Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this section:
"agreement" includes any agreement, arrangement or understanding, whether formal or informal or express or implied, and whether or not enforceable by legal proceedings (whether or not the agreement, arrangement or understanding was intended to be so enforceable).
"associate" , in relation to the donor of a gift, means:
(a) in the case of a donor being a natural person:
(i) a relative of the donor;
(ii) a partner of the donor;
(iii) if a partner of the donor is a natural person--the spouse of that partner;
(iv) a trustee of a trust estate where the donor or a person who is an associate of the donor by virtue of subparagraph (i), (ii), (iii) or (v) benefits or is capable (whether by the exercise of a power of appointment or otherwise) of benefiting under the trust, either directly or through any interposed companies, partnerships or trusts; or
(v) a company where:
(A) the company is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the donor, of a person who is an associate of the donor by virtue of subparagraph (i), (ii), (iii) or (iv) or of a company that is an associate of the donor by virtue of another application of this subparagraph; or
(B) the donor is, the persons who are associates of the donor by virtue of subparagraphs (i), (ii), (iii) and (iv) are, or the donor and the persons who are associates of the donor by virtue of those paragraphs are, in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the company; or
(b) in the case of a donor being a company:
(i) a partner of the donor company;
(ii) if a partner of the donor company is a natural person--the spouse of that partner;
(iii) another person where:
(A) the donor company is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of that person, whether those directions, instructions or wishes are communicated directly to the donor company or its directors, or through any interposed companies; or
(B) that person is, or that person and the persons who, if that person were the donor, would be associates of that person by virtue of paragraph (a) or by virtue of another subparagraph of this paragraph are, in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the donor company;
(iv) a trustee of a trust estate where the donor company or a person who is an associate of the donor company by virtue of subparagraph (i), (ii), (iii), (v) or (vi) benefits, or is capable (whether by the exercise of a power of appointment or otherwise) of benefiting under the trust, either directly or through any interposed companies, partnerships or trusts;
(v) another company where:
(A) the other company is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the donor company, of a person who is an associate of the donor company by virtue of subparagraph (i), (ii), (iii), (iv) or (vi) or of a company that is an associate of the donor company by virtue of another application of this subparagraph; or
(B) the donor company is, the persons who are associates of the donor company by virtue of subparagraphs (i), (ii), (iii), (iv) and (vi) are, or the donor company and the persons who are associates of the donor company by virtue of those subparagraphs are, in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the other company; or
(vi) another person who, if a third person who is an associate of the donor company by virtue of subparagraph (iii) were the donor, would be an associate of that third person by virtue of paragraph (a) or by virtue of another subparagraph of this paragraph.
(2) Subject to this section, a gift of money, or of property other than money, made by a person (in this section referred to as the donor ) to a fund, authority, institution or person is not an allowable deduction under Division 30 of the Income Tax Assessment Act 1997 where:
(a) by reason of any act, transaction or circumstance that has occurred, will occur, or may reasonably be expected to occur, being an act, transaction or circumstance occurring as part of, in connexion with or as a result of:
(i) the making or receipt of the gift; or
(ii) any agreement or scheme entered into in association with the making or receipt of the gift;
the amount or value of the benefit derived by the fund, authority, institution or person as a consequence of the gift is, will be, or may reasonably be expected to be, less than the amount or value at the time when the gift was made of the property comprising the gift;
(b) by reason of any act, transaction or circumstance of a kind referred to in paragraph (a), any fund, authority, institution or person other than the fund, authority, institution or person to which the gift was made, makes, becomes liable to make, or may reasonably be expected to make or to become liable to make, a payment, or transfers, becomes liable to transfer, or may reasonably be expected to transfer or to become liable to transfer, any property, to any person or incurs, becomes liable to incur, or may reasonably be expected to incur or to become liable to incur, any other detriment, disadvantage, liability or obligation;
(c) by reason of any act, transaction or circumstance of a kind referred to in paragraph (a), the donor or an associate of the donor has obtained, will obtain or may reasonably be expected to obtain any benefit, advantage, right or privilege other than the benefit of any deduction that, but for this section, would be allowable from the assessable income of the donor under Division 30 of the Income Tax Assessment Act 1997 ; or
(d) by reason of any agreement or scheme entered into as part of or in association with the making of the gift, any property, other than property comprising the gift, has been acquired or will be acquired, whether directly or indirectly, from the donor or an associate of the donor by that fund, authority, institution or person or by another fund, authority, institution or person.
(3) Without limiting the application of subsection (2), where the terms and conditions on which a gift of property other than money is made are such that the fund, authority, institution or person to which the gift is made does not receive immediate custody and control of the property, does not have the unconditional right to retain custody and control of the property in perpetuity to the exclusion of the donor or an associate of the donor or does not obtain an immediate, indefeasible and unencumbered legal and equitable title to the property, paragraph (2)(c) shall be deemed to apply in relation to that gift.
(4) Paragraph (2)(a) does not prevent a deduction under Division 30 of the Income Tax Assessment Act 1997 from being allowed from the assessable income of the donor where the amount or value of the benefit derived by the fund, authority, institution or person as a consequence of the gift is, will be, or may reasonably be expected to be, less than the amount or value at the time when the gift was made of the property comprising the gift by reason only that the fund, authority, institution or person has incurred, will incur, or may reasonably be expected to incur, expenses for the purpose of obtaining or soliciting the gift, being expenses that, in the opinion of the Commissioner, are reasonable in relation to the value of the gift.
(5) This section does not prevent a deduction under section 30 - 15 of the Income Tax Assessment Act 1997 (because of item 4, 5 or 6 of the table in that section) from being allowed from the assessable income of the donor in respect of a gift of property other than money by reason only that the terms and conditions on which the gift was made are such, or the effect of any arrangement (within the meaning of that Act) entered into in association with the making or receipt of the gift is such, that the value of the gift may be reduced in accordance with section 30 - 220 of that Act.
Income Tax Assessment Act 1936
No. 27, 1936
Compilation No. 186
Compilation date: 14 October 2024
Includes amendments: Act No. 38, 2024
This compilation is in 7 volumes
Volume 5: Schedules
Volume 6: Endnotes 1-4
Volume 7: Endnote 5
Each volume has its own contents
About this compilation
This compilation
This is a compilation of the Income Tax Assessment Act 1936 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date ).
The notes at the end of this compilation (the endnotes ) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
Self - repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Part III--Liability to taxation
Division 3--Deductions
79A Rebates for residents of isolated areas
79B Rebates for members of Defence Force serving overseas
82 Double deductions
Subdivision D--Losses and outgoings incurred under certain tax avoidance schemes
82KH Interpretation
82KJ Deduction not allowable in respect of certain pre - paid outgoings
82KK Schemes designed to postpone tax liability
82KL Tax benefit not allowable in respect of certain recouped expenditure
Subdivision H--Period of deductibility of certain advance expenditure
82KZL Interpretation
82KZLA Subdivision does not apply to financial arrangements to which Subdivision 250 - E applies
82KZLB How this Subdivision applies to deductible R&D expenditure incurred to associates in earlier income years
82KZM Expenditure by small and medium business entities and individuals incurring non - business expenditure
82KZMA Application of section 82KZMD
82KZMD Business expenditure and non - business expenditure by non - individual
82KZME Expenditure under some agreements
82KZMF Proportional deduction
82KZMG Deductions for certain forestry expenditure
82KZMGA Deductions for certain forestry expenditure
82KZMGB CGT event in relation to interest in 82KZMG agreement
82KZN Transfer etc. of rights under agreement
82KZO Partnership changes where entire interest in agreement rights is not transferred
Division 3A--Convertible notes
82LA Application of Division
82L Interpretation
82M New loans and replacement loans
82P Bonus share allotments
82Q Classes of shares
82R Interest on certain convertible notes not to be an allowable deduction
82SA Interest on certain convertible notes to be an allowable deduction--where loan made on or after 1 January 1976
82T Value of shares
Division 5--Partnerships
90 Interpretation
91 Liability of partnerships
92 Income and deductions of partner
92A Deductions in respect of outstanding subsection 92(2AA) amounts
94 Partner not having control and disposal of share in partnership income
Division 5A--Income of certain limited partnerships
Subdivision A--Preliminary
94A Object
94B Interpretation
94C Continuity of limited partnership not affected by changes in composition
Subdivision B--Corporate limited partnerships
94D Corporate limited partnerships
94E Continuity of business test
94F Change in composition of limited partnership--election that partnership not be treated as an eligible limited partnership
94G Continuity of ownership test
Subdivision C--Corporate tax modifications applicable to corporate limited partnerships
94H Corporate tax modifications applicable to corporate limited partnerships
94J Company includes corporate limited partnership
94K Partnership does not include corporate limited partnership
94L Dividend includes distribution of corporate limited partnership
94M Drawings etc. deemed to be dividends paid out of profits
94N Private company does not include corporate limited partnership
94P Share includes interest in corporate limited partnership
94Q Shareholder includes partner in corporate limited partnership
94R Liquidator may include partner in corporate limited partnership
94S Continuity of corporate limited partnership not affected by changes in composition
94T Residence of corporate limited partnership
94U Incorporation
94V Obligations and offences
94X Modification of loss provisions
Division 6--Trust income
95AAA Simplified outline of the relationship between this Division, Division 6E and Subdivisions 115 - C and 207 - B of the Income Tax Assessment Act 1997
95AAB Adjustments under Subdivision 115 - C or 207 - B of the Income Tax Assessment Act 1997 --references in this Act to assessable income under section 97, 98A or 100
95AAC Adjustments under Subdivision 115 - C or 207 - B of the Income Tax Assessment Act 1997 --references in this Act to liabilities under section 98, 99 or 99A
95AAD Division does not apply in relation to AMIT
95 Interpretation
95AB Modifications for special disability trusts
95A Special provisions relating to present entitlement
95B Certain beneficiaries deemed not to be under legal disability
96 Trustees
97 Beneficiary not under any legal disability
97A Beneficiaries who are owners of farm management deposits
98 Liability of trustee
98A Non - resident beneficiaries assessable in respect of certain income
98B Deduction from beneficiary's tax
99 Certain trust income to be taxed as income of an individual
99A Certain trust income to be taxed at special rate
99B Receipt of trust income not previously subject to tax
99C Determining whether property is applied for benefit of beneficiary
99D Refund of tax to non - resident beneficiary
99E Later trust not taxed on income already taxed under subsection 98(4)
99G Amounts covered by withholding requirement
99GA Amounts covered by sovereign immunity exemption
99H Late payments
100 Beneficiary assessable in respect of certain trust income
100AA Failure to pay or notify present entitlement of exempt entity
100AB Adjusted Division 6 percentage exceeding benchmark percentage: present entitlement of exempt entity
100A Present entitlement arising from reimbursement agreement
101 Discretionary trusts
101A Income of deceased received after death
102 Revocable trusts
Division 6AAA--Special provisions relating to non - resident trust estates etc.
Subdivision A--Preliminary
102AAA Object of Division
102AAB Interpretation
102AAC Each listed country and unlisted country to be treated as a separate foreign country
102AAD Subject to tax --application of subsection 324(2)
102AAE Listed country trust estates
102AAF Public unit trusts
102AAG When entity is in a position to control a trust estate
102AAH Non - resident family trusts
102AAJ Transfer of property or services
102AAK Deemed transfers of property or services to trust estate
102AAL Division not to apply to transfers by trustees of deceased estates
Subdivision B--Payment of interest by taxpayer on distributions from certain non - resident trust estates
102AAM Payment of interest by taxpayer on distributions from certain non - resident trust estates
102AAN Collection etc. of interest
Subdivision D--Accruals system of taxation of certain non - resident trust estates
102AAS Object of Subdivision
102AAT Accruals system of taxation--attributable taxpayer
102AAU Attributable income of a trust estate
102AAV Double tax agreements to be disregarded
102AAW Certain provisions to be disregarded in calculating attributable income
102AAY Modified application of trading stock provisions
102AAZ Modified application of depreciation provisions
102AAZB General modifications--CGT
102AAZBA Modified application of CGT--effect of certain changes of residence
102AAZC Modified application of loss provisions--pre - 1990 - 91 losses
102AAZD Assessable income of attributable taxpayer to include attributable income of trust estate to which taxpayer has transferred property or services
102AAZE Accruals system of taxation does not apply to small amounts
102AAZF Only resident partners, beneficiaries etc. liable to be assessed as a result of attribution
102AAZG Keeping of records
Division 6AA--Income of certain children
102AA Interpretation
102AB Application of Division
102AC Persons to whom Division applies
102AD Taxable income to which Division applies
102AE Eligible assessable income
102AF Employment income and business income
102AG Trust income to which Division applies
102AGA Transfer of property as the result of a family breakdown
Division 6A--Alienation of income
102A Interpretation
102B Certain income transferred for short periods to be included in assessable income of transferor
102C Effect of certain transfers of rights to receive income from property
102CA Consideration in respect of transfer to be included in assessable income of transferor in certain cases
Division 6C--Income of certain public trading trusts
102M Interpretation
102MA Arrangements not covered
102MB Investing in land
102MC When trading business not carried on
102MD Exempt institution that is eligible for a refund not treated as exempt entity
102N Trading trusts
102NA Certain interposed trusts not trading trusts
102P Public unit trusts
102Q Resident unit trusts
102R Public trading trusts
102S Taxation of net income of public trading trust
102T Modified application of Act in relation to certain unit trusts
Division 6D--Provisions relating to certain closely held trusts
Subdivision A--Overview
102UA What this Division is about
Subdivision B--Interpretation
102UB Definitions--general
102UC Closely held trust
102UD Trustee beneficiary
102UE Meaning of untaxed part
102UG Correct TB statement
102UH TB statement period
102UI Tax - preferred amount
102UJ Extended concept of present entitlement to capital of a trust
Subdivision C--Trustee beneficiary non - disclosure tax on share of net income
102UK Trustee beneficiary non - disclosure tax where no correct TB statement
102UL Exclusion of directors of closely held trust from liability to pay tax
102UM Trustee beneficiary non - disclosure tax where share is distributed to trustee of closely held trust
Subdivision D--Payment etc. of trustee beneficiary non - disclosure tax
102UN Amount of trustee beneficiary non - disclosure tax reduced by notional tax offset
102UO Payment of trustee beneficiary non - disclosure tax
102UP Late payment of trustee beneficiary non - disclosure tax
102UR Notice of liability
102URA Request for notice of liability
102USA Recovery of trustee beneficiary non - disclosure tax from trustee beneficiaries providing incorrect information etc. to head trustee
Subdivision E--Making correct TB statement about trustee beneficiaries of tax - preferred amounts
102UT Requirement to make correct TB statement about trustee beneficiaries of tax - preferred amounts
Subdivision F--Special provisions about tax file numbers
102UU Trustee beneficiary may quote tax file number to trustee of closely held trust
102UV Trustee of closely held trust may record etc. tax file number
Division 6E--Adjustment of Division 6 assessable amount in relation to capital gains, franked distributions and franking credits
102UW Application of Division
102UX Adjustment of Division 6 assessable amount in relation to capital gains, franked distributions and franking credits
102UY Interpretation
Division 7--Private companies
102V Application of Division to non - share dividends
103 Interpretation
103A Private companies
109 Excessive payments to shareholders, directors and associates deemed to be dividends
Division 7A--Distributions to entities connected with a private company
Subdivision A--Overview of this Division
109B Simplified outline of this Division
Subdivision AA--Application of Division
109BA Application of Division to non - share dividends
109BB Application of Division to closely - held corporate limited partnerships
109BC Application of Division to non - resident companies
Subdivision B--Private company payments, loans and debt forgiveness are treated as dividends
109C Payments treated as dividends
109CA Payment includes provision of asset
109D Loans treated as dividends
109E Amalgamated loan from a previous year treated as dividend if minimum repayment not made
109F Forgiven debts treated as dividends
Subdivision C--Forgiven debts that are not treated as dividends
109G Debt forgiveness that does not give rise to a dividend
Subdivision D--Payments and loans that are not treated as dividends
109H Simplified outline of this Subdivision
109J Payments discharging pecuniary obligations not treated as dividends
109K Inter - company payments and loans not treated as dividends
109L Certain payments and loans not treated as dividends
109M Loans made in the ordinary course of business on arm's length terms not treated as dividends
109N Loans meeting criteria for minimum interest rate and maximum term not treated as dividends
109NA Certain liquidator's distributions and loans not treated as dividends
109NB Loans to purchase shares under employee share schemes not treated as dividends
109P Amalgamated loans not treated as dividends in the year they are made
109Q Commissioner may allow amalgamated loan not to be treated as dividend
109R Some payments relating to loans not taken into account
Subdivision DA--Demerger dividends not treated as dividends
109RA Demerger dividends not treated as dividends
Subdivision DB--Other exceptions
109RB Commissioner may disregard operation of Division or allow dividend to be franked
109RC Dividend may be franked if taken to be paid because of family law obligation
109RD Commissioner may extend period for repayments of amalgamated loan
Subdivision E--Payments and loans through interposed entities
109S Simplified outline of this Subdivision
109T Payments and loans by a private company to an entity through one or more interposed entities
109U Payments and loans through interposed entities relying on guarantees
109UA Certain liabilities under guarantees treated as payments
109V Amount of private company's payment to target entity through one or more interposed entities
109W Private company's loan to target entity through one or more interposed entities
109X Operation of Subdivision D in relation to payment or loan
Subdivision EA--Unpaid present entitlements
109XA Payments, loans and debt forgiveness by a trustee in favour of a shareholder etc. of a private company with an unpaid present entitlement
109XB Amounts included in assessable income
109XC Modifications
109XD Forgiveness of loan debt does not give rise to assessable income if loan gives rise to assessable income
Subdivision EB--Unpaid present entitlements--interposed entities
109XE Simplified outline of this Subdivision
109XF Payments through interposed entities
109XG Loans through interposed entities
109XH Amount and timing of payment or loan through interposed entities
109XI Entitlements to trust income through interposed trusts
Subdivision F--General rules applying to all amounts treated as dividends
109Y Proportional reduction of dividends so they do not exceed distributable surplus
109Z Characteristics of dividends taken to be paid under this Division
109ZA No dividend taken to be paid for withholding tax purposes
109ZB Amount treated as dividend is not a fringe benefit
109ZC Treatment of dividend that is reduced on account of an amount taken under this Division to be a dividend
109ZCA Treatment of dividend that is reduced on account of an amount included in assessable income under Subdivision EA
Subdivision G--Defined terms
109ZD Defined terms
109ZE Interpretation rules about entities
Division 9--Co - operative and mutual companies
117 Co - operative companies
118 Company not co - operative if less than 90% of business with members
119 Sums received to be taxed
120 Deductions allowable to co - operative company
121 Mutual insurance associations
Division 9AA--Demutualisation of insurance companies and affiliates
Subdivision A--What this Division is about
121AA What this Division is about
Subdivision B--Key concepts and related definitions
121AB Insurance company definitions
121AC Mutual affiliate company
121AD Demutualisation and demutualisation resolution day
121AE Demutualisation methods, the policyholder/member group and the listing period
121AEA Replacement of policyholders by persons exercising certain rights
121AF Demutualisation method 1
121AG Demutualisation method 2
121AH Demutualisation method 3
121AI Demutualisation method 4
121AJ Demutualisation method 5
121AK Demutualisation method 6
121AL Demutualisation method 7
121AM Embedded value of a mutual life insurance company
121AN Net tangible asset value of a general insurance company or mutual affiliate company
121AO Treasury bond rate, capital reserve adequacy level, eligible actuary and security
121AP Subsidiary and wholly - owned subsidiary
121AQ Other definitions
121AR List of definitions
Subdivision C--Tax consequences of demutualisation
121AS CGT consequences of demutualisation
121AT Other tax consequences of demutualisation
121AU This Subdivision does not apply to demutualisation of friendly society health or life insurers
Division 9A--Offshore banking units
Subdivision A--Object and simplified outline
121B Simplified outline
Subdivision B--Interpretation
121C Interpretation
121D Meaning of OB activity
121DA Meaning of expressions relevant to investment activity
121DB Meaning of OB eligible contract activity
121DC Meaning of OB advisory activity
121DD Meaning of OB leasing activity
121E Meaning of offshore person
121EA OBU requirement
121EAA Activities recorded in domestic books not OB activities
121EB Internal financial dealings of an OBU
121EC Meaning of OBU resident - owner money
121ED Meaning of trade with a person
121EDA Meaning of OB income
121EE Definitions relating to assessable income of an OBU
121EF Definitions relating to allowable deductions of an OBU
Subdivision C--Operative provisions
121EJ Source of income derived from OB activities
121EK Deemed interest on 90% of certain OBU resident - owner money
121EL Exemption of income etc. of OBU offshore investment trusts
121ELA Exemption of income etc. of overseas charitable institutions
121ELB Adjustment of capital gains and losses from disposal of units in OBU offshore investment trusts
Division 9C--Assessable income diverted under certain tax avoidance schemes
121F Interpretation
121G Diverted income and diverted trust income
121H Assessment of diverted income and diverted trust income
121J Ascertainment of diverted income or diverted trust income deemed to be an assessment
121K Application of International Tax Agreements Act
121L Division applies notwithstanding exemption under other laws
