Income Tax Assessment Act 1997

Div 160 heading amended by No 8 of 2022, s 3 and Sch 6 item 4, substituting " , 2021-22 or 2022-23 " for " or 2021-22 " , effective 1 April 2022.

Div 160 inserted by No 92 of 2020, s 3 and Sch 2 item 2, effective 1 January 2021.

Former Div 160 repealed by No 96 of 2014, s 3 and Sch 2 item 1, effective 30 September 2014 and applicable to assessments for the income year before the income year in which this Schedule commences, for the income year in which this Schedule commences and for later income years. No 96 of 2014, s 3 and Sch 2 item 43 contains the following transitional and saving provision:

43 Making and amending assessments, and doing other things, in relation to past matters  
43(1)
Even though a part of an Act is repealed or amended by this Schedule, the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument (within the meaning of the Legislative Instruments Act 2003 ):

(a) making or amending an assessment (including under a provision that is itself repealed or amended);

(b) exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);

in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.

43(2)
This item does not limit the operation of the Acts Interpretation Act 1901.

Former Div 160 inserted by No 88 of 2013, s 3 and Sch 5 item 2, effective 29 June 2013.

Subdiv 160-B inserted by No 92 of 2020, s 3 and Sch 2 item 2, effective 1 January 2021.

Former Subdiv 160-B repealed by No 96 of 2014, s 3 and Sch 2 item 1, effective 30 September 2014 and applicable to assessments for the income year before the income year in which this Schedule commences, for the income year in which this Schedule commences and for later income years. For transitional and saving provision see note under Div 160 heading.

Former Subdiv 160-B inserted by No 88 of 2013, s 3 and Sch 5 item 2, effective 29 June 2013.

S 160-35 inserted by No 92 of 2020, s 3 and Sch 2 item 2, effective 1 January 2021.

Former s 160-35 repealed by No 96 of 2014, s 3 and Sch 2 item 1, effective 30 September 2014 and applicable to assessments for the income year before the income year in which this Schedule commences, for the income year in which this Schedule commences and for later income years. For transitional and saving provision see note under Div 160 heading. S 160-35 formerly read:

SECTION 160-35 Integrity rule - no loss carry back tax offset if scheme entered into  
No loss carry back tax offset if scheme entered into

160-35(1)
The * corporate tax entity cannot * carry back an amount of a * tax loss to an income year (the gain year ) if:

(a) there is a * scheme for a disposition of * membership interests, or an * interest in membership interests, in:

(i) the corporate tax entity; or

(ii) an entity that has a direct or indirect interest in the corporate tax entity; and

(b) the scheme is entered into or carried out during the period:

(i) starting at the start of the gain year; and

(ii) ending at the end of the * current year; and

(c) the disposition results in a change in who controls, or is able to control, (whether directly, or indirectly through one or more interposed entities) the voting power in the corporate tax entity; and

(d) another entity receives, in connection with the scheme, a * financial benefit calculated by reference to one or more * loss carry back tax offsets to which it was reasonable, at the time the scheme was entered into or carried out, to expect the corporate tax entity would be entitled; and

(e) having regard to the relevant circumstances of the scheme, it would be concluded that a person, or one of the persons, who entered into or carried out the scheme or any part of the scheme did so for a purpose (whether or not the dominant purpose but not including an incidental purpose) of enabling the corporate tax entity to get a loss carry back tax offset.

Relevant circumstances

160-35(2)
For the purposes of paragraph (1)(e), the relevant circumstances of the * scheme for a disposition include the following:

(a) the extent to which the * corporate tax entity continued to conduct the same activities after the scheme as it did before the scheme;

(b) if the corporate tax entity continued to use the same assets after the scheme as it did before the scheme - the extent to which those assets were assets for which equivalents were not readily available at the time of the scheme;

(c) the matters referred to in subparagraphs 177D(b)(i) to (viii) of the Income Tax Assessment Act 1936 (applying subparagraph 177D(b)(iv) as if the reference to Part IVA of that Act were instead a reference to this section).

Application of this section to non-share equity interests

160-35(3)
This section:

(a) applies to a * non-share equity interest in the same way as it applies to a * membership interest; and

(b) applies to an * equity holder in the same way as it applies to a * member.

Former s 160-35 inserted by No 88 of 2013, s 3 and Sch 5 item 2, effective 29 June 2013.