CHAPTER 6
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THE DICTIONARY
PART 6-1
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CONCEPTS AND TOPICS
Division 974
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Debt and equity interests
History
Division 974 inserted by No 163 of 2001, s 3 and Sch 1 item 34.
Act
No 136 of 2010
, s 3 and Sch 3 item 135, contains the following provision, effective 7 December 2010:
Extension of debt and equity transitional arrangements for Upper Tier 2 capital instruments
Definitions
(1)
In this item:
CGT amendments
has the same meaning as in item 118 of Schedule 1 to the
New Business Tax System (Debt and Equity) Act 2001
.
debt and equity test amendments
means the amendments made by Schedule 1 to the
New Business Tax System (Debt and Equity) Act 2001
(other than the CGT amendments), as amended from time to time.
Upper Tier 2 capital instruments
(2)
This item applies to an interest:
(a)
that is issued before 1 July 2001; and
(b)
that is an instrument known as an Upper Tier 2 capital instrument; and
(c)
to which an election under paragraph 118(6)(b) of the
New Business Tax System (Debt and Equity) Act 2001
does not apply.
(3)
For the purposes of subitem (2), an interest is taken to be issued on or after 1 July 2001 if:
(a)
the interest is issued on or after that date; or
(b)
the interest is issued before that date, and:
(i)
the terms of the interest are altered on or after that date; or
(ii)
the interest is rolled over on or after that date; or
(iii)
the original term of the interest is extended on or after that date.
In applying subparagraph (b)(i), disregard:
(c)
minor alterations that do not affect rights and obligations in relation to the interest; and
(d)
alterations that permit or require any deferred payments under the interest to accumulate.
Application of debt and equity test amendments
(4)
Despite paragraph 118(6)(a) of the
New Business Tax System (Debt and Equity) Act 2001
, the debt and equity test amendments apply only to transactions that take place in relation to the interest on or after 1 July 2010 if the issuer of the interest does not make an election under paragraph 118(6)(b) of that Act.
(5)
If subitem (4) applies to an interest:
(a)
the interest is disregarded for the purposes of paragraph
164-10(1)(b)
and subsection
164-15(3)
of the
Income Tax Assessment Act 1997
; and
(b)
section
164-15
of the
Income Tax Assessment Act 1997
applies to the interest as if references in paragraph
164-15(3)(b)
and subsection
164-15(4)
to 1 July 2001 were references to 1 July 2010.
(6)
A reference in this item to a
transaction
includes a reference to:
(a)
making a return; and
(b)
paying a dividend or unit trust dividend; and
(c)
making a distribution in relation to a unit trust; and
(d)
paying, crediting or lending an amount; and
(e)
making a non-share distribution; and
(f)
forgiving a debt; and
(g)
redeeming, cancelling or buying back an interest; and
(h)
converting an interest.
Act No 163 of 2001, s 3 and Sch 1 item 118 (as amended by No 162 of 2005, s 3 and Sch 6 items 26 and 27), contained the following application provisions:
(1)
Definitions.
In this item:
CGT amendments
means the amendments made by items 7 to 32 of this Schedule.
debt and equity test amendments
means the amendments made by this Schedule (other than the CGT amendments).
(2)
Application of debt and equity test amendments.
The debt and equity test amendments apply to transactions that take place on or after 1 July 2001. This is so whether the interest in relation to which the transaction takes place was issued before, or is issued on or after, that date. This subitem has effect subject to subitem (6).
History
Subitem 118(2) amended by No 162 of 2005.
(3)
Application of the CGT amendments.
The amendments made by items 7 to 11 of this Schedule apply to:
(a)
equity interests issued or allotted; and
(b)
options granted;
on or after 1 July 2001.
(4)
The amendments made by items 12 to 32 of this Schedule apply to the conversion of a convertible interest, or the exercise of a right, on or after 1 July 2001.
(5)
Section 130-40 of the
Income Tax Assessment Act 1997
applies to all convertible notes acquired before 20 September 1985 as if they were convertible interests.
(6)
Application of debt and equity test amendments to interests issued before 1 July 2001.
If an interest was issued before 1 July 2001, the debt and equity test amendments:
(a)
apply only to transactions that take place in relation to the interest on or after 1 July 2004 if the issuer of the interest does not make an election under paragraph (b); and
(b)
apply to transactions that take place in relation to the interest on or after 1 July 2001 if the issuer elects to have this paragraph apply to the interest.
(7)
For the purposes of subitem (6), an interest is taken to be issued on or after 1 July 2001 if:
(a)
the interest is issued on or after that date; or
(b)
the interest is issued before that date; and:
(i)
the terms of the interest are altered on or after that date; or
(ii)
the interest is rolled over on or after that date; or
(iii)
the original term of the interest is extended on or after that date.
In applying subparagraph (b)(i), disregard minor alterations that do not affect rights and obligations in relation to the interest.
(9)
If paragraph (6)(a) applies to an interest:
(a)
paragraph
164-10(1)(b)
of the
Income Tax Assessment Act 1997
applies to the interest as if the second reference in that paragraph to
"
1 July 2001
"
were instead a reference to
"
1 July 2004
"
; and
(b)
section
164-15
of the
Income Tax Assessment Act 1997
applies to the interest as if the following references were instead references to
"
1 July 2004
"
:
(i)
the first reference in subsection
164-15(3)
to
"
1 July 2001
"
;
(ii)
the reference in subsection
164-15(3)
to
"
that day
"
;
(iii)
the references in paragraph
164-15(3)(b)
and subsection
164-15(4)
to
"
1 July 2001
"
.
History
Subitem 118(9) substituted by No 162 of 2005.
(10)
An election in relation to an interest is effective for the purposes of paragraph (6)(b) only if:
(a)
the election is lodged with the Commissioner within:
(i)
90 days after the day on which this Act receives the Royal Assent; or
(ii)
such further time as the Commissioner allows; and
(b)
an election under paragraph (6)(b) is made in relation to all other interests that:
(i)
were issued by the issuer before 1 July 2001; and
(ii)
are substantially similar to that interest and in relation to which an election under that subitem can be made; and
(c)
the election contains the following information:
(i)
the name of the issuer;
(ii)
the tax file number of the issuer;
(iii)
the legal form of the interest;
(iv)
ASX code or other stock exchange listing code allotted to the issue (if applicable);
(v)
the date of the issue;
(vi)
the face value of the issue;
(vii)
the number of interests of that kind on issue when the election is made;
(viii)
coupon/dividend rates and terms including contingencies;
(ix)
maturity details;
(x)
redemption details and terms including contingencies;
(xi)
conversion/exercise details.
An election under paragraph (6)(b) cannot be revoked.
(11)
The Commissioner may allow further time under subparagraph (10)(a)(ii) if he or she:
(a)
is satisfied that the issuer would otherwise not have sufficient opportunity to make the election; or
(b)
otherwise considers it reasonable to do so.
(12)
If:
(a)
paragraph (6)(a) applies to an interest; and
(b)
on or after 1 July 2001 and before 1 July 2004:
(i)
the terms of the interest are altered; or
(ii)
the interest is rolled over; or
(iii)
the original term of the interest is extended;
then:
(c)
the debt and equity test amendments apply to the transactions in relation to the interest that take place after the event referred to in paragraph (b) occurs; and
(d)
subitem (9) applies to the interest as if references in that subitem to 1 July 2004 were references to the time when that event occurs.
In applying subparagraph (b)(i), disregard minor alterations that do not affect rights and obligations in relation to the interest.
(13)
A reference in this item to a
transaction
includes a reference to:
(a)
making a return; and
(b)
paying a dividend or unit trust dividend; and
(c)
making a distribution in relation to a unit trust; and
(d)
paying, crediting or lending an amount; and
(e)
making a non-share distribution; and
(f)
forgiving a debt; and
(g)
redeeming, cancelling or buying back an interest; and
(h)
converting an interest.
Subdivision 974-F
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Related concepts
History
Subdivision 974-F inserted by No 163 of 2001. For application provisions, see note under Div 974 heading.
SECTION 974-135
Effectively non-contingent obligation
974-135(1)
There is an
effectively non-contingent obligation
to take an action under a *scheme if, having regard to the pricing, terms and conditions of the scheme, there is in substance or effect a non-contingent obligation (see subsections
(3)
,
(4)
and
(6)
) to take that action.
974-135(2)
Without limiting subsection
(1)
, that subsection applies to:
(a)
providing a *financial benefit under the *scheme; or
(b)
terminating the scheme.
974-135(3)
An obligation is
non-contingent
if it is not contingent on any event, condition or situation (including the economic performance of the entity having the obligation or a *connected entity of that entity), other than the ability or willingness of that entity or connected entity to meet the obligation.
974-135(4)
The existence of the right of the holder of an *interest that will or may convert into an *equity interest in a company to convert the interest does not of itself make the issuer's obligation to repay the investment not non-contingent.
974-135(5)
An obligation to redeem a preference share is not contingent merely because there is a legislative requirement for the redemption amount to be met out of profits or a fresh issue of *equity interests.
974-135(6)
In determining whether there is in substance or effect a non-contingent obligation to take the action, have regard to the artificiality, or the contrived nature, of any contingency on which the obligation to take the action depends.
Note:
The artificiality, or the contrived nature, of a contingency would tend to indicate that there is, in substance or effect, a non-contingent obligation to take that action.
974-135(7)
An obligation of yours is not
effectively non-contingent
merely because you will suffer some detrimental practical or commercial consequences if you do not fulfil the obligation.
Note:
For example, a contingent obligation to make payments in respect of an income security issued by an approved deposit-taking institution (ADI) is not effectively non-contingent merely because of the detrimental effect non-payment would have on the ADI's business.
974-135(8)
The regulations may make further provisions relating to the following:
(a)
what constitutes a non-contingent obligation;
(b)
what does not constitute a non-contingent obligation;
(c)
what constitutes an *effectively non-contingent obligation;
(d)
what does not constitute an effectively non-contingent obligation.
History
S 974-135 inserted by No 163 of 2001. For application provisions, see note under Div 974 heading.
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