by the taxpayer after 19 September 1985.
26AAC(15B)
An election under subsection (15A) in relation to a share must be made on or before the date of lodgment of the return of income of the taxpayer for the year of income in which the share was acquired by the taxpayer, or within such further period as the Commissioner allows.
26AAC(15C)
Where:
(a)
a taxpayer has made an election under subsection (15A) in relation to a share;
(b)
by virtue of subsection (5), an amount has been included, or would but for this subsection, be included, in the assessable income of the taxpayer of a year of income in respect of that share; and
(c)
by virtue of any conditions or restrictions mentioned in paragraph (15)(b) attached to, or to the issue of, the share, the taxpayer has been divested of ownership of the share;
26AAC(16)
Where a taxpayer who has a right to acquire a share in a company is to be taken to have acquired the right under a scheme for the acquisition of shares by employees by virtue of the operation of subsection (2), a reference in this section to the amount, if any, paid or payable by the taxpayer as consideration for the right shall be read as a reference to the amount, if any, paid or payable by the taxpayer as consideration in respect of the first acquisition of the right by him.
26AAC(17)
A reference in this section to the amount paid or payable by a person as consideration for a share or for a right to acquire a share includes a reference to any expenditure incurred by the person in the year of income or in any preceding year of income in connexion with the acquisition of the share or right other than expenditure allowed or allowable as a deduction from the assessable income of the person of any of those years of income.
26AAC(18)
For the purposes of this section, in determining the value of a share or of a right to acquire a share, the share or the right, and any share that may be acquired as a consequence of the exercise or operation of the right, shall be deemed not to be subject to any conditions or restrictions (being conditions or restrictions applicable only to shares in, or rights to acquire shares in, the company acquired under a scheme for the acquisition of shares by employees).
26AAC(18A)
A reference in this section to the giving of financial assistance includes a reference to the giving of financial assistance by way of the making of a loan, the giving of a guarantee, the provision of security, the release of an obligation or the forgiving of a debt or otherwise.
26AAC(18B)
For the purposes of this section, the question whether a company is related to another company shall be determined in the same manner as the question whether a corporation is related to another corporation is determined for the purposes of the
Corporations Act 2001
.
26AAC(18C)
In this section:
, in relation to a company, includes a director of the company.
, in relation to a company, means:
(a)
a full-time employee of the company; or
(b)
a permanent part-time employee of the company;
S 26AAC(18C) inserted by No 153 of 1988.
26AAC(18D)
For the purposes of the definition of permanent employee in subsection (18C), the period during which a person is engaged in service includes any period during which the person is, in accordance with the terms and conditions of that service:
(a) absent on recreation leave, other than:
(i) long service leave, furlough, extended leave or leave of similar kind (however described); or
(ii) leave without pay or on reduced pay; or
(b) absent from work because of accident or illness.
S 26AAC(18D) inserted by No 153 of 1988.
26AAC(18E)
Nothing in section 170 prevents the amendment of an assessment at any time for the purposes of giving effect to paragraph (4A)(e).
S 26AAC(18E) inserted by No 153 of 1988.
26AAC(19)
Nothing in section 170 prevents the amendment of an assessment made in relation to a taxpayer if the amendment is made for the purpose of giving effect to subsection (8D) or (15C) and effects a reduction in the liability of the taxpayer.
S 26AAC(19) inserted by No 52 of 1986.
S 26AAC inserted by No 126 of 1974.
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