DEVELOPMENT ALLOWANCE AUTHORITY ACT 1992 (REPEALED)

CHAPTER 3 - INFRASTRUCTURE BORROWINGS  

PART 2 - INTERPRETATION: INFRASTRUCTURE BORROWINGS ETC.  

SECTION 93D   INTERPRETATION  

93D(1)   List of terms.  

In this Chapter:

"application"
means an application under Part 3 ;

"approved"
means approved in writing by the DAA;

"assessable income"
has the same meaning as in the Tax Act;

"associate"
has the same meaning as in subsection 26AAB(14) of the Tax Act;

"Australia"
has the same meaning as in Subdivision B of Division 3 of Part III of the Tax Act;

"borrower requirement period"
, in relation to a direct infrastructure borrowing, means the period from the time of the borrowing until:

(a) in a case to which subsection 93K(2) applies - the end of the 25 year period mentioned in that subsection; or

(b) in a case to which subsection 93K(3) or (4) applies - the time of the transfer mentioned in that subsection;

"borrowing"
means any form of borrowing, whether secured or unsecured, and includes the raising of funds by the issue of a bond, debenture, discounted security or other document evidencing indebtedness;

borrowings cut-off time
means 12 pm, by legal time in the Australian Capital Territory, on 14 February 1997.

"certificate"
means a certificate issued under Part 3 ;

"certificate holder requirement period"
, in relation to the holder of a certificate that applies either to a direct infrastructure borrowing or to a refinancing infrastructure borrowing that relates to a direct infrastructure borrowing, means:

(a) if the holder is the person to whom the certificate was issued - the borrower requirement period; or

(b) if the holder is a person to whom the certificate was transferred under section 93V and:

(i) subsection 93K(2) applied to the direct infrastructure borrowing; or

(ii) subsection 93K(3) or (4) applied to the direct infrastructure borrowing, where the transfer mentioned in that subsection has not yet taken place;

so much of the borrower requirement period as occurs after the transfer of the certificate to the holder; or

(c) if:

(i) the holder is a person to whom the certificate was transferred under section 93V ; and

(ii) subsection 93K(3) or (4) applied to the direct infrastructure borrowing; and

(iii) the transfer mentioned in that subsection has taken place;

so much of the period of 25 years, following the first use of any of the facilities concerned after their construction or acquisition under the borrowing, as occurs after the transfer of the certificate to the holder;

"construct"
includes extend, improve or up-grade;

"corporate limited partnership"
has the same meaning as in section 94D of the Tax Act;

"Crown lease"
means:

(a) a lease of land; or

(b) an easement in connection with land; or

(c) any other right, power or privilege over, or in connection with, land;

if the lease, easement, right, power or privilege was granted by:

(d) the Commonwealth, a State or a Territory; or

(e) an authority of the Commonwealth, a State or a Territory, where, assuming that the authority derived income at the time of the grant, that income would be exempt from income tax under the Tax Act because of a relevant exempting provision;

"DAA"
means the Development Allowance Authority appointed under Chapter 4 ;

"direct infrastructure borrowing"
has the meaning given by section 93F ;

government body
means:

(a) the Commonwealth, a State or a Territory; or

(b) a body to which section 50-25 of the Income Tax Assessment Act 1997 applies; or

(c) an STB (within the meaning of Division 1AB of Part III of the Income Tax Assessment Act 1936 ) the income of which is wholly exempt from tax;

"indirect infrastructure borrowing"
has the meaning given by section 93G ;

"infrastructure borrowing"
means a direct infrastructure borrowing, an indirect infrastructure borrowing or a refinancing infrastructure borrowing;

"infrastructure facility"
has the meaning given by section 93L ;

"listed company"
means a company any of the shares of which are listed for quotation in the official list of a stock exchange in Australia or elsewhere;

non-exempt resident company
means an incorporated body (not in the capacity of trustee), where:

(a) the body is a resident; and

(b) the body ' s income is not exempt from income tax under the Tax Act because of a relevant exempting provision.

non-exempt resident corporate limited partnership
, in relation to a year of income, means a corporate limited partnership (not in the capacity of trustee) in relation to the year of income, where:

(a) the partnership is a resident; and

(b) the partnership ' s income is not exempt from income tax under the Tax Act because of a relevant exempting provision.

"prescribed investment"
means an investment of a kind prescribed by the regulations for the purposes of this definition;

"refinancing infrastructure borrowing"
has the meaning given by section 93H ;

"related facility"
has the meaning given by section 93M ;

"relevant exempting provision"
has the meaning given by subsection 121F(1) of the Income Tax Assessment Act 1936 ;

resident
has the same meaning as in the Tax Act.

"Tax Act"
means the Income Tax Assessment Act 1936;

"year of income"
has the same meaning as in the Tax Act.

93D(2)   References to subsection 93K(3) or (4) applying.  

A reference in this Chapter, in relation to a certificate, to subsection 93K(3) or (4) applying includes a reference to that subsection applying in connection with a variation of a condition applying to the certificate under section 93T .

93D(3)   Ownership where Crown lease.  

For the purposes of references in sections 93K , 93R and 93S to a borrower or holder of a certificate intending at a particular time (the " intention time " ) to own facilities at or until a particular time, the borrower or holder is taken to intend at the intention time to own, at or until the particular time, facilities that are intended to be, or that are, a fixture on land that is the subject of a Crown lease if:

(a) if the Crown lease is a lease of land granted under a statutory law of the Commonwealth, a State or a Territory - it can reasonably be expected, at the intention time, that the Crown lease will run, or (because of law, custom or otherwise) be extended or renewed to run, until at least the end of the period of 25 years following the first use of any of the facilities concerned after their construction or acquisition under the borrowing; or

(b) in any other case - at the time (the " relevant time " ) that is the later of the intention time and the time when the first of the facilities begins to be constructed under the borrowing:

(i) if the term of the lease will not end before the end of the period of 25 years following the first use of any of the facilities concerned after their construction or acquisition under the borrowing - both the lessor and the lessee intend that the lessee or, where subsection 93K(3) or (4) applies and the transfer to the other person mentioned in that subsection has not yet occurred, the other person will continue to hold the lease throughout the whole of that period on the same terms and conditions as those on which the lease is held at the relevant time; or

(ii) if the term of the lease will end before the end of the period of 25 years following the first use of any of the facilities concerned after their construction or acquisition under the borrowing:

(A) the lessee has an option that, where subsection 93K(3) or (4) applies and the transfer to the other person mentioned in that subsection has not yet occurred, is transferable to the other person mentioned in that subsection, to renew the lease on the terms and conditions referred to in subparagraph (i) for a period that will not end, or has successive options to renew the lease on those terms and conditions for periods the last of which will not end, before the end of the period of 25 years; and

(B) both the lessor and the lessee intend that the lessee or, where subsection 93K(3) or (4) applies and the transfer to the other person mentioned in that subsection has not yet occurred, the other person mentioned in that subsection, will continue to hold the lease throughout the whole of the 25 year period on the same terms and conditions as those on which the lease is held at the relevant time.