Private ruling: CFC Income Attribution & Part IVA
Published: November 2012
Ruling period: A number of income years
Date scheme commenced: During the 2013 income year

Ruling: Q1: Under the Proposed Arrangement, is the income of Overseas Co from its online business included in the assessable income of Domestic Co under section 456 of the Income Tax Assessment Act 1936 (ITAA 1936)? | A1: No | Q2: Is the sole or dominant purpose of the Proposed Arrangement to enable Domestic Co to obtain a tax benefit? If so, does Part IVA of the ITAA 1936 apply to the Proposed Arrangement to cancel the tax benefit? | A2: No

Relevant facts and circumstances: Edited Facts Overseas Co 1. Overseas Co is a wholly owned subsidiary of Domestic Co. 2. Domestic Co is an Australia resident for tax purposes and the head company of an Australian income tax consolidated group. 3. Overseas Co is a company incorporated outside Australia and is a resident for income tax purposes in the foreign country in which it conducts its online business. 4. Domestic Co is involved in the Australian retail industry. 5. Overseas Co is a controlled foreign company (CFC) of Domestic Co for the purposes of section 340 of the Income Tax Assessment Act 1936 (ITAA 1936). 6. Domestic Co is an attributable taxpayer in respect of Overseas Co for the purposes of subsection 361(1) of the ITAA 1936. 7. For the purposes of subsection 362(1) of the ITAA 1936, the attribution percentage in relation to Domestic Co (the attributable taxpayer) is 100%. The Proposed Arrangement The ' Proposed Arrangement ' will comprise of the following facts: 8. Overseas Co proposes to sell goods through its offshore based online website directly to customers in Australia . 9. The business operations of Overseas Co will be carried out outside Australia by employees of Overseas Co who ordinarily reside outside Australia. 10. Meetings of the Overseas Co Board will be usually held outside Australia. This Board will comprise of both Australian resident directors and foreign resident directors. 11. An arm's length fee will be charged to Overseas Co for services provided by the third party logistics company. 12. Overseas Co may enter into an agreement with a third party provider to procure webhosting services (which will be located on a server outside Australia) for the proposed online store. Functions and activities of Overseas Co 13. Overseas Co is responsible for designing and monitoring the website and the website security. 14. Overseas Co will own the brand of the products, the URL and content copyrights for the website. 15. Payment for sales made by the website will be directed to a banking facility of Overseas Co which is domiciled outside Australia, and the day-to-day banking functions will be managed by Overseas Co. 16. The Overseas Co business and day-to-day management will be headquartered outside Australia. 17. Overseas Co will also be responsible for the strategic direction and functions of the business, including the setting of various quality standards, advertising and resourcing. 18. No business operations of the online venture, through Overseas Co, will be undertaken in Australia. Overseas II Co, a company incorporated outside Australia and a sister company of Overseas Co will provide certain services to Overseas Co. 19. Certain support functions may be provided by Domestic Co to Overseas Co. All actions provided to Overseas Co will be governed by arm's length agreements with appropriate fee structures. Online Store Terms and Conditions The pro-forma online store contractual terms and conditions ( the Terms ) provide inter alia, that: 20. By placing an order the customer acknowledges that they agree to be bound by the Terms. 21. The customer agrees that a legally binding contract is formed in the country where Overseas Co conducts its online business at the time that the order confirmation is sent by Overseas Co to the customer. 22. All prices for products quoted on the online website are in Australian dollars. 23. The title and risk of loss in the products ordered passes to the customer on the date and time of delivery of those products to Overseas Co' nominated delivery agent in the country of export. 24. The Terms and any contract arising under the Terms are governed by and construed under the laws of the country where Overseas Co conducts its online business. Assumptions 25. Overseas Co will satisfy the requirements of paragraphs 432(1)(a) to (e) of the ITAA 1936. 26. Overseas Co's passive income will constitute less than 5% of the gross turnover for the purpose of calculating the tainted income ratio under subsection 433(1) of the ITAA 1936.

Relevant legislative provisions: Income Tax Assessment Act 1936 Part X | Income Tax Assessment Act 1936 Part IVA

Reasons for decision: Detailed Reasoning - Question 1:: Under the Proposed Arrangement, is the income of Overseas Co from its online business included in the assessable income of Domestic Co under section 456 of the Income Tax Assessment Act 1936 (ITAA 1936)? | Summary: Section 456 of the ITAA 1936 would not apply to have Domestic Co include the income of Overseas Co from the online business under the Proposed Arrangement in its assessable income. | Detailed Reasoning - Detailed Reasoning: 1. Subsection 456(1) of the ITAA 1936 provides for present purposes that, where a controlled foreign company (CFC) has attributable income for a statutory accounting period in respect of an attributable taxpayer, the taxpayer's attribution percentage of the attributable income is included in its assessable income of the income year in which the statutory accounting period occurs. 2. The inclusion of attributable income (as referred to in subsection 382(1) of the ITAA 1936) in Domestic Co's assessable income occurs where the following conditions are satisfied: · Overseas Co is a CFC of Domestic Co (subsection 340(a) of the ITAA 1936); · Domestic Co is an attributable taxpayer (paragraph 361(1)(a) of the ITAA 1936); and · Overseas Co has attributable income for the statutory accounting period in respect of an attributable taxpayer. | Detailed Reasoning - CFC: 3. Pursuant to section 340 of the ITAA 1936, a company is a CFC at a particular time if, at that time, the company is a resident of a listed country or of an unlisted country and any of the following paragraphs applies: (a) …at that time, there is a group of 5 or fewer Australian 1% entities the aggregate of whose associate-inclusive control interests in the company is not less than 50%; (b) both of the following subparagraphs apply: (i) at that time, there is a single Australian entity (in this paragraph called the assumed controller ) whose associate-inclusive control interest in the company is not less than 40%; (ii) at that time, the company is not controlled by a group of entities not being or including the assumed controller or any of its associates; (c) at that time, the company is controlled by a group of 5 or fewer Australian entities, either alone or together with associates (whether or not any associate is also an Australian entity). 4. Domestic Co has advised that Overseas Co is a 100% wholly owned subsidiary of Domestic Co and that Overseas Co is a CFC of Domestic Co pursuant to subsection 340(a) of the ITAA 1936. | Detailed Reasoning - Attributable taxpayer: 5. Pursuant to subsection 361(1) of the ITAA 1936, Domestic Co will be an attributable taxpayer in relation to Overseas Co if at a particular time if, at that time: (a) the associate-inclusive control interest of Domestic Co in the CFC is at least 10%; or (b) all of the subparagraphs apply: (i) Overseas Co is a CFC only because of paragraph 340(c) of the ITAA 1936; (ii) Overseas Co is controlled by any group of 5 or fewer Australian entities; and (iii) Domestic Co is an Australian 1% entity and is included in the group of 5 or fewer Australian entities. 6. Domestic Co has advised that it will be an attributable taxpayer in respect of Overseas Co pursuant to subsection 361(1)(a) of the ITAA 1936. | Detailed Reasoning - Attribution percentage: 7. For the purposes of subsection 362(1) of the ITAA 1936, Domestic Co has advised that the attribution percentage in relation to Overseas Co (the attributable taxpayer) is 100%. | Detailed Reasoning - Attributable income: 8. Subsection 382(1) of the ITAA 1936 defines 'attributable income' as the amount that would be the CFC's taxable income if certain assumptions set out in section 383 of the ITAA 1936 and, for present purposes, section 384 of the ITAA 1936 were met. For the purposes of describing those assumptions: · "assessable income" is referred to as "notional assessable income" · "allowable deductions" are referred to as "notional allowable deductions", and · "exempt income" is referred to as "notional exempt income". 9. The assumptions referred to in section 382 are contained in sections 383, 384 and 385. Notional exempt income is all income other than notional assessable income for the purposes of sections 384(2) and 385(2). 10. In relation to the assumptions, section 383 of the ITAA 1936 provides the following: a) the CFC is a 'taxpayer' and 'resident' within the meaning of those terms in subsection 6(1) of the ITAA 1936 throughout the whole of the statutory accounting period (referred to as eligible period); and. b) the eligible period is a year of income, namely, the year of income of the eligible taxpayer in which the eligible period ends; and c) that the ITAA 1936 is modified in accordance with Subdivision B to E (of Division 7 of Part X of the ITAA 1936); and d) in relation to CFCs which are residents of unlisted countries, additional assumptions in section 384 of the ITAA 1936 also apply. 11. From facts provided by the applicant, Overseas Co is a tax resident of an unlisted country as defined in section 320(1) 1 of the ITAA 1936. Accordingly, the additional assumptions in section 384 of the ITAA 1936 apply. 12. Paragraph 384(2)(a) of the ITAA 1936 provides that where the CFC does not pass the active income test, its notional assessable income includes its adjusted tainted income. Under section 386 of the ITAA 1936, 'adjusted tainted income' are references to passive income, tainted sales and tainted services income. Therefore, it is necessary to determine whether Overseas Co passes the active income test. | Detailed Reasoning - Active income test: 13. The active income test in section 432 of the ITAA 1936 is as follows: (1) Subject to sections 437 and 453, for the purposes of this Part, a company is taken to pass the active income test in relation to a statutory accounting period if, and only if: (a) the company was in existence at the end of the statutory accounting period; and (b) there was no time during the statutory accounting period when the company was in existence when the company was neither a resident of a particular listed country nor of a particular unlisted country; and (c) the company has kept accounts for the statutory accounting period and: (i) the accounts are prepared in accordance with commercially accepted accounting principles; and (ii) the accounts give a true and fair view of the financial position of the company; and (d) the company has complied with the substantiation requirements set out in section 451 in relation to the statutory accounting period; and (e) at all times during the statutory accounting period when the company was in existence and was a resident of a particular listed country, or of a particular unlisted country, the company carried on business in that country at or through a permanent establishment of the company in that country; and (f) the tainted income ratio of the company for the statutory accounting period is less than 0.05. 14. In its private ruling application, Domestic Co requests that the Commissioner 'accept without review that the criteria set out in paragraphs 432(1)(a)-(e) (of the ITAA 1936) will be satisfied by Overseas Co. | Detailed Reasoning - Tainted income ratio: 15. The tainted income ratio referred to in paragraph 432(1)(f) of the ITAA 1936 is calculated in accordance with the formula in subsection 433(1) of the ITAA 1936 which is as follows: gross tainted turnover divided by gross turnover. 16. The Commissioner has been asked to assume, for the purposes of this Ruling, that any passive income derived by Overseas Co would be minimal and incidental to its operations and would therefore constitute less than 5% of its income. Overseas Co will also satisfy the requirement of paragraph 432(1)(f) of the ITAA 1936 where Overseas Co's passive income will constitute less than 5% of its gross turnover for the purpose of calculating the tainted income ratio under subsection 433(1) of the ITAA 1936. 17. The Commissioner assumes that any passive income Overseas Co derives will constitute less than 5% of its gross turnover. 18. As Overseas Co is assumed to have fulfilled all the conditions in subsection 432(1) of the ITAA 1936, Overseas Co will pass the active income test. In the context of section 384(2)(a) of the ITAA 1936, this means that Overseas Co's notional assessable income will not include any adjusted tainted income. | Detailed Reasoning - Conclusion: 19. Accordingly, the sales income of Overseas Co in relation to the operation of its online business under the Proposed Arrangement will not constitute attributable income of Overseas Co for the purposes of section 382 of the ITAA 1936. Section 456 of the ITAA 1936 does not apply to have Domestic Co include the income of Overseas Co from the online business under the Proposed Arrangement in its assessable income. | Detailed Reasoning - Question 2:: Is the sole or dominant purpose of the Proposed Arrangement to enable Domestic Co to obtain a tax benefit? If so, does Part IVA of the ITAA 1936 apply to the Proposed Arrangement to cancel the tax benefit? | Summary: The sole or dominant purpose of the Proposed Arrangement is not to enable Domestic Co to obtain a tax benefit. Part IVA of the ITAA 1936 does not apply to the Proposed Arrangement to cancel the tax benefit. | Detailed Reasoning - Purpose of Part IVA - Anti-avoidance: 20. Part IVA of the ITAA 1936 is a general anti-avoidance provision inserted into the ITAA 1936 in 1981 and it applies to schemes entered into after 27 May 1981. Part IVA can apply whether a scheme is carried out in Australia or abroad: section 177D of the ITAA 1936. 21. Part IVA gives the Commissioner the discretion to cancel 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. This discretion is found in subsection 177F(1). 22. Before the Commissioner can exercise the discretion in subsection 177F(1) of the ITAA 1936, the requirements of Part IVA must be satisfied. These requirements are that: (i) a 'tax benefit', as identified in section 177C of the ITAA 1936, was or would, but for subsection 177F(1), have been obtained; (ii) the tax benefit was or would have been obtained in connection with a 'scheme' as defined in section 177A of the ITAA 1936; and (iii) having regard to section 177D of the ITAA 1936, the scheme is one to which Part IVA applies. 23. Regard must be had to the individual circumstances of each case in making a determination under section 177F of the ITAA 1936 to cancel a tax benefit. 24. PSLA 2005/24 sets out the Commission's view on how Part IVA is to be applied. | Detailed Reasoning - Scheme: 25. A scheme is defined at subsection 177A(1) of the ITAA 1936 as: "(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether enforceable or intended to be enforceable, by legal proceedings; and (b) any scheme, plan, proposal, action, cause of action or cause of conduct." 26. For Part IVA of the ITAA 1936 to apply, the identified scheme must fall within the wide definition of 'scheme' in subsection 177A(1). | Detailed Reasoning - Relevant case law relating to the definition of scheme: 27. Federal Commissioner of Taxation v. Hart [2004] HCA 26; 217 CLR 216; 206 ALR 207; 2004 ATC 4599; 55 ATR 712 at [43] per Gummow and Hayne JJ: Th[e] definition is very broad. It encompasses not only a series of steps which together can be said to constitute a "scheme" or a "plan" but also (by its reference to "action" in the singular) the taking of but one step. 28. Federal Commissioner of Taxation v. Hart [2004] HCA 26; 217 CLR 216; 206 ALR 207; 2004 ATC 4599; 55 ATR 712 at [89] per Callinan J: The use of the singular, narrow words, proposal, action or course of action in s177A(1)(b) in juxtaposition with, for example, agreement or arrangement in s177A(1)(a) indicates that something done which is less than the whole of an arrangement or agreement may be capable of itself being a scheme. This view is I think not only consistent with, and a true reflection of the statutory language, but also with the legislative intention discernible from the Explanatory Memorandum. 29. The Proposed Arrangement as detailed above would constitute a scheme as defined in subsection 177A(1) of the ITAA 1936. Section 177D refers to the 'the purpose' of the person, or one of the persons, who entered into or carried out the scheme or any part of the scheme. The person need not be the taxpayer. It is noted that the scheme involves Overseas Co's purchase of products in Asia made available for through its online business via its website. | Detailed Reasoning - Tax benefit - section 177C: 30. Part IVA of the ITAA 1936 cannot apply unless a taxpayer has obtained, or would, but for section 177F of the ITAA 1936 obtain, a tax benefit in connection with a scheme. 31. A tax benefit for the purposes of Part IVA is defined at section 177C of the ITAA 1936. Relevantly, paragraphs 177C(1)(a) and 177C(1)(c) provide: "… a reference in this Part to the obtaining by a taxpayer of a tax benefit in connection with a scheme shall be read as a reference to: a) an amount not being included in the assessable income of the taxpayer of a year of income where that amount would have been included, or might reasonably be expected to have been included, in the assessable income of the taxpayer of that year of income if the scheme had not been entered into or carried out; or And for the purposes of this Part, the amount of the tax benefit shall be taken to be: c) in a case to which paragraph (a) applies - the amount referred to in that paragraph;" 32. The reference in paragraph 177C(1)(a) of the ITAA 1936 to 'an amount not being included in the assessable income of the taxpayer' is a reference to an amount not being included that would be or might reasonably be expected to be included in the taxpayer's assessable income under the counterfactual scenario(s). 33. This means that the relevant tax benefit would not have been obtained if the scheme had not been entered into or carried out or if the relevant tax benefit might reasonably be expected not to have been obtained if the scheme had not been entered into or carried out. 34. The identification of a tax benefit therefore requires consideration of the income tax consequences, but for the operation of Part IVA of the ITAA 1936, of an 'alternative hypothesis' or an 'alternative postulate'. This is what would have happened or might reasonably be expected to have happened if the particular scheme had not been entered into or carried out. | Detailed Reasoning - Relevant case law: 35. Federal Commissioner of Taxation v. Peabody (1994) 181 CLR 359 at 385; 123 ALR 451 at 461; 94 ATC 4663 at 4671; 28 ATR 344 at 353: A reasonable expectation requires more than a possibility. It involves a prediction as to events which would have taken place if the relevant scheme had not been entered into or carried out and the prediction must be sufficiently reliable for it to be regarded as reasonable. 36. The full Federal Court in Federal Commissioner of Taxation v. Consolidated Press Holdings (No. 1 ) (1999) 91 FCR 524 at 549; 99 ATC 4945 at 4964; 42 ATR 575 at 599, referring to Federal Commissioner of Taxation v. Spotless Services Ltd (1996) 186 CLR 404; 141 ALR 92; 96 ATC 5201 at 5211; 34 ATR 183 stated: The language [in Spotless ] suggests less of a predictive and more of a reasonable hypothesis approach than the passage earlier quoted from Peabody . 37. Two potential counterfactuals that the Commissioner may consider relevant for the purposes of identifying a tax benefit in relation to the Proposed Arrangement are detailed below. · Counterfactual 1 - Goods are sold through Domestic Co's retail stores to Australian customers, rather than through Overseas Co's online business website. · Counterfactual 2 - Goods are sold through Domestic Co's domestic online website to Australian customers or setting up an alternative Australian based website. 38. As part of the PBR application, the Applicant has provided an outline the factors which motivate Overseas Co to establish the online business model under the Proposed Arrangement as compared to the two possible counterfactuals identified above, including the commercial and financial benefits obtained under each alternative considered. 39. The Commissioner is of the view that if the Proposed Arrangement is not carried out, the reasonable expectation as identified under the two counterfactuals is that profits derived by Domestic Co would constitute Australian assessable income at the prevailing Australian corporate rate. Therefore the Commissioner is of the view that there is a tax benefit related to the Proposed Arrangement of not bringing the income derived through the online business into Domestic Co' assessable income. Instead the income tax on the income derived by Overseas Co under the Proposed Arrangement will be payable in the foreign tax jurisdiction at the prevailing corporate rate, which is a lower rate than the current Australian corporate rate. | Detailed Reasoning - Section 177D Objective Purpose: 40. Section 177D of the ITAA 1936 provides that Part IVA applies to a scheme in connection with which the taxpayer has obtained a tax benefit if, after having regard to eight specified factors, it would be concluded that a person who entered into or carried out the scheme, or any part of it, did so for the purpose of enabling the taxpayer to obtain the tax benefit. 41. The eight matters set out in subparagraphs 177D(b)(i) to (viii) of ITAA 1936 are each to be individually taken into account for the scheme having regard to all the relevant evidence, and then weighed together, in arriving at the conclusion as to dominant purpose. | Detailed Reasoning - Subparagraph 177D(b)(i) - the manner in which the scheme was entered into or carried out: 42. The guidance outlined by PS LA 2005/24 explains that this factor enables contrivance and artificiality to be identified by comparing the manner in which the scheme was entered into or carried out with the manner in which counterfactual/s would have been implemented. 43. Under the Proposed Arrangement, Domestic Co proposes to source its goods from other foreign countries through its entity, Overseas Co, who then will sell these goods directly to consumers in Australia through an online channel. Overseas Co proposes to sell a product range which is different from the current product range offered by Domestic Co. 44. There is nothing in the Proposed Arrangement which appears to be artificial or contrived. The manner in which the scheme is to be entered into is consistent with its non-tax commercial considerations and the way online sales are generally carried out by Domestic Co's resident and non-resident competitors. Therefore this factor does not point to the conclusion that the scheme was entered into with a dominant purpose of obtaining a tax benefit. | Detailed Reasoning - Subparagraph 177D(b)(ii) - The form and substance of the scheme: 45. In considering the "form and substance of the scheme", paragraph 95 of PSLA 2005/24 requires that substance, rather than form, be the subject of the inquiry. The factor in subparagraph 177D(b)(ii) of the ITAA 1936 requires the Commissioner to determine if there is a difference between the form of the scheme and its commercial and economic substance. 46. If a discrepancy exists between the practical effect of a scheme and its legal form, the scheme may have been implemented in a particular form as the means to obtain a tax benefit, if the substance of the scheme may be achieved or is available by some other more straightforward or commercial transaction or dealing 2 . 47. Under the Proposed Arrangement, Overseas Co is the legal owner of the goods in form and in substance. Overseas Co will undertake transactions with customers in its own right and be responsible for procurement of the goods it sells to customers. Overseas Co will be the entity responsible for contractual agreements relating to procurement of goods and selling the differentiated range of products to customers through its own establishment outside Australia. 48. The Commissioner does not consider that there is a discrepancy between the form and substance of the Proposed Arrangement. Therefore this second factor does not point to the conclusion that the scheme was entered into with a dominant purpose of obtaining a tax benefit. | Detailed Reasoning - Subparagraph 177D(b)(iii) - The time at which the scheme was entered into and the length of the period during which the scheme was carried out: 49. According to paragraph 101 of PSLA 2005/24, this factor includes a consideration of the time the scheme was entered into or carried out, and the length of the period which it was carried out. The timing and duration of the scheme may be relevant in determining the relevant tax benefit or the identification of any commercial opportunities or requirements. 50. The Proposed Arrangement has not yet been fully implemented. The Proposed Arrangement relating is intended to be a continuing business. 51. The Commissioner does not consider that the timing of the Proposed Arrangement indicates that the transactions under the Proposed Arrangement were entered into with the dominant purpose of obtaining a tax benefit. Therefore this third factor does not point to the conclusion that the scheme was entered into with a dominant purpose of obtaining a tax benefit. | Detailed Reasoning - Subparagraph 177D(b)(iv) - result in relation to the operation of this Act that, but for this Part, would be achieved by the scheme: 52. If Part IVA of the ITAA 1936 did not apply to the income derived in respect of the online business under the Proposed Arrangement would be assessable in the location where those amounts are legally sourced and incurred (i.e. outside Australia). The income tax on the income derived by Overseas Co under the Proposed Arrangement will be payable in the foreign jurisdiction at the prevailing corporate rate. 53. The prevailing corporate rate in the unlisted country is currently lower than the existing Australian corporate rate. Therefore this factor may point towards a dominant purpose of obtaining a tax benefit. Subparagraph 177D(b)(v) - Any change in the financial position of the relevant taxpayer that has resulted, will result, or may reasonably be expected to result, from the scheme 54. The Applicant has outlined the financial and tax consequences of the Proposed Arrangement. Based on the facts provided by the Applicant, the Commissioner considers that any tax benefits would be merely one of the consequences and not the dominant purpose of the Proposed Arrangement. Therefore this factor does not point to the conclusion that the scheme was entered into with a dominant purpose of obtaining a tax benefit. Subparagraph 177D(b)(vi) - Any change in the financial position of any person who has, or has had, any connection (whether of a business, family or other nature) with the relevant taxpayer, being a change that has resulted, will result or may reasonably be expected to result from the scheme 55. No connected parties who could reasonably be expected to have their financial position impacted by the establishment of the online business under the Proposed Arrangement have been identified. Under the Proposed Arrangement, Overseas Co will be the entity that sells a different product range to its customers. Consequently, Domestic Co should not be affected under the Proposed Arrangement. 56. Therefore this factor does not point to the conclusion that the scheme was entered into with a dominant purpose of obtaining a tax benefit. Section 177D(b)(vii) - Any other consequence for the relevant taxpayer, or for any person referred to in (vi) of the scheme having been entered into or carried out 57. There is not expected to be any other consequence for Overseas Co or other connected parties from the implementation of the Proposed Arrangement. Therefore this factor does not point to the conclusion that the scheme was entered into with a dominant purpose of obtaining a tax benefit. Subparagraph 177D(b)(viii) - nature of any connection (whether of a business, family or other nature) between the relevant taxpayer and any person referred to in (vi) 58. This factor is not applicable to the implementation of the Proposed Arrangement, therefore this factor does not point to the conclusion that the scheme was entered into with a dominant purpose of obtaining a tax benefit. | Detailed Reasoning - Conclusion on dominant purpose: 59. Having regard to the eight factors outlined in paragraph 177D(b) the ITAA 1936 based on the facts provided by the Applicant, the Commissioner considers that the sole or dominant purpose of the Proposed Arrangement is not to obtain a tax benefit and hence Part IVA of the ITAA 1936 will not apply to the Proposed Arrangement to cancel the potential tax benefit. | Detailed Reasoning - Disclaimer: You cannot rely on the rulings in the Register of private binding rulings in your tax affairs. You can only rely on a private ruling that we have given to you or to someone acting on your behalf. The Register of private binding rulings is a public record of private rulings issued by the ATO. The register is an historical record of rulings, and we do not update it to reflect changes in the law or our policies. The rulings in the register have been edited and may not contain all the factual details relevant to each decision. Do not use the register to predict ATO policy or decisions. 1 Unlisted country means: · a foreign country that does not (either in whole or in part) consist of a listed country or listed countries, or · if one or more parts of a foreign country are listed countries, the remainder of that foreign country. A listed country is defined to mean a foreign country, or a part of a foreign country, that is declared by the Regulations to be a listed country for the purposes of Part X 2 See Federal Commissioner of Taxation v. Sleight [2004] FCAFC 94 at [81] and [82]

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