Private ruling: Employee Share Schemes
Date of advice: 8 August 2016
Published: September 2016

Ruling: Q1: Will irretrievable cash contributions (Contributions) made by the Company to the Trustee of the Employee Share Trust (EST) allow a deduction for the Company, pursuant to section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997)? | A3: Yes. | Q2: Will the Commissioner make a determination under Part IVA of the Income Tax Assessment Act 1936 (ITAA 1936) to any part of the arrangements forming part of the ESS? | A4: No. | Q3: Will the Commissioner make a determination under section 67 of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) to include an amount in the aggregate fringe benefits amount of the Company, by the amount of tax benefit gained from Contributions made to the Trustee, to fund the acquisition of Shares? | A5: No. | Q4: Will the Company be subject to fringe benefits tax (FBT), pursuant to subsection 136(1) of the FBTAA, in respect of the ESS? | A6: No.

Relevant facts and circumstances: This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling. The Company is an Australian company listed on the Australian Securities Exchange (ASX). The Company's stated purpose in establishing and funding its ESS is to provide an employee equity incentive plan to: • attract, motivate and retain employees • reward employees for individual and company performance • allow employees to become shareholders; and • align the interests of staff and shareholders. The Company has a number of subsidiary entities within its group, all of which are referred to as the Employing Entities. The Company is the head company of an income tax consolidated group. Accordingly, all references to assessable income or allowable deductions of the Company refer to assessable income or allowable deductions of the Company, as head company of the income tax consolidated group.

Relevant legislative provisions: Income Tax Assessment Act 1936 Part IVA | Income Tax Assessment Act 1936 paragraph 177D(b) | Income Tax Assessment Act 1936 subsection 177F(1) | Fringe Benefits Tax Assessment Act 1986 section 66 | Fringe Benefits Tax Assessment Act 1986 section 67 | Fringe Benefits Tax Assessment Act 1986 subsection 67(2) | Fringe Benefits Tax Assessment Act 1986 subsection 136(1) | Fringe Benefits Tax Assessment Act 1986 paragraphs 136(1)(f-s) | Income Tax Assessment Act 1997 section 8-1 | Income Tax Assessment Act 1997 subsection 8-1(1) | Income Tax Assessment Act 1997 subsection 8-1(2) | Income Tax Assessment Act 1997 Division 83A | Income Tax Assessment Act 1997 section 83A-10 | Income Tax Assessment Act 1997 section 83A-10(1) | Income Tax Assessment Act 1997 section 83A-10(2) | Income Tax Assessment Act 1997 Subdivision 83A-B | Income Tax Assessment Act 1997 Subdivision 83A-C | Income Tax Assessment Act 1997 section 83A-210 | Income Tax Assessment Act 1997 paragraph 83A-210(a)(i) | Income Tax Assessment Act 1997 paragraph 83A-210(a)(ii) | Income Tax Assessment Act 1997 subsection 83A-210(b) | Income Tax Assessment Act 1997 section 83A-210 | Income Tax Assessment Act 1997 subsection 130-85(4) | Income Tax Assessment Act 1997 subsection 995-1(1)

Reasons for decision: Summary: The irretrievable Contributions the Company makes to the EST, to acquire Shares, whether by on-market purchase or subscription, are allowable deductions under section 8-1. | Detailed Reasoning - Detailed reasoning: An employer is entitled to a deduction under section 8-1 for a contribution paid to the trustee of an EST that is either: • incurred in gaining or producing assessable income ('first limb') or • necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income ('second limb') to the extent the contribution is not private or domestic in nature, is not of capital or of a capital nature, does not relate to the earning of exempt income or non-assessable non-exempt income and deductibility is not precluded by another provision of the ITAA 1997 or Income Tax Assessment Act 1936 (ITAA 1936). To qualify for a deduction under section 8-1 a contribution to the trustee of an EST must be incurred. As a broad guide, a taxpayer incurs an outgoing at the time the taxpayer owes a present money debt that they cannot escape. This must be read subject to the propositions developed by the courts, which are discussed in more detail in Taxation Ruling TR 97/7 Income tax: section 8-1 - meaning of 'incurred' - timing of deductions and Taxation Ruling TR 94/26 Income tax: subsection 51(1) - meaning of incurred - implications of the High Court decision in Coles Myer Finance . A contribution made to the trustee of an EST is incurred only when the ownership of that contribution passes from an employer to the trustee of the EST and there is no circumstance in which the employer can retrieve any of the contribution - Pridecraft Pty Ltd v. Federal Commissioner of Taxation [2004] FCAFC 339; 2005 ATC 4001 (Pridecraft); Spotlight Stores Pty Ltd v. Commissioner of Taxation [2004] FCA 650 2004 ATC 4674; 55 ATR 745 (Spotlight) . Application to the facts The Company's stated purpose in establishing and funding its Plans is to provide an employee equity incentive plan to: • attract, motivate and retain employees • reward employees for individual and company performance • allow employees to become shareholders; and • align the interests of staff and shareholders. The Company has established an EST for the purposes of managing and administering its ESS. The Company advised that it will make irretrievable cash contributions to the EST for it to acquire shares for the benefit of the participants in the ESS. Shares acquired by the Trustee will be immediately allocated to the relevant employees who will become absolutely entitled to those Shares at that point in time. Given these facts, it is considered that the contributions made to the EST by the Company will be incurred at the time the contributions are made. Necessarily incurred in carrying on a business Further, to be deductible under section 8-1, a contribution must have been incurred in gaining or producing assessable income or necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income. In order to satisfy the second limb of section 8-1 there must be a relevant connection between the outgoing and the business. An expense will have the relevant connection to the business when it is 'desirable or appropriate in the pursuit of the business ends of the business' ( Ronpibon Tin NL and Tongkah Compound NL v. FC of T (1949) 78 CLR 47 at 55-58; [1949] HCA 15 at [9]-[15] ( Ronpibon ) ; Magna Alloys & Research Pty Ltd v. Federal Commission of Taxation [1980] FCA 150; 80 ATC 4542 at 4559-4561; (1980) 11 ATR 276 at 294-297 ( Magna Alloys )). Draft Taxation Ruling TR 2014/D1 Income tax: employee remuneration trust arrangements provides the Commissioner's current view on a broad scope of taxation consequences for employers, trustees and employees who participate in an employee remuneration trust arrangement (ERT). The way in which the EST has been established and operates is in line with the elements of an ERT to which TR 2014/D1 applies. Paragraph 14 of TR 2014/D1 provides that where an employer: • carries on a business for the purpose of gaining or producing assessable income and engages employees in the ordinary course of carrying on that business; • makes a contribution to the trustee of an EST; • at the time the contribution is made, the primary purpose of the contribution is for it to be applied, within a relatively short period of time, to the direct provision of remuneration of employees (who are employed in that business), then, such a contribution would ordinarily satisfy the nexus of being necessarily incurred in carrying on that business. Paragraph 178 of TR 2014/D1 provides that the Commissioner will generally accept a relatively short period of time for the trustee of an ERT to diminish a contribution for the direct provision of remuneration to employees to be up to five years from the date the contribution was made by an employer to the trustee of an ERT. However, where the contribution has been made to facilitate an employee having an interest in the ERT corresponding to a particular number of shares (or rights to acquire shares) in the employer or in its subsidiaries to which Subdivision 83A-C applies, the statutory scheme is such that a relatively short period of time for these arrangements will generally be accepted as being up to seven years from the date the contribution is made. The Company is an Australian public company that operates a range of businesses and engages a large number of employees in the ordinary course of carrying on its business. Under its ESS arrangements, the Trustee of the EST will advise the Company the number of shares and the value of the Contribution required in order to satisfy the obligations of the ESS. The Company will make Contributions to the Trustee to enable the Trustee to either subscribe for Shares or acquire them on-market. Application to the facts In regard to Contributions satisfying the nexus of being necessarily incurred in carrying on a business, the Company: • is an Australian tax consolidated group • contributes funds to the Trustee of the EST to acquire Shares, either on-market or via a subscription for new Shares, to reward, motivate, attract and retain employees; and • ensures Shares acquired by the Trustee will be immediately allocated to the relevant employees who will become absolutely entitled to them. Given these facts, it is considered that the Contributions made to the EST by the Company for the purpose of remunerating employees are an outgoing in carrying on a business and will satisfy the nexus of being necessarily incurred in carrying on that business, for the purpose of gaining or producing assessable income. Character of a contribution Where a contribution satisfies either limb of subsection 8-1(1), it may still be capital or of a capital nature. Pursuant to subsection 8-1(2), the contribution will not be deductible to an employer under section 8-1 to the extent to which it is capital or of a capital nature. Whether an outgoing is capital or revenue in nature can generally be determined by reference to the test articulated by Dixon J in Sun Newspapers Ltd and Associated Newspapers Ltd. v. Federal Commissioner of Taxation (1938) 61 CLR 337: There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay... More recently in GP International Pipecoaters Pty Ltd v. Federal Commissioner of Taxation (1990) 170 CLR 124; 21 ATR 1; 90 ATC 4413 the High Court pointed out that the character of expenditure is ordinarily determined by reference to the nature of the asset acquired and that the character of the advantage sought by the making of the expenditure is a critical factor in determining the character of what is paid. A contribution to the trustee of an EST is of capital or of a capital nature, where the contribution secures for an employer an asset or advantage of an enduring or lasting nature that is independent of year to year benefits that the employer derives from a loyal and contented workforce. Where a contribution is, ultimately and in substance, applied by the trustee of an EST to subscribe for equity interests in the employer (for example, shares), the employer has also acquired an asset or advantage of an enduring nature. Other advantages obtained by the Company could, however, include that which flows to it from enlarging its own equity structure when the Trustee of the EST acquires the equity interests in the form of shares in the Company (by subscription, rather than on market). The advantage obtained by the Company is, in effect, a movement of value out of profit or capitalised profit to share capital and therefore a maintenance or enhancement of the capital value of the Company. As this advantage is structural and enduring, it would be of a capital nature. The combined operation of subsections 8-1(1) and 8-1(2) may require apportionment of a loss or outgoing into deductible and non-deductible components, where a single loss or outgoing is incurred for more than one purpose or on items of a differing nature. Where a contribution is made for the purpose of securing for the employer advantages of both a revenue and capital nature, but the advantages of a capital nature are only expected to be very small or trifling by comparison, apportionment may not be required. In this regard, the draft taxation ruling TR 2014/D1 at paragraph 200 states: Where the primary purpose of the employer in making the contribution is to remunerate employees within a relatively short period (as discussed in paragraph 178 of this draft Ruling) of the contribution being made, it is considered that any amount of the contribution attributable to securing a capital structure advantage will only be very small or trifling where the employer: • intends that any direct interest in the employer acquired by the trustee of the ERT (for example shares) will be transferred to employees within that relatively short period, and • does not anticipate that such shares will be on-sold to third parties at that time or shortly thereafter. For these purposes, the Commissioner considers that a relatively short period of time is up to 5 years, increased to 7 years where the benefit in question relates to an ESS (paragraph 178 of TR 2014/Dl). In the present circumstances, the Trustee will advise the Company the number of shares and the value of the Contribution required in order to satisfy the obligations of the ESS. The Company will make Contributions to the Trustee to acquire Shares and hold them subject to vesting conditions. All shares acquired are held by the EST but will be allocated, on satisfying any vesting conditions under the ESS, to the respective account of the participants. The non-refundable Contributions made by the Company to the Trustee for the purpose of procuring shares to satisfy the Company's commitments arising under the ESS are primarily outgoings incurred by the Company in the ordinary course of carrying on its business. Therefore, such Contributions are not considered capital in nature, or any capital component is sufficiently small or trifling such that the Commissioner would not seek to apportion the deduction. Where the primary purpose of the employer in making the contribution is to remunerate employees within a relatively short period of the contribution being made, it is considered that any amount of the contribution attributable to securing a capital structure advantage will only be very small or trifling where it is intended that: • any direct interest in the employer acquired by the trustee of the EST (for example shares) will be transferred to employees within that relatively short period, and • such shares will not be on-sold to third parties at that time or shortly thereafter. Application to the facts Under the Company's ESS we consider the capital structure advantage will only be very small or trifling as: • the operation of the EST and the Plan Rules of the schemes are such that Shares allocated to each employee will generally be transferred into the name of the relevant employee subject to any sale restriction that applies to such Shares • Shares acquired by the Trustee on behalf of employees will be immediately allocated to employees who will become absolutely entitled to them at that point in time • Shares are subject to vesting periods and EPS performance • the Company's ESS provides employee equity incentive plans to further align the interests of staff and shareholders, by employees earning significant rewards from the acquisition of equity in the company. Therefore, apportionment for the capital structure advantage will not be required. Conclusion In sum, the Contributions the Company makes to the EST, to acquire Shares, whether by on-market purchase or subscription, are allowable deductions under section 8-1. | Summary: A deduction for a contribution under section 8-1 will generally be allowable in the income year in which the Company incurred the outgoing, the timing of which is pursuant to Section 83A-210. | Detailed Reasoning - Detailed reasoning: The provision of money to the trustee of an EST by an employer for the purpose of remunerating its employees under an ESS is an outgoing in carrying on the employer's business and is deductible under section 8-1. The deduction under section 8-1 would generally be allowable in the income year in which the employer incurred the outgoing, but under certain circumstances, the timing of the deduction is specifically determined under section 83A-210. Section 83A-210 provides that if: (a) at a particular time, you provide another entity with money or other property: (i) under an arrangement; and (ii) for the purpose of enabling an individual (the ultimate beneficiary) to acquire, directly or indirectly, an ESS interest under an employee share scheme in relation to the ultimate beneficiary's employment (including past or prospective employment); and (b) that particular time occurs before the time (the acquisition time) the ultimate beneficiary acquires the ESS interest; then, for the purpose of determining the income year (if any) in which you can deduct an amount in respect of the provision of the money or other property, you are taken to have provided the money or other property at the acquisition time. Section 83A-210 will only apply if there is a relevant connection between the money provided to the trustee and the acquisition of ESS interests (directly or indirectly) by the employee under an ESS in relation to the employee's employment. The Company's ESS, described in this ruling, has facts comparable to those set out in ATO Interpretative Decision ATO ID 2010/103 Employee share scheme: timing of deduction for money provided to the trustee of an employee share trust (ATO ID 2010/103) which considers the timing of deductions allowable to an employer in respect of money provided to the trustee of an EST. An ESS interest in a company is defined in subsection 83A-10(1) as either a beneficial interest in a share in the company or a beneficial interest in a right to acquire a beneficial interest in a share in the company. The granting of ESS interests, the provision of the money to the trustee under the arrangement, the acquisition and holding of the shares by the trustee and the allocation of shares to the participating employees are all interrelated components of the ESS. All the components of the scheme must be carried out so that the scheme can operate as intended. As one of those components, the provision of money to the trustee necessarily allows the scheme to proceed. Consequently, the provision of money by the Company to the EST is considered to be for the purpose of enabling the participating employees, indirectly as part of the ESS, to acquire the ESS interests. A deduction for the purchase of Shares to satisfy the obligation arising from the grant of ESS interests is therefore allowable to the Company in the year in which the money was paid to the Trustee (and the ESS interests were satisfied), under section 8-1. However, in circumstances where an amount of money is used by the trustee to purchase excess shares, or where the money is held in the EST, and intended to meet obligations arising from a future grant of ESS interests, the payment occurs before the employees acquire the relevant ESS interests. In such circumstances, section 83A-210 will apply and the excess payment will only be deductible in the year of income when the relevant ESS interests are subsequently granted and the expenditure is incurred. | Summary: As discussed in Question 2a, section 83A-210 will only apply if there is an arrangement under which there is a relevant connection between the irretrievable cash contributions provided to the Trustee and the acquisition of ESS interests (directly or indirectly) by an employee under an employee share scheme in relation to the employees employment and the contributions are made before the acquisition of the ESS interests. Accordingly, section 83A-210 will not apply where the Company makes irretrievable contributions to the EST to fund the acquisition of Shares to satisfy Share Rights, where the contribution is made after the acquisition of the relevant Share Rights. In such a situation, the irretrievable contributions by the Company to the EST will be deductible under section 8-1 in the income year in which the irretrievable contributions are made where ESS interests are ultimately satisfied. | Summary: There is nothing in this arrangement to suggest a dominant purpose of seeking to obtain a tax benefit in relation to a scheme. Accordingly, the Commissioner will not make a determination that Part IVA of the ITAA 1936 applies to deny, in part or in full, any deduction claimed by the Company in relation to the irretrievable contributions made to the EST as part of the ESS. | Detailed Reasoning - Detailed reasoning: Part IVA of the ITAA 1936 contains a number of anti-avoidance provisions which give the Commissioner discretion to cancel a tax benefit, however before the Commissioner can exercise the discretion under subsection 177F(1) of the ITAA 1936, three requirements must be met, as follows: • there is a scheme • a tax benefit was obtained or would be obtained in connection with it; and • the scheme is one to which Part IVA applies. As stated previously, the facts described in ATO ID 2010/103 are comparable to the facts relating to the Company's ESS, namely that an employer has established an ESS which complies with the provisions of Division 83A. The Company's ESS was established to provide equity incentives to its staff and to further align the interests of its staff and shareholders. Also, the structure of the ESS, including the use of an EST, has a range of commercial benefits for the Company. The characteristics of the ESS, as described in this Ruling, establish that the substance of the ESS is the provision of remuneration, in the form of shares, to employees. There is nothing in this arrangement to suggest a dominant purpose of seeking to obtain a tax benefit in relation to a scheme. Accordingly, the Commissioner will not make a determination that Part IVA of the ITAA 1936 applies to deny, in part or in full, any deduction claimed by the Company, in relation to the contributions made to the EST as part of the ESS. | Summary: The benefits provided to the Trustee by way of Contributions to the EST, and to eligible employees by way of the provision of Share Rights and Shares under the Plans are excluded from the definition of a fringe benefit. | Detailed Reasoning - Detailed reasoning: ATO Practice Statement Law Administration, Application of General Anti-Avoidance Rules (PS LA 2005/24), has been written to assist those who are contemplating the application of Part IVA or other general anti-avoidance rules to an arrangement, including in a private ruling. It succinctly explains how section 67 of the FBTAA operates. Most notably, paragraphs 145-148 provide as follows: 145. Section 67 is the general anti-avoidance provision in the FBTAA. The operation of section 67 is comparable to Part IVA, in that the section requires the identification of an arrangement and a tax benefit, includes a sole or dominant purpose test and is activated by the making of a determination by the Commissioner. The definition of 'arrangement' in subsection 136(1) of the FBTAA is virtually identical to the definition of 'scheme' in section 177A of Part IVA. 146. Subsection 67(1) of the FBTAA is satisfied where a person or one of the persons who entered into or carried out an arrangement or part of an arrangement under which a benefit is or was provided to a person, did so for the sole or dominant purpose of enabling an eligible employer or the eligible employer and another employer(s) to obtain a tax benefit. 147. An objective review of the transaction and the surrounding circumstances should be undertaken in determining a person's sole or dominant purpose in carrying out the arrangement or part of the arrangement. Section 67 differs from paragraph 177D(b) in Part IVA in that it does not explicitly list the factors that should be taken into account in determining a person's sole or dominant purpose. 148. Subsection 67(2) of the FBTAA provides that a tax benefit arises in respect of a year of tax in connection with an arrangement if under the arrangement: (i) a benefit is provided to a person; (ii) an amount is not included in the aggregate fringe benefits amount of the employer; and (iii) that amount would have been included or could reasonably be expected to have been included in the aggregate fringe benefits amount, if the arrangement had not been entered into. It is clear, therefore, that the Commissioner would only seek to make a determination under section 67 of the FBTAA if the arrangement resulted in the payment of less FBT than would be payable but for entering into the arrangement. The point is made effectively in Miscellaneous Taxation Ruling MT 2021 (MT 2021) under the heading "Appendix, Question 18" where, on the application of section 67, the Commissioner states: As mentioned in the explanatory memorandum to the FBT law, section 67 may only apply where there is an arrangement under which a benefit is provided to a person and the fringe benefits taxable amount in respect of that benefit is either nil or less than it would have been but for the arrangement... Further, paragraph 151 of Practice Statement 2005/24 provides: 151. The approach outlined in this practice statement (refer to paragraphs 69 to 113) to the counterfactual and the sole or dominant purpose test in Part IVA is relevant and should be taken into account by Tax officers who are considering the application of section 67 of the FBTAA. In the present case the benefits provided to the Trustee by way of Contributions to the EST, and to eligible employees by way of the provision of Share Rights and Shares under the Company's ESS are excluded from the definition of a fringe benefit. Therefore, as these benefits have been excluded from the definition of a fringe benefit, the FBT liability is not any less than it would have been but for the arrangement. Accordingly, the Commissioner will not make a determination that section 67 of the FBTAA applies to include an amount in the aggregate fringe benefits amount of the Company in relation to a tax benefit obtained under the ESS from Contributions made by the Company to the EST, to fund the acquisition of Shares in accordance with the Trust Deed. | Summary: The Contributions made by the Company to the Trustee of the EST, to fund the subscription for or acquisition on-market of Shares will not be treated as a fringe benefit within the meaning of subsection 136(1) of the FBTAA. | Detailed Reasoning - Detailed reasoning: Issue of share rights and allotment of shares An employer's liability to FBT arises under section 66 of the FBTAA which provides that tax is imposed in respect of the fringe benefits taxable amount of an employer for the relevant year of tax. The fringe benefits taxable amount is calculated under the FBTAA by reference to the taxable value of each fringe benefit provided. In general terms, 'fringe benefit' is defined in subsection 136(1) of the FBTAA as being a benefit provided to an employee or an associate of an employee by the employer or an associate of the employer in respect of the employment of the employee. However, certain benefits are excluded from being a fringe benefit by virtue of paragraphs (f) to (s) of the 'fringe benefit' definition. Paragraph (h) of the definition of a fringe benefit contained in subsection 136(1) specifically excludes from the definition of a fringe benefit: A benefit constituted by the acquisition of an ESS interest under an employee share scheme (within the meaning of the Income Tax Assessment Act 1997) to which subdivision 83A-B or 83A-C of that Act applies. The Share or Share Rights granted under the Plans are ESS interests, within the meaning of subsection 83A-10(1), acquired under an ESS, as defined in subsection 83A-10(2). Therefore, the provision of Shares or Share Rights under the Plans will not be fringe benefits within the meaning of section 136(1) of the FBTAA. Contribution to the Trustee Paragraph (ha) of the definition of a fringe benefit in subsection 136(1) of the FBTAA states that a fringe benefit does not include: a benefit constituted by the acquisition of money or property by an employee share trust (within the meaning of the Income Tax Assessment Act 1997). An 'employee share trust' is defined in subsection 995-1(1) as having the meaning given by subsection 130-85(4). Subsection 130-85(4) provides that an employee share trust for an 'employee share scheme' (having the meaning given by subsection 83A-10(2)) is a trust whose sole activities are: (a) obtaining shares or rights in a company; and (b) ensuring that ESS interests in the company that are beneficial interests in those shares or rights are provided under the employee share scheme to employees, or to associates of employees, of: (i) the company; or (ii) a subsidiary of the company; and (a) other activities that are merely incidental to the activities mentioned in paragraphs (a) and (b). The terms 'ESS interest' and 'employee share scheme' as defined in section 83A-10 were considered in the answer to question 1 and it is accepted the Company's ESS will be an ESS under which the ESS interests (being rights or restricted shares) are provided to employees, or associates of employees of the group. The Company has established the EST and under the Trust Deed, the EST's sole purpose is to obtain shares for the benefit of Participants, including subscribing for or acquiring, allocating, holding, and delivering Shares under the ESS. There are some incidental activities undertaken by the Trustee to manage and administer the EST. Therefore, the EST satisfies the definition of an employee share trust, as defined in subsection 130-85(4). As such, paragraph (ha) of the definition of fringe benefit in subsection 136(1) of the FBTAA excludes the contributions to the Trustee of the EST from being a fringe benefit. Accordingly, the irretrievable cash contributions the Company makes to the Trustee, to fund the subscription for, or on-market acquisition of Shares in accordance with the Trust Deed are not a fringe benefit under subsection 136(1) of the FBTAA.

Are the Contributions made by the Company to the Trustee deductible under section 8-1 of the ITAA 1997 at the time determined by section 83A-210 of the ITAA 1997, if the Contributions are made before the relevant employee share scheme (ESS) interests are acquired? | Question 2b: Are the Contributions made by the Company to the Trustee deductible under section 8-1 of the ITAA 1997 in the income year the Contributions are made, if the Contributions are made after the relevant ESS interests are acquired?