Private ruling: Demerger - capital gains tax and non-resident dividend withholding tax
Published: February 2013
Ruling period: 1 July 2012 to 30 Jun e 2013
Date scheme commenced: 1 July 2012

Ruling: Q1: Will any capital gain or loss made from the disposal by Company X of its shares in Company Y by in-specie distribution to Company X shareholders be disregarded | A1: Yes | Q2: Will Company X be required to withhold non-resident dividend withholding tax on the unfranked portion of the demerger dividend received by non-resident shareholders? | A2: No

Relevant facts and circumstances: Company X is an Australian resident company listed on the ASX. Company X announced to the Australian Securities Exchange (ASX) that it intends to restructure into two companies, Company X and Company Y. Prior to the demerger, Company X had ordinary shares on issue. It also had unlisted options on issue. Following the demerger the exercise price of the outstanding Company X options were reduced by an amount which was equivalent to the value of the demerger entitlement. The outstanding options represented less than 10% of the total ownership interests in Company X. Company X distributed Company Y shares to all Company X shareholders in proportion to their share holding in Company X as at the Record Date. The demerger of Company Y was effected by a reduction in the share capital of Company X and by payment of a demerger dividend that was satisfied by an in specie distribution of Company Y shares held by Company X. Company X accounted for the distributions and effected the demerger by debiting its share capital account by the capital reduction amount and debiting retained earnings by the demerger dividend amount. The demerger dividend amount was an amount equal to the difference between the market value of Company Y on the Implementation Date and the capital reduction amount. Company X expects that a number of advantages will accrue to its shareholders as a result of the demerger of Company Y. Under the demerger, Company X shareholders received one Company Y share for a specified number of Company X shares that they held on the Record Date. As a result of the demerger, Company X shareholders owned shares in both Company X and Company Y None of the Company X shareholders acquired their shares prior to the commencement of the capital gains tax (CGT) provisions. Company X confirmed that there have been no transfers to its share capital account, as defined in section 975-300 of the ITAA 1997 from any of its other accounts and accordingly its share capital account is not tainted (within the meaning of Division 197 of the ITAA 1997). Company X confirmed that capital gains tax (CGT) assets representing more than 50% of the market value of all the CGT assets of Company Y and its subsidiaries will be used directly or indirectly in a business carried on by Company Y or its subsidiaries just after the demerger. Company X has never paid a dividend to its shareholders. Company X confirmed that it will not make an election under subsection 44(2) of the ITAA 1936.

Relevant legislative provisions: Income Tax Assessment Act 1997 Section 125-155. | Income Tax Assessment Act 1997 Section 125-65. | Income Tax Assessment Act 1997 Section 125-70. | Income Tax Assessment Act 1997 Section 128B.

Reasons for decision: Summary: Section 125-155 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that any capital gain or capital loss a demerging entity makes from CGT event A1, CGT event C2, CGT event C3 or CGT event K6 happening to its ownership interests in a demerged entity under a demerger is disregarded. Under the scheme to which this Ruling applies, CGT event A1 happened when Company X disposes of its Company Y shares to Company X shareholders (section 104-10 of the ITAA 1997). In order for Company X to disregard any capital gain or capital loss made from CGT event A1 happening on the disposal of its shares in Company Y, this disposal must occur under a demerger within the meaning of Division 125 of the ITAA 1997. | Detailed Reasoning - Did the disposal of the Company Y shares happen under a demerger?: For a demerger to happen for the purposes of Division 125 of the ITAA 1997, there must be a demerger group. A demerger group comprises one head entity and at least one demerger subsidiary (subsection 125-65(1) of the ITAA 1997). For the purposes of this scheme, the demerger group includes Company X as the head entity and Company Y as demerger subsidiary. Company X was the head entity of a demerger group because at the time of the restructure: no member of the demerger group owned any ownership interests in Company X (subsection 125-65(3) of the ITAA 1997); and no other company or trust was capable of being the head entity of a demerger group of which Company X could be a demerger subsidiary (subsection 125-65(4) of the ITAA 1997). Company Y was a demerger subsidiary of Company X at the time of the scheme, because at that time Company X owned ownership interests that carried the right to: receive more than 20 per cent of any distribution of income or capital by Company Y; and exercise more than 20 per cent of the voting power in Company Y (subsection 125-65(6) of the ITAA 1997). | Detailed Reasoning - Did a demerger happen?: A demerger happened (within the meaning of subsections 125-70(1)-(5) of the ITAA 1997) to the Company X demerger group under the scheme because: there was a restructuring (paragraph 125-70(1)(a) of the ITAA 1997), under which at least 80% of the ownership interests that Company X owns in Company Y were transferred to Company X ownership interest holders (subparagraph 125-70(1)(b)(i) of the ITAA 1997); under the restructuring, CGT Event G1 (section 104-135 of the ITAA 1997) happened to Company X shares, and Company X shareholders received nothing other than new shares in Company Y (subparagraph 125-70(1)(c)(i) of the ITAA 1997); Company X shareholders received shares in Company Y under the restructure on the basis that they were shareholders of Company X (paragraph 125-70(1)(d) of the ITAA 1997 and subparagraph 125-70(1)(e)(i) of the ITAA 1997); at the time of the restructure, neither Company X nor Company Y were superannuation funds within the meaning of that term in section 10 of the Superannuation Industry (Supervision) Act 1993 (paragraph 125-70(1)(g) of the ITAA 1997); the restructure did not constitute an off-market share buy-back for the purposes of Division 16K of Part III of the ITAA 1936 (subsection 125-70(4) of the ITAA 1997); no other roll-over was available under another provision of the ITAA 1936 or ITAA 1997 (subsection 125-70(5) of the ITAA 1997); and under the restructure, each Company X ownership interest holder acquired the same proportion of ownership interests in Company Y as the ownership interests they owned in Company X just before the demerger, and just after the demerger each Company X ownership interest holder owned the same proportionate total market value of Company X ownership interests and Company Y ownership interests as they owned in Company X just before the demerger (paragraphs 125-70(2)(a) and (b) and subsection 125-70(3) of the ITAA 1997). | Detailed Reasoning - Is Company X the demerging entity?: A demerging entity is a member of a demerger group that disposes of at least 80% of its ownership interests in another member of the demerger group to owners of original interests in the head entity under a demerger (subsection 125-70(7) of the ITAA 1997). Under the restructure, Company X is a demerging entity because it disposed of at least 80% of its shares in Company Y to Company X shareholders (subparagraph 125-70(7)(a) of the ITAA 1997). | Detailed Reasoning - Can Company X disregard any capital gain or capital loss made under the demerger?: Since any capital gain or capital loss Company X made from CGT event A1 happening on the disposal of Company Y shares occurs under a demerger, the capital gain or capital loss is disregarded as a result of section 125-155 of the ITAA 1997. | Detailed Reasoning - Question 2: Section 128B of the ITAA 1936 sets out the circumstances in which a taxpayer is liable to, and exempted from, withholding tax. Specifically, pursuant to subsection 128B(1) of the ITAA 1936, withholding tax is imposed on dividends derived by a non-resident on or after 1January 1968 and paid by an Australian resident company, subject to the specific exemption in subsection 128B(3), (3A), (3D) and (3E) of the ITAA 1936. Section 128B of the ITAA 1936 however will not apply to the franked part of a dividend (Subparagraph 128B(3)(ga)(i) of the ITAA 1936). Section 128B will also not apply to a demerger dividend to which section 45B does not apply (subsection 128B(3D) of the ITAA 1936). The Commissioner has confirmed that he will not make a determination that section 45B of the ITAA 1936 applies to the demerger dividend. Accordingly, there will be no requirement for Company X to withhold an amount of non-resident dividend withholding tax from the demerger dividend received by non-resident shareholders.

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