Tax Laws Amendment (2009 Budget Measures No. 2) Act 2009 (133 of 2009)

Schedule 1   Employee share schemes

Part 1   Main amendments

Taxation Administration Act 1953

5   After Division 391 in Schedule 1

Insert:

Division 392 - Employee share scheme reporting

Table of Subdivisions

Guide to Division 392

392-A Statements

392-B Miscellaneous

Guide to Division 392

392-1 What this Division is about

A company that provides ESS interests to an individual under an employee share scheme during a year must, at the end of the year (and, in certain cases, at the end of a later year), give certain information to the Commissioner and to the individual.

Note: For the tax treatment of employee share schemes, see Division 83A of the Income Tax Assessment Act 1997.

Subdivision 392-A - Statements

Table of sections

392-5 Statements by providers

392-10 Change or omission in information given to the Commissioner

392-5 Statements by providers

Statements

(1) An entity (the provider ) must give a statement to the Commissioner and to an individual for a *financial year if:

(a) both of the following subparagraphs apply:

(i) the provider provides *ESS interests to the individual during the year;

(ii) Subdivision 83A-B or 83A-C of the Income Tax Assessment Act 1997 (about employee share schemes) applies to the interests; or

(b) all of the following subparagraphs apply:

(i) the provider has provided ESS interests to the individual (whether during the year or during an earlier year);

(ii) Subdivision 83A-C of the Income Tax Assessment Act 1997 (about employee share schemes) applies to the interests;

(iii) the *ESS deferred taxing point for the interests occurs during the year.

Note: Section 286-75 provides an administrative penalty for breach of this subsection.

Form of statements

(2) The statement must be in the *approved form.

(3) The *approved form may require the statement to contain the following information:

(a) the provider's *ABN;

(b) the following information about the individual:

(i) the individual's name and address;

(ii) if the individual has quoted his or her*tax file number to the provider - that tax file number;

(iii) if the individual acquired the interests in relation to any services provided to the provider, or to a *subsidiary of the provider, in the course or furtherance of an *enterprise *carried on by the individual, and the individual has *quoted his or her ABN to the provider - that ABN;

(c) the following information about any interests to which both paragraph (1)(a) of this section and Subdivision 83A-B of the Income Tax Assessment Act 1997 apply:

(i) the number of the interests;

(ii) the amount paid, at or before the time of acquisition, towards acquiring the interests;

(iii) the provider's estimate of the *market value of the interests at the time of acquisition;

(iv) the amount of *TFN withholding tax (ESS) paid or payable by the provider in respect of the interests during the year;

(d) the following information about any interests to which both paragraph (1)(a) of this section and Subdivision 83A-C of the Income Tax Assessment Act 1997 apply:

(i) the number of the interests;

(ii) the amount paid, at or before the time of acquisition, towards acquiring the interests;

(e) the following information about any interests to which paragraph (1)(b) applies:

(i) the number of the interests;

(ii) the amount paid, after the time of acquisition but not after the *ESS deferred taxing point, towards acquiring the interests;

(iii) the provider's estimate of the market value of the interests at the ESS deferred taxing point;

(iv) the amount of TFN withholding tax (ESS) paid or payable by the provider in respect of the interests during the year.

Note: Regulations made for the purposes of section 83A-315 of the Income Tax Assessment Act 1997 may substitute different amounts for the market values of the ESS interests: see section 392-15 in this Schedule.

(4) Subsection (3) does not limit the information that the *approved form may require the statement to contain.

When statements must be given

(5) The statement must be given:

(a) to the individual no later than 14 July after the end of the year; and

(b) to the Commissioner no later than 14 August after the end of the year.

Note: Section 388-55 allows the Commissioner to defer the time for giving an approved form.

Disregard 30 day rule for ESS deferred taxing point if provider does not know when shares are disposed of etc.

(6) For the purposes of Subdivision 14-C (about TFN withholding tax (ESS)) and this Division, in working out the *ESS deferred taxing point for an *ESS interest, disregard subsection 83A-115(3) or 83A-120(3) (whichever is applicable) of the Income Tax Assessment Act 1997 (about the 30 day rule) if the provider does not know the time worked out under that subsection at the earlier of:

(a) the time (if any) the provider gives a statement to the relevant individual under this section for the *financial year mentioned in subsection (7); and

(b) the later of:

(i) 14 July after the end of the financial year mentioned in subsection (7); and

(ii) if, under section 388-55, the Commissioner defers to a later time the time within which the statement under this section for that financial year is required to be given to the individual - that later time.

(7) The *financial year is the financial year in which the *ESS deferred taxing point for the *ESS interest occurs, disregarding subsection 83A-115(3) or 83A-120(3) (whichever is applicable) of the Income Tax Assessment Act 1997 (about the 30 day rule).

392-10 Change or omission in information given to the Commissioner

(1) If the provider becomes aware of a material change or material omission in any information given to the individual or the Commissioner under this Division, the provider must:

(a) tell the individual or the Commissioner, as applicable, of the change in the *approved form; or

(b) give the omitted information to the individual or the Commissioner, as applicable, in the approved form.

(2) Information required by subsection (1) must be given no later than 30 days after the provider becomes aware of the change or omission.

Note 1: Section 388-55 allows the Commissioner to defer the time for giving an approved form.

Note 2: Section 286-75 provides an administrative penalty for breach of this section.

Subdivision 392-B - Miscellaneous

Table of sections

392-15 Application of certain provisions of Division 83A of the Income Tax Assessment Act 1997

392-15 Application of certain provisions of Division 83A of the Income Tax Assessment Act 1997

The following provisions of the Income Tax Assessment Act 1997 have effect for the purposes of this Division in the same way as they have for the purposes of Division 83A of that Act:

(a) section 83A-130 (about takeovers and restructures);

(b) section 83A-305 (about associates);

(c) section 83A-315 (about market values and discounts);

(d) section 83A-320 (about trusts);

(e) section 83A-325 (about relationships similar to employment);

(f) section 83A-335 (about stapled securities);

(g) section 83A-340 (about indeterminate rights).