Private ruling: Employee share scheme
Published: June 2020

Ruling: Q1: Is Company A, entitled to deduct an amount under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for the irretrievable cash contributions made to the Trustee for the Company A Employee Award Plan Trust (the Trust) to fund the subscription for, or acquisition on-market of, ordinary shares in Company A (Shares) to satisfy employee share scheme (ESS) interests issued pursuant to the Company A Award Plan (the Plan) to Eligible Participants? | A1: Yes | Q2: 2a . Will the irretrievable cash contributions made by Company A, to the Trustee of the Trust, to fund the subscription for, or acquisition on-market of, Shares by the Trust to satisfy ESS interests issued pursuant to the Plan, deductible to Company A 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 acquisition of the relevant ESS interests? | A3: Yes | Q3: Will the Commissioner seek to make a determination under subsection 177F(1) of the Income Tax Assessment Act 1936 (ITAA 1936), as a result of section 177D of the ITAA 1936, to deny, in part or in full, a deduction claimed by Company A for the irretrievable cash contributions made to the Trustee to fund the subscription for, or acquisition on-market of Shares by the Trustee, pursuant to the Plan? | A4: No | Q4: Will the provision of Rights and Options to employees of Company A under the Plan constitute a fringe benefit within the meaning of subsection 136(1) of the Fringe Benefit Tax Assessment Act 1986 (FBTAA)? | A5: No | Q5: Will the irretrievable cash contributions made by Company A, to the Trustee of the Trust, to fund the subscription for, or acquisition on-market of, Shares pursuant to the Plan, constitute a fringe benefit within the meaning of subsection 136(1) of the FBTAA ? | A6: No | Q6: Will the Commissioner seek to make a determination that section 67 of the FBTAA applies to increase the fringe benefits taxable amount to Company A, by the amount of tax benefit gained from the irretrievable contributions made by Company A to the Trustee to fund the subscription for, or acquisition on-market of, Shares by the Trustee? | A7: No The rulings for questions 1 to 3 applies for the following periods: Income tax year ended 30 June 2019 Income tax year ended 30 June 2020 Income tax year ended 30 June 2021 Income tax year ended 30 June 2022 Income tax year ended 30 June 2023 The rulings for questions 4 to 6 applies for the following periods: Fringe benefits tax year ended 31 March 2019 Fringe benefits tax year ended 31 March 2020 Fringe benefits tax year ended 31 March 2021 Fringe benefits tax year ended 31 March 2022 Fringe benefits tax year ended 31 March 2023

Relevant facts and circumstances: As part of Company A's strategy to motivate and retain key employees, they established an incentive plan, which recognises their ongoing contribution to the achievement of Company A. The Plan was established and approved by Shareholders at the Annual General Meeting. The Plan allows Company A to grant Performance Rights and Options (referred collectively to as Awards) to Eligible Participants (Participant) to acquire shares subject to the achievement of vesting conditions. To assist with the effectiveness, structure and administration of the Plan, an employee share trust (EST) was established. The Trust Deed allows the Trustee to acquire, hold, and allocate Shares to Participants in employee share plans operated by Company A. Shares are not allocated to Participants under the EST and no interest in the shares will arise until the relevant vesting conditions are met and the equity interest has been exercised. The Trust Deed was executed between Company A and the Trustee and has subsequently been amended. Award Plan Rules The purpose of the Plan is to assist in the reward, retention and motivation of Participants, and align the interests of Participants with shareholders of the Group by providing an opportunity to receive an equity interest in Company A in the form of Awards. Eligibility, Invitation, Application and Grant of Awards In accordance with the Plan, the Board may determine that an Eligible Participant may participate in the Plan. Following the determination, the Board may make an Invitation to participate. An Invitation to apply for Awards will be made on such terms and conditions as the Board decides and may include the following: · whether the Awards are Performance Rights or Options, and the number of Awards for which that Eligible Participant may apply · the Grant Date · the Option Exercise Price (if any) · the Vesting Conditions (if any) · whether cashless exercise of the Options is permitted · the disposal restrictions attaching to the Plan Shares (if any), and · any other supplementary terms and conditions. On receipt of an Invitation, a Participant may apply for the Awards by sending the completed Application Form to Company A by the time and date specified in the Invitation, unless otherwise determined by the Board. Company A may not grant an Award to a Participant unless it has received a signed and completed Application Form together with all applicable Ancillary Documentation from that Participant. The Application Form and, where applicable, the Ancillary Documentation must be in the form included with the Invitation and may not be made on the basis that it is subject to any terms and conditions other than those specified in the Invitation. Following receipt of a completed and signed Application Form, Company A will grant the Participant the relevant number of Awards, subject to the terms and conditions set out in the Invitation, the Plan rules and the Ancillary Documentation. Vesting and Exercise of Awards The Plan states that the an Award that is granted subject to Vesting Conditions vests when both the Vesting Conditions applicable to that Award have been determined by the Board to be satisfied, and Company A has issued a Vesting Notice to the Participant informing them that the Award has vested. Clause 7 of the Plan states an Award may only be exercised in accordance with the relevant Participant's Invitation and the Plan Rules. If the relevant Participant's Invitation provides for the deemed exercise of the Award, no further action is required from the Participant upon vesting of an Award in order to exercise that Award. If the relevant Participant's Invitation provides for the manual exercise of the Award, to exercise that Award, at any time prior to the Expiry Date for that Award, a Participant must: · deliver a duly executed Notice of Exercise and Certificate for that Award, and · if an Option Exercise Price is payable, either: pay the Option Exercise Price, or where permitted in the Participant's Invitation, confirm that the Participant will use the Cashless Exercise Facility. If the Participant does not deliver a duly executed Notice of Exercise and, where applicable, pay the Option Exercise Price (if any) to or as directed by Company A in relation to an Award by the relevant date set out in the Participant's Invitation or Vesting Notice, that Award will automatically be forfeited. Delivery of Shares on exercise of Awards As soon as practicable after the valid exercise of an Award by a Participant, Company A must issue or cause to be transferred to that Participant the number of Shares to which the Participant is entitled through the exercise of that Award. Forfeiture of Awards. An award can generally be forfeited when: · awards held by a Good Leaver other than those the subject of the Award Retention Notice will be forfeited immediately on the date of the Award Retention Notice · unvested Awards held by a Participant will be forfeited on the date determined by the Board where that Participant becomes a Bad Leaver · when Vesting conditions have not or cannot be met by the relevant date · when the Board determines that a Participant has acted fraudulently, dishonestly or in breach of their duties · an Insolvent Participant, and · an Award which has not yet vested or been exercised will be automatically forfeited on the Expiry Date of the Award or by other circumstances set out in the Invitation Letter. When an Award has been forfeited in accordance with the Plan Rules, the Award will automatically lapse. Change of Control Event If a Change of Control Event occurs, the Board may in its absolute discretion determine the manner in which any or all of the Participant's Awards (whether vested or unvested) will be dealt with. Disposal Restrictions applicable to Plan Shares Where the Invitation provides, Plan Shares are subject to restrictions as to the disposal or dealing by a Participant for the period. The Board may implement procedures it deems appropriate to ensure compliance with the restrictions, including imposing an ASX Holding Lock or use an EST to hold Plan Shares during the relevant restriction period. Where a Plan Share is subject to disposal restrictions under the Plan, Participants must not transfer, encumber or otherwise dispose of the Plan Share. Subject to the Share Trading Policy, upon expiry of disposal restrictions over a Plan Share, Company A will take all necessary action to ensure Participants can deal with their Plan Shares. The imposition of a disposal restriction on a Plan Share held by a Participant will not affect the Participant's entitlement to receive a notice of, vote or attend a meeting of the members of Company A, and to receive any dividends declared during the relevant disposal restriction period on that Plan Share in accordance with the rights attaching to the Plan Shares. Administration of the Plan The Plan is administered by the Board. Any power or discretion of the Board will be exercised in its sole and absolute discretion. Trust The Board may use an EST for the purposes of holding Shares and Plan Shares and the Board may do all things necessary for the establishment, administration, operation and funding of an EST. Trust The Board may use an EST for the purposes of holding Shares and Plan Shares and the Board may do all things necessary for the establishment, administration, operation and funding of an EST. Employee Award Plan Trust Company A established the Trust for the purpose of subscribing for, acquiring, allocating, holding and delivering Shares under the Plan for the benefit of Employees. The Trust is an independent legal entity and does not form part of Company A's income tax consolidated group. Company A cannot be a beneficiary of the Trust. Rights of the Company Nothing in the Deed confers on any Group Company any charge, lien or other proprietary right or beneficial interest in Shares acquired by the Trustee. Acquisition of Plan Shares The Trust Deed states the Board, by written notice, may direct the Trustee to purchase Shares on the Australian Stock Exchange, subscribe for a number of Shares or otherwise acquire a number of Shares to be held by the Trustee for the purposes of the Plan on the terms and conditions set out in the Deed. The notice may specify the time at which the Trustee must acquire the Shares, offer the Trustee to have Company A provide funds for the Shares, and or request the Trust to apply any surplus capital of the Trust for the purpose of acquiring or subscribing for Shares. Company A must provide the Trustee any funds required by the Trustee in order to comply with its obligations. The Trust Deed states that all funds received by the Trustee for the purposes of the Plan shall be irretrievable contributions to the Trust. Unallocated Plan Shares The Trustee holds the Trust Fund on trust for all Beneficiaries on the terms and conditions set out in the Deed. The Trustee must not exercise voting rights attaching to Unallocated Plan Shares, may apply any dividends or other amounts to acquire further Shares to be held on Trust for the purpose of the Trust. Allocated Plan Shares The Board may, by notice in writing, direct the Trustee to allocate Plan Shares held by the Trustee to a named Participant who has exercised, or who has been deemed to have exercised an Award in accordance with the Rules. The notice must state the name and address of the Participant and specify the number of Plan Shares to be held for the benefit of the Participant. The Trustee must allocate for the benefit of a named Participant the number of Plan Shares as specified in the Allocation Notice given by the Board. Subject to the applicable Terms of Issue, each Allocated Participant is absolutely entitled to the Allocated Plan Shares held by the Trustee for the benefit of that Allocated Participant; and all property and any other rights and entitlements related to, or arising from, Allocated Plan Shares held by the Trustee for the benefit of that Allocated Participant. Income and Capital Distributions An Allocated Participant shall be presently entitled to the Net Income of the Trust for a Year of Income which is attributable to the Allocated Plan Shares held by the Trustee for the benefit of that Allocated Participant, and transactions or events related to Allocated Plan Shares and, or property · the amount paid is equal to or less than the amount of dividends paid to the Trustee in relation to the number of Plan Shares being received by the Participant, during the accumulation period; and · the payment is made by the Trustee to the Participant at or around the time, and because, the Participant's Options or Performance Rights are exercised under a Plan and/or Shares are transferred to the Participant as required by the Plan. related to, or arising from, Allocated Plan Shares held by the Trustee for the benefit of that Allocated Participant. The balance of the Net Income of the Trust for a Year of Income to which no Beneficiary is, or is made, presently entitled in accordance with clause Error! Reference source not found. shall be accumulated by the Trustee as an accretion to the Trust Fund. The Trustee may, prior to the termination of the Trust apply that part of the capital of the Trust to which no Allocated Participant would be entitled if the Trust was terminated at that time to: · acquire additional Plan Shares · pay any necessary and incidental costs of administering the Trust · pay interest on any loans provided to the Trust for the acquisition of Plan Shares or rights in the Company, where the interest payable does not exceed arm's length commercial rates, and · pay any dividend equivalent amounts payable to a Participant under a Plan where: Termination of the Trust The Trust will terminate and be wound up as provided by law or upon the first to occur of an order being made or a resolution being passed for the winding up of Company A, the Board determining that the Trust is to be wound up; or the 80th anniversary of the date of the Deed. If the Trust is terminated, the Trustee must transfer to each Allocated Participant the Allocated Plan Shares then by the Trustee for the benefit of that Allocated Participant. The balance of the capital or income of the Trust to which no Participant is entitled will be applied first in meeting any expenses and the costs and liabilities of winding up the Trust and thereafter applied by the Trustee for the benefit of any one or more of the following beneficiaries as the Trustee thinks fit: (c) the trustee of an employee share trust (as that term is defined in section 130-85(4) of the Tax Act) established and maintained to provide benefits to Participants under a Plan; or if none (d) a charitable organisation nominated by the Trustee (clause 8.3 of the Trust Deed). Trustee The Trustee has, for the sole purpose of exercising its powers and discharging its obligations under this Deed and the Plan (and for no other purpose), all the powers to do all things a trustee is permitted to do by law in respect of the Trust and the Trust Fund. This includes entering into and executing all contracts, deeds, documents and to subscribe for, purchase or otherwise acquire and to sell or dispose of Shares or other property. To do all acts and things which the Trustee considers necessary for the administration, maintenance and preservation of the Trust, in the performance of its obligations under the Deed. The Trustee must not mortgage, charge, pledge or otherwise encumber Plan Shares. Company A shall pay the Trustee from its own resources any remuneration or fee as Company A and the Trustee may agree from time to time in writing, and any reasonable expenses incurred by the Trustee in giving effect to its duties under the Deed. The Trustee is entitled to retain for its own benefit any such remuneration or reimbursement referred to. No remuneration or reimbursement shall be considered to be an irretrievable contribution to the Trust. Reasons for the establishment and use of the Trust · A company is unable to hold its own shares under Australian corporation law. The Trust is a vehicle which enables Company A to effectively acquire and hold its own Shares for the purpose of the Plan · The Trust facilitates the acquisition of Shares either on market or by the new issue of Shares by Company A · The Trust provides an arm's length vehicle for acquiring and holding Shares in Company A, either by way of a new issue or acquiring on-market, i.e. providing flexibility relating to capital management · Contributing to the Trust to acquire Shares before Awards vest, may enable Company A to hedge against a potential increase in costs to satisfy Awards due to share price growth, as well as the potential for insufficient Shares being available on-market immediately prior to vesting · The Trust is an efficient structure for giving effect to vesting conditions and governance of the Plan. As the Trustee is the legal owner of the Shares when the Shares are held in the Trust, Participants have no ability to deal in the Shares · The Trust provides the flexibility to acquire and hold Shares that will be allocated to Participants under the Plan. When any vesting conditions are not met, Awards are forfeited, and the Trust enables Shares held for such forfeited Awards to be 'recycled' to satisfy other Awards · Company A requires flexibility to use either newly issued Shares and / or Shares acquired on-market to satisfy Awards, and · The Trust establishes independent records and accounts for Participants.


Reasons for decision: Detailed Reasoning - Detailed reasoning: For present purposes, subsection 8-1(1) will allow you to deduct from your assessable income any loss or outgoing to the extent that it is necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income. However, pursuant to subsection 8-1(2), you cannot deduct a loss or outgoing to the extent that it is a loss or outgoing of capital, or of a capital nature. Company A carries on a business which produces assessable income. Company A operates an ESS as part of its remuneration strategy. Under the Plan, Company A grants Rights and Options (Awards) to employees (Participants) and makes irretrievable cash contributions to the Trust (in accordance with the Plan and the Trust Deed) which the Trustee will use to acquire Shares (either on-market or by subscription) for allocation to Participants. Incurred in carrying on a business Company A must provide the Trustee with all the funds required to enable the Trustee to subscribe for or acquire those Company A Shares. The contributions made by Company A are irretrievable and non-refundable to Company A in accordance with the Trust Deed as: · On termination of the Trust, Company A and any member of the Group do not have any entitlement to any part of the Trust Fund including any Shares that form part of the Trust Fund, at any time, and · Company A may not acquire any interest in the Capital (or corpus) or be entitled to any Income of the Trust Fund. Company A has granted (and will in the future grant) Awards under the Plan as part of its remuneration and reward program for Participants. The costs incurred by Company A for the acquisition of Shares to satisfy Awards arise as part of these remuneration arrangements, and contributions to the Trust are part of an on-going series of payments in the nature of remuneration of its employees. Not capital or of a capital nature The costs will be an outgoing incurred for periodic funding of a bona fide ESS for employees of Company A and the Group. Costs incurred are likely to be in relation to more than one grant of Awards (rather than being one-off), and Company A intends to continue satisfying outstanding Awards using shares acquired by the Trust. This indicates that the irretrievable contributions to the Trust are ongoing in nature and are part of the broader remuneration expenditure of Company A. While the contributions may secure an enduring or lasting benefit for the employer that is independent of the year to year benefits that the employer derives from a loyal and contented workforce, that enduring benefit is considered to be sufficiently small. Therefore, the payments are not capital, or of a capital nature. | Detailed Reasoning - Detailed reasoning: Section 83A-210 applies to determine the timing of the deduction, but only in respect of the contribution provided to the Trust to purchase Shares in excess of the number required to grant the relevant Awards to the employees arising in the year of income from the grant of options, under an employee share scheme. Further information is available in ATO Interpretative Decision ATO ID 2010/103 Income Tax- Employee share scheme: timing of deduction for money provided to the trustee of an employee share trust . The Plan is an ESS for the purposes of subsection 83A-10(2) as it is a scheme under which ESS interests (i.e. a beneficial interest in a share or a beneficial interest in a right to acquire a beneficial interest in a share) are provided to employees (i.e., Participants) in relation to their employment with Company A. The Plan contains a number of interrelated components which includes the provision of irretrievable cash contributions by Company A to the Trustee of the Trust. These contributions enable the Trustee to acquire Company A Shares for the purpose of enabling each Participant, indirectly as part of the Plan, to acquire ESS interests. The deduction for the irretrievable cash contribution can only be deducted from the assessable income of Company A in the income year when the relevant beneficial interest in a share in Company A, or beneficial interest in an Award to a beneficial interest in a Share in Company A, is acquired by a Participant under the Plan. | Detailed Reasoning - Detailed reasoning: Consistent with the analysis in question 2a (above), where the contribution is made after the acquisition of the relevant ESS interests, irretrievable contributions made by Company A to the Trustee of the Trust to fund the subscription for or acquisition on-market of shares by the Trust to satisfy the ESS interests granted to Participants will be deductible in the income year in which the contribution is made by Company A. | Detailed Reasoning - Detailed reasoning: Part IVA is a general anti-avoidance provision, it gives the Commissioner the power to cancel a 'tax benefit' that has been obtained, or would, but for section 177F, be obtained, by a taxpayer in connection with a scheme to which Part IVA applies. The Commissioner generally accepts that a general deduction may be available where an employer provides money or other property to an employee share trust where the conditions of Division 83A are met. In this case, the scheme does not contain the elements of artificiality or unnecessary complexity and the commercial drivers sufficiently explain the entry into the use of the employee share trust arrangement. Therefore, having regard to the eight factors set out in subsection 177D(2), the Commissioner has concluded that the scheme is not being entered into or carried out for the dominant purpose of enabling Company A to obtain a tax benefit. | Detailed Reasoning - Detailed reasoning: An employer's liability to fringe benefits tax (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. In general terms, a '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 '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. In particular, paragraph (h) of subsection 136(1) of the FBTAA excludes the following from being a 'fringe benefit': (h) 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 Commissioner accepts that the Plan is an ESS, the options and rights for the Company A Shares provided under the Plan are ESS interests and that Subdivision 83A-B or 83A-C applies to those ESS interests. Accordingly, the provision of Awards for Company A shares under the Plan will not be subject to FBT on the basis that they are acquired by Participants under an ESS (to which Subdivision 83A-B or 83A-C will apply) and are thereby excluded from being a fringe benefit by virtue of paragraph (h) of the definition of fringe benefit in subsection 136(1) of the FBTAA. In addition, when an Award is later exercised, it will not give rise to a fringe benefit as any benefit received would be in respect of the exercise of the Award and not in respect of employment (refer ATO Interpretative Decision ATO ID 2010/219 Fringe Benefits Tax Fringe benefit: shares provided to employees upon exercise of rights granted under an employee share scheme ). | Detailed Reasoning - Detailed reasoning: One benefit excluded from being a 'fringe benefit', pursuant to paragraph (ha) of subsection 136(1) of the FBTAA, is 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. In examining whether the requirements of subsection 130-85(4) are met, it is the activities of the trustee in relation to a particular trust that is relevant. To qualify as an employee share trust, a trustee's activities must be limited to those described in paragraphs 130-85(4)(a), (b) and (c). Paragraph 130-85(4)(a) and (b) are satisfied because: · The Trust acquires shares in a company, namely Company A, and · The Trust ensures that ESS interests as defined in subsection 83A-10(1) are provided under an employee share scheme (as defined in subsection 83A-10(2)) by allocating those Shares to the employees in accordance with the Trust Deed and the Plan. Paragraph 130-85(4)(c) provides that a trustee can engage in activities that are merely incidental to those described in paragraphs 130-85(4)(a) and (b). The phrase 'merely incidental' takes its ordinary meaning, with further guidance drawn from the context and purpose of the legislation in which it appears. 'Merely incidental' is not defined in the legislation and has not been judicially considered in the context of subsection 130-85(4). The Macquarie Dictionary defines 'merely' to mean 'only as specified, and nothing more'. 'Incidental' is defined as 'happening or likely to happen in fortuitous or subordinate conjunction with something else'. The Commissioner's views on the types of activities that are merely incidental and not merely incidental are set out in Taxation Determination TD 2019/13: Income tax: what is an 'employee share trust'? Activities that result in employees being provided with additional benefits (such as the provision of financial assistance, including a loan to acquire the shares) are not considered to be merely incidental. In the present case, the objects of the Trust are for the sole purpose of undertaking activities that are in line with the definition of an employee share trust under section 130-85(4) (clause 2.4 of the Trust Deed) including paragraph 130-85(4)(c) as the other activities undertaken by the Trustee are merely incidental to managing the Plan. Therefore, the irretrievable cash contributions made by Company A to fund the subscription for or acquisition on-market of Company A shares by the Trust will not be a fringe benefit. | Detailed Reasoning - Detailed reasoning: Section 67 of the FBTAA is a general anti-avoidance provision in the FBTAA. 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, to obtain a tax benefit. The Commissioner would only seek to make a determination under section 67 of the FBTAA if the arrangement resulted in the payment of less fringe benefits tax than would be payable but for entering into the arrangement. The benefits provided to the Trustee by the way of irretrievable contributions to the Trust and to Participants as Rights under the Plan (including Company A shares received by Participants on their Vesting) are excluded from the definition of a fringe benefit for the reasons provided in questions 4 and 5 above. 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. The Commissioner will not seek to make a determination that section 67 of the FBTAA applies to increase the aggregate fringe benefits amount of Company A by the amount of the tax benefit gained from the irretrievable cash contributions made by Company A to the Trustee to fund the subscription for, or acquisition on-market of Company A shares.

2b . Will the irretrievable contributions made by Company A, to the Trustee of the Trust, to fund the subscription for, or acquisition on-market of, Shares by the Trust to satisfy ESS interests issued pursuant to the Plan, deductible to Company A under section 8-1 of the ITAA 1997 at the time determined by section 83A-210 of the ITAA 1997 in the income year when the contributions are made, if the contributions are made after the acquisition of the relevant ESS interests? | Reasons for Decision: All legislative references in this Ruling are to provisions of the ITAA 1936, or to provisions of the ITAA 1997, unless otherwise indicated.