Foreign investment funds guide (current to 30 June 2010)

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Chapter 4: Methods of FIF taxation

This document has been archived. It is current only to 30 June 2010.

You must work out the FIF or FLP income accruing to you separately for each FIF or FLP in which you hold an interest or interests.

Use one of the following methods to decide the amount of FIF income accruing to you from a FIF company or trust during a notional accounting period:

• market value method
• deemed rate of return method
• calculation method, including the option to use the CFC rules under this method where applicable.

Where practical, taxpayers liable to pay tax under the FIF measures may use the market value method to work out the FIF income to include in their assessable income.

Use the deemed rate of return method where you are unable to establish a market value for your FIF interest and you have not elected to use the calculation method.

Alternatively, you may elect to use the calculation method if you have access to the financial accounts of the FIF and are able to determine your share of the FIF's calculated profit or calculated loss.

If you use the calculation method for a FIF you must also elect the 12-month accounting period used by that FIF as its notional accounting period. [subsections 486(3) and 535(5)]

There are two methods for determining the amount of FIF income that accrues from an interest in a FLP:

• the deemed rate of return method, and
• the cash surrender value method. [section 536]

The method you adopt will depend on the access you have to information on the company or trust in which you hold an interest. You will need to satisfy certain conditions to elect to use the cash surrender value method.

Part-year resident

If you are a resident of Australia for a part or parts of an income year in which a notional accounting period of a FIF or a FLP ended, the amount of FIF income assessable to you is worked out using the following formula:

FIF income

X

Number of days of residence Total number of days

FIF income means the amount of FIF income that accrued to you from the FIF or the FLP during the notional accounting period that was calculated using any one of the methods for working out FIF income.

Number of days of residence means the number of days in the notional accounting period of the FIF or FLP that you were a resident of Australia.

Total number of days means the total number of days in the notional accounting period. [paragraph 529(2)(b)]

Value for the acquisition or disposal of an interest in a FIF or FLP

In determining FIF income, if you acquire or dispose of interests in a FIF or a FLP for no consideration, or you are not dealing at arm's length and you acquire or dispose of FIF or FLP interests for inadequate or excessive consideration, you are taken to have received as consideration an amount equal to the market value of the interests. The valuation is to occur at the time of acquisition or disposal of the interests. [section 490]

Market value method

Overview

Under the market value method, the amount of FIF income is decided in two steps.

Step 1 work out the movement in the market value of the FIF interest, generally between two annual reporting dates.

Step 2 allow for the deduction of any previous year's FIF losses if the losses have not been used in an earlier year.

Working through these steps gives you the amount of FIF income to include in your assessable income.

The following information will help you to complete Worksheet   1: Market value method .

Step 1: Working out the movement in the market value [section 538]

Box A

Write the market value of your interests in the FIF on the last day of the notional accounting period at A .

Box B

Write the total value of distributions to you by the FIF during the notional accounting period for the interests held on the last day of the notional accounting period at B .

If you disposed of an interest in a FIF during the notional accounting period, also include the value of distributions made by the FIF before disposal.

Box C

Write the opening market value (being the market value on the day immediately before the first day of the notional accounting period) of the interests you held on the last day of the notional accounting period at C .

If you used the deemed rate of return method to value your interests in the previous notional accounting period, use that method to determine the opening value of your interests for the notional accounting period. Write this amount at C .

Box D

Insert the amount you paid to acquire any interests in the FIF that you acquired during the notional accounting period and held on the last day of that period.

Usually, you must write the amounts at B , C and D in the currency you used for the amount at A . [subsection 538(3)] However, the market value method gives you an irrevocable election to use Australian currency in working out all your FIF income.

This brings to account currency exchange gains and losses at the time the transactions and values relevant to the determination of FIF income occurred.

If you make the election, you must write the amounts at A , B , C and D in Australian currency. [subsections 538(4) and (5)]

Exchange rates for FIF values

Use exchange rates applicable on the following days for the market value method   ...	when converting the following to Australian currency
Last day of each relevant notional accounting period for each FIF interest	Market value of a FIF interest
Day of each distribution made by a FIF	Distribution made by a FIF
Day consideration was paid or given	Acquisition value of a FIF
Last day of the notional accounting period of the FIF for the relevant income year	Excess of FIF income over FIF losses
Last day of the notional accounting period of the FIF in which the loss occurred	FIF loss
Last day of the notional accounting period of the FIF	FIF losses to the same currency as the gross FIF income - not necessarily Australian currency

Box E

Take away the sum of C and D from the sum of A and B . This is the FIF amount.

Gross FIF income

If the FIF amount is positive, that amount represents the gross FIF income of the FIF as it relates to you. [section 540]

FIF loss

If the FIF amount is negative, the amount is a FIF loss.

This FIF loss may be used to offset your assessable income but only to the extent that you have previously been subject to FIF taxation from that FIF - that is, to the extent that you have a FIF attribution surplus in relation to that FIF.

Where there is no FIF attribution surplus the FIF loss must be carried forward to be applied against future gross FIF income of that FIF. You cannot use a FIF loss in relation to one FIF to reduce the gross FIF income of another FIF. [sections 532 and 541]

Step 2: Working out the amount to include in assessable income

Box F

Write the total of any unapplied previous FIF losses at F . [subsection 542(2)]

If it is not already the case, you must convert the unapplied previous FIF loss to the same currency as the gross FIF income - that is, the amount at E . [subsection 542(8)]

Unapplied previous FIF loss

An unapplied previous FIF loss is the amount by which the undeducted amount of a FIF loss is more than the sum of any gross FIF income from your interest in that particular FIF. [subsection 542(5)]

The undeducted amount of a FIF loss is the amount of a FIF loss that has not been allowed as a deduction from your assessable income. [section 532 and subsection 542(6)]

If, in respect of a particular notional accounting period, you are entitled to an exemption under Divisions   2 to 9 and 11 to 15 of the ITAA 1936, the loss must be reduced by the gross FIF income calculated as if the exemptions did not apply for that particular notional accounting period. [subsection 542(5)]

Once you have used a FIF loss to work out if there was, for any notional accounting period, an unapplied previous FIF loss, you cannot use that loss again in later notional accounting periods. [subsection 542(7)]

In working out your unapplied previous FIF losses, apply only that gross FIF income accruing after the notional accounting period in which you incurred the loss and before the current notional accounting period in which you have a gross FIF income. [subsection 542(5)]

Box G

Take away the amount at F from the amount at E . This gives you your FIF income.

Box H

Convert your FIF income to Australian dollars at the rate of exchange applying at the end of the relevant notional accounting period. Write the converted amount at H .

The amount at H is your FIF income. Include it in your assessable income after allowing for a reduction for assessable distributions from the FIF. Read Chapter   6: Avoiding double taxation for more information.

Boxes I, J and K

If any of the distributions referred to above are dividends, interest payments or trust distributions, or your FIF interest relates to shares acquired under an employee acquisition scheme - see Reduction of FIF income for FIF interests acquired under an employee share scheme in chapter   6 - use I , J and K to arrive at the amount to include in your assessable income. [sections 530, 530A and 603]

If you are entitled to a reduction of FIF income, add the amount of the reduction to any amount at J .

Determining market value

You determine market value by referring to the quoted market values for the FIF interests. Only quotations from an approved stock exchange will be accepted. See Appendix   1: Approved stock exchanges . [section 539]

If you have interests in certain FIFs that are not listed on an approved stock exchange, you may be able to use:

• a buy-back or redemption price, or
• the price of an offer to purchase a particular FIF by an associate of that FIF.

The buy-back, offer or redemption price must be:

• publicly available
• offered to all persons having an interest of that class in the FIF
• worked out by reference to the market value of the assets of the company or trust, and
• representing an arm's length valuation of the interest on that day. [subsection 539(3)]

Worksheet 1: Market value method will help you to understand the following examples. The letters in brackets refer to the boxes on worksheet   1.

Example: FIF income included in assessable income

The opening value of a FIF interest at 1   July 2009 was HK$50,000   ( C ).

At the end of the notional accounting period, 30   June 2010, the closing value of the interest was HK$53,000   ( A ).

There were no brought forward losses or acquisitions or disposals during the notional accounting period   ( D ).

On 30   April 2010, during the notional accounting period, there was a distribution - an interim dividend - of HK$1,000   ( B ).

The FIF amount, as worked out in step 1 is:

[HK$53,000   ( A ) + HK$1,000   ( B )] - [HK$50,000   ( C ) - nil   ( D )] = HK$4,000   ( E )

This amount is converted to Australian currency, using the rate of exchange that applied at the end of the notional accounting period (30   June 2010). Assuming that the exchange rate is A$1.00   =   HK$5.00, the FIF income is A$800 - that is, HK$4,000 divided by five.

The distribution of HK$1,000 = A$200 and is assessable under section   44 of the ITAA 1936.

Because the distribution received was a distribution to which subsection 530(1) applies, the FIF income of A$800 ( H ) is reduced by the amount of the distribution: A$200 ( J ). Write the dividend amount (A$200) at ( J ). Subtract ( J ) from ( H ) and write the answer at ( K ). Therefore, your assessable income would include A$600 FIF income.

Example: Unapplied previous FIF loss

The opening value of a FIF interest was HK$50,000   ( C ) and at the end of the notional accounting period (30   June) the closing value of the interest was HK$45,000   ( A ).

There were no brought forward losses or acquisitions, disposals   ( D ) or distributions   ( B ) during the accounting period.

The decrease in market value - that is, the FIF amount - would be:

[HK$45,000   ( A ) + nil   ( B )] - [HK$50,000   ( C ) - nil   ( D )] = -   HK$5,000   ( E )

This FIF loss of HK$5,000 may be used to reduce gross FIF income in later years.

Deemed rate of return method

You may use this method where you cannot apply the market value method and you do not elect to use the calculation method.

The following four steps will help you to complete Worksheet 2: Deemed rate of return method for FIFs .

Step 1: Group your interests

Apply the deemed rate of return method separately to each group of interests. Determine the group or groups of interests you hold in a FIF at the end of the FIF's notional accounting period. [section 544]

Meaning of a group of interests in a FIF

If you had only one interest in a FIF during the notional accounting period, that interest is a group. [subsection 544(2)]

Interests in a FIF that are of the same class - for example, two parcels of class   A shares - and that you held during the same period are treated as a group of interests. However, if interests are of different classes - for example, class   A and B shares with different rights - treat each class as a separate group. Shares of the same class which are not held for the same period during the FIF's notional accounting period also form different groups. If you had two or more interests in a FIF that are not of the same group of interests, apply the deemed rate of return method separately to each group. [subsections 544(3), (4) and (5)]

Step 2: Working out the opening value

Box   A

This step determines the opening value of your interest in the FIF at the beginning of the notional accounting period.

Opening value where the interests in a FIF were acquired during a notional accounting period

If you acquired the interests in a FIF during the notional accounting period, the opening value of the interests is the consideration you paid or gave for the acquisition. [section 554]

Opening value where the deemed rate of return method applied in the previous year

Where you applied the deemed rate of return method to a group of FIFs in the immediately previous notional accounting period, work out the opening value of the FIF for the current period as follows:

• use the opening value of the group of FIFs at the beginning of the previous period
• add the FIF income for the previous notional accounting period
• take away any distributions made by the FIF in the previous notional accounting period. [section 551]

Distributions include any amount paid or credited, or property distributed to you by the FIF, either as income or capital. They include the issue to you of further interests in the FIF in lieu of your entitlement to a payment by the FIF.

Distributions do not include the issue to you of further interests where you do not pay consideration or forgo payment in exchange for those further interests. [section 474]

Opening value where the market value method applied in the previous year

If the market value method was applied in the immediately previous notional accounting period, the opening value for the current year is the market value of the interest in the FIF at the end of that period. [section 553].

Opening value where the calculation method or an exemption applied in the previous year

Where the calculation method or an exemption from FIF taxation applied or the operative provision did not apply in the immediately previous notional accounting period, use one of the following methods to decide the opening value for the current period:

• Where the FIF interest was quoted on an approved stock exchange at any time during the immediately previous notional accounting period, use the quoted price for the latest day of that period as the opening value for the current period.
  
   
• If the FIF interest was not quoted on an approved stock exchange on the last day of the previous notional accounting period, begin with the original consideration paid and apply the deemed rate of return notionally to every notional accounting period, from the date of acquisition up to the immediately previous notional accounting period. This determines an opening value for the current period. [section 552]

Previous year losses

When you switch to the deemed rate of return method, you cannot apply previous year FIF losses that you accumulated under either the calculation method or the market value method.

Step 3: Working out the FIF amount

Box C

Once the opening deemed value has been decided, the FIF amount - that is, the movement in the value of the FIF during the notional accounting period - is worked out by applying the following formula.

Opening value x deemed rate of return

X

Number of days held 365

Opening value means the amount worked out in step   2 above.

Deemed rate of return is the base interest rate plus 4%.

The base interest rate is the monthly average yield of the 90-day bank accepted bill rate [subsection 8AAD(2) of the Taxation Administration Act 1953 ]. The interest rate is published by the Reserve Bank of Australia every quarter. If two or more rates apply in the income year, use the weighted average of those rates.

Number of days held is the number of days in the notional accounting period in which you had the interests in the group.

Step 4: Determining the amount of FIF income to include in assessable income

The final step in applying the deemed rate of return method is to convert the FIF amount to Australian currency. [sections 556 and 557]

Use the rate of exchange that applied at the end of the notional accounting period to convert the FIF amount worked out in step   3 for each group of interests to the corresponding amount in Australian currency. If there is only one group of interests, the FIF income will be the amount converted into Australian currency. If there is more than one group, the FIF income will be the total of the FIF amounts. [section 556]

Include the FIF income in your assessable income subject to reduction by certain assessable distributions from the FIF. [sections 529 and 557] See Reduction of FIF income for distributed profits in chapter   6 for more information.

Example: FIF income using deemed rate of return method

On 1   January 2007, Harold acquired 2000 Class   A shares and 1000 Class   B shares in a Hong Kong company. Each class of shares is a different group.

The parcel of Class   A shares had an opening value of HK$200,000 and the parcel of Class   B shares had an opening value of HK$100,000. Harold worked out his FIF income under the deemed rate of return method as follows:

Opening value x 9.62%* x (number of days held/365)

Class A shares:	HK$200,000 x 9.62% x (181/365)
FIF amount:	HK$9,541
Class B shares:	HK$100,000 x 9.62% x (181/365)
FIF amount:	HK$4,770

The FIF amounts for the groups are HK$9,541 and HK$4,770, respectively.

The opening deemed values for the following notional accounting period would be HK$209,541 for the Class   A shares and HK$104,770 for the Class   B shares.

* 9.62% = weighted average of two quarterly rates

[(9.63 x 90/181) + (9.61 x 91/181)]

Harold acquired 1,000 Class   C shares on 1   October 2007, 92 days into the FIF's notional accounting period, for HK$240,000. He applied the deemed rate of return method for the group constituted by the Class   C shares as follows:

Opening value x 9.62%** x (number of days held/365)

Class C shares:	HK$240,000 x 9.62% x (273/365)
FIF amount:	HK$17,269

Assume that the exchange rate is A$1.00 = HK$5.00. The FIF income for the three groups of A, B and C class shares is the sum of:

Class A shares:	HK$9,541/5	A$1,908
Class B shares:	HK$4,770/5	A$954
Class C shares:	HK$17,269/5	A$3,454
Total FIF income:		A$6,316

Harold included A$6,316 in his assessable income. [section 529]

** 9.62% = weighted average of three quarterly rates

[(9.62 x 92/273) + (9.63 x 90/273) + (9.61 x 91/273)]

Calculation method

Overview

To use the calculation method, you must work out the calculated profit or calculated loss of a FIF for a notional accounting period.

You will need access to detailed information about your FIF interest. The calculation method uses a simplified version of Australian taxation law to work out the profit of your FIF which is then attributed to you and included in your assessable income. The calculation method applies to foreign companies and foreign trusts. [sections 580 and 582]

If there is a calculated loss , you may carry your share forward and take it into account for subsequent notional accounting periods.

If there is a calculated profit , you must determine your share. Do this by multiplying the calculated profit of the FIF for the notional accounting period by your percentage interest in the FIF at the end of that period. Work out the calculated profit or loss in the currency of the FIF accounts and then convert the amount to Australian currency at the exchange rate that applies for the last day of the notional accounting period. Include the resulting amount in your assessable income for the income year in which the notional accounting period of the FIF ends. [sections 558, 559 and 572]

Worksheet 3: Calculation method will help you to work out your calculated profit or loss. This worksheet can also be used by taxpayers with an interest in a FIF that is a company who have elected, within the calculation method, to calculate the notional income and notional deductions of the FIF using the CFC rules.

Election to use the calculation method

You can use the calculation method only if you elect to do so. You must then apply it to all interests in a particular FIF. If you subsequently use another method for the same FIF interests, you cannot use the calculation method again for that FIF or any interests you acquire in that FIF in the future. [section 535]

If you make an election to use the calculation method, you must also elect to use the period for which the FIF makes out its accounts as its notional accounting period. [subsections 486(3) and 535(5)]

The first notional accounting period of the FIF for which you use the calculation method may be for a shorter period than the period for which the FIF makes out its accounts. In this case, you would work out FIF income for the entire period for which the FIF makes out its accounts and apportion the resulting FIF income on a time basis.

Working out the calculated profit or loss of the FIF

To determine the calculated profit or calculated loss of a FIF, first work out the notional income of the FIF.

The second step is to work out the notional deductions for that notional income. If the notional income is greater than the notional deductions, the difference is the calculated profit of the FIF for the notional accounting period. If the notional income is less than the notional deductions, the difference is the calculated loss of the FIF for the notional accounting period. [section 559]

Step 1: Determining the notional income of a FIF

Box   A

The notional income of a FIF takes into account the gross income and profits or gains of a capital or revenue nature that the FIF derives during its notional accounting period. [subsection 560(1) and section 566]

It includes:

• amounts grossed up for foreign or Australian taxes paid by the FIF
• net income from partnerships
• discounted amounts or deferred interest from securities treated as derived in the FIF accounts, and
• income, profits or gains reinvested, accumulated, capitalised, carried to a reserve, sinking fund, insurance fund or similar fund on behalf of the FIF. [sections 560 to 566]

Profits of a revenue nature and gains of a capital nature are included in notional income when 'derived' by the FIF, usually as a net amount. The net amount does not include any amount previously taken, or subsequently to be taken, into account because an amount cannot be deducted twice. [subsections 560(2) and 574(2)]

If a first tier FIF has an interest in another FIF or a FLP - a second tier FIF - during the notional accounting period of the first tier FIF that ended in your income year, an amount of second tier FIF income will be included in the notional income of the first tier FIF. [section 576]

When applying the FIF measures to the second tier FIF, you can elect to use the calculation method to determine its FIF income only if you have elected to use the calculation method for the first tier FIF. The income for the second tier FIF is worked out as though the first tier FIF were a resident but with only the exemption for interests in certain FIFs resident in the USA being granted. No other exemptions available to Australian residents are allowed. [section 575]

If you do not make an election to use the calculation method for the second tier FIF, you must work out the FIF income arising from the second tier FIF using the market value method or the deemed rate of return method. [section 535]

If you elect to use the calculation method for a second tier FIF, the notional income of the second tier FIF will include FIF income from a FIF or a FLP - a third tier FIF - in which the second tier FIF has an interest. [section 579]

However, you cannot use the calculation method for a third tier FIF. The notional income of the second tier FIF includes FIF income from a third tier FIF using either the market value method or the deemed rate of return method. [subsection 577(2)]

The notional income of a FIF for a notional accounting period which ended during the income year does not include any dividend or distribution paid to the FIF by another FIF. [section 564]

Step 2: Determining the notional deductions

Box   B

Most expenses of a FIF are deductible in the notional accounting period in which they are incurred, provided that those expenses relate to income and profits or gains of a revenue or capital nature that has been included when working out the notional income of the FIF. [sections 567 to 574]

Notional deductions include:

• expenditure in acquiring trading stock except acquisition costs of securities, interest in shares, trusts or partnerships which are brought to account on a revenue basis
• the FIF's share of a partnership loss where the FIF was a partner at the end of the partnership's accounting period that ends in the notional accounting period of the FIF
• calculated unapplied losses of the FIF for previous periods used in the order in which they were incurred
• Australian and foreign taxes paid by the FIF that relate to the notional income of the FIF for the relevant period
• amortisation of acquisition costs of plants, articles and industrial properties based on the effective life of such items, but only if such amounts are included in the FIF's accounts
• net capital losses but not
  • amounts previously allowed as a notional deduction
  • amounts that would have been allowed as a notional deduction if the calculation method had been applied but was not because, for example, an exemption applied.

Notional deductions do not generally include:

• acquisition costs - other than for incidental costs and trading stock
• debt repayments
• expenditure previously allowed as a notional deduction, and
• amortisation of acquisition of property except plant and equipment, licences and patents.

Working out the attribution percentage for interests in a FIF

Your assessable income must include your attribution percentage of a FIF's calculated profit.

Attribution percentage for interests in a foreign company

Boxes E and G

The attribution percentage for your FIF interest is equal to the percentage that you hold or were entitled to acquire at the end of the notional accounting period in:

• the total paid-up share capital of the company
• the total rights to vote or to participate in decision making in relation to
  • distributions of profit or capital of the company
  • the constituent document of the company
  • a variation to the share capital of the company, or
• the total rights to distributions of profit or capital on winding-up, or at any other time.

The FIF attribution percentage will be the greatest of these percentages if different percentages arise under the different types of rights described above. [section 581]

Where Australian residents hold or were entitled to acquire attribution percentages which together are greater than 100% for a particular FIF, the total percentage is reduced to 100% and each individual taxpayer's attribution percentage is reduced proportionately. [subsection 581(4)]

Attribution percentage for interests in a foreign trust

Boxes E and G

When all the income, profits or gains - referred to below as income - derived by a foreign trust during a notional accounting period consist of either or both:

• income to which beneficiaries were presently entitled, and
• income to which beneficiaries were not presently entitled, but which was distributed to beneficiaries during, or within two months after the end of, the notional accounting period,

then the attribution percentage is the percentage of the total income derived by the trust to which you were presently entitled or were not presently entitled but which was distributed to you during, or within two months after the end of, the notional accounting period.

If the income, profits or gains of a foreign trust are not fully distributed or allocated to beneficiaries, your attribution percentage will be equal to the greater of the percentages of your interest in or entitlement to acquire:

• the income of the trust, or
• the capital of the trust. [subsection 582(7)]

Where the total of all Australian residents' attribution percentages is greater than 100%, each individual taxpayer's attribution percentage is reduced proportionately so that the total is 100%. [subsection 582(6A)]

Working out the amount to include in assessable income

To work out the FIF income, multiply the calculated profit of a FIF for a notional accounting period by your attribution percentage in the FIF at the end of that period. [sections 580 and 582]

Taxpayer's share of FIF income

=

calculated profit

X

attribution percentage

The FIF income is included in your assessable income subject to reduction by certain assessable distributions from the FIF. See Chapter   6: Avoiding double taxation for more information.

Part-year holding

The calculation method allows for an interest in a FIF that you acquired during a notional accounting period. Modify the above formula by multiplying it by the proportion of the period (in days) that you held the interest.

Example: Use of the calculation method for a part-year holding

Agostino acquired a 1% interest in a FIF on 1   January 2010. He uses the calculation method and accordingly elects for the notional accounting period of the FIF to be the same as the period for which the FIF makes out its accounts - that is, 1   July to 30   June each year. The calculated profit of the FIF for the period 1   July 2009 to 30   June 2010 is A$10   million. Agostino would include A$49,589 in his assessable income, worked out as follows:

A$10   million x 1% x (181/365) = A$49,589

Calculation method using the CFC rules

Overview

Certain attributable taxpayers that use the calculation method to determine their attributable FIF income can choose to base this calculation on the CFC rules for income years commencing on or after 1   July   2008. [section 559A]

In addition, the treatment of a foreign company, as an Australian financial institution subsidiary, will be extended to subsidiaries of Australian financial institutions that choose to calculate FIF income using the CFC rules.

Effectively, these taxpayers will treat their FIF interest as if it were a CFC interest, thereby working out the FIF income that accrues to them based on the active income test and exemptions that relate to the calculation of the notional assessable income and notional allowable deductions of a foreign company that is a CFC.

When can a choice be made to use the CFC rules under the FIF calculation method?

A choice to work out notional income and notional deductions using the CFC rules can only be made once the taxpayer has first elected to apply the calculation method in respect of the interest in the FIF. [section 559A]

The restriction on the use of the calculation method for taxpayers who have previously elected to use the calculation method in respect of a FIF but have not continued to use that method in subsequent years, is relaxed. [subsection 535(4A)]

A choice (within the calculation method of the FIF rules) to work out notional assessable income and notional allowable deductions of a FIF using the CFC rules can only be made if:

• the taxpayer has an interest in a foreign company
• the taxpayer has an attribution percentage (as defined in Part   X of the ITAA 1936) of 10% or more in the foreign company, and
• once made in relation to a certain year, such a choice can only be made for a subsequent year if it has been made for each intervening year.

Although the attributable FIF income is worked out using the CFC rules (once this choice is made) the attributable taxpayer is still assessed under Part   XI itself (through the operation of sections 529 and 580 of the ITAA 1936). The CFC rules are only used to work out the notional income and notional deductions of the FIF.

What is the effect of making a choice?

Once a taxpayer makes a choice in relation to a FIF under section 559A of the ITAA 1936, certain assumptions are made to ensure that the CFC rules can be applied and interact effectively in working out the FIF income that accrues to that taxpayer under the calculation method, namely:

• the FIF is treated as a FIF that is a CFC
• the taxpayer is treated as an attributable taxpayer under Part   X of the ITAA 1936
• the notional accounting period is treated as a statutory accounting period
• the notional income of the foreign company is treated as notional assessable income under Part   X
• the notional deductions of the foreign company are treated as notional allowable deductions worked out under Part   X, and
• if the taxpayer is an Australian financial institution at a particular time in the year of income, the foreign company in relation to whom the choice is made is treated as an Australian financial institution subsidiary at that time.

To ensure the relevant provisions in Part X dealing with notional assessable income and notional allowable deductions can be applied, the FIF is treated as a FIF that is a CFC. The taxpayer, choosing to apply section 559A, is treated as an attributable taxpayer (within the meaning of Part   X) in relation to the FIF. In the case of a first-tier FIF choosing to apply section 559A in relation to a second-tier foreign investment fund, it is the first-tier foreign investment fund that is treated as an attributable taxpayer and the second-tier foreign investment fund is treated as a FIF that is a CFC. [paragraph 559A(2)(a) and (b)]

Further, the calculation of attributable income under the CFC rules relies on the statutory accounting period of the CFC. This is generally each 12-month period finishing at the end of 30   June, but with an option to use some other 12-month period (section 319). Under the FIF rules, FIF income accrues to the taxpayer in respect of a notional accounting period of the FIF. The notional accounting period of the FIF is generally a period that is a year of income of the attributable taxpayer, with the choice of an election for a 12-month period based on the period for which the FIF's accounts are made out. Therefore, the notional accounting period may differ from the statutory accounting period.

The new rules treat the notional accounting period of the FIF as the statutory accounting period. This allows the FIF, in relation to which a choice is made under section 559A, to continue using its actual notional accounting period to determine the notional assessable income and notional allowable deductions under Part   X. [paragraph 559A(2)(c)]

Under this approach, when the income is actually attributed under Part   XI, the number of days in the notional accounting period throughout which the taxpayer had the FIF interest can continue to be applied. Also if the taxpayer does not choose to apply section 559A of the ITAA 1936 in relation to a FIF in a later year, the FIF can continue to use the same notional accounting period it used when applying section 559A for the earlier period.

Once the taxpayer elects to use the calculation method in relation to a FIF and makes a choice to base the calculation on the CFC rules, the taxpayer will determine the FIF income that accrues to them by working out the notional assessable income and notional allowable deduction rules under Part   X instead of using the provisions in Part   XI.

Therefore, the notional income and notional deduction rules under the calculation method in Part   XI of the ITAA 1936 are effectively 'turned off' and, instead, the notional assessable income and notional allowable deduction rules in Part   X of the ITAA 1936 apply.

Modification rules

There are five modification rules that alter the treatment of notional income and notional deductions where a choice is made.

Three of these rules reapply certain provisions in Part XI (the FIF rules) to ensure that the choice of the notional controlled foreign company calculation within the calculation method only deals with an interest in a first-tier FIF, and with an interest a first-tier FIF may have in a second-tier FIF.

The first rule applies where a FIF has an interest in a second-tier FIF, or where a second-tier FIF has an interest in a third-tier FIF. In these cases, the existing rules in sections 575 to 579 of the ITAA 1936 apply in relation to the actual attributable taxpayer with effect that a choice to use the notional CFC calculation method is not available in relation to a third-tier FIF. This is despite the assumptions under subsection 559A(3) of the ITAA 1936. [subsections 559A(6), 559A(7) and 559A(8)]

The second and third rules apply to 'turn off' the rules in Part   X of the ITAA 1936 that also calculate any FIF income accruing under Part   XI of that Act in order to ensure there is no double counting of income accruing to a first-tier or second-tier FIF from any second-tier and third-tier FIF, respectively. As sections 576 and 579 of the ITAA 1936 apply in relation to a second-tier and third-tier FIFs, paragraphs 384(2)(ca) and 385(2)(ca) (which ordinarily deal with notional assessable income of a CFC from an interest in a FIF under Part   XI of the ITAA 1936) are disregarded. [paragraph 559A(7)(a) and subparagraph 559A(8)(b)(i)]

Example

At the end of year one, an Australian taxpayer, South Co, holds a 10% direct shareholding in foreign company West Co and a 5% direct interest in foreign company North Co. West Co has a 50% interest in North Co as indicated in the following diagram.

Assume the direct shareholding percentages equate to direct attribution interest percentages under Part   X of the ITAA 1936.

Under the FIF calculation method, South   Co elects, to use the notional controlled foreign company calculation to work out the notional income and notional deductions of West   Co. In the process of determining the notional income of West   Co, the notional income of North   Co must also be determined. This is ascertained by applying section 576 and not paragraph 384(2)(ca) or 385(2)(ca) of the ITAA 1936 which are normally relevant to the calculation of notional assessable income under the CFC rules.

In determining the notional income of North   Co in respect of West   Co's 50% interest, section 575 of the ITAA 1936 applies and West   Co can make the choice to use the CFC rules to work out the notional income and notional deductions of North   Co, as South   Co's attribution percentage in North   Co is 10% (5% direct and 5% indirect attribution interest).

South Co must make a separate election for its 5% direct interest in North   Co. This is a separate process to the election that it makes in relation to West Co's interest in North   Co. However, the indirect attribution interest held in North   Co through West   Co ensures South   Co meets the 10% attribution percentage requirement. [paragraph 559A(1)(b)]

If, at the end of year two, South Co's interest in West   Co dropped to 5% it would not be able to make a choice in relation to either West   Co or North   Co in relation to year two because the 10% attribution percentage requirement is not met. In subsequent years, South   Co is not able to make a choice in relation to its interest in West   Co or North   Co.

Note that the choice cannot be made in relation to a third-tier FIF. This is consistent with the operation of section 579 of the ITAA 1936 and the fact that the calculation method can only ever be used in relation to a first-tier and second-tier FIF of a taxpayer. [subparagraph 559A(8)(b)(ii)]

The remaining two modification rules relate to the calculation of capital gains and the utilisation of prior-year losses of the FIF.

Modification rule for capital gains

Profits or gains of a capital nature are determined on the basis of the period that would have been used under Part   XI of that Act instead of applying the special rules in Part   X of the ITAA 1936. [subsection 559A(5)]

This rule ensures that any choice in relation to a FIF will not:

• refresh the cost base of assets that are held by the FIF
• change the time of acquisition of an asset held by a FIF, or
• impact on the events that result in a capital gain being ignored.

Modification rule for prior-year losses

In working out the notional deductions of the FIF, sections 429 and 431 of Part   X of the ITAA 1936 are ignored [paragraph 559A(4)(a)].

The effect of disregarding these sections is that the main operative provisions in Part   X of the ITAA 1936 will not apply in relation to the FIF. There will be no need to calculate the sometimes-exempt-income gain or loss because the provisions where those calculations apply (sections 429 and 431) are disregarded in working out the notional allowable deductions of the FIF.

Instead, notional deductions (if any) as worked out under section 572 are included in working out the FIF's notional allowable deductions. Section 572 deals with notional deductions for calculated losses for prior periods.

Where a taxpayer makes a choice to work out the notional income and deductions of a FIF using the CFC rules a calculated loss may arise in respect of that FIF (that is, where the notional allowable deductions exceed notional assessable income) under subsection 559(4) of the ITAA 1936. This loss feeds into section 572 of that Act which provides its own rules for working out the amount of past calculated losses that are treated as notional deductions under section 559(2) in determining the FIF income that accrues to a taxpayer in relation to a future income year.

Section 578 of the ITAA 1936 ensures that any calculated loss of a second-tier FIF as determined by section 572 will be taken into account in determining the notional deductions of the first-tier FIF. [subsection 559A(6) and paragraph 559A(4)(b)]

Certain foreign companies treated as an Australian financial institution subsidiary

Where a taxpayer, that makes an election for this new calculation method treatment in relation to a foreign company, is an Australian financial institution the rules now provide that the foreign company will be treated as an Australian financial institution subsidiary for the purposes of working out the notional income and deductions [paragraph 559A(3)(c)]

This ensures the CFC rules concerning Australian financial institution subsidiaries may then apply in determining attributable income of the company if the foreign company is carrying on a banking business whose income is principally derived from the lending of money.

The rule to treat the FIF as an Australian financial institution subsidiary applies to both first-tier and second-tier FIFs. [paragraph 559A(3)(c) and (8)(a)] Consistent with the current FIF calculation method rules, it is not possible for a third-tier FIF to be treated as an Australian financial institution subsidiary.

As a consequence of these foreign companies being afforded treatment as an Australian financial institution subsidiary, an amendment has been made to the participation exemption rules in Subdivision 768-G of the ITAA 1997. This amendment provides for similar 'active' treatment in relation to the assets of the foreign company.

The approach of 'superimposing' the controlled foreign company calculation of attributable income on the foreign investment fund calculation method means that the foreign company is not actually a CFC as defined in Part   X of the ITAA 1936. Therefore, if a taxpayer chooses to use the CFC rules within the FIF calculation method, the equity interest in the FIF will not be a 'controlled foreign equity entity' for thin capitalisation purposes under Division   820 of the ITAA 1997.

Example

Oz Bank, an Australian financial institution, holds a 20% FIF interest in Sing Co which in turn holds a 50% interest in Malay Hold Co, which in turn holds a 100% interest in Malay Co.

Oz Bank makes a choice under section 559A of the ITAA 1936 in relation to its interest in Sing Co. As Oz Bank is an Australian financial institution, Sing Co is treated as an Australian financial institution subsidiary for the purposes of working out its notional income and notional deductions.

Oz Bank's attribution percentage in relation to Malay Hold Co is 10%, therefore the choice to apply the CFC rules can also be made by Sing Co in relation to Malay Hold Co.

Malay Hold Co itself is treated as an Australian financial institution subsidiary for the purposes of working out its notional income and notional deductions.

Although Oz Bank has an attribution percentage of 10% in Malay Co, as Malay Co is a third-tier FIF a choice to use the calculation method cannot be made by Malay Hold Co. [subparagraph 579(b)(ii)]

For further information about how to calculate attributable income using the CFC rules, refer to the Foreign income return form guide .

ATO references:
NO NAT 2130