Private ruling: Part IVA
Published: December 2012
Ruling period: Year ending 30 June 2013
Date scheme commenced: 1 July 2012

Ruling: Q1: Will Part IVA of the Income Tax Assessment Act 1936 (ITAA 1936) apply to the retirement planning proposal? | A1: No.


Relevant legislative provisions: Income Tax Assessment Act 1936 - section 177A | Income Tax Assessment Act 1936 - section 177C | Income Tax Assessment Act 1936 - section 177D | Income Tax Assessment Act 1936 - section 177F

Reasons for decision: Summary: Part IVA of the ITAA 1936 is a general anti-avoidance provision that can apply in certain circumstances. Part IVA gives the Commissioner the power to cancel a 'tax benefit' (or part of a 'tax benefit') that has been obtained, or would, but for section 177F of the ITAA 1936, be obtained, by a taxpayer in connection with a scheme to which Part IVA applies. In broad terms, Part IVA will apply where the following requirements are satisfied: ● there is a scheme (see section 177A of the ITAA 1936); ● a taxpayer has obtained, or would but for section 177F of the ITAA 1936 obtain, a tax benefit in connection with the scheme (see section 177C of the ITAA 1936); and ● the dominant purpose of a person who entered into or carried out the scheme, or any part of the scheme, was to enable the relevant taxpayer to obtain a tax benefit in connection with the scheme, or to enable the relevant taxpayer and another taxpayer or other taxpayers each to obtain a tax benefit in connection with the scheme (paragraph 177D(b) of the ITAA 1936). The application of Part IVA depends on a careful weighing of all the relevant facts and surrounding circumstances of each case. You contend that an alternative outcome to be considered in this context involves the first stages of the proposal, along with payment of the dividends in the original time frame. After considering the relevant tax benefits obtained and the factors in paragraph 177D(b) of the ITAA 1936, Part IVA is not considered to apply to this arrangement. It is also considered that on an assessment of the relevant circumstances of the scheme, neither section 177E nor 177EA will apply.

This notice must not be taken to imply anything about: | ● the binding nature of the private advice issued to the applicant | ● the correctness of other edited versions. | You and your spouse are two of less than five individual taxpayers aged 59 years and over and you are all members of the same self managed superfund, the fund. | All individuals are all also directors of the corporate trustee of the fund and have commenced a pension from the fund. There are no relevant superannuation assets outside of the fund. | Your spouse and another are also the sole directors and shareholders, holding 50% each, of a company incorporated over ten years ago (the company). | The company carried on a business from incorporation until the business was sold. | At present, the company has retained earnings of over $2 million with fully franked credit coverage, paid up share capital and no liabilities. | The retained earnings amount includes related party loans and cash/listed shares. | The loans arose primarily in the 20XX-YY financial year when the company loaned part of the business sale proceeds to a number of directors/shareholders (the borrowers). | The borrowers are in the process of repaying the loans using an annual fully franked dividend paid by the company and drawings from the super fund. The franking credit offsets the tax on the dividend. | Under the current arrangement, the debt will be repaid in less than 10. | If continuing in this way, under the current structure it will take an additional 10 years, after the loan is repaid, to extract these earnings tax effectively. | You and your spouse wish to reorganise and simplify family financial affairs and enable clear succession planning. | The borrowers will draw funds from the superfund to repay their loans to the company in full. | After the loans are repaid, your spouse will transfer half of the shares in the company to you by way of a gift. | All members would then make an in-specie non-concessional contribution of shares to the superfund, totalling around 50% of the company share value with some of the contributions spread over two financial years. Your superannuation contribution amount will be the maximum non-concessional contribution allowed. | In due course, the company will pay a fully franked dividend of all its retained profits. | The company will then be placed into voluntary liquidation. | You will be assessable on the dividend and imputation credit when it is paid and realise a capital loss. | All transactions will be undertaken on an arms length commercial basis and based on independent professional valuations. | The expected time frame for the proposal is three to six months.