Private ruling: Proposed demerger of Entity C by Entity B
Date of advice: 6 July 2017
Published: November 2017
Ruling period: 1 July 2017 to 30 June 2018
Date scheme commenced: 1 July 2017

Ruling: Q1: Will any Capital gain or loss arising from the disposal by Entity B of the shares it holds in its wholly-owned subsidiary Entity C in the proposed demerger arrangement be disregarded under section 125-155 of the Income Tax Assessment Act 1997 (ITAA 1997)? | A1: Yes

Relevant facts and circumstances: The scheme that is the subject of this ruling involves the separation by Entity B of Entity C by way of a demerger. Entity B Entity B is the head company of a consolidated group for tax purposes. Entity B has ordinary and X class shares on issue. The shareholders in Entity B acquired their shares after 20 September 1985 and are Australian residents for taxation purposes. Entity C Entity C is a wholly-owned subsidiary of Entity B. At the time of the proposed demerger, Entity C will have ordinary and X class shares on issue. All of the shares currently on issue in Entity C were acquired after 20 September 1985. The demerger Entity B proposes to undertake a restructure under which 100% of its shareholding in Entity C will be distributed to the Entity B shareholders. Under the proposal, the owners of the ordinary shares in Entity B will receive ordinary shares in Entity C (and nothing else) in the same proportion to their existing shareholding of ordinary shares in Entity B. The owners of X class shares in Entity B will receive X class shares in Entity C (and nothing else) in the same proportion to their existing shareholding of X class shares in Entity B. Reasons for demerger The applicant has advanced a number of reasons for the proposed demerger including facilitating the development of each entities commercial strategy, greater flexibility in financing arrangements and separating two distinct and separate businesses that can operate independently of one another.

Relevant legislative provisions: Income Tax Assessment Act 1997 Division 125 | Income Tax Assessment Act 1997 section 125-155

Reasons for decision: Summary: Any capital gain or capital loss arising from the disposal by Entity B of the shares it holds in Entity C in the proposed demerger arrangement will be disregarded under section 125-155 of the ITAA 1997. | Detailed Reasoning - Detailed reasoning: In order for the demerger CGT outcomes contained in Division 125 of the ITAA 1997 to apply to shareholders and members of a company group, a number of defined terms must be satisfied, including: ● demerger group (subsection 125-65(1) of the ITAA 1997), ● demerger (subsection 125-70(1) of the ITAA 1997), ● demerged entity (paragraph 125-70(6)(a) of the ITAA 1997), and ● demerging entity (paragraph 125-70(7)(a) of the ITAA 1997). | Detailed Reasoning - Demerger Group: A demerger group comprises one head entity and at least one demerger subsidiary (subsection 125-65(1) of the ITAA 1997). The demerger group in this case comprises Entity B as the head entity and includes Entity C as a demerger subsidiary. Entity B will be the head entity because: ● no other member of the Entity B group holds ownership interests in Entity B (subsection 125-65(3) of the ITAA 1997); and ● there will be no other company or trust capable of being a head entity of a demerger group of which Entity B could be a demerger subsidiary (subsection 125-65(4) of the ITAA 1997). Entity C will be a demerger subsidiary of Entity B because Entity B owns ownership interests in Entity C that carry more than 20% of the rights to any distribution of income and capital, and the right to exercise more than 20% of the voting power of Entity C (subsection 125-65(6) of the ITAA 1997). | Detailed Reasoning - Demerger: Subsection 125-70(1) of the ITAA 1997 describes when a demerger happens. A demerger will happen to the Entity B demerger group because: ● there will be a restructuring (paragraph 125-70(1)(a) of the ITAA 1997), and Entity B will dispose of at least 80% of its Entity C shares to the owners of Entity B (subparagraph 125-70(1)(b)(i) of the ITAA 1997); ● under the restructuring, CGT event G1 will happen to Entity B shareholders, and Entity B shareholders will acquire new shares in Entity C and nothing else (subparagraph 125-70(1)(c)(i) of the ITAA 1997); ● CGT event A1 will happen upon the disposal of shares in Entity C. Entity C shares will be acquired by Entity B shareholders on the basis of their ownership of shares in Entity B (paragraph 125-70(1)(d) and subparagraph 125-70(1)(e)(i) of the ITAA 1997); ● paragraph 125-70(1)(f) of the ITAA 1997 repealed; ● neither Entity B nor Entity C are superannuation funds (paragraph125-70(1)(g) of the ITAA 1997); ● Entity B shareholders will acquire Entity C shares in the same proportion as they own Entity B shares just before the demerger (paragraph 125-70(2)(a) of the ITAA 1997); ● each of the Entity B shareholders will own shares in Entity B and Entity C that (just after the demerger) represent the same proportionate total market value as their Entity B shares represented (just before the demerger) (paragraph 125-70(2)(b) of the ITAA 1997); ● under the scheme, there will be no buy-back of shares for the purposes of Division 16K of Part III of the ITAA 1936 (subsection 125-70(4) of the ITAA 1997); and ● there will be no rollover available under another provision for any CGT events that happen to the Entity B shares under the restructure (subsection 125-70(5) of the ITAA 1997). | Detailed Reasoning - Entity C is the demerged entity: Relevantly, subsection 125-70(6) of the ITAA 1997 defines a demerged entity to be a former member of a demerger group in which ownership interests are acquired by shareholders of the head entity under a demerger. In the present circumstances, Entity C is the demerged entity since the Entity B shareholders receive shares in Entity C under a demerger. | Detailed Reasoning - Entity B is the demerging entity: Relevantly, subsection 125-70(7) of the ITAA 1997 defines a demerging entity to be a member of a demerger group who disposes of at least 80% of its total ownership interests in another member of the demerger group to owners of original interests in the head entity under a demerger. In the present circumstances, Entity B is the demerging entity since it disposes of 100% of its shares in Entity C to Entity B shareholders under a demerger. | Detailed Reasoning - Can Entity B disregard the capital gain or capital loss?: Section 125-155 of the ITAA 1997 provides that a demerging entity may ignore capital gains or capital losses arising from certain CGT events (including CGT event A1) happening to its ownership interests in a demerged entity under a demerger. In the present case: ● Entity B is the demerging entity, ● CGT event A1 will happen when Entity B disposes of its shares in Entity C and transfers them to Entity B shareholders (per section 104-10 of the ITAA 1997), and ● this disposal happens under a demerger. Therefore, any capital gain or loss under CGT event A1 made by Entity B on the disposal of its Entity C shares under the demerger will be disregarded (section 125-155 of the ITAA 1997).