Income Tax Assessment (1936 Act) Regulation 2015

PART 8 - ATTRIBUTION OF INCOME IN RESPECT OF CONTROLLED FOREIGN COMPANIES  

SECTION 20   CAPITAL GAINS REGARDED AS SUBJECT TO TAX  

20(1)    
For subsection 324(2) of the Act, gains or profits, or other amounts, of a capital nature derived by an entity that:

(a) are not subject to tax in a listed country in a particular tax accounting period; and

(b) would have been subject to tax in the listed country in the tax accounting period apart from the availability of roll-over relief;

are to be treated, for the purposes of Part X of the Act, as if they were subject to tax in the listed country in the tax accounting period.

20(2)    
For paragraph 324(2)(b) of the Act, the feature mentioned in paragraph (1)(b) of this section is specified in relation to the gains or profits.

Meaning of roll-over relief

20(3)    
Roll-over relief is the deferral of tax liability in the tax accounting period under a tax law of the listed country because of a circumstance specified in subsection (4), (6), (7) or (8).

20(4)    
For the purposes of subsection (3), the circumstance is that an entity:

(a) is taken to have disposed of all or part of a CGT asset because of an act, transaction or event as a result of which the entity has received an amount of money or a replacement CGT asset:

(i) by way of compensation for the compulsory acquisition, or for the loss or destruction, of the original CGT asset; or

(ii) under a policy of insurance against the risk of loss or destruction of the original CGT asset; and

(b) after receiving an amount of money mentioned in paragraph (a), in order to achieve a deferral of tax liability under the tax law of the listed country, is required:

(i) to incur expenditure in acquiring a CGT asset in place of the original CGT asset; or

(ii) to incur expenditure of a capital nature in repairing or restoring the original CGT asset.

20(5)    
A compulsory acquisition , of a CGT asset, is a compulsory acquisition of that asset by:

(a) the government of a country, whether a federal, State or municipal government (however described); or

(b) an authority of such a government.

20(6)    
For the purposes of subsection (3), the circumstance is that a company disposes of a CGT asset to another company, and the transferee is a member of the same wholly-owned group (within the meaning of the Income Tax Assessment Act 1997 ) as the transferor.

20(7)    
For the purposes of subsection (3), the circumstance is that:

(a) a company redeems or cancels all the shares of a particular class in the company; and

(b) an entity holds shares of that class in the company; and

(c) the company issues to the entity other shares in the company in substitution for the redeemed or cancelled shares; and

(d) the market value of the new shares immediately after they were issued is not less than the market value of the redeemed or cancelled shares immediately before the redemption or cancellation; and

(e) the entity did not receive any consideration (other than the new shares) in respect of the redemption or cancellation.

20(8)    
For the purposes of subsection (3), the circumstance is that:

(a) an entity owns an option to acquire shares in a company or a right, issued by a company, to acquire shares in the company or to acquire an option to acquire shares in the company; and

(b) any of the shares:

(i) are consolidated and divided into new shares of a larger amount; or

(ii) are subdivided into shares of a smaller amount; and

(c) as a result of the consolidation or subdivision:

(i) the original option is cancelled; or

(ii) the original right is cancelled; and

(d) the company issues to the entity:

(i) another option relating to the new shares in substitution for the original option; or

(ii) another right relating to the new shares, in substitution for the original right; and

(e) the market value of the new option or the new right, immediately after it was issued, is not less than the market value of the original option or original right immediately before its cancellation; and

(f) the entity did not receive any consideration in respect of the cancellation, other than the new option or right.