Private ruling: Employee share schemes
Date of advice: 6 February 2020
Published: April 2020
Ruling period: 1 July 201A to 30 June 201B | 1 July 201B to 30 June 202C | 1 July 202C to 30 June 202D | 1 July 202D to 30 June 202E | 1 July 202E to 30 June 202F

Ruling: Q1: Will irretrievable cash contributions made by Company A to Company B as Trustee ( Trustee ) of the Company A Group Employee Share Plan Trust ( EST) in accordance with the Company A Group Limited Employee Incentive Plan Rules ( Plan Rules ) and the Company A Group Employee Share Plan Trust Deed ( Deed ) to fund the subscription for or acquisition on-market of ordinary shares in Company A ( Shares ) be assessable income of the EST pursuant to section 6-5 or 6-10 of the Income Tax Assessment Act 1997 (ITAA 1997) or Division 6 of the Income Tax Assessment Act 1936 (ITAA 1936)? | A1: No. | Q2: Will any capital gain or capital loss that arises for the Trustee of the EST at the time the Participants become absolutely entitled to Shares under the Plan (CGT event E5 under section 104-75 of the ITAA 1997) or when the Trustee of the EST transfers legal ownership of Shares of the EST to Participants in accordance with the Deed (CGT event E7 under section 104-85 of the ITAA 1997) be disregarded under section 130-90 of the ITAA 1997 if the Participants acquire the shares for the same or less than the cost base of the shares in the hands of the Trustee? | A2: Yes.

Relevant facts and circumstances: This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling. Background Company A's remuneration framework is underpinned by the 'acting as owners' philosophy and is guided by the notions of being market competitive and rewarding performance. Total remuneration for executives includes a moderate fixed component relative to the Company's ASX-listed peer group, trading this in favour of a 'higher at-risk / performance related component' in the form of Short Term Incentives ( STI ) and Long Term Incentives ( LTI ). The 'higher at-risk remuneration component' is reflective of the Company's operations in the relevant sector, in particular the Country A market, where a greater emphasis is placed on at-risk remuneration than typically occurs in Australian-listed companies. STI and LTI are linked to the achievement of individual and Company performance targets. In setting the at-risk remuneration framework, the Company intends to align executive remuneration outcomes with shareholder outcomes and within the context of LTI share-based awards, seeks to link the value of Company A with individual performance. The Plan, which was established in 201X, provides Company A the flexibility to offer · performance rights · options or · shares to its key management employees. There are currently both unvested and vested options on issue under the Plan. Company A Group Limited Employee Incentive Plan The Company A Group Limited Employee Incentive Plan ( Plan ) has been has been designed with the flexibility to issue various types of incentive instruments to employees. Incentives may be in the form of · Options and Performance Rights, which represent rights to acquire shares in the Company ( Rights ), · Deferred Shares ( Deferred Share Awards ), · Shares that may be treated as tax exempt ( Exempt Share Awards ). (In this Ruling, Awards, Deferred Share Awards and Exempt Share Awards are referred to collectively as 'Awards' and 'Award' in the singular) The Plan allows for the issue of Loan Funded Shares ( Loan Shares ). However Loan Shares will not be facilitated through the Trust and are excluded from this application. The purpose of the Plan, as outlined in the Company A Group Limited Employee Incentive Plan Rules ( Plan Rules ), is to 'to encourage Employees to share in the ownership of the Company and to promote the long-term success of the Company as a goal shared by all Employees.' The Plan broadly operates as follows (excluding Loan Shares): · Eligible employees entitled to participate under the Plan (Participants) may receive a grant of Options, Performance Rights, Deferred Share Awards or Exempt Share Awards (as determined by Company (being Company A) and at the discretion of the Board). · To participate in the Plan, the Company must make an Offer to the Participant. Each Offer must be in writing and will outline: - the identity of the employee to whom the Offer is made; - the type of Award offered; - the number of each Award offered; - any vesting conditions associated with the Award; - the issue price and/or exercise price for each Award, or the manner in which the issue price and/or exercise price is to be determined - the expiry date (if any); - any restriction period; - any other terms or conditions the Board decides to include; and - any other matters required to be specified in the Offer by either the Corporations Act or ASX Listings Rules. Offers are prevented from being made where the 5% dilution limit (as detailed in the Plan) is triggered. The Plan rules set out default vesting conditions which apply to Options, Performance Rights and Loan Shares where vesting conditions are not specified in the Offer or the Offer does not expressly state that no vesting conditions apply. These default vesting conditions are: · awards only vest if at the applicable vesting date: · the employee remains employed with, continues to provide consulting services to, or acts as a director of, an XYZ group company at the applicable vesting date; or · ceased to do so before the applicable vesting date, but the employee is a 'Good Leaver'; and · the awards are to 'vest in equal one-third tranches on the first, second, and third anniversaries of the grant date of the awards (or of another date specified in the Offer)'. Rights Where the award is an Option or a Performance Right, unless otherwise specified in the Offer, the Options or Performance Rights: · are restricted awards (i.e. cannot be sold or transferred) until they are exercised or expire; · may have (if specified in the Offer) a restriction period for the Shares issued on the exercise of the Options or Performance Rights (as applicable); and · may be subject to an adjustment in accordance with the Plan Rules. Options and/or Performance Rights must be exercised by way of an exercise notice submitted from the Participant to the Company. For awards with a nil exercise price, the Company will treat the Award as having been validly exercised on the Vesting Date unless the offer letter specifies manual exercise. An Offer of Rights may also state that the vesting and exercise of the Rights will be satisfied through an allocation of Shares or by the making of a cash payment. Deferred Share Awards Deferred Shares are intended to be offered to employees who elect to receive shares in lieu of remuneration or may be offered at the Company's discretion. The Plan Rules provide that the "Restriction Period", unless specified in the Offer Letter, is the earlier of when the Participant ceases to be an employee, when the Board agrees to end the Restriction Period or 10 years from the date of issue of the Shares. Exempt Share Awards Exempt Share Awards are to be offered to employees for no consideration or at a discount to market price with the intention that up to $1,000 of the total discount received by the employee will be exempt from tax. The Plan Rules provides that the Restriction Period, unless specified in the Offer Letter, is the earlier of 3 years from the date of issue of the Shares or when the Participant ceases to be an employee. All shares issued under the Plan are considered fully paid ordinary shares in Company A ( Shares ) and will rank equally for dividends and other entitlements where the record date is after the date of allotment (refer to the Plan Rules). Where there is a takeover bid, scheme of arrangement, selective capital reduction or other transaction, Participants are entitled to accept the bid and participate in the transactions with all or part of their Awards other than Exempt Share Awards, notwithstanding that the restriction period has not expired. The Board also has absolute discretion to waive unsatisfied vesting conditions in relation to all or some of the Awards. The Plan allows Company A to issue new Shares or cause existing Shares to be transferred to satisfy the obligations under the Plan rules. The Plan allows the Company to appoint a trustee to acquire and hold Shares, Options, or other securities of the Company either on behalf of Participants or for the purposes of the Employee Incentive Plan. A Participant must not sell, transfer, grant an interest in or dispose of any restricted awards (or agree to do any of those things) during the restriction period. Furthermore, participants must not enter into transactions or arrangements, including by way of derivatives or similar financial products, which limit the economic risk of holding unvested Awards. The Company may implement any procedures it considers appropriate to ensure that Restricted Awards (as defined in the Plan Rules) are not disposed of during the Restriction Period, including applying a holding lock in respect of the Shares or using an employee share trust. Company A Group Employee Share Plan Trust The Company A Group Employee Share Plan Trust (EST) was established on XXYYZZ pursuant to the Company A Group Employee Share Plan Trust Deed executed by Company A and the Trustee (Trust Deed). The Trustee is appointed under the Trust Deed to be the Trustee of the EST. Pursuant to the Recitals in the Trust Deed the EST was established for the sole purpose of acquiring, holding and transferring shares in connection with equity incentive plans established by Company A from time to time for the benefit of the participants of those plans. For the purposes of this ruling and as noted above the EST will only be used to administer shares relating to Awards, Deferred Share Awards or Exempt Share Awards already on offer or to be offered under the Plan. The EST provides Company A with greater flexibility to accommodate the incentive arrangements of Company A both now and into the future as the group continues to expand its operations. The EST provides capital management flexibility for Company A, in that the Trust can use the contributions made by Company A either to acquire shares in Company A on market, or alternatively to subscribe for new shares in Company A. Similarly, the EST provides an arm's length vehicle through which shares in Company A can be acquired and held in Company A on behalf of employees. In effect, this aspect allows Company A to satisfy Corporations Law requirements relating to companies dealing in their own shares. The Trustee is an independent third party and will operate the Trust in accordance with the Trust Deed. Broadly, the EST operates as follows: · Company A must provide the Trustee with the funds required for the purchase of Shares in accordance with the Plan · The Trustee must not repay Company A any amount received as contributions of funds for the acquisition of Shares · These funds are used by the Trustee to acquire Shares in Company A either on-market or via a subscription for new Shares in Company A based on written instructions from Company A · Where Company A notifies the Trustee to acquire Shares and allocate them to a Participant, as soon as reasonably practicable, the Trustee must allocate the Participant the number of Shares as specified in the notice · Where Company A notifies the Trustee under the Trust Deed to acquire Shares without yet being allocated to a Participant, the Trustee will hold the Shares on trust for the Participants generally and in accordance with the terms of the Trust Deed · The Trust is precluded from exercising voting rights in relation to the unallocated plan shares · Following a written request from the beneficiary, Company A, or termination of the Trust, the Trustee must promptly transfer registered title in the Share that forms part of the trust property, together with any related trust property, to which the beneficiary is entitled Contributions to the Trust Company A does not and will not pay cash contributions to the Trust prior to the issue of Awards under the Plan to Participants. Company A may wait until the Awards vest, and to receive the exercise notice from Participants where relevant, before providing the Trust with the cash necessary to acquire shares to satisfy the acquisition or subscription of shares related to those Awards. The Company will also typically wait until grant of Deferred Share Awards and Exempt Share Awards to make related contributions to the Trust. However, where it makes commercial sense to do so, Company A may make cash contributions to the Trust prior to the Awards vesting and exercise by the Participant, or prior to the grant of Deferred Share Awards or Exempt Share Awards. In this case, Company A will contribute to the Trust enough funding to enable purchase of shares in advance of when Awards are likely to vest or be exercised or in advance of the grant date of the Deferred Share Awards or Exempt Share Awards. This allows the Trustee to have enough shares in the Trust ahead of when they need to be allocated to Participants, and avoids delays in times such as blackout trading periods. Contributions in respect of foreign based employees Contributions to the Trust may be made by Company A on behalf of Australian tax residents and non- Australian tax residents. This Application does not relate to a tax deduction for contributions made to acquire shares in relation to awards granted to non-Australian tax residents that are not working in Australia. The tax deductibility question only relates to contributions made in relation to Australian tax residents or non-Australian tax residents which are working in Australia. When Company A makes a contribution to the Trust, it will clearly identify the contribution that will be made in relation to shares to be acquired in respect of Awards offered to Australian tax resident employees and the non-residents working in Australia and claim a tax deduction for this portion only. Independent Contractors Independent contractors are eligible to participate in the Plan provided they meet the definition specified in section 83A- 325 of the ITAA 1997.

Relevant legislative provisions: Income Tax Assessment Act 1997 Section 6-5 | Income Tax Assessment Act 1997 Section 6-10 | Income Tax Assessment Act 1997 Section 10-5 | Income Tax Assessment Act 1997 Division 83A | Income Tax Assessment Act 1997 Section 104-75 | Income Tax Assessment Act 1997 Section 104-85 | Income Tax Assessment Act 1997 Section 106-50 | Income Tax Assessment Act 1997 Section 130-90 | Income Tax Assessment Act 1997 Section 130-85 | Income Tax Assessment Act 1936 Section 95

Reasons for decision: Summary: Section 6-5 provides that the assessable income of an Australian resident includes income according to ordinary concepts (called 'ordinary income' in subsection 6-5(1)) derived directly or indirectly from all sources, whether in or out of Australia (subsection 6-5(2)). The irretrievable cash contributions received by the Trustee will not be included in the Trustee's assessable income under section 6-5 as ordinary income because the contributions are of a capital nature. Section 6-10 provides that a taxpayer's assessable income also includes some amounts that are not ordinary income. These amounts, which are included in a taxpayer's assessable income by specific provisions of both the ITAA 1997 and ITAA 1936, are called 'statutory income'. Section 10-5 contains a list of these provisions. None of the provisions listed in section 10-5 are relevant in the present circumstances. Therefore, the irretrievable cash contributions received by the Trustee will not be included in the Trustee's assessable income under section 6-10 as statutory income. Under Division 6 of Part III of the ITAA 1936, generally the beneficiaries of a trust who are presently entitled to a share of the income of the trust include that share of the 'net income' of the trust in their assessable income. The trustee is generally taxed on the balance of the net income which is not included in the assessable income of a beneficiary. Subsection 95(1) of the ITAA 1936 defines 'net income' as follows: net income, in relation to a trust estate, means the total assessable income of the trust estate calculated under this Act as if the trustee were a taxpayer in respect of that income and were a resident, less all allowable deductions, except... Given that the irretrievable cash contributions made to the Trustee are neither ordinary income nor statutory income, they will not be included in the net income of the Trust, and hence cannot be assessed to the Trustee pursuant to Division 6 of Part III of the ITAA 1936. | Detailed Reasoning - CGE event E5: When a Participant in the Plan, becomes absolutely entitled to the shares as against the Trustee, CGT Event E5 will occur and under section 104-75 the Trustee will make a capital gain or loss. However, section 130-90 may operate to disregard that gain or loss where specified conditions are satisfied. | Detailed Reasoning - Rights: Subsection 130-90(1): Subsections 130-90(1) and 130-90(2) state: Shares held to satisfy the future exercise of rights acquired under employee share schemes | Detailed Reasoning - 130-90(1): Disregard any capital gain or capital loss made by an employee share trust, or a beneficiary of the trust, to the extent that it results from a CGT event, if: (a) the CGT event is CGT event E5 or E7; and (b) the CGT event happens in relation to a share; and (c) the beneficiary had acquired a beneficial interest in the share by exercising a right; and (d) the beneficiary's beneficial interest in the right was an ESS interest to which Subdivision 83A-B or 83A-C (about employee share schemes) applied. | Detailed Reasoning - 130-90(2): Subsection (1A) or (1) does not apply if the beneficiary acquired the beneficial interest in the share for more than its cost base in the hands of the employee share trust at the time the CGT event happens. | Detailed Reasoning - Employee share trust: Subsection 130-85(4) of the ITAA 1997 states: An employee share trust, for an employee share scheme, is a trust whose sole activities are: (a) obtaining shares or rights in a company; and Reasons for decision Case number: (b) ensuring that ESS interests in the company that are beneficial interests in those shares or rights are provided under the employee share scheme to employees, or to associates of employees, of: (i) the company; or (ii) a subsidiary of the company; and (a) other activities that are merely incidental to the activities mentioned in paragraphs (a) and (b). In respect of Rights, the right to acquire a share and the beneficial interest in the share that is acquired pursuant to the exercise of the right are both ESS interests within the meaning of subsection 83A-10(1) of the ITAA 1997. Equally, Deferred and Exempt Share Awards are also ESS interests within the meaning of subsection 83A-10(1) of the ITAA 1997 as they each represent a beneficial interest in a share in a company (Company A). An employee share scheme is defined in subsection 83A-10(2) of the ITAA 1997 as a scheme under which ESS interests in a company are provided to employees, or associates of employees (including past or prospective employees) in relation to the employees' employment. The Plan is an employee share scheme within the meaning of subsection 83A-10(2) of the ITAA 1997 because it is a scheme under which Rights (rights to acquire shares in the company) and Deferred and Exempt Share Awards (shares in a company) are provided to employees in relation to the employee's employment. Under the Plan, the employer has established the EST to acquire shares in the company and to allocate those shares to employees to satisfy Rights and Deferred and Exempt Share Awards acquired under the Plan. In respect of Rights the beneficial interest in the share is itself also provided under an employee share scheme because it is provided under the same scheme under which the rights to acquire the shares are provided to the employee in relation to the employee's employment, being an employee share scheme as defined in subsection 83A-10(2) of the ITAA 1997. Therefore, paragraphs 130-85(4)(a) and (b) of the ITAA 1997 are satisfied because: · the EST acquires shares in a company (being Company A); and · the EST ensures that ESS interests as defined in subsection 83A-10(1) of the ITAA 1997, being beneficial interests in those shares, are provided under an ESS, as defined in subsection 83A-10(2) of the ITAA 1997, by allocating those shares to the employees in accordance with the governing documents of the scheme (i.e. each of the Plan). Undertaking the activities mentioned in paragraphs 130-85(4)(a) and 130-85(4)(b) of the ITAA 1997 will require a trustee to undertake incidental activities that are a function of managing the employee share scheme and administering the trust. For the purposes of paragraph 130-85(4)(c) of the ITAA 1997, activities which are merely incidental, as set out in ATO ID 2010/108, include: · the opening and operation of a bank account to facilitate the receipt and payment of money · the receipt of dividends in respect of shares held by the trust on behalf of an employee, and their distribution to the employee · the receipt of dividends in respect of unallocated shares and using those dividends to acquire additional shares for the purposes of the employee share scheme · dealing with shares forfeited under an employee share scheme including the sale of forfeited shares and using the proceeds of sale for the purposes of the employee share scheme · the transfer of shares to employee beneficiaries or the sale of shares on behalf of an employee beneficiary and the transfer to the employee of the net proceeds of the sale of those shares · the payment or transfer of trust income and property to the default beneficiary on the winding up of the trust where there are no employee beneficiaries · receiving and immediately distributing shares under a demerger. Activities that result in employees being provided with additional benefits (such as the provision of financial assistance, including a loan to acquire the shares) are not considered merely incidental. For the purposes of the EST, the powers of the Trustee are set out in the Trust Deed. The Trust Deed limits the powers given to the Trustee under the Trust Deed so as to ensure that the powers of the Trustee under the Trust Deed are exercised in accordance with subsection 130-85(4) of the ITAA 1997. These provisions collectively make it clear that the Trustee can only use the contributions received exclusively for the acquisition of shares for eligible employees in accordance with the Plan. To this end, all other duties/general powers listed in the Trust Deed are considered to be merely incidental to the functions of the Trustee in relation to its dealing with the shares for the sole benefit of Participants in accordance with the Plan. Therefore, the EST is an employee share trust as the activities of the EST in acquiring and allocating ESS interests meet the requirements of paragraphs 130-85(4)(a) and 130-85(4)(b) of the ITAA 1997 as concluded above, and its other activities (general powers) are merely incidental to those activities in accordance with paragraph 130-85(4)(c) of the ITAA 1997. | Detailed Reasoning - Paragraph 130-90(1)(a): CGT event E5 is the CGT event that will apply in respect of Rights granted under the Plan at the time the Participant becomes absolutely entitled to the Shares as against the Trustee. Therefore paragraph 130-90(1)(a) will be satisfied. | Detailed Reasoning - Paragraph 130-90(1)(b): Subsection 995-1(1) defines a share in a company to mean a share in the capital of a company. An ordinary share in Company A held by the Trustee and to which a Participant is entitled upon exercise of a Right is a share in the capital of a company (i.e. Company A). Accordingly, paragraph 130-90(1)(b) is satisfied as CGT event E5 happens in relation to a share for the purposes of that paragraph. | Detailed Reasoning - Paragraph 130-90(1)(c): Paragraph 130-90(1)(c) is satisfied as a Participant will have acquired a beneficial interest in a share (in Company A) by exercising a Right provided under the Plan. | Detailed Reasoning - Paragraph 130-90(1)(d): Subsection 83A-20(1) of Subdivision 83A-B states: This Subdivision applies to an ESS interest if you acquire the interest under an employee share scheme at a discount. Subsection 83A-10(2) defines an employee share scheme as being a scheme under which ESS interests in a company are provided to employees, or associates of employees (including past or prospective employees) in relation to the employees' employment. The Plan is an employee share scheme within the meaning of subsection 83A-10(2) because it is a scheme under which rights to acquire beneficial interests in ordinary shares in Company A are provided to employees in relation to the employee's employment. Each Right is acquired for no cost. As a starting point subdivision 83A-B will apply to Rights acquired under the Plan as pursuant to subsection 83A-20(1) the ESS interests (i.e. Rights issued under the Plan) will be acquired under an employee share scheme (for the reasons stated in the immediately preceding paragraph) at a discount. (It should be noted however that whether a Participant is ultimately taxed upfront on some or all of any discount received (under Subdivision 83A-B) or is able to defer the timing of the inclusion of an amount in their assessable income (under Subdivision 83A-C), will depend on which of the additional requirements in Subdivision 83A-B or Subdivision 83A-C have been satisfied. Under either circumstance paragraph 130-90(1)(d) will be satisfied. Accordingly, all the conditions in subsection 130-90(1) have been satisfied. Therefore pursuant to subsection 130-90(2), provided a Participant does not acquire the beneficial interest in the Company A share for more than its cost base in the hands of the EST at the time that CGT event E5 happens, subsection 130-90(1) will apply. | Detailed Reasoning - Deferred and Exempt Share Awards: Subsection 130-90(1A): Subsections 130-90(1A) and 130-90(2) state: Shares held for future acquisition under employee share schemes | Detailed Reasoning - 130-90(1A): Disregard any capital gain or capital loss made by an employee share trust to the extent that it results from a CGT event, if: (a) immediately before the event happens, an ESS interest is a CGT asset of the trust; and (b) either of the following subparagraphs applies: (i) the event is CGT event E5, and the event happens because a beneficiary of the trust becomes absolutely entitled to the ESS interest as against the trustee; (ii) the event is CGT event E7, and the event happens because the trustee disposes of the ESS interest to a beneficiary of the trust; and View history reference (c) Subdivision 83A-B or 83A-C (about employee share schemes) applies to the ESS interest. | Detailed Reasoning - 130-90(2): Subsection (1A) or (1) does not apply if the beneficiary acquired the beneficial interest in the share for more than its cost base in the hands of the employee share trust at the time the CGT event happens. Under the Plan, employees may also be granted Deferred and Exempt Share Awards i.e. shares in Company A (which will make contributions to the Trustee in order to allow the Trustee to either subscribe for shares from Company A or acquire them on-market to satisfy the offers made to the eligible employees pursuant to the Deferred and Exempt Share Awards). Subsection 130-90(1A) provides that any capital gain or loss made by an employee share trust is disregarded where it results from a CGT event if immediately before the event happens an ESS interest is a CGT asset of the trust and a beneficiary of the trust becomes absolutely entitled to the ESS interest (CGT event E5), or the trustee disposes of the ESS interest to a beneficiary of the trust (CGT event E7). For the reasons discussed above, the EST satisfies the definition of an employee share trust in subsection 130-85(4). Paragraph 130-90(1A)(a) is satisfied as the Deferred and Exempt Award Shares held by the Trustee are ESS interests which are CGT assets of the EST. CGT event E5 is the CGT event that will apply under the terms of the Plan at the time the Participant becomes absolutely entitled to the EST shares as against the Trustee. Therefore paragraph 130-90(1A)(b) is satisfied. The Plan is an employee share scheme for the purposes of Division 83A as it is an arrangement under which an ESS interest (a Deferred and Exempt Share Award) is provided to a Participant in relation to their employment in Company A or a subsidiary of the Company A income tax consolidated group in accordance with the Trust Deed. As stated above either 83A-B or 83A-C will apply to the ESS interest, being the Deferred and Exempt Share Awards. Accordingly, paragraph 130-90(1A)(c) will be satisfied. Accordingly, all the conditions in subsection 130-90(1A) have been satisfied. Therefore pursuant to subsection 130-90(2), provided a Participant does not acquire the beneficial interest in the Company A share for more than its cost base in the hands of the EST at the time that CGT event E5 happens, subsection 130-90(1A) will apply. | Detailed Reasoning - Conclusion: Under the circumstances of either subsection 130-90(1) or 130-90(1A) applying, section 130-90 operates to disregard any capital gain or loss made by the Trustee on any Company A share when a Participant becomes absolutely entitled to that share.

These reasons for decision accompany the Notice of private ruling for The Trustee For Company A Group Employee Share Plan Trust. While these reasons are not part of the private ruling, we provide them to help you to understand how we reached our decision. | All legislative references are to the Income Tax Assessment Act 1997 , unless specified otherwise.