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Edited version of your private ruling
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Ruling
Subject: Dividend Stripping and Franking Credits
Question 1
Is the arrangement a scheme by way of, or in the nature of, or have substantially the effect of, dividend stripping under section 177E of the Income Tax Assessment Act 1936 (ITAA 1936)?
Answer
No.
Question 2
Is the arrangement a franking credit scheme, as defined in section 177EA of the ITAA 1936, such that the Commissioner would be permitted to deny you a franking credit benefit?
Answer
No.
This ruling applies for the following period:
Year ending 30 June 2013
The scheme commences on:
1 July 2012
Relevant facts and circumstances
Company A will enter into transactions that will earn it substantial income on which it will pay income tax. That is, the company expects to have significant tax paid accumulated profits.
The transactions will be with an unrelated party and conducted for market value.
Company A will continue to operate its business.
Company A is currently owned by a number of unrelated parties with you being one of the shareholders.
In order to protect its assets from potential claims that could arise under its continuing operations, company A wishes to transfer its accumulated profit to a new entity.
It is proposed that company B is formed to become a holding company and acquires all the shares in company A on a scrip for scrip basis such that the original shareholders of company A become the shareholders in company B (the holding company) with the same rights and entitlements. Effectively no change in beneficial ownership occurs.
To transfer its accumulated profit to company B, company A declares a fully franked dividend to company B and transfers the cash to be used by company B for its own purposes which may include investment and payment of dividends to the original shareholders.
Relevant legislative provisions
Income Tax Assessment Act 1936 Section 177E and
Income Tax Assessment Act 1936 Section 177EA.
Reasons for decision
Section 177E
Section 177E of the ITAA 1936 is an anti-avoidance provision that is designed to prevent tax benefits being obtained as part of a dividend stripping scheme or a scheme with substantially the same effect as a dividend stripping scheme.
The term 'dividend stripping' has no precise legal meaning. In its traditional form, a dividend stripping operation occurs when shares in a company with retained profits are acquired, usually by a share trader who pays the existing shareholders a capital sum reflecting the value of the retained profits. The new shareholders then liberate those profits through the payment of a dividend post acquisition. Generally, the new shareholders who derive dividend income from the company would not be liable to tax upon those dividends.
Therefore, a scheme by way of, or in the nature of, dividend stripping, or one that has substantially the effect of a scheme by way of, or in the nature of, dividend stripping, would be one that has the effect of delivering a shareholder's entitlement to a dividend in a tax advantaged manner.
Based on a consideration of all relevant facts it is not considered that section 177E of the ITAA 1936 can be applied to this arrangement.
Section 177EA
Section 177EA of the ITAA 1936 is primarily directed to franking credit trading which is the process of transferring franking credits on a dividend from investors who cannot fully use them, to investors who can fully use them.
If the section applies, the Commissioner may debit the company's franking account or deny the franking credit benefit to the recipient of the dividend.
The arrangement is not considered to be a scheme to which section 177EA of the ITAA 1936 can apply.
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