Private ruling: Approved forms
Published: September 2018

Ruling: Q1: Does the Group’s tax sharing agreement (TSA), together with the contemporaneous email, containing signed copies of the TSA, meet the approved form requirements of section 388-50 of Schedule 1 to the Taxation Administration Act 1953 (TAA)? | A1: Yes.


Relevant legislative provisions: Tax Administration Act 1953 Section 388-50 of Schedule 1

Reasons for decision: Summary: Law Administration Practice Statement PS LA 2013/5: collection of consolidated group liabilities (PS LA 2013/5) provides guidance on when a TSA will be in the approved form. Paragraph 84 of PS LA 2013/5 recognises that ‘the TSA is primarily an agreement between the head company and subsidiary members of the group’ and as such lists the minimum requirements for a TSA to be produced in the approved form. Relevantly, the TSA must show the date of execution (paragraph 85 of PS LA 2013/5). With regard to a missing date on a TSA, the Commissioner can infer from incidental evidence provided in the private ruling application that the TSA was executed on XX December XXXX. Application to the facts A TSA signed by the Group to cover the subsidiaries’ contribution amounts, is not dated. The Group has provided relevant documents to infer the date of execution. Based on the information provided, it can be inferred that that TSA was executed on X December XXXX.

Relevant facts and circumstance: A tax consolidated group, the Group, is an Australian tax resident. | The Group is divesting certain subsidiaries within its group and as a result is engaging with potential buyers and their advisors who are conducting due diligence. | As part of the due diligence process, it has been ascertained that a TSA signed by the Group to cover the subsidiaries’ contribution amounts, is not dated. | The Group requested the Commissioner to confirm that the TSA meets the ‘approved form’ requirement that it shows the date of execution as per section 388-50 of Schedule 1 to the TAA. | The Group provided details and copies of documents to support the claimed date of execution of its TSA.