Commonwealth Consolidated Acts

INCOME TAX ASSESSMENT ACT 1997 - SECT 830.10

  (1)   Subject to subsection   (2), a * limited partnership is a foreign hybrid limited partnership in relation to an income year if:

  (a)   it was formed in a foreign country; and

  (b)   * foreign income tax (except * credit absorption tax or * unitary tax) is imposed under the law of the foreign country on the partners, not the limited partnership, in respect of the income or profits of the partnership for the income year; and

  (c)   at no time during the income year is the limited partnership, for the purposes of a law of any foreign country that imposes foreign income tax (except credit absorption tax or unitary tax) on entities because they are residents of the foreign country, a resident of that country; and

  (d)   disregarding subsection   94D(5) of the Income Tax Assessment Act 1936 , at no time during the income year is it an Australian resident; and

  (e)   disregarding that subsection, in relation to the same income year of another taxpayer:

  (i)   the limited partnership is a * CFC at the end of a * statutory accounting period that ends in the income year; and

  (ii)   at the end of the statutory accounting period, the taxpayer is an * attributable taxpayer in relation to the CFC with an * attribution percentage greater than nil.

  (2)   If a partner is not an * attributable taxpayer in relation to a * limited partnership, then, for the purposes of applying the Income Tax Assessment Act 1936 and this Act in relation to the partner's interest in the limited partnership, the limited partnership is a foreign hybrid limited partnership in relation to an income year for the partner if, and only if, the partner:

  (a)   has made an election under former subsection   485AA(1) of the Income Tax Assessment Act 1936 ; or

  (b)   makes an election under this paragraph;

in relation to the partner's interest in the partnership.

  (3)   For the purposes of subsection   (2), the limited partnership is a foreign hybrid limited partnership in relation to any income year during which an election referred to in paragraph   (2)(a) or (2)(b) is in force.

  (4)   An election can only be made under paragraph   (2)(b) if:

  (a)   disregarding subsection   94D(6) of the Income Tax Assessment Act 1936 :

  (i)   at the end of the income year in which the election is made, the partner has an interest in a FIF (within the meaning of former Part   XI of that Act) that is a * corporate limited partnership; and

  (ii)   the interest consists of a * share in the FIF; and

  (b)   the limited partnership satisfies paragraphs   (1)(a) to (d) in relation to the income year in which the election is made.

  (5)   An election under paragraph   (2)(b) must be made:

  (a)   on or before the day on which the partner lodges the partner's income tax return for the income year; or

  (b)   within a further time allowed by the Commissioner.

  (6)   The election:

  (a)   is in force during the income year and all later income years; and

  (b)   is irrevocable.