Income Tax Assessment Act 1936

PART III - LIABILITY TO TAXATION  

Division 2 - Income  

Subdivision A - Assessable income generally  

SECTION 26AG   CERTAIN FILM PROCEEDS INCLUDED IN ASSESSABLE INCOME  

26AG(1)    
Where:

(a) under a contract entered into on or after 1 October 1980, a taxpayer has expended, or is deemed by former section 124ZAP to have expended, capital moneys in producing, or by way of contribution to the cost of producing, a film;

(b) by reason of the moneys having been expended, the taxpayer became the owner of an interest in the copyright in the film; and

(c) a deduction has been allowed, or is allowable, to the taxpayer under former section 124ZAF or 124ZAFA in respect of some or all of those moneys;

this section applies, and shall be deemed always to have applied, in relation to the taxpayer in relation to a year of income (whether commencing before or after the commencement of this section), to:

(d) any amount derived by the taxpayer in the year of income from sources in or out of Australia as consideration for the use of, or the right to use, the copyright or the film, to the extent to which the amount derived is attributable to the interest referred to in paragraph (b); and

(e) any amount (other than an amount to which paragraph (d) applies) receivable by the taxpayer from sources in or out of Australia as consideration in respect of the disposal, in the year of income, of the whole or a part of the interest referred to in paragraph (b).

26AG(2)    
The assessable income of a taxpayer of a year of income shall include amounts to which this section applies in relation to the taxpayer in relation to the year of income.

26AG(3)    
Where:

(a) for any reason, including:

(i) the formation or dissolution of a partnership; or

(ii) a variation in the constitution of a partnership or in the interests of the partners;

a change has occurred in the ownership of, or in the interests of persons in, a copyright in a film;

(b) the person, or one or more of the persons, who owned the copyright before the change has or have an interest in the copyright after the change; and

(c) any person (in this subsection referred to as the relevant person ) who had an interest in the copyright before the change:

(i) did not have an interest in the copyright after the change; or

(ii) had a lesser interest in the copyright after the change;

the following provisions have effect:

(d) if the relevant person did not have an interest in the copyright after the change, the relevant person shall be deemed, for the purposes of subsection (1), to have disposed of the whole of his or her interest in the copyright at the time when the change occurred for an amount of consideration equal to:

(i) if the change occurred in pursuance of an agreement and the agreement specified, as the value of the copyright for the purposes of the agreement, an amount greater than the value of the copyright at the time when the change occurred - so much of the amount specified in the agreement as bears to that amount the same proportion as the value, at the time when the change occurred, of the interest deemed to have been disposed of bears to the value of the copyright at the time when the change occurred; and

(ii) in any other case - the value, at the time when the change occurred, of the interest disposed of;

(e) if the relevant person had a lesser interest in the copyright after the change, the relevant person shall be deemed, for the purposes of subsection (1), to have disposed of a part of his or her interest in the copyright at the time when the change occurred for an amount of consideration equal to:

(i) if the change occurred in pursuance of an agreement and the agreement specified, as the value of the copyright for the purposes of the agreement, an amount greater than the value of the copyright at the time when the change occurred - so much of the amount specified in the agreement as bears to that amount the same proportion as the value, at the time when the change occurred, of the part of the interest deemed to have been disposed of bears to the value of the copyright at the time when the change occurred; and

(ii) in any other case - the value, at the time when the change occurred, of the part of the interest disposed of.

26AG(4)    

For the purposes of this section, where, in pursuance of a judgment of a court or otherwise, an amount is paid to a taxpayer in respect of an infringement, or an alleged infringement, of a copyright in a film, the taxpayer shall be deemed to have disposed of a part of his or her interest in the copyright, at the time of payment, in consideration of the payment of that amount.

26AG(5)    
Subject to subsections (3) and (6), a reference in this section to the consideration receivable by a taxpayer in respect of the disposal of the whole or a part of the taxpayer ' s interest in a copyright (which whole or part is in this subsection referred to as the unit ) is a reference to:

(a) where the unit is disposed of for a specified price - that price less:

(i) the expenses of the disposal; and

(ii) if the disposal is a taxable supply - an amount equal to the GST payable on the supply; or

(b) where the unit is disposed of together with other property and no separate price is allocated to the unit - such amount as the Commissioner determines.

26AG(6)    
Where:

(a) a taxpayer disposes of the whole or a part of the taxpayer ' s interest in a copyright (which whole or part is in this subsection referred to as the unit ) to another person;

(b) the Commissioner is satisfied, having regard to any connection between the taxpayer and that other person or to any other relevant circumstances, that the taxpayer and that other person were not dealing with each other at arm ' s length in relation to the disposal; and

(c) there was no amount receivable by the taxpayer in respect of the disposal or the amount receivable by the taxpayer in respect of the disposal was less than the value of the unit at the time of the disposal;

the amount of the consideration receivable by the taxpayer in respect of the disposal shall be taken, for the purposes of this section, to be the amount that was the value of the unit at the time of the disposal.

26AG(7)    

(Omitted by No 51 of 1986)

26AG(8)    

If:

(a) a non-resident taxpayer derives, from sources outside Australia, income in respect of a film; and

(b) but for this subsection, subsection (2) would include the amount in the taxpayer ' s assessable income of a year of income;

that subsection does not include in the taxpayer ' s assessable income so much of the amount as:

(c) is attributable to the exhibition of the film in the country from sources in which the income was derived; and

(d) is not exempt from income tax in the country from sources in which the income was derived.

26AG(9)    
Where:

(a) an amount (in this subsection referred to as the relevant amount ) is derived by a partnership in a year of income; and

(b) if the relevant amount were derived by a partner in the partnership, the relevant amount, or a part of the relevant amount, would, by virtue of paragraph (1)(d), be an amount to which this section applies in relation to that partner in relation to the year of income,

the following provisions have effect:

(c) the relevant amount shall not be taken into account, for the purposes of any provision of this Act, in calculating the net income of the partnership, or the partnership loss, of any year of income in accordance with section 90 ; and

(d) for the purposes of the application of this Act in relation to a taxpayer being a partner in the partnership, an amount equal to:

(i) so much of the relevant amount as the partners have agreed is derived for the benefit of the taxpayer; or

(ii) if the partners have not agreed as mentioned in subparagraph (i) - so much of the relevant amount as bears to the relevant amount the same proportion as the individual interest of the taxpayer in the net income of the partnership of the year of income in which the relevant amount was derived by the partnership bears to that net income or, as the case requires, the individual interest of the taxpayer in the partnership loss for that year of income bears to that partnership loss;

shall be taken to have been derived by the taxpayer.

26AG(10)    

Where:

(a) a partnership has disposed of the whole or a part of the copyright or of an interest in the copyright in a film;

(b) an amount (in this subsection referred to as the relevant amount ) is receivable by the partnership as consideration in respect of that disposal; and

(c) if the relevant amount were receivable by a partner in the partnership, the relevant amount or a part of the relevant amount would, by virtue of paragraph (1)(e), be an amount to which this section applies in relation to that partner in relation to the year of income;

the following provisions have effect:

(d) the relevant amount shall not be taken into account, for the purposes of any provision of this Act, in calculating the net income of the partnership, or the partnership loss, of any year of income in accordance with section 90 ;

(e) for the purposes of the application of this Act in relation to a taxpayer being a partner in the partnership, an amount equal to:

(i) so much of the relevant amount as the partners have agreed is receivable for the benefit of the taxpayer; or

(ii) if the partners have not agreed as mentioned in subparagraph (i) - so much of the relevant amount as bears to the relevant amount the same proportion as the individual interest of the taxpayer in the net income of the partnership of the year of income in which the disposal mentioned in paragraph (a) occurred bears to that net income, or, as the case requires, the individual interest of the taxpayer in the partnership loss for that year of income bears to that partnership loss;

shall be taken to be receivable by the taxpayer;

(f) where the taxpayer had an interest in the copyright before the disposal and did not have an interest in the copyright after the disposal or had a lesser interest in the copyright after the disposal, the amount deemed to be receivable by the taxpayer shall be deemed to be receivable in respect of the disposal by the taxpayer of his or her interest in the copyright or of a part of his or her interest in the copyright, as the case may be;

(g) where the disposal is deemed to have occurred by virtue of subsection (4) or is a disposal to which paragraph (13)(a) applies, the amount deemed to be receivable by the taxpayer shall be deemed to be receivable, in respect of the disposal by the taxpayer of a part of his or her interest in the copyright.

26AG(11)    
In determining for the purposes of subsection (10) whether a partnership has disposed of the whole or part of a copyright or of an interest in a copyright and in determining the amount of consideration receivable by the partnership in respect of the disposal, subsections (4), (5), (6) and (13) apply as if the partnership were a taxpayer.

26AG(12)    

Where:

(a) a taxpayer has disposed of the whole or a part of the taxpayer ' s interest in a copyright;

(b) by reason of that disposal, an amount would, but for former subsection 124T(3) , be included in the assessable income of the taxpayer of a year of income under former section 124P or would be applied, under former section 124N or 124S , in reducing the residual value, for the purposes of former Division 10B , of a unit of industrial property owned by the taxpayer; and

(c) but for this subsection, this section would apply, in relation to a year of income, to the amount of the consideration receivable by the taxpayer in respect of the disposal;

the amount to which this section applies by virtue of the disposal is the amount of the consideration referred to in paragraph (c) reduced by the amount that would be included in the assessable income of the taxpayer, or would be applied under former section 124N or 124S , as mentioned in paragraph (b).

26AG(13)    
In this section:

(a) a reference to a disposal by a taxpayer of the whole or a part of the taxpayer ' s interest in a copyright in a film includes a reference to the assignment by the taxpayer of a right to receive amounts as consideration for the use of, or the right to use, the copyright or the film;

(b) a reference to an amount derived by a taxpayer as consideration for the use of, or the right to use, a copyright in a film includes a reference to an amount derived as consideration for the granting of a licence in respect of copyright in the film that is to come into existence at a future time or upon the happening of a future event;

(c) a reference to the value of property at a particular time shall, if there is insufficient evidence of the value of the property at that time, be read as a reference to such amount as, in the opinion of the Commissioner, is fair and reasonable;

(d) a reference to the expenditure of capital moneys is a reference to the expenditure of moneys that is expenditure of a capital nature;

(e) a reference to a taxpayer becoming the owner of an interest in copyright includes a reference to the taxpayer becoming the owner of the copyright; and

(f) a reference to copyright, in relation to a film, is a reference to the copyright subsisting in the film by virtue of Part IV of the Copyright Act 1968 and includes a reference to copyright subsisting in, or in relation to, the film or in any work comprised in the film, under the law of a country other than Australia.