Private ruling: Division 250 of the Income Tax Assessment Tax Act 1997
Date of advice: 1 September 2021
Published: February 2022
Ruling period: XX Month XXYY to 30 June XXYZ
Date scheme commenced: XX Month XXYY

Ruling: Q1: Will Division 250 of the ITAA 1997 apply to Entity A (the Taxpayer) and the Building and Plant which form part of the land (the Property) leased to a member of the tax preferred sector, Entity B? | A1: No

Relevant facts and circumstances: Entity C is a member of the ZZ Tax Consolidated Group (ZZ Group) in which the Taxpayer is the head entity. The ZZ Group undertakes property developments, as well as holding and leasing property. Entity B is a body corporate the activities of which are carried on solely for charitable purposes and not for pecuniary profit. It is registered with the Australian Charities and Not-for-profits Commission and is an exempt entity (i.e. an entity all of whose ordinary income and statutory income is exempt from income tax). In summary, the following agreements have or will be entered into by these parties in relation to this arrangement: (i) Entity B has been granted a Head Lease on a parcel of vacant land (the Land) on the basis that it will undertake to develop the site, or procure for it to be developed. (ii) Entity B has entered into a Development Agreement under which it will engage Entity D (a member of the ZZ Group) to design and construct a Building on the Land. (iii) Entity B has agreed to grant Entity C a XX-year sublease over the Property for the consideration of $X per annum. (iv) On practical completion of the Building Entity C will agree to sub-sublease (the Occupation Lease) the Property to Entity B for a term of BB years (a period in excess of X years) for the purpose of earning lease rental payments. A reference to 'Property' refers to the land, the building and all of its components that will be constructed on the Land. A reference to the 'Building' refers only to the physical structure of the building and not the land on which it sits. THE HEAD LEASE The key terms of the Head Lease are as follows: (a) Entity B will develop the Property by procuring the construction of the works in accordance with the Approvals, subject to the terms of this agreement; (b) The duration of the lease is AA years. THE OCCUPATION LEASE Under the Occupation Lease, Entity C will sub-sublease the Property to Entity B. The relevant terms of the Occupation Lease are: (a) Entity B must pay the Base Net Rent to Entity C by equal monthly instalments from the Commencement Date. (b) Entity B may sublease and/or grant a license over any part of the Premises to any person without the Landlord's consent (c) Under the Occupation Lease Entity C has the right to terminate this Lease in the Event of a Default by Entity B if certain conditions are met. OTHER MATTERS Disregarding the operation of Division 250 of the ITAA 1997, Entity C (as it is leasing the building and is the entity that 'holds' the depreciating assets under Division 40 of the ITAA 1997) will be entitled to capital allowances under Division 43 of the ITAA 1997 in relation to expenditure on the building and Division 40 of the ITAA 1997 in relation to the decline in value of the depreciating assets (noting that Entity C is part of the ZZ Group): Entity C will fund the majority of the construction costs by entering into a Syndicated Facility Agreement (the Facility Loan) with XX Bank as agent. The proposal is that following expiry of the Facility Loan, a re-financing will occur under a loan note facility led by XX Bank as agent. In respect of both loan agreements at least X% of the debt used to finance the construction costs will be guaranteed. There is no guaranteed residual value in respect of the Property at the end of the Occupation Lease. There are no express provisions in the Occupation Lease which allow Entity B to cancel this lease agreement. When the BB year Occupation Lease of the Property from Entity C to Entity B expires, there are no arrangements in place under which the Property will be transferred to Entity B. Should the Occupation Lease be cancelled or terminated before the BB-year term, there are no provisions in the Occupation Lease that would require Entity B to enter into a new lease agreement with Entity C. When the BB year Occupation Lease of the property from Entity C to Entity B expires, there are no provisions in the Occupation Lease which give Entity B the right to purchase the building on expiration or termination of the lease.

Relevant legislative provisions: Section 40-25 of the Income Tax Assessment Act 1997 | Section 40-35 of the Income Tax Assessment Act 1997 | Section 40-40 of the Income Tax Assessment Act 1997 | Section 43-10 of the Income Tax Assessment Act 1997 | Section 43-25 of the Income Tax Assessment Act 1997 | Section 43-75 of the Income Tax Assessment Act 1997 | Section 43-140 of the Income Tax Assessment Act 1997 | Section 243-20 of the Income Tax Assessment Act 1997 | Section 250-15 of the Income Tax Assessment Act 1997 | Section 250-15 of the Income Tax Assessment Act 1997 | Section 250-55 of the Income Tax Assessment Act 1997 | Section 250-60 of the Income Tax Assessment Act 1997 | Section 250-65 of the Income Tax Assessment Act 1997 | Section 250-75 of the Income Tax Assessment Act 1997 | Section 250-95 of the Income Tax Assessment Act 1997 | Section 250-105 of the Income Tax Assessment Act 1997 | Section 250-120 of the Income Tax Assessment Act 1997 | Section 250-125 of the Income Tax Assessment Act 1997 | Section 250-130 of the Income Tax Assessment Act 1997 | Section 250-135 of the Income Tax Assessment Act 1997 | Section 974-20 of the Income Tax Assessment Act 1997 | Section 974-130 of the Income Tax Assessment Act 1997 | Section 974-160 of the Income Tax Assessment Act 1997 | Section 995-1 of the Income Tax Assessment Act 1997

Reasons for decision: Summary: Division 250 of the ITAA 1997 will not apply to the Taxpayer and the Property leased to Entity B. | Detailed Reasoning - Detailed reasoning: Division 250 of the ITAA 1997 applies to a taxpayer and an asset if the general test in section 250-15 of the ITAA 1997 is satisfied. Section 250-15 of the ITAA 1997 states: This Division applies to you and an asset at a particular time if: (a) the asset is being put to a tax preferred use; and (b) the arrangement period for the tax preferred use of the asset is greater than 12 months; and (c) financial benefits in relation to the tax preferred use of the asset have been, will be, or can reasonably be expected to be, provided to you (or a connected entity) by: (i) a tax preferred end user (or a connected entity); or (ii) any tax preferred entity (or a connected entity); or (iii) any entity that is a foreign resident; and (d) disregarding this Division, you would be entitled to a capital allowance in relation to: (i) a decline in the value of the asset; or (ii) expenditure in relation to the asset; and (e) You lack a predominant economic interest in the asset at that time. Even if the general test in section 250-15 of the ITAA is satisfied Division 250 may still not apply to a taxpayer if any of the following exclusions apply: 1. Small business entity (section 250-20); 2. Financial benefits under minimum value limit (section 250-25); 3. Certain short term or low value arrangements (section 250-30); and 4. Sum of present values of financial benefits less than amount otherwise assessable (section 250-40). Division 250 of the ITAA 1997 applies on an asset by asset basis, and only to assets for which capital allowance deductions can be claimed. As such, the first step is to identify the relevant assets that form the property being leased. The Property is a composite asset. Composite assets may either themselves be an asset, or their separate components may be separate assets. Subsection 250-75(2) of the ITAA 1997 states that this is a question of fact and degree and can only be determined in light of all the circumstances of a particular case. Example 2 under subsection 250-75(2) of the ITAA 1997 notes that a floating restaurant consists of many separate components that are usually all treated as separate assets. Similarly a large commercial office building is a composite asset that has a number of clearly separable components. It consists of a number of separate assets, primarily the land, the building and the depreciating assets in the building, such as carpet, fans, air conditioning equipment etc. Each of these is a separate asset to the land itself by virtue of subsection 250-75(1) of the ITAA 1997. Paragraph 250-15(a) of the ITAA 1997 Section 250-60 of the ITAA 1997 provides that an asset is 'put to a tax preferred use' at a particular time if the end user holds at that time rights as lessee under a lease of the asset and the asset is used by, or on behalf of, an end user who is a 'tax preferred end user' because of paragraph 250-55(a) of the ITAA 1997. Paragraph 250-55(a) of the ITAA 1997 provides that an 'end user' of an asset is a 'tax preferred end user' if the end user is a 'tax preferred entity'. Subsection 995-1(1) of the ITAA 1997 defines a 'tax preferred entity' to include an 'exempt entity'. An 'exempt entity' is defined in subsection 995-1(1) of the ITAA 1997 as an entity all of whose ordinary income and statutory income is exempt from income tax because of the Income Tax Assessment Act 1936 (ITAA 1936) , ITAA 1997 or another Commonwealth law. Subsection 250-50(1) of the ITAA 1997 provides that an entity is an 'end user' of an asset if the entity uses, or effectively controls the use of, the asset. Subsection 250-50(4) of the ITAA 1997 provides that an entity is taken to be an end user of an asset if the entity holds rights as a lessee under a lease of the asset. Paragraph 250-15(a) of the ITAA 1997 will be satisfied as Entity B (being an 'exempt entity') will be a 'tax preferred end user' who will be using the Property and holds rights as lessee under the Occupation Lease to the Property, which will include the Building, Land and Plant. This means that the Building, Land and Plant will be 'put to a tax preferred use'. Paragraph 250-15(b) of the ITAA 1997 Paragraph 250-15(b) of the ITAA 1997 will be satisfied as the 'arrangement period' (as defined in section 250-65 of the ITAA 1997) is the BB year term of the Occupation Lease, which exceeds 12 months. Paragraph 250-15(c) of the ITAA 1997 Financial benefit is defined in section 974-160 of the ITAA 1997 to include anything of economic value. Paragraph 250-15(c) of the ITAA will be satisfied as financial benefits, being rent payments in relation to the tax preferred use of the assets will be provided to Entity C by a tax preferred end user (Entity B). Paragraph 250-15(d) of the ITAA 1997 Paragraph 250-15(d) of the ITAA 1997 will be satisfied as, disregarding Division 250 of the ITAA 1997, Entity C will be entitled to capital allowances for expenditure in relation to the Building under Division 43 of the ITAA 1997 and in relation to the decline of value of the depreciating assets that form part of the Property under Division 40 of the ITAA 1997. Paragraph 250-15(e) of the ITAA 1997 - predominant economic interest For the purposes of paragraph 250-15(e) a taxpayer will lack a predominant economic interest in an asset at a particular time if it satisfies one of the tests listed in section 250-110 of the ITAA 1997. Section 250-110 of the ITAA 1997 states: You lack a predominant economic interest in an asset at a particular time only if one or more of the following sections apply to you and the asset at that time: (a) section 250-115 (limited recourse debt test); (b) section 250-120 (right to acquire asset test); (c) section 250-125 (effectively non-cancellable, long term arrangement test); (d) section 250-135 (level of expected financial benefits test). | Detailed Reasoning - Section 250-115 - Limited recourse debt test: Subsection 250-115(1) of the ITAA 1997 states: You lack a predominant economic interest in an asset at a particular time if more than the allowable percentage of the cost of your acquiring or constructing the asset is financed (directly or indirectly) by a limited recourse debt or debts. Subsection 250-115(3) of the ITAA 1997 states: For the purposes of subsection (1), the allowable percentage is: (a) 80% if the asset is taken to be put to a tax preferred use because of subparagraph 250-60(1)(b)(i) or 2(b)(i) (end use by tax preferred entities); or (b) 55% if the asset is taken to be put to a tax preferred use because of subparagraph 250-60(1)(b)(ii) or 2(b)(ii) (end use by foreign residents or businesses). Subsection 243-20(1) of the ITAA 1997 states: A limited recourse debt is an obligation imposed by law on an entity (the debtor ) to pay an amount to another entity (the creditor ) where the right of the creditor as against the debtor in the event of default in payment of the debt or of interest are limited wholly or predominantly to any or all of the following: (a) rights (including the right to money payable) in relation to any or all of the following: (i) the debt property or the use of debt property; (ii) goods produced, supplied, carried, transmitted or delivered, or services provided, by means of debt property; (iii) the loss or disposal of the whole or part of the debt property or of the debtor's interest in the debt property; Broadly, the definition of "limited recourse debt" is aimed at situations where a creditor 's rights as against the taxpayer in the event of default are limited to actual legal rights against or in relation to the property, or to income or goods and services generated by the property. That is, the creditor would not have access to the taxpayer's general assets. The test will be satisfied where the Asset is financed by more than 80% limited recourse debt as the Asset is put to a tax preferred use because the end user is a tax preferred entity. The Limited recourse debt test in section 250-115 of the ITAA 1997 would not be satisfied as at least 20% of the debt used to finance the construction costs will be guaranteed in respect of the Facility Loan and the Loan Note Facility. As such the XX Bank and the other lenders' rights would not be limited to just the Property, but would potentially extend to the assets of the Guarantors. | Detailed Reasoning - Section 250-120 - Right to acquire asset test: Subsection 250-120(1) of the ITAA 1997 states: You lack a predominant economic interest in an asset at a particular time, if at that time: (a) the asset is to be transferred to a member of the tax preferred sector after the end of the arrangement period; and (b) the consideration for the transfer is not fixed as the market value of the asset at the time of transfer. Subsection 250-120(2) of the ITAA 1997 states: (a) a member of the tax preferred user group has, will have: (i) a right, obligation or contingent obligation to purchase or acquire the asset or a legal or equitable interest in the asset; or (ii) a right to require the transfer of the asset or a legal or equitable interest in the asset; and (b) the consideration for the purchase, acquisition or transfer is not fixed as the market value of the asset at the time of the purchase, acquisition or transfer. ................ In the present case, when the BB year Occupation Lease of the Property from Entity C to Entity B expires, there are no arrangements under which the Property will be transferred to Entity B. Likewise, there are no provisions in the Occupation Lease which give Entity B the right to purchase the Property on expiration or termination of the lease. As such, the right to acquire test is not satisfied. | Detailed Reasoning - Section 250-125 - Effectively non-cancellable, long term arrangement test: Subsection 250-125(1) of the ITAA 1997 states: You lack a predominant economic interest in an asset at a particular time if: (a) any arrangement that relates to: (i) the tax preferred use of the asset; or (ii) the financial benefits to be provided by members of the tax preferred sector in relation to the tax preferred use of the asset; is effectively non-cancellable (see section 250-130); and (b) the arrangement period for the tax preferred use of the asset is: (i) greater than 30 years; or (ii) if the arrangement period is less than or equal to 30 years - 75% or more of that part of the asset's effective life that remains when the tax preferred use of the asset starts....................... Subsection 250-130(1) of the ITAA 1997 defines an effectively non-cancellable arrangement as: An arrangement that relates to financial benefits to be provided by a member of the tax preferred sector in relation to the tax preferred use of an asset is effectively non-cancellable if: (a) the arrangement can only be cancelled with: (i) your permission; or (ii) the permission of a connected entity of yours; or (iii) an agent or entity acting on your behalf (or on behalf of a connected entity of yours); or (b) the arrangement can be cancelled without the permission of an entity referred to in paragraph (a) but, if the arrangement were cancelled, the member of the tax preferred sector or another member of the tax preferred sector; (i) would be required to enter into a new arrangement for the provision of financial benefits in relation to the tax preferred use of the asset; or (ii) would incur a penalty and the magnitude of the penalty would be such as to discourage cancellation. Subsection 250-130(2) of the ITAA 1997 states: For these purposes, if a member of the tax preferred sector defaults under an arrangement and the arrangement is cancelled, the arrangement is to be taken to have been cancelled without the permission of an entity referred to in paragraph (1)(a). The arrangement period in this case would be BB years, being the period of the Occupation Lease. As the arrangement period is greater than 30 years, the arrangement only needs to be effectively non-cancellable for section 250-125 to be satisfied. Paragraph 250-130(1)(a) - Arrangement can only be cancelled with Entity C's permission? Scenario 1 - Entity C defaults under the Occupation Lease Entity B would not have the express right under the lease to terminate the lease where there has been a breach of a term by Entity C.. If Entity B were to find itself in a situation where it no longer wanted to lease the Property because of a breach of a term of the Occupation Lease by Entity C, it would need to seek redress through the common law. In recent years, contractual remedies have been available in the law of landlord and tenant. In Shevill v Builders Licensing Board (1982) 149 CLR 620 and Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 , the High Court held that a lease could be terminated under general contract law where the tenant committed a breach that amounted to a repudiation or a fundamental breach of the lease. In consequence, the landlord would be entitled to loss of bargain damages, that is damages for future losses occasioned by the termination of the contractual relationship. Repudiation involves one party refusing to perform their responsibilities under the lease. This refusal is more than a landlord breaching a clause in a lease. Essentially, they must be denying the existence of the lease. This can happen when a landlord completely abandons the lease or refuses to fulfil their essential obligations under the lease. If the tenant can prove there has been a repudiation by the Landlord, it can seek damages under the lease. Deciding whether repudiation has occurred is a question of fact. This means that the tenant cannot rely on the landlord's state of mind or what it thinks is their intention. The tenant must be able to show that the landlord's conduct demonstrates their lack of intention to be bound by the lease. Alternatively, their conduct can show that they will only comply with the lease in a very inconsistent way. If the tenant is trying to terminate based on the landlord's repudiation, the tenant must be able to show that it is ready and willing to perform its responsibilities under the lease. Where the tenant is faced with a repudiation type conduct by the landlord, it can elect to either: i. Keep the lease on foot and require performance by claiming specific performance; or ii. Terminate the lease and claim prospective damages. If there was a breach of a term of the Occupation Lease by Entity C, Entity B could cancel/terminate the lease without the permission of Entity C, provided there was a breach of a fundamental term or the breach constituted a repudiation by Entity C. Scenario 2 - Entity B defaults under the Occupation Lease Subsection 250-130(2) provides that an arrangement is taken to have been cancelled without the permission of an entity referred to in paragraph 250-130(1)(a) if it is cancelled as a result of default by a member of the tax preferred sector. This provision ensures that the owner of an asset has the capacity to enforce its rights under an agreement without triggering the operation of Division 250. Under the Occupation Lease Entity C has the right to terminate the lease if certain conditions are met. Entity C could also avail itself of the common law right to terminate if it is able to establish that any breach by Entity B is a breach of an essential term or the breach constitutes a repudiation by Entity B. Under the common law where a landlord sues for loss of bargain (future losses) based on a fundamental breach or repudiation, he or she is under a duty to mitigate by attempting to obtain a new tenant. It is the duty to mitigate that stops double recovery. By terminating the landlord obtains possession, but can only obtain a loss of bargain damages if they have been unsuccessful in re-letting. If the landlord fails to mitigate, the damages will be reduced accordingly. If Entity C is able to establish there is a breach of the contract by Entity B (under the Occupation Lease) or there is a breach of an essential term or a repudiation (under the Common Law) the arrangement will be taken to be cancelled without the permission of Entity C under subsection 250-130(2). Subparagraph 250-130(1)(b)(i) - Arrangement can be cancelled without Entity C's permission but Entity B would be required to enter into a new arrangement with Entity C? This would not be satisfied, because even if Entity B can terminate the Occupation Lease because of a fundamental breach or a repudiation of the lease by Entity C, there is nothing in the Occupation Lease which requires Entity B to enter into a new Occupation Lease with Entity C. Likewise, if there is a breach by Entity B, there is nothing in the Occupation Lease which requires Entity B to enter into a new Occupation Lease with Entity C. There is no arrangement in place such that should the Occupation Lease be cancelled, both parties will agree to enter into a new Occupation Lease. Subparagraph 250-130(1)(b)(ii) - Arrangement can be cancelled without Entity C's permission but Entity B would incur a penalty of such magnitude as to discourage cancellation from the arrangement with Entity C? As stated above if there was a breach of a term of the Occupation Lease by Entity C, Entity B could cancel the lease without the permission of Entity C, provided the breach constituted a repudiation by Entity C. There is nothing in the Occupation Lease that imposes a penalty on Entity B if it cancels/terminates the contract. If Entity B is able to terminate the lease because of a fundamental breach or a repudiation of the lease by Entity C, it will be able to seek damages as compensation for the breach. Likewise, if Entity C is able to terminate the lease because of a fundamental breach or repudiation of the lease by Entity B, no penalty will be imposed on Entity B under the Occupation Lease. Entity C will be able to seek damages for the breach either under the Lease or under common law. However, Entity C would be under a duty to mitigate any damages by attempting to obtain a new tenant. | Detailed Reasoning - Section 250-135 - Level of expected financial benefits test: Subsection 250-135(1) of the ITAA 1997 states: | Detailed Reasoning - Effective guarantee or indemnity for value of asset: You lack a predominant economic interest in an asset at a particular time if the asset has a guaranteed residual value at that time Subsection 250-135(2) of the ITAA 1997 states: | Detailed Reasoning - Likely financial benefits exceeding 70% limit: You also lack a predominant economic interest in an asset at a particular time if, at that time: (a) the arrangement under which the asset is put to the tax preferred use (either alone or together with any other arrangements in relation to the tax preferred use of the asset or the provision of financial benefits in relation to the tax preferred use of the asset) is a debt interest; or (b) the sum of the present values of the expected financial benefits that members of the tax preferred sector have provided, or are reasonably likely to provide to you (or a connected entity) in relation to the tax preferred use of the asset exceeds 70% of: (i) the market value of the asset if subparagraph 250-15(d)(i) applies; or (ii) so much of the market value of the asset as is attributable to the expenditure referred to subparagraph 250-15(d)(ii) if that subparagraph applies. 'Guaranteed residual value' is defined in subsection 250-85(3). It describes the situation where the entity holding the asset disposes of that asset, and in the event the disposal proceeds are less than the guaranteed amount, it receives the difference in payment from the tax preferred end user. In this particular case the Property is not part of a guaranteed residual value arrangement and therefore the Taxpayer does not lack a predominant economic interest under subsection 250-135(1). Paragraph 250-135(2)(a) considers whether the arrangement for the tax preferred use of the asset is a debt interest. The test for a debt interest is contained in section 974-20 of the ITAA 1997. Broadly, a scheme will be a debt interest if the following conditions are met: (a) it is a financing arrangement for the entity; (b) the entity receives a financial benefit or benefits under the scheme; (c) the entity has an effectively non-contingent obligation to provide a financial benefit or benefits under the scheme; and (d) it is substantially more likely than not that the value of the benefits provided at least equals the value of the benefits received. Section 974-130 sets out general rules for determining whether a scheme is a " financing arrangement " for an entity. Under subsection 974-130(4) a lease will not be a financing arrangement provided that all the following conditions are satisfied: (a) Part III Division 16D of the ITAA 1936 does not apply to the property leased or bailed (Division 16D treats certain non-leveraged finance leases and similar arrangements as if they were loan arrangements); (b) it is not a relevant agreement for the purposes of section 128AC of the ITAA 1936 (which deems the charges under hire-purchase or similar agreements to be income that consists of interest and therefore subject to withholding tax under Division 11A of the ITAA 1936); (c) Division 242 of the ITAA 1997 does not apply to the arrangement (Division 242 treats leases of luxury cars as notional sale and loan transactions from 1 July 2010); (d) Division 240 of the ITAA 1997 does not apply to the arrangement (hire-purchase agreement treated as a notional sale and loan) (e) the lessee or bailee (or a connected entity of either) is not to acquire the leased or bailed property, or does not have an obligation (whether contingent or not) or a right to acquire the property, or (f) Division 250 does not apply to a person and the property leased or bailed (assets put to tax preferred use) As all of the above conditions are satisfied, the Occupation Lease is not a financial arrangement and therefore is not a debt interest. The Taxpayer will not lack a predominant interest in the Property under paragraph 250-135(2)(a). For the purpose of Division 250, section 250-95 defines expected financial benefits as financial benefits that have, will, or can reasonably be expected to be provided in relation to the tax preferred use of the Asset under normal operating conditions. Paragraph 250-135(2)(b) compares the sum of the present values of the expected financial benefits with the market value of the asset. This figure needs to be less than 70% or the taxpayer will be deemed to lack a predominant interest in the Asset. Section 250-135 of the ITAA 1997 is a point in time test, and the test is applied at the start of the tax preferred use, being the start of the lease. Section 250-140 provides the limited circumstances that a retest of the Level of expected financial benefits may be required. In this case the sum of the present values of the expected financial benefits from the lease of the Building do not exceed 70% of the market value of the Building and the Level of expected financial benefits test is not satisfied. Likewise, the sum of the present values of the expected financial benefits from the lease of the Plant does not exceed 70% of the market value of the Plant and the Level of expected financial benefits test is not satisfied. | Detailed Reasoning - Summary of predominant economic interest tests in section 250-110 of the ITAA 1997: The Taxpayer does not lack a predominant economic interest in the Property because it does not satisfy any of the four tests in section 250-110 of the ITAA 1997. As the general test in section 250-15 is not satisfied because paragraph 250-15(e) is not satisfied, Division 250 of theITAA 1997 will not apply to the Taxpayer and the Property leased to Entity B.

This ruling applies for the following period: