House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

Chapter 15 - Demerger relief

Outline of chapter

15.1 Part 1 of Schedule 16 to this bill amends the ITAA 1997 to insert Division 125. This Division allows CGT roll-over when a CGT event happens to original interests in a company or trust under a demerger and new or replacement interests are received in the demerged entity. The roll-over allows a capital gain or loss made from a CGT event happening to original interests to be deferred. Certain capital gains or capital losses made by members of a demerger group, because of a demerger, are disregarded.

15.2 Part 2 of Schedule 16 to this bill amends the ITAA 1936 to exempt certain dividends arising under a demerger.

15.3 Part 3 of Schedule 16 to this bill makes consequential amendments to the CGT provisions and dictionary in the ITAA 1997.

15.4 This proposed legislation does not cover linkages with consolidations and other regimes currently before Parliament. Integrity rules for non-widely-held entities demerging will also need to be added. These and other consequential amendments are planned to be addressed at the earliest opportunity.

Context of reform

15.5 The CGT relief and dividend exemption will facilitate the demerging of entities by ensuring that tax considerations are not an impediment to restructuring a business. These amendments are based on Recommendation 19.4 of A Tax System Redesigned , and recognise that there should be no taxing event for a restructuring that leaves members in the same economic position as they were just before the restructuring.

15.6 The CGT relief provided for demergers complements the scrip for scrip roll-over provided under Subdivision 124-M of the ITAA 1997. A Tax System Redesigned recommended tax relief for both demergers and for takeovers and mergers achieved by scrip for scrip exchanges.

Summary of new law

Capital gains tax roll-over for interest owners

15.7 Subdivision 125-B provides CGT roll-over to owners of a head entity of a demerger group if, under a demerger:

•

at least 80% of the demerger groups ownership interests in the demerged entity are acquired by the owners of the head entity; and

•

each owner receives the same proportion of new interests in the demerged entity as their proportion of original interests, just before the demerger, in the head entity.

15.8 Roll-over is available for CGT events that happen on or after 1 July 2002 under a demerger. Broadly, the effect of the roll-over is to defer the making of a capital gain or capital loss, and is chosen by the owners of the interests in the head entity for each of their affected interests. The cost base of the owners original interests is then apportioned across these interests and new interests acquired under the demerger.

15.9 Owners of pre-CGT interests in the head entity are able to treat their new interests in the demerged entity as pre-CGT interests. The proportion of pre-CGT original interests in the head entity, just before the demerger, is applied to determine the number of pre-CGT new interests in the demerged entity.

15.10 If an owner of a head entity receives something other than new interests in the demerged entity, such as cash, the roll-over is not available.

Capital gains tax exemption for members of demerger groups

15.11 Subdivision 125-C provides that certain capital gains or capital losses made by a demerging entity are disregarded. An entity cannot choose for this exemption not to apply. Certain other CGT consequences for other members of a demerger group under a demerger are also disregarded or altered.

15.12 A capital loss that is attributable to a value shift under a demerger may be reduced. The reduced cost base of an asset of the demerger group may be reduced if the asset is subject to roll-over after the demerger.

Dividend exemption

15.13 An assessable dividend arising as a result of a demerger happening is exempt. Integrity rules will limit this exemption where there is a scheme that has a purpose of obtaining that non-assessable dividend. To the extent that a dividend is not a demerger dividend the normal rules relating to dividends apply.

15.14 The entity paying the dividend chooses, for all shareholders, that the dividend be treated as a demerger dividend.

Detailed explanation of new law

Capital gains tax roll-over for interest owners

15.15 Demerger roll-over is available to all entities, other than discretionary trusts and superannuation funds, when a demerging entity or entities transfer or issue:

•

at least 80% of the demerger groups ownership interests in a demerged entity to the interest owners of the head entity; and

•

the underlying ownership of the head entity is maintained.

15.16 Demerger roll-over is available for the owners of interests in the head entity of a demerger group.

What is a demerger group?

15.17 A demerger group is a group of companies or trusts, comprising a head entity and at least one demerger subsidiary. [Schedule 16, Part 1, subsection 125-65(1)]

15.18 A demerger group does not include a discretionary trust. It is difficult to establish, with any degree of certainty, the real economic ownership of the assets of a discretionary trust, and it is equally difficult to test whether that ownership has been maintained. [Schedule 16, Part 1, subsection 125-65(2)]

What is a head entity?

15.19 A company or trust is the head entity of a demerger group if no other member of the group owns any interests in the company or trust. [Schedule 16, Part 1, subsections 125-65(3) and (4)]

Example 15.1

In this example Company A is the head entity of the demerger group which comprises Companies A, B and C and Trust D. This is the only demerger group within this structure. It is not possible for Companies B and C and Trust D to treat themselves as a demerger group, and to attempt to demerge shares to Company A as the owner of shares in the head entity, being Company B.

What is a demerger subsidiary?

15.20 A company is a demerger subsidiary of another company or trust if that company or trust, either alone or together with other entities of the demerger group, own, or have the right to acquire, ownership interests in the company that entitle them to:

•

receive more than 20% of any distribution of income or capital by the company; or

•

exercise, or control the exercise of, more that 20% of the voting power of the company.

[Schedule 16, Part 1, subsection 125-65(5)]

15.21 A trust is a demerger subsidiary of another trust or a company if that trust or company, either alone or together with other entities of the demerger group, own, or have the right to acquire, ownership interests in the trust that entitle them to receive more than 20% of any distribution of income or capital by the trustee. [Schedule 16, Part 1, subsection 125-65(6)]

Example 15.2

To continue Example 15.1, Companies B and C and Trust D are demerger subsidiaries of the demerger group.

What is a demerging entity?

15.22 A demerging entity is an entity that is a member of a demerger group and, under a demerger, is (either alone or together with other members of the demerger group):

•

disposing of at least 80% of the groups total ownership interests in a demerger subsidiary; or

•

ending, in a manner described in CGT event C2 or C3, at least 80% of the groups total ownership interests in the demerger subsidiary; or

•

disposing of and ending the ownership interests in some combination that results in the group no longer owning at least 80% of the total ownership interests in the demerger subsidiary.

[Schedule 16, Part 1, subsection 125-70(7)]

15.23 All of the members of a demerger group, including the head entity, that own interests in a demerged entity may be demerging entities. The 80% total ownership interest requirement is tested by having regard to the number, nature and value of those interests. [Schedule 16, Part 1, subsection 125-70(7)]

What is a demerged entity?

15.24 A demerged entity is the entity that was a member of a demerger group and, under a demerger, its ownership interests are acquired by the owners of the head entity. [Schedule 16, Part 1, subsection 125-70(6)]

What are ownership interests?

15.25 Ownership interests are:

•

shares in a company, other than a dual listed company voting share (providing there are not more than 5 dual listed company voting shares in the company - refer to paragraphs 15.34 to 15.36);

•

units or other interests in a trust; and

•

options, rights or similar interests that entitle the owner to acquire a share in a company or a unit or other interest in the trust. These ownership interests must have originally been issued by the company or trustee, and can be acquired from any other owner of the interest.

[Schedule 16, Part 1, subsections 125-60(1) and (2)]

What is a demerger?

15.26 A demerger happens when all of the conditions for a restructure are satisfied. There is no defined mechanism for the demerger. It might occur via a capital reduction that is satisfied by the transfer or issue of ownership interests in the demerged entity, via a declaration of dividend that is satisfied by the transfer or issue of ownership interests in the demerged entity, or via some combination of these mechanisms.

When does a demerger happen?

15.27 A demerger happens when a demerger group restructures and under that restructure:

•

a demerger group transfers or issues at least 80% of the interests it owns in an entity (the demerged entity) to the owners of interests in the groups head entity;

•

a CGT event happens to the owners of original interests in the head entity or the owners simply acquire new interest;

•

just before the restructuring, more than 50% of original interests in the groups head entity were owned by Australian residents, or by foreign residents whose new interests have the necessary connection with Australia just after they acquire them;

•

each head entity interest owner owns, just after the demerger, the same proportion (as practically possible) of ownership interests in the demerged entity as they owned in the head entity of the demerger group just before the demerger (proportion test);

•

the market value (or a reasonable approximation of that market value) of the remaining original interests and the new interests, just after the demerger, must reasonably have been expected to be not less than the market value of the original interests just before the demerger (market value test); and

•

the new interests must be of a similar kind as the original interests. Table 15.1 sets out the acceptable new interests that can be acquired for each kind of original ownership interest.

[Schedule 16, Part 1, section 125-70]

Proportionate ownership test

15.28 One of the conditions for a demerger is that ownership interests in the demerger group are maintained. There are 2 tests that determine whether this condition is met. The first test is that proportionate interests in the head entity and in the demerged entity remain the same, so far as is practicable.

Example 15.3

Rose owns 5% of the ownership interests in the head entity that is demerging Stapled Limited, its 100% subsidiary. Under the demerger Rose must receive new interests that equal 5% of the ownership interests in Stapled Limited.

If the head entity had owned 40% of the ownership interests in Stapled Limited, Rose must receive 2% of those interests, which equates to 5% of the head entitys interests in Stapled Limited.

15.29 In testing whether proportionate interests have been maintained, certain types of ownership interests can be excluded (refer to paragraphs 15.30 to 15.36). [Schedule 16, Part 1, subsection 125-70(2)]

Exclude certain qualifying ownership interests

15.30 Certain qualifying shares and rights can be excluded from the determination of the proportions tests. [Schedule 16, Part 1, section 125-75]

15.31 Division 13A of the ITAA 1936 defines employee share schemes and qualifying shares and rights. It also details the income tax treatment of shares and rights acquired under employee share schemes.

15.32 Shares or rights acquired under an employee share scheme are qualifying shares or rights if:

•

all the shares and rights in the company available for acquisition under the scheme are ordinary shares or rights to acquire ordinary shares;

•

when the entity acquired the interest, at least 75% of the permanent employees (as defined in section 139GB of the ITAA 1936) of the employer (as defined in section 139GA of the ITAA 1936) were, or had earlier been entitled to, acquire under the scheme ownership interests in either the company or the companys holding company (as defined in section 139GC of the ITAA 1936); and

•

the company is not covered by section 139DF of the ITAA 1936,

and the ownership interest may be excluded from the proportionate ownership test if it is not a fully-paid ordinary share. [Schedule 16, Part 1, subsections 125-75(1) and (2)]

15.33 An equivalent exclusion applies to trusts. [Schedule 16, Part 1, subsection 125-75(3)]

Exclude dual listed company voting shares

15.34 In calculating the proportion of ownership interests in the head entity and in the demerged entity, a dual listed company voting share may be disregarded. [Schedule 16, Part 1, subsection 125-60(2)]

15.35 A dual listed company voting share is a share in a company, being the head entity of a demerger group, issued as part of a dual listed company arrangement that does not have any rights to financial entitlements (except the amount paid up on the share and a dividend paid that is the equivalent of a dividend paid on an ordinary share). [Schedule 16, Part 1, subsection 125-60(3)]

15.36 The definition of a dual listed company arrangement will be refined following tax treaty discussions with other countries and industry representatives. [Schedule 16, Part 1, subsections 125-60(4)]

Market value test

15.37 The second test that ownership interests in the demerger group are maintained is that the proportionate market values of the interests in the demerger group as a whole are maintained pre- and post-demerger.

15.38 Under this test the total market value of each and every owners ownership interest in the demerged entity and the head entity, just after the demerger, must not be less that the total market value of the original ownership interests in the head entity, just before the demerger. [Schedule 16, Part 1, subsection 125-70(3)]

15.39 This test ensures that only demergers that are expected to have a positive effect on the market value of the demerger group are eligible for relief. It also guards against a value shift between owners of the head entity happening under a demerger.

15.40 An anticipated reasonable approximation of the market value of interests can be used in applying the market value test for the interests after the demerger. An estimate, determined earlier in the demerger process, of the expected market values at the time of the demerger, may be an acceptable anticipated reasonable approximation. This allows the test to be satisfied if circumstances outside the control of the demerger group resulted in an actual reduction in market values just after the demerger. A general downturn in the stock market is an example of such a circumstance. [Schedule 16, Part 1, subsection 125-70(4)]

15.41 In determining the market value all relevant factors should be taken into account, including the number, nature and value of the interests.

Example 15.4

Ownership interests in a head entity undertaking a demerger comprise ordinary shares and options. The head entity decides to issue only ordinary shares as new interests in the demerged entity. It determines that one ordinary share will be issued by the demerged entity for every 3 options in the head entity. In determining the 1:3 allocation, the head entity took account of a range of factors including:

•

the history of the options in the entity;

•

their exercise price; and

•

the proximity of the exercise expiry date to the demerger.

When is roll-over available?

15.42 Demerger roll-over can be chosen if, under a demerger:

•

a CGT event happened to any of their original interests;

•

the owner of an interest in the head entity acquires an interest in the demerged entity; and

•

none of the exceptions apply.

[Schedule 16, Part 1, section 125-55]

Exceptions

15.43 In certain situations roll-over is not available.

Non-resident interest owner and no necessary connection with Australia

15.44 Roll-over is not available if the interest owner is a foreign resident and the new interests acquired under the demerger do not have the necessary connection with Australia just after they were acquired. [Schedule 16, Part 1, subsection 125-55(2)]

Other roll-overs and provisions

15.45 Roll-over is not available under Division 125 if another CGT roll-over can be utilised. [Schedule 16, Part 1, subsection 125-55(3)]

15.46 An off-market purchase of shares (a share buy-back) for the purposes of Division 16K of Part III of the ITAA 1936 is not a demerger. [Schedule 16, Part 1, subsection 125-70(5)]

Different ownership interests

15.47 Roll-over is not available for ownership interests acquired under a demerger that are not of a similar kind to the original ownership interests. That is, if the original interest is a share in a company or an option or right to acquire a share in a company the new interest must also be one of those types of interests. It cannot be a unit or trust interest or an option or right to acquire a unit or trust interest. [Schedule 16, Part 1, paragraph 125-70(1)(e)]

Example 15.5

In this example there are 2 demerger groups. One group consists of the Family Company and the Unit Trust. The other group consists of the Family Unit Trust and the Unit Trust. However, if the interests in the Unit Trust were transferred to the shareholders of the Family Company and to the unit holders of the Family Unit Trust, only the unit holders would qualify for demerger relief. This is because the shareholders are receiving interests in a different kind of entity to the entity in which they own an interest.

Disproportionate demerger

15.48 Roll-over is not available if, under the demerger, certain owners of ownership interests in the head entity are excluded from participating in the demerger. This might occur if certain classes of interests (other than dual listing company voting shares or certain employee benefits) are not allocated ownership interests in the demerged entity. [Schedule 16, Part 1, subsection 125-70(2)]

Something other than a new interest in the demerged entity is received

15.49 Roll-over is not available for an interest owner who receives something other than a new interest in the demerged entity, for example, cash. This is the case even if the interest owner also receives a new interest in the demerged entity. This exception arises from the combined effect of the proportion test and the market value test. That is, neither of these tests can be satisfied if an original owner receives something other than new interests in the demerged entity. [Schedule 16, Part 1, subsections 125-70(2) and (3)]

CGT events happening to remaining interests in a demerged entity

15.50 Following a demerger that qualified for relief under Division 125, the demerger group cannot demerge any remaining ownership interests it owns in the demerged entity under this Division. [Schedule 16, Part 1, section 125-100]

What roll-over is provided to owners of interests?

15.51 If an interest owner can choose to obtain a roll-over, the CGT consequences are as described in paragraphs 15.52 to 15.54.

Post-CGT interests

15.52 A capital gain or capital loss made from an original interest is disregarded. [Schedule 16, Part 1, subsection 125-80(1)]

15.53 The first element of the cost base and reduced cost base of each new interest that is not taken to be acquired pre-CGT (before 20 September 1985) and of each remaining original interest that was acquired post-CGT (on or after 20 September 1985) is a proportion of the sum of the cost bases of the post-CGT original interests, just before the demerger. [Schedule 16, Part 1, subsection 125-80(2)]

Pre-CGT interests

15.54 The same proportion of pre-CGT original interests owned by an interest owner in the demerger groups head entity just before the demerger is applied to the new interests acquired by the interest owners to determine the number of new interests taken to be pre-CGT interests. Interest owners who dispose of interests, after the demerger, that are treated as being pre-CGT interests will need to consider whether CGT event K6 (certain pre-CGT interests subject to CGT) happens. [Schedule 16, Part 1, subsections 125-80(4) to (7)]

Example 15.6

A Pty Ltd wholly owns B Pty Ltd. A demerger happens where A Pty Ltd transfers its shareholding in B Pty Ltd to its shareholders. Just before the demerger Ingrid owns 1,000 ordinary shares in A Pty Ltd of which 300 were acquired before 20 September 1985. As part of the demerger, Ingrid acquired 150 B Pty Ltd shares.

The number of B Pty Ltd shares Ingrid received that are taken to be acquired before 20 September 1985 is:

(300 / 1,000) * 150 = 45


What cost base adjustments are required if roll-over does not apply?

Cost base and reduced cost base adjustments

15.55 If, under a demerger, a CGT event does not happen to the original interests owned by the owners of the head entity or those owners do not choose roll-over, the cost base and reduced cost base of those interests must be adjusted to reflect the change in value caused by the demerger. If such adjustments are made, no other adjustments can be made under the ITAA 1997 because of something that happens under the demerger. [Schedule 16, Part 1, sections 125-85, 125-90 and 125-95]

Capital gains tax exemption for members of demerger groups

15.56 Certain capital gains or capital losses made by a demerging entity are disregarded. An entity cannot choose for this exemption not to apply. Certain other CGT consequences for other members of a demerger group under a demerger are also disregarded or altered.

What relief is available to a demerger group?

15.57 A demerging entity disregards a capital gain or capital loss made from CGT event A1, C2, C3 or K6 happening to its ownership interests in a demerged entity under a demerger. [Schedule 16, Part 1, section 125-155]

What relief is available to a demerged entity?

15.58 CGT event J1 does not happen to a demerged entity or to any other member of the demerger group when CGT event A1 or C2 happens to a demerging entity under a demerger. [Schedule 16, Part 1, section 125-160]

What adjustments are required after the demerger?

Capital loss adjustments

15.59 If, because of a demerger, a capital loss is ultimately made by a member of a demerger group because the demerger decreased the market value of an asset, the capital loss is reduced by the amount reasonably attributable to the reduction in the market value of that asset caused by the demerger. [Schedule 16, Part 1, section 125-165]

Cost base reductions

15.60 If, because of a demerger, the value of an asset is reduced and that asset is transferred after the demerger, the reduced cost base of the asset is reduced by the decrease in value caused by the demerger. [Schedule 16, Part 1, section 125-170]

Corporate unit trusts and public trading trusts

15.61 For the purposes of Division 125, corporate unit trusts and public trading trusts are treated as if they are companies and ownership interests in them are treated as if they are interests in a company. [Schedule 16, Part 1, section 125-230]

Dividend exemption

15.62 An assessable dividend arising as a result of a demerger happening is exempt. Integrity rules will limit this exemption where there is a scheme that has a purpose of obtaining that non-assessable dividend. To the extent that a dividend is not a demerger dividend the normal rules relating to dividends apply.

What are the taxation consequences for a demerger dividend?

Income tax

15.63 Owners of the interests in the head entity acquiring ownership interests in the demerged entity under the demerger may be treated as receiving an assessable dividend. The part of the distribution that is treated as an assessable dividend will depend on how the demerger is done, and on the accounting position of the demerging entity, and on how much of the dividend is attributable to profits of the entity. The dividend component of a genuine demerger will not result in either assessable income or exempt income for the interest owner. [Schedule 16, Part 2, item 10, subsections 44(3) and (4)]

15.64 This treatment is achieved by identifying a demerger dividend arising under the demerger. The demerger dividend for each owner of interests in the head entity is the total market value of the new interests in the demerged entity that each owner of the head entity acquires under the demerger. Depending on how the demerger is done, the demerger dividend might include an otherwise assessable dividend component. It might also consist wholly of a return of capital to the interest owner, or of some combination of capital and profit. [Schedule 16, Part 2, item 4, subsection 6(1)]

15.65 A demerger dividend is taken not to be paid out of profits and is not assessable income or exempt income if, just after the demerger, at least 50% of the market value of CGT assets owned by the demerged entity or its demerger subsidiaries are used in the carrying on of a business by those entities. This rule ensures that the demerged entity is a viable, independent entity, capable of conducting business in its own right. [Schedule 16, Part 2, item 10, subsections 44(3) to (5)]

15.66 The demerging entity may elect not to claim the demerger dividend exemption. This will mean that the shareholders of the interests in the head entity may treat the assessable dividend component of the demerger dividend as being paid out of profits. The election applies to all interest owners. The demerging entity cannot choose to allocate demerger dividends to certain interest owners and not to others under the demerger. [Schedule 16, Part 2, item 10, subsection 44(2)]

Integrity rules supporting the dividend exemption

15.67 The demerger dividend exemption is supported by an integrity rule that is aimed at limiting the exemption to genuine demergers, rather than demergers that are directed at obtaining the dividend exemption. The effect of the integrity rule applying to a demerger is to exclude part or all of the demerger dividend from the demerger dividend exemption. So much of that excluded amount would then be considered within section 44 of the ITAA 1936, as an assessable dividend. [Schedule 16, Part 2, item 11, sections 45B and 45BA]

15.68 The integrity rule is based on the existing model within section 45B of the ITAA 1936, and utilises the existing framework of a determination by the Commissioner of a tax benefit arising under a scheme. The provision now has the dual purpose of determining whether the taxpayer has received a capital benefit or a demerger benefit, under a relevant scheme. [Schedule 16, Part 2, item 11, subsections 45B(1), (4) and (5)]

15.69 In making that determination a number of factors are to be taken into account. In addition to the original factors contained within subsections 45B(5) and (6) of the ITAA 1936, which have been modified to reflect the dual purpose one additional factor has been added. [Schedule 16, Part 2, item 11, paragraph 45B(8)(j)]

15.70 One consequence of this dual approach is that a distribution occurring under a demerger may be considered as a demerger benefit and as a capital benefit for the purposes of section 45B of the ITAA 1936. A demerger dividend that is not a demerger benefit cannot then be treated as a capital benefit. [Schedule 16, Part 2, item 11, subsection 45B(6)]

Withholding tax

15.71 For non-resident shareholders acquiring ownership interests under the demerger, any assessable dividend component of the demerger dividend may require withholding tax to be withheld by the demerging entity. A withholding tax exemption is provided for the assessable dividend component of the demerger dividend. This exemption ensures that the taxation treatment for non-resident shareholders under a demerger is consistent with that for resident shareholders. [Schedule 16, Part 2, items 19 and 20, subsections 128B(1) and (3C)]

Private company dividends

15.72 In certain cases involving the demerger of a private company, Division 7A of Part III of the ITAA 1936 could apply to treat part or all of the value of the demerger dividend as a dividend paid out of profits. An additional rule is provided to ensure that this deeming provision cannot apply to a demerger dividend. [Schedule 16, Part 2, items 17 and 18, sections 109B and 109RA]

Application and transitional provisions

15.73 The changes made by Schedule 16 apply to CGT events that happen on or after 1 July 2002. [Schedule 16, Part 5, item 55]

15.74 A company can choose to apply section 45B of the ITAA 1936, as it existed before the date of Royal Assent, to payments made in respect of shares in the company under a demerger that happens on or after 1 July 2002 and before the proposed amendments receive Royal Assent if certain conditions are met. [Schedule 16, Part 4, item 54]

Consequential amendments

Cross referencing provisions

15.75 The amendments in this bill may affect the calculation of a capital gain or a capital loss in relation to other CGT events or CGT roll-overs. Consequential amendments to certain sections are required to give effect to the dual purpose of section 45B of the ITAA 1936 and to sign post the reader to the demerger provisions. The consequential amendments usually take the form of a note. [Schedule 16, items 12 to 16, 21 to 28, 31 and 34 to 43]

15.76 Guide material will be inserted to assist readers in obtaining an overview of the provisions in Division 125. [Schedule 16, Part 1, sections 125-1, 125-5, 125-50, 125-150 and 125-225]

Finding tables

15.77 The finding tables within Division 112 of the ITAA 1997 are up-dated to reflect the amendments made by inserting the demerger provisions. [Schedule 16, items 29, 30, 32 and 33]

Definitions

15.78 Defined terms required for the demerger provisions are to be inserted into the dictionary in subsection 6(1) of the ITAA 1936 and subsection 995-1(1) of the ITAA 1997. [Schedule 16, items 2 to 9 and 44 to 53]