Class Ruling

CR 2021/56

Aristocrat Leisure Limited - non-executive director rights plan

• Please note that the PDF version is the authorised version of this ruling.

What this Ruling is about

1. This Ruling sets out the income tax consequences for employees of Aristocrat Leisure Limited (Aristocrat) who participate in the Aristocrat Leisure Limited Non-Executive Director Rights Plan (the Plan).

2. Full details of the Plan are set out in paragraphs 15 to 39 of this Ruling.

Note: By issuing this Ruling, the ATO is not endorsing the Plan. Potential participants must form their own view about the Plan.

3. All legislative references in this Ruling are to the Income Tax Assessment Act 1997 unless otherwise indicated.

Who this Ruling applies to

4. This Ruling applies to you if you are a non-executive director (NED) of Aristocrat who:

•

participates in the Plan, and

•

is a resident of Australia within the meaning of that expression in subsection 6(1) of the Income Tax Assessment Act 1936.

When this Ruling applies

5. This Ruling applies to entities that enter into the scheme during 1 September 2021 to 30 September 2024.

Ruling

6. The Plan is an employee share scheme (ESS) as defined in subsection 83A-10(2).

7. The right to be granted an Aristocrat share under the Plan for each participation agreement (the Right) is an ESS interest as defined in paragraph 83A-10(1)(b).

8. Subdivision 83A-C will apply to the Right granted to you.

9. Where the Right is granted to your nominee, the Right is treated as having been acquired by you instead of your nominee (section 83A-305).

10. If you cease to be a NED and you receive a cash payment before a Right is granted, the cash payment will be included in your assessable income in the same income year you received that payment (section 6-5).

11. For the purposes of Division 83A, the time the Right is acquired for a plan year that runs from 1 October to 30 September (Plan Year) is 1 October, being the start of the Plan Year (section 83A-340).

12. Where the Right converts into an Aristocrat share, the ESS deferred taxing point (as determined in section 83A-120) will (subject to the 30-day period in subsection 83A-120(3)) be the earliest of the:

•

time when you cease employment (subsection 83A-120(5)), or

•

end of the 15-year period starting when the Right was acquired for the purpose of Division 83A (subsection 83A-120(6)), or

•

end of the period during which you are prohibited from dealing with your Aristocrat share (subsection 83A-120(7)).

13. Your assessable income for the income year in which the ESS deferred taxing point occurs (as determined in section 83A-120) includes the market value of the Aristocrat share at that time (subsection 83A-110(1) and section 83A-305).

14. If you or your nominee dispose of the Aristocrat share on or before the ESS deferred taxing point (including where the ESS deferred taxing point is extended under the 30-day rule in subsection 83A-120(3)), any capital gain or capital loss is disregarded (subsection 130-80(1)).

Scheme

15. The following description of the scheme is based on information provided by Aristocrat. If the scheme is not carried out as described, this Ruling cannot be relied upon.

Aristocrat Leisure Limited Non-Executive Director Rights Plan

16. The Plan provides a means for NEDs to increase equity ownership in Aristocrat. The objectives of the Plan are to, among other things, align the interests of employees who participate in the Plan with shareholders and provide incentives to retain those employees.

17. Each Plan Year runs from 1 October to 30 September to follow Aristocrat's financial year.

Aristocrat Leisure Limited Non-Executive Director Rights Plan terms and Participation Agreement

18. The Plan is operated in accordance with the terms set out in the Plan rules together with the terms set out in the agreement that Aristocrat sends to you each year.

19. Once the agreement is executed by you (Participation Agreement), it must be returned to Aristocrat. The terms of the Participation Agreement will be binding from 1 October, which is the commencement of the relevant Plan Year.

20. To participate in the Plan, you must agree to sacrifice a minimum percentage of your NED fee for the Plan Year of at least 20% and can elect to sacrifice a higher percentage up to 100%.

21. You must nominate a disposal restriction date when entering into the Participation Agreement. The nominated restriction date must be between three and fifteen years after commencement of the Plan Year in which the Rights are granted. You must not dispose of or grant a security interest over any Aristocrat shares allocated to you as part of the Plan until the earliest of the nominated restriction period, when you cease to be a NED of Aristocrat or there is a change of control event as defined in the Plan rules (Restriction Period). The nominated disposal restriction period cannot be amended subsequent to the execution of the Participation Agreement.

22. Provided you continue to be a director of Aristocrat, Aristocrat will grant to you (or your nominee) the number of Rights at the times provided for in the Participation Agreement.

23. The Rights to which you (or your nominee) are entitled in respect of the relevant year will be granted to you (or your nominee) on or around the sixth business day following the date on which Aristocrat publicly releases its annual financial report for the previous financial year.

24. The number of Rights granted will be equal to the amount of sacrificed fees for the Plan Year divided by the five-day volume weighted average price of Aristocrat shares over the period immediately prior to the date of grant.

Vesting of Rights under the Aristocrat Leisure Limited Non-Executive Director Rights Plan

25. For each Plan Year, Rights will vest in two tranches; Tranche 1 will vest on or around the business day immediately following the date on which Aristocrat publicly releases its half-yearly financial report for the relevant Plan Year. Tranche 2 will vest on or around the business day immediately following the date on which it publicly releases its annual financial report for the relevant Plan Year.

26. No Aristocrat shares will be allocated on the vesting dates.

27. Upon vesting, Tranche 1 Rights will be exercised automatically and Aristocrat shares will be allocated on or around the third business day after the date on which Aristocrat publicly releases its half-yearly financial report for the relevant Plan Year. Tranche 2 will be exercised automatically and Aristocrat shares will be allocated on or around the third business day after the date Aristocrat publicly releases its annual report for the relevant Plan Year.

28. You or your nominee must not dispose of, or grant any security interest over, any shares allocated to you or your nominee during the Restriction Period relating to those shares.

Disposal restrictions

29. The transfer or disposal of Aristocrat shares received under the Plan is subject to restrictions under the Plan rules and Aristocrat's share trading policy.

30. You or your nominee are prohibited from dealing in your Aristocrat share allocated to you for the Restriction Period.

31. Aristocrat will instruct the share registry to apply a holding lock to the allocated shares for the term of the Restriction Period and each person who is allocated shares irrevocably consents to any such holding lock being applied.

32. Under the Aristocrat share trading policy, you or your nominee are prohibited from dealing in Aristocrat shares during designated black-out periods unless an exception applies. The exception only applies in exceptional circumstances provided you are not in possession of inside information, for example, severe financial hardship. The Aristocrat Company Secretary or Chairman has the discretion to decide whether or not exceptional circumstances exist. You must give prior notice if you intend to deal in Aristocrat shares outside of a designated black-out period.

33. Under the Aristocrat share trading policy, you or your nominee are prohibited from dealing in Aristocrat shares where you are in possession of any inside information. Any breaches of the policy are considered serious and may result in disciplinary action.

Ceasing to be a non-executive director

34. If you cease to be a NED of Aristocrat before the Rights allocated to you or your nominee are exercised:

•

any vested Rights will not lapse

•

the pro rata number of unvested Rights (based on the number of weeks in the Plan year that have elapsed at the time you cease to be a NED) will vest with the remaining unvested Rights lapsing without any corresponding payment, and

•

the pro rata number of vested Rights will then be automatically exercised and Aristocrat shares will be delivered to you or your nominee within sixty days of the day on which you cease to be a NED of Aristocrat.

35. If you cease to be a NED of Aristocrat in the period after 1 October of a Plan Year and before the Rights are granted, you will be paid a cash amount that you would have received if you had not entered into the Participation Agreement (less any applicable taxes and superannuation contributions).

Other matters

36. Immediately after the acquisition of any Rights under the Plan, you will not hold a beneficial interest in more than 10% of the shares in Aristocrat or be in a position to cast or control the casting of more than 10% of the maximum number of votes that might be cast at a general meeting of Aristocrat.

37. The predominant business of Aristocrat is not the acquisition, sale or holding of shares, securities or other investments, whether directly or indirectly through one or more companies, partnerships or trusts.

38. Any nominee nominated by you must be an 'associate' of yours within the meaning of that expression in subsection 995-1(1).

39. The governing rules of the Plan expressly state that the Plan is intended to operate in accordance with Subdivision 83A-C.

Commissioner of Taxation
11 August 2021

Appendix - Explanation

Employee share scheme interest and indeterminate rights

40. An ESS interest in a company is a beneficial interest in a share in the company or a right to acquire a beneficial interest in a share in the company (subsection 83A-10(1)).

41. Under the Plan, rights acquired on 1 October in the relevant Plan Year are only beneficial interests in rights that will later become rights to acquire beneficial interests in Aristocrat shares. This is because the number of rights cannot be ascertained until the calculation occurs at a later point in time, as outlined in paragraphs 23 and 24 of this Ruling. Upon completion of the calculation, the number of rights is ascertained and therefore become rights to acquire Aristocrat shares.

42. Subsection 83A-340(1) applies where you acquire a beneficial interest in a right that later becomes a right to acquire a beneficial interest in a share which is referred to as an indeterminate right. A person will acquire an indeterminate right when they can enforce against their employer (under the terms of contract) rights that will later become a beneficial interest in a share (refer to Taxation Determination TD 2016/17 Income tax: in what circumstances does a contractual right, which is subject to the satisfaction of a condition, become a right to acquire a beneficial interest in a share for the purposes of subsection 83A-340(1) of the Income Tax Assessment Act 1997?).

43. Therefore, where the Rights granted to you (or your nominee) ultimately vest and are settled with Aristocrat shares after the vesting date, section 83A-340 will apply to those Rights. The Rights will be treated as if they had always been rights to acquire a beneficial interest in the share. That is, they will be treated as an ESS interest (subsection 83A-10(1)) from when you (or your nominee) acquired the Rights which is when the Plan becomes binding between you and Aristocrat for the relevant Participation Agreement and you commence sacrificing your agreed proportion of base fee in accordance with the Plan, thereby obtaining a right to Rights.

44. The Plan is an ESS as defined in subsection 83A-10(2) as it is a scheme under which ESS interests in a company are provided to employees, or associates of employees, of the company, or a subsidiary of the company, in relation to the employee's employment (subsection 83A-10(2)).

45. The Plan provides that the Right is issued for no consideration. This means the Right was issued at a discount pursuant to subsection 83A-20(1). Subdivision 83A-B will apply to the Right acquired by you under the Plan, unless Subdivision 83A-C applies.

Nominee

46. Where you nominate a nominee who is then granted the Right (and any resulting share), the Right is treated as having been acquired by you instead of your nominee (section 83A-305). That is, Division 83A will apply to you as if the Right (and any resulting share) acquired by the nominee was acquired by you.

Assessability of a Right under Subdivision 83A-C

47. Subdivision 83A-C allows the discount in relation to the ESS interest to be included in assessable income at a later time if the following conditions are satisfied:

•

Subdivision 83A-B would, apart from section 83A-105, apply to the interest

•

paragraph 83A-105(1)(aa) results in a participant continuing to receive a discount in relation to the interest

•

subsections 83A-45(1) to (3) and (6) apply to the interest, and

•

pursuant to subsection 83A-105(6), at the time you acquired the interest the scheme genuinely restricted you immediately disposing of the Right and the governing rules of the scheme expressly state that Subdivision 83A-C applies to the scheme.

48. In relation to the first condition listed in paragraph 47 of this Ruling, Subdivision 83A-B would, apart from subsection 83A-105(1), apply to the Right because it is:

•

a beneficial interest in a right to acquire beneficial interest in a share of Aristocrat, and

•

provided to you as an employee of Aristocrat in relation to your employment and will be provided for nil consideration (that is, at a discount).

49. In relation to the second condition listed in paragraph 47 of this Ruling, paragraph 83A-105(1)(aa) requires that after applying section 83A-315 (which refers to the regulations for calculating the market value of an ESS interest where it is an unlisted right), there is still a discount given in relation to the interest.

50. Section 83A-315.03 of the Income Tax Assessment (1997 Act) Regulations 2021 states:

If the lowest amount that must be paid to exercise the right to acquire the beneficial interest in a share is nil or cannot be determined, the value of the right on a particular day is the same as the market value of the share on that day.

As the Right is provided for nil consideration, that is a discount to the market value of a share in Aristocrat. As such, you will receive a discount in relation to the Right.

51. In relation to the third condition listed at paragraph 47 of this Ruling, subsections 83A-45(1) to (3) and (6) apply to the Right granted because:

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when the Right is acquired, you were employed by Aristocrat (subsection 83A-45(1))

•

all of the ESS interests available for acquisition under the Plan relate to shares of Aristocrat (subsection 83A-45(2))

•

the predominant business of Aristocrat is not the acquisition, sale or holding of shares, securities or other investments (subsection 83A-45(3)), and

•

immediately after the acquisition of the Right, you will not hold a beneficial interest in more than 10% of the shares in Aristocrat nor be in a position to cast, or control the casting of, more than 10% of the maximum number of votes that might be cast at a general meeting of Aristocrat (subsection 83A-45(6)).

52. In relation to the fourth condition listed in paragraph 47 of this Ruling, Subdivision 83A-C applies if, under the conditions of the Plan at the time you acquired the interest the scheme genuinely restricted you from immediately disposing of the Right and the governing rules of the scheme expressly state that Subdivision 83A-C applies to the scheme. The governing rules of the Plan expressly state that the Plan is intended to operate in accordance with Subdivision 83A-C and the Plan genuinely restricts you from immediately disposing of the Right.

53. As a result, Subdivision 83A-C applies to the Right, and Subdivision 83A-B does not apply. The taxation of the Right received under the Plan will be deferred until an ESS deferred taxing point occurs.

Employee share scheme deferred taxing point

54. Section 83A-120 provides the rules for determining when the ESS deferred taxing point occurs for a right to acquire a share. This will be the earliest of the following times:

•

when the right has not been exercised, there is no real risk of forfeiting the right and the scheme no longer genuinely restricts immediate disposal of the right (subsection 83A-120(4))

•

when you cease employment (within the meaning of section 83A-330) in respect of which you acquired the right (subsection 83A-120(5))

•

15 years after you acquired the right (subsection 83A-120(6)), and

•

after the right is exercised, when there is no real risk of forfeiting or losing the share and the scheme no longer genuinely restricts disposal of the share (subsection 83A-120(7)).

55. However, if you dispose of the vested right or the share within 30 days of the earliest time outlined in paragraph 54 of this Ruling, the ESS deferred taxing point will instead be the time of disposal (paragraph 83A-120(3)(b)).

56. For the purposes of Division 83A, the concept of 'exercising a right' is not considered to necessarily require an action or activity by the beneficial owner of the right. It is enough that they become the beneficial owner of the share that is the subject of the Right (this can happen automatically or at the instigation of the participant, the employer or another party). Therefore, you are taken to have exercised the Right when an Aristocrat share is allocated upon vesting of the Right.

57. As determined in section 83A-120, where your Right vests, the ESS deferred taxing point will (subject to the 30-day rule) be the earliest of:

•

the time when you cease employment (subsection 83A-120(5))

•

15 years from when you acquired the Right (subsection 83A-120(6)), and

•

the end of the period during which you are prohibited from dealing with your Aristocrat share (subsection 83A-120(7)).

58. However, if you dispose of your Aristocrat share acquired from vesting of the Right within 30 days of the earliest time outlined in paragraph 57 of this Ruling, the ESS deferred taxing point will be the date of disposal (subsection 83A-120(3)).

Amount to be included in assessable income

59. In accordance with section 83A-110, the amount to be included as assessable income in the income year in which the ESS deferred taxing point occurs is the market value of the ESS interest at the ESS deferred taxing point, reduced by the cost base of that interest (if any).

60. Where the ESS interest is a right to acquire a beneficial interest in a share, the market value of the right at the ESS deferred taxing point is the market value of the share at that time (section 83A-315.03 of the Income Tax Assessment (1997 Act) Regulations 2021).

61. Therefore, the amount included in your assessable income at the ESS deferred taxing point is the market value of the Aristocrat share acquired upon vesting of a Right at the ESS deferred taxing point less the cost base of the Right. As the Right is granted for nil consideration and no amount is paid to exercise the Right, the first element of the cost base of the Right is nil (subsections 83A-110(1) and 110-25(2)).

Where a cash payment is made

62. Division 83A will not apply where you cease to be a NED in the period after 1 October of the Plan Year and before Rights are granted. You will instead be paid the cash amount that you would have received had you not entered into the Participation Agreement.

63. Section 6-5 provides that assessable income includes ordinary income derived during an income year. Therefore, you include the full amount of any base fee cash payment you receive in your assessable income for the year in which the cash is received.

© AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA

You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).

Not previously issued as a draft

References

ATO references:
NO 1-NKWQLZO

Related Rulings/Determinations:

TD 2016/17

Business Line:  PGI

Legislative References:
ITAA 1936 6(1)
ITAA 1997 6-5
ITAA 1997 Div 83A
ITAA 1997 83A-10(1)
ITAA 1997 83A-10(1)(b)
ITAA 1997 83A-10(2)
ITAA 1997 Subdiv 83A-B
ITAA 1997 83A-20(1)
ITAA 1997 83A-45(1)
ITAA 1997 83A-45(2)
ITAA 1997 83A-45(3)
ITAA 1997 83A-45(6)
ITAA 1997 Subdiv 83A-C
ITAA 1997 83A-105
ITAA 1997 83A-105(1)
ITAA 1997 83A-105(1)(aa)
ITAA 1997 83A-105(6)
ITAA 1997 83A-110
ITAA 1997 83A-110(1)
ITAA 1997 83A-120
ITAA 1997 83A-120(3)
ITAA 1997 83A-120(3)(b)
ITAA 1997 83A-120(4)
ITAA 1997 83A-120(5)
ITAA 1997 83A-120(6)
ITAA 1997 83A-120(7)
ITAA 1997 83A-305
ITAA 1997 83A-315
ITAA 1997 83A-330
ITAA 1997 83A-340
ITAA 1997 83A-340(1)
ITAA 1997 110-25(2)
ITAA 1997 130-80(1)
ITAA 1997 995-1(1)
TAA 1953
Income Tax Assessment (1997 Act) Regulations 2021 83A-315.03