S 139CD repealed by No 133 of 2009, s 3 and Sch 1 item 18, applicable in relation to the ESS interests mentioned in subsections
83A-5(1)
and
(2)
of the
Income Tax (Transitional Provisions) Act 1997
. S 139CD formerly read:
SECTION 139CD MEANING OF
QUALIFYING SHARES
AND
QUALIFYING RIGHTS
139CD(1)
For the purposes of this Division:
(a)
a share in a company is a
qualifying share
if:
(i)
the 6 conditions below are satisfied; and
(ii)
in the case of a share that a taxpayer has acquired while engaged in foreign service
-
section
139CDA
applies to the share; and
(b)
a right to acquire a share in a company is a
qualifying right
if:
(i)
the first, second, third, fifth and sixth of the 6 conditions below are satisfied; and
(ii)
in the case of a right that a taxpayer has acquired while engaged in foreign service
-
section
139CDA
applies to the right.
Note 1:
Section
139DF
excludes certain shares from being qualifying shares.
Note 2:
Foreign service
is defined in section
139GBA
.
History
S 139CD(1) amended by No 64 of 2005. For application provision, see note under definition of
"
eligible foreign remuneration
"
in s
23AF(18)
. Paras (a) and (b) formerly read:
(a)
a share in a company is a
qualifying share
if the 6 conditions below are satisfied; and
(b)
a right to acquire a share in a company is a
qualifying right
if the first, second, third, fifth and sixth of the 6 conditions below are satisfied.
139CD(2)
The first condition is that the share or right is acquired by a taxpayer under an employee share scheme.
139CD(3)
The second condition is that the company is the employer of the taxpayer or a holding company of the employer of the taxpayer.
139CD(4)
The third condition is that all the shares available for acquisition under the scheme are ordinary shares and all the rights available for acquisition under the scheme are rights to acquire ordinary shares.
139CD(5)
The fourth condition is that, at the time the share was acquired, at least 75% of the permanent employees of the employer were, or at some earlier time had been, entitled to acquire:
(a)
shares or rights under the scheme; or
(b)
shares or rights in the employer, or a holding company of the employer, under another employee share scheme.
[
CCH Note:
Sch 2 item 15 of No 169 of 1995 contains the following transitional provision:
``Transitional
-
subsection
139CD(5)
15.
For the purposes of subsection 139CD(5) of the
Income Tax Assessment Act 1936
, a share or right is taken to be acquired under an employee share scheme if it would have been so acquired if item 11 of this Schedule provided that the amendments made by this Schedule applied to shares or rights acquired at any time before or after the commencement of this item.
'
'
]
History
S 139CD(5) amended by No 147 of 1997.
139CD(6)
The fifth condition is that, immediately after the acquisition of the share or right, the taxpayer does not hold a legal or beneficial interest in more than 5% of the shares in the company.
139CD(7)
The sixth condition is that, immediately after the acquisition of the share or right, the taxpayer is not in a position to cast, or control the casting of, more than 5% of the maximum number of votes that might be cast at a general meeting of the company.
139CD(8)
The Commissioner may determine that the fourth condition (see subsection (5)) is taken to have been satisfied in relation to a share if the Commissioner considers that the employer has done everything reasonably practicable to ensure that the condition was satisfied.
History
S 139CD(8) amended by No 122 of 1997.
S 139CD inserted by No 169 of 1995.
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