Former s 108 repealed by
No 79 of 2007
, s 3 and Sch 1 item 33, applicable to assessments for the income year in which 1 July 2006 occurred and later income years. S 108 formerly read:
SECTION 108 LOANS ETC. TO SHAREHOLDERS AND ASSOCIATES DEEMED TO BE DIVIDENDS
108(1)
If a private company:
(a)
pays an amount to an associated person by way of an advance or loan; or
(b)
pays or credits an amount on behalf of, or for the individual benefit of, an associated person;
so much (if any) of the amount paid or credited as, in the opinion of the Commissioner, represents a distribution of profits shall, for the purposes of this Act other than Division 11A of Part III, be deemed to be a dividend paid by the company:
(c)
to the associated person as a shareholder in the company;
(d)
out of profits derived by the company; and
(e)
on the last day of the year of income of the company in which the payment or credit referred to in paragraph (a) or (b) is made.
History
S 108(1) amended by
No 101 of 2006
, s 3 and Sch 2 item 300, by amending references to repealed inoperative provisions, effective 14 September 2006. For application and savings provisions see the
CCH Australian Income Tax Legislation archive
.
108(2AA)
For the purposes of this section, the Commissioner must not consider an amount paid or credited by a private company to represent a distribution of profits to the extent that the private company:
(a)
is taken under section
109C
,
109D
or
109E
to pay a dividend to the associated person because of the payment or crediting of the amount; or
(b)
would be taken under section
109C
,
109D
or
109E
to pay a dividend to the associated person because of the payment or crediting of the amount, apart from sections
109J
,
109L
,
109N
,
109NA
,
109NB
,
109P
and
109Q
.
Note:
Sections
109C
and
109D
treat a private company as paying a dividend to an associated person (except a company) if the private company makes a payment or loan to the associated person on or after 4 December 1997. Section 109E treats a private company as paying a dividend if it does not receive minimum payments in relation to loans it made in earlier years (but on or after 4 December 1997).
History
S 108(2AA) inserted by No 47 of 1998.
108(2)
If:
(a)
an amount is deemed by subsection (1) to be a dividend paid by a company; and
(b)
the company subsequently sets off the whole or a part of a dividend (in this subsection called the
subsequent dividend
) distributed by it in satisfaction in whole or in part of the amount;
so much of the amount of the subsequent dividend as is set off as does not exceed the unfranked part of the subsequent dividend:
(c)
shall be deemed not to be a dividend for the purposes of this Act other than Part
3-6
of the
Income Tax Assessment Act 1997
; and
(d)
shall not be taken to be exempt income for the purposes of Part
3-6
of the
Income Tax Assessment Act 1997
only because of this subsection.
History
S 108(2) amended by No 23 of 2005.
108(2A)
In spite of anything in any other provision of this section, if:
(a)
a company has profits immediately before a distribution time for a distribution benefit in relation to the company; and
(b)
the distribution time occurred after 3 June 1990; and
(c)
the first company is a CFC at the distribution time; and
(d)
the first company is a resident of an unlisted country at the distribution time; and
(e)
apart from this subsection, an amount deemed by this section to be a dividend paid by the company would include an amount (in this subsection called the
eligible distributed amount
) that represents the whole or a part of so much of the distribution payment as does not exceed the amount of those profits;
then, the eligible distributed amount is not deemed by this section to be a dividend paid by the company.
History
S 108(2A) inserted by No 5 of 1991.
108(2B)
An expression used in subsection (2A) of this section and in section
47A
has the same meaning in that subsection as it has in that section.
History
S 108(2B) inserted by No 5 of 1991.
108(3)
For the purposes of this section:
(a)
a transfer of property shall be deemed to be the payment of an amount equal to the value of the property; and
(b)
(Repealed by No 23 of 2005)
(c)
a reference to an associated person, in relation to a company, is a reference to:
(i)
a shareholder in the company; or
(ii)
a person who is an associate, within the meaning of section
318
, of a shareholder in the company.
History
S 108(3) amended by
No 101 of 2006
, s 3 and Sch 2 items 301, by amending references to repealed inoperative provisions, effective 14 September 2006. For application and savings provisions see the
CCH Australian Income Tax Legislation archive
.
S 108(3) amended by No 23 of 2005.
108(4)
(Omitted by No 135 of 1990)
Former s 108 substituted by No 108 of 1987; amended by No 108 of 1981 and No 85 of 1959; substituted by No 90 of 1952.
View history note
Hide history note