Commonwealth Consolidated Acts

INCOME TAX ASSESSMENT ACT 1997 - SECT 152.325

Company or trust to make payments

  (1)   A company or trust must make a payment (whether directly or indirectly through one or more interposed entities) to at least one of its * CGT concession stakeholders if:

  (a)   the company or trust makes a choice under this Subdivision to disregard a * capital gain from * CGT event J2, J5 or J6; or

  (b)   the company or trust receives an amount of * capital proceeds from a * CGT event for which it makes a choice under this Subdivision.

  (2)   If the company or trust receives the * capital proceeds from the CGT event in instalments, subsection   (1) applies to each instalment in succession (up to the relevant * CGT exempt amount).

  (2A)   For the purposes of (but without limiting) subsection   (2), the company or trust is treated as receiving the * capital proceeds in instalments if:

  (a)   the * CGT event happened because the company or trust * disposed of the * CGT asset; and

  (b)   the capital proceeds from the disposal are increased by one or more * financial benefits that the company or trust receives under a * look - through earnout right.

Amount and timing of payments

  (3)   If a payment is made to more than one * CGT concession stakeholder, the amount of each such payment is to be worked out by reference to each individual's percentage (see subsection   152 - 315(5)) of the relevant * CGT exempt amount.

  (3A)   If the * CGT concession stakeholder to whom the payment is made is an employee of the company or trust, the payment must not be of a kind mentioned in section   82 - 135 (disregarding paragraph   (fa) of that section).

  (4)   The payment must be made by:

  (a)   if paragraph   (1)(a) applies--7 days after the company or trust makes the choice; and

  (b)   otherwise--the later of:

  (i)   7 days after the company or trust makes the choice; and

  (ii)   7 days after the company or trust receives an amount of * capital proceeds from the * CGT event.

  (5)   The amount of the payment, or the sum of the amounts of the payments, required to be made under this section must be equal to the lesser of:

  (a)   either:

  (i)   if paragraph   (1)(a) applies--the amount of the * capital gain from the * CGT event that the company or trust disregarded; or

  (ii)   otherwise--the amount of * capital proceeds received; and

  (b)   the relevant * CGT exempt amount.

Payments may be joint or separate

  (6)   If this section requires the company or trust to make 2 or more payments to a single * CGT concession stakeholder (whether or not by the same time), the company or trust may meet that requirement by making one payment or by making separate payments.

  (7)   If a * CGT concession stakeholder is under 55 just before a payment is made under this section in relation to him or her:

  (a)   the company or trust must make the payment to the CGT concession stakeholder by contributing it for the stakeholder to a * complying superannuation fund or an * RSA in respect of the stakeholder; and

  (b)   the company or trust must notify the trustee of the fund or the * RSA provider at the time the contribution is made that the contribution is made in accordance with this section.

Note:   For the non - deductibility of the contribution, see subsection   290 - 150(4).

  (8)   For the purposes of Part   3 - 30, treat a payment mentioned in paragraph   (7)(a), made in accordance with this section, as a contribution made by the * CGT concession stakeholder.

Payments are not dividends or frankable distributions

  (9)   Subsection   (10) applies if:

  (a)   a company makes a payment to comply with subsection   (1) to:

  (i)   a * CGT concession stakeholder; or

  (ii)   an interposed entity, in relation to a CGT concession stakeholder; or

  (b)   both of the following apply:

  (i)   an interposed entity receives a payment (whether directly or indirectly through one or more interposed entities) that a company or trust makes to comply with subsection   (1), in relation to a CGT concession stakeholder;

  (ii)   the interposed entity passes on the payment to the CGT concession stakeholder or another interposed entity.

  (10)   This Act applies to the payment, to the extent that it is less than or equal to the amount mentioned in subsection   (3) for the stakeholder, as if:

  (a)   it were not a * dividend; and

  (b)   it were not a * frankable distribution.

  (11)   Subsection   (10) applies in relation to the payment despite section   109 and Division   7A of Part   III of the Income Tax Assessment Act 1936 .