Class Ruling CR 2014/46
Date of effect: 1 July 2013

What this ruling is about: 1. This Ruling sets out the Commissioner's opinion on the way in which the relevant provision(s) identified below apply to the defined class of entities, who take part in the scheme to which this Ruling relates. Relevant provision(s) 2. The relevant provisions dealt with in this Ruling are: Class of entities 3. The class of entities to which this Ruling applies are investors (referred to as Holders) who are allotted non-cumulative, convertible, transferable, redeemable, subordinated, perpetual, unsecured notes issued by Westpac Banking Corporation (Westpac) called Westpac Capital Notes 2 (WCN 2) and who: 4. The class of entities to which this Ruling applies does not extend to Holders of WCN 2 who acquired their WCN 2 otherwise than by initial application under the Prospectus dated 15 May 2014 issued by Westpac. Qualifications 5. This Ruling does not deal with how the taxation law applies to Holders who hold their WCN 2 as trading stock or revenue assets. 6. This Ruling does not consider the tax implications of Conversion of the WCN 2 on the occurrence of a Capital Trigger Event, Non-Viability Trigger Event, Acquisition Event or Conversion where the Holder does not wish to receive Ordinary Shares or is an Ineligible Holder. 7. This Ruling does not consider how the taxation law applies to a Nominated Party who acquires their WCN 2 under a Transfer Notice. 8. This Ruling does not consider the tax implications of the buy-back of the WCN 2 from the Nominated Party by Westpac. 9. This Ruling does not consider how the gross-up and tax offset rules in Division 207 of the ITAA 1997 apply to partnership or trustee Holders, or to indirect distributions to partners in a partnership, or beneficiaries or trustees of a trust. 10. This Ruling does not deal with how the taxation law applies to Westpac in relation to the issue of the WCN 2. 11. The Commissioner makes this Ruling based on the precise scheme identified in this Ruling. 12. The class of entities defined in this Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 15 to 60 of this Ruling. 13. If the scheme actually carried out is materially different from the scheme that is described in this Ruling, then:

Class of entities or scheme: 3. The class of entities to which this Ruling applies are investors (referred to as Holders) who are allotted non-cumulative, convertible, transferable, redeemable, subordinated, perpetual, unsecured notes issued by Westpac Banking Corporation (Westpac) called Westpac Capital Notes 2 (WCN 2) and who: 4. The class of entities to which this Ruling applies does not extend to Holders of WCN 2 who acquired their WCN 2 otherwise than by initial application under the Prospectus dated 15 May 2014 issued by Westpac. | Qualifications: 5. This Ruling does not deal with how the taxation law applies to Holders who hold their WCN 2 as trading stock or revenue assets. 6. This Ruling does not consider the tax implications of Conversion of the WCN 2 on the occurrence of a Capital Trigger Event, Non-Viability Trigger Event, Acquisition Event or Conversion where the Holder does not wish to receive Ordinary Shares or is an Ineligible Holder. 7. This Ruling does not consider how the taxation law applies to a Nominated Party who acquires their WCN 2 under a Transfer Notice. 8. This Ruling does not consider the tax implications of the buy-back of the WCN 2 from the Nominated Party by Westpac. 9. This Ruling does not consider how the gross-up and tax offset rules in Division 207 of the ITAA 1997 apply to partnership or trustee Holders, or to indirect distributions to partners in a partnership, or beneficiaries or trustees of a trust. 10. This Ruling does not deal with how the taxation law applies to Westpac in relation to the issue of the WCN 2. 11. The Commissioner makes this Ruling based on the precise scheme identified in this Ruling. 12. The class of entities defined in this Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 15 to 60 of this Ruling. 13. If the scheme actually carried out is materially different from the scheme that is described in this Ruling, then: 14. This Ruling applies from 1 July 2013 to 30 June 2025. The Ruling continues to apply after 30 June 2025 to all entities within the specified class who entered into the specified scheme during the term of the Ruling. However, this Ruling will not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of this Ruling (see paragraphs 75 and 76 of Taxation Ruling TR 2006/10). 15. The following description of the scheme is based on information provided by Westpac. The following documents, or relevant parts of them, form part of and are to be read with the description: Note: certain information has been provided on a commercial-in-confidence basis and will not be disclosed or released under the Freedom of Information legislation. 16. In this Ruling, unless otherwise defined, capitalised terms take their meaning as specified in the Prospectus and the Terms. 17. Westpac is an authorised deposit-taking institution (ADI) regulated by the Australian Prudential Regulation Authority (APRA) and other regulatory bodies. 18. The Prospectus relates to the offer of WCN 2 to raise $1 billion, with the ability to raise more or less (the Offer). The funds raised from the issue of WCN 2 will be used for the general business purposes of Westpac in Australia. 19. APRA has confirmed that the WCN 2 will be treated as Additional Tier 1 Capital under the Prudential Standard APS 111 implemented under the Basel III capital reforms (commencing from 1 January 2013). 20. The Issue Date for the WCN 2 is 23 June 2014. The WCN 2 will be quoted on the Australian Securities Exchange (ASX) and trade under the ASX code 'WBCPE'. 21. The different types of Offers and the corresponding process for lodging applications, as described in the Prospectus, are: | Main features of the WCN 2: 22. The WCN 2 are fully paid, non-cumulative, convertible, transferable, redeemable, subordinated, perpetual, unsecured notes issued by Westpac. 23. The issue price of each WCN 2 is $100, and will be fully paid on issue. 24. Each WCN 2 has a Face Value of $100 (Initial Face Value) or the Initial Face Value reduced by the amount of Face Value per WCN 2 which has previously been Converted or written down in accordance with the Terms. 25. A Holder will not have voting rights under the WCN 2, except in the limited circumstances described in the Terms. | Distribution calculation: 26. Subject to the conditions outlined at paragraph 29 of this Ruling, each WCN 2 entitles the Holder to receive on the relevant Distribution Payment Date interest on the Face Value of the WCN 2 (Distribution), calculated using the following formula: Distribution = [Distribution Rate * Face Value * N] / 365 where: Distribution Rate (expressed as a percentage per annum) is calculated using the following formula: Distribution Rate = [Bank Bill Rate + Margin] * [1 - Tax Rate] where: Bank Bill Rate (expressed as a percentage per annum) means, for each Distribution Period, the average mid-rate for bills of a term of 90 days which average rate is displayed on Reuters page BBSW (or any page that replaces that page) at 10.30am (Sydney time) on, in the case of the first Distribution Period, the Issue Date, and in the case of any other Distribution Period, the first Business Day of that Distribution Period, or if there is a manifest error in the calculation of that average rate or that average rate is not displayed at 10.30am (Sydney time) on that date, the rate specified in good faith by Westpac at or around that time on that date having regard, to the extent possible, to: (a) the rates otherwise bid and offered for bills of a term of 90 days or for funds of that tenor displayed on Reuters page BBSW (or any page which replaces that page) at that time on that date, and (b) if bid and offer rates for bills of a term of 90 days are not otherwise available, the rates otherwise bid and offered for funds of that tenor at or around that time on that date, Margin is 3.05% per annum Tax Rate (expressed as a decimal) means the Australian corporate tax rate applicable to the franking account of Westpac at the relevant Distribution Payment Date, and N means, in respect of a Distribution Period, the number of days in that Distribution Period. where: Distribution Rate (expressed as a percentage per annum) is calculated using the following formula: Distribution Rate = [Bank Bill Rate + Margin] * [1 - Tax Rate] where: Bank Bill Rate (expressed as a percentage per annum) means, for each Distribution Period, the average mid-rate for bills of a term of 90 days which average rate is displayed on Reuters page BBSW (or any page that replaces that page) at 10.30am (Sydney time) on, in the case of the first Distribution Period, the Issue Date, and in the case of any other Distribution Period, the first Business Day of that Distribution Period, or if there is a manifest error in the calculation of that average rate or that average rate is not displayed at 10.30am (Sydney time) on that date, the rate specified in good faith by Westpac at or around that time on that date having regard, to the extent possible, to: (a) the rates otherwise bid and offered for bills of a term of 90 days or for funds of that tenor displayed on Reuters page BBSW (or any page which replaces that page) at that time on that date, and (b) if bid and offer rates for bills of a term of 90 days are not otherwise available, the rates otherwise bid and offered for funds of that tenor at or around that time on that date, where: Bank Bill Rate (expressed as a percentage per annum) means, for each Distribution Period, the average mid-rate for bills of a term of 90 days which average rate is displayed on Reuters page BBSW (or any page that replaces that page) at 10.30am (Sydney time) on, in the case of the first Distribution Period, the Issue Date, and in the case of any other Distribution Period, the first Business Day of that Distribution Period, or if there is a manifest error in the calculation of that average rate or that average rate is not displayed at 10.30am (Sydney time) on that date, the rate specified in good faith by Westpac at or around that time on that date having regard, to the extent possible, to: Margin is 3.05% per annum Tax Rate (expressed as a decimal) means the Australian corporate tax rate applicable to the franking account of Westpac at the relevant Distribution Payment Date, and N means, in respect of a Distribution Period, the number of days in that Distribution Period. 27. Distributions are expected to be fully franked. However, if any Distribution is not fully franked or only partially franked (other than because of an act by, or circumstance affecting the particular Holder), the Distribution will be grossed-up to the extent that the franking percentage of the Distribution is less than 100%. 28. Subject to the conditions listed in paragraph 29 of this Ruling, Distributions are scheduled to be paid quarterly in arrear on the Distribution Payment Dates of 23 March, 23 June, 23 September and 23 December of each year, commencing on 23 September 2014 until the WCN 2 are Converted or Redeemed. Distributions are also payable on the Conversion Date, Redemption Date or Transfer Date (as the case may be) on which WCN 2 are Converted, Redeemed or Transferred. | Distribution Payment Conditions: 29. The payment of any Distribution on a Distribution Payment Date is subject to: 30. Payments of Distributions are within the absolute discretion of Westpac and are non-cumulative. Distributions are only payable in cash. If a Distribution is not paid because the relevant conditions are not satisfied or because of any other reason, Westpac has no liability to pay such Distribution to the Holder and the Holder has no claim or right to apply for winding up in respect of such non-payment. Non-payment of a Distribution does not constitute an event of default. 31. Subject to certain exceptions, non-payment of a Distribution will restrict Westpac from paying any dividends on Ordinary Shares, or undertaking any buy backs or reducing capital in relation to Ordinary Shares. | Scheduled Conversion: 32. Each WCN 2 will Convert into Ordinary Shares on the date that is the earlier of: on which the Scheduled Conversion Conditions are satisfied (each a Scheduled Conversion Date). 33. Broadly, the Scheduled Conversion Conditions are satisfied where: 34. If the Scheduled Conversion Conditions are not satisfied, Westpac will not proceed with the Scheduled Conversion. Conversion may occur on the next Distribution Payment Date on which the Scheduled Conversion Conditions are satisfied. 35. Holders have no right to request Conversion of their Westpac Capital Notes 2 at any time. | Automatic Conversion: 36. Conversion of the WCN 2 may occur at a time before a Scheduled Conversion Date (Automatic Conversion) on the occurrence of: Capital Trigger Event and Non-Viability Trigger Event 37. Westpac must Convert all or some of the WCN 2 upon the occurrence of a Capital Trigger Event or a Non-Viability Trigger Event. 38. A Capital Trigger Event occurs when Westpac determines, or APRA notifies Westpac that it believes, that either or both the Westpac Level 1 Common Equity Tier 1 Capital Ratio or Westpac Level 2 Common Equity Tier 1 Capital Ratio (calculated in accordance with APRA's prudential standards) is equal to or less than 5.125%. 39. A Non-Viability Trigger Event occurs when APRA notifies Westpac in writing that it believes: 40. Automatic Conversion on the occurrence of a Capital Trigger Event or Non-Viability Trigger Event is not subject to any of the Scheduled Conversion Conditions being satisfied. 41. Conversion of the relevant WCN 2 will be taken to have occurred immediately upon the date of occurrence of the Capital Trigger Event or Non-Viability Trigger Event. 42. If, for any reason, Conversion of any of the WCN 2 fails to take effect and Westpac is not otherwise able to issue the Ordinary Shares required to be issued in respect of such Conversion within five Business Days after the date of the occurrence of the relevant event, then the relevant Holders' rights (including to Distributions and the Face Value and any other payments) in relation to such WCN 2 are immediately and irrevocably terminated and such termination will be taken to have occurred immediately on the date of the Capital Trigger Event or Non-Viability Trigger Event. Acquisition Event 43. Westpac must Convert all the WCN 2 on the occurrence of an Acquisition Event. 44. Automatic Conversion of the WCN 2 upon the occurrence of an Acquisition Event is subject to the Second Scheduled Conversion Condition being satisfied, except that the condition will apply as if it referred to 20.20% of the Issue Date VWAP. If the Second Scheduled Condition is not satisfied, the WCN 2 will not Convert. | Optional Conversion: 45. Westpac may at its option Convert all or some WCN 2 on 23 September 2022 or all (but not some) of the WCN 2 on an Optional Conversion Date following the occurrence of a Tax Event or Regulatory Event. 46. Westpac may only elect to Convert the WCN 2 if on the second Business Day before the Optional Conversion Notice is sent (or, if trading in Ordinary Shares did not occur on that date, the last Business Day prior to that date on which trading in Ordinary Shares occurred) the VWAP on that date is: 47. Conversion on an Optional Conversion Date is subject to the Second Scheduled Conversion Condition being satisfied, (except in the case of an Optional Conversion following a Tax Event or Regulatory Event, the Second Scheduled Conversion Condition will apply as if it referred to 20.20% of the Issue Date VWAP). If the Conversion Condition is not satisfied, Conversion will not occur. Holders do not have a right to request Conversion of their WCN 2. | General provisions applicable to Conversion: 48. On Conversion: 49. The Conversion Number (of Ordinary Shares for each WCN 2) is calculated according to the formula set out in the Terms and is always subject to the Conversion Number not being greater than the Maximum Conversion Number, calculated according to the formula set out in the Terms. 50. Except for a Conversion as a result of a Capital Trigger Event or Non-Viability Trigger Event, a Conversion Date is also a Distribution Payment Date which means Holders will receive any Distribution entitlements up to and including the Conversion Date (subject to the Distribution Payment Conditions described in paragraph 29 of this Ruling). 51. Holders do not have a right to request Conversion of their WCN 2 at any time. | Optional Redemption: 52. Westpac may at its option Redeem: 53. Westpac will Redeem each WCN 2 for cash equal to their Face Value. 54. Redemption requires the prior written approval of APRA. Approval is at the discretion of APRA and may or may not be given. 55. A Redemption Date is also a Distribution Payment Date which means Holders will receive any Distribution entitlements up to and including the Redemption Date (subject to the Distribution Payment Conditions described in paragraph 29 above). 56. Holders do not have a right to request Redemption of their WCN at any time. | Transfer: 57. Westpac may elect that Transfer occur in relation to: by giving a Transfer Notice in accordance with Clause 8.2 of the Terms. 58. If Westpac issues a Transfer Notice each Holder is taken irrevocably to offer to sell the relevant number of their WCN 2 to a Nominated Party on the Transfer Date for a cash amount equal to the Face Value for each WCN 2. Subject to payment by the Nominated Party of the Face Value to Holders, all right, title and interest in the WCN 2 will be transferred from the Holders to the Nominated Party on Transfer Date. 59. Holders do not have a right to request Transfer of their WCN 2 at any time. | Other matters: 60. The Ruling is made on the basis that: | Acquisition time of the WCN 2: 61. Under item 2 of the table in section 109-10 of the ITAA 1997, a Holder will acquire their WCN 2 on 23 June 2014, being the date the contract for the issue of the WCN 2 is entered into. | Cost base and reduced cost base of the WCN 2: 62. The first element of the cost base and reduced cost base of each WCN 2 is $100, being the money paid by the Holder to acquire the WCN 2 from Westpac (subsections 110-25(2) and 110-55(2) of the ITAA 1997). | Inclusion of Distributions and franking credits in assessable income: 63. Distributions paid in respect of each WCN 2 are non-share dividends under section 974-120 of the ITAA 1997 and must be included in the Holders' assessable income (subparagraph 44(1)(a)(ii) of the ITAA 1936). 64. Holders must also include in their assessable income an amount equal to the franking credits attached to the Distribution (subsection 207-20(1) of the ITAA 1997). | Entitlement to a tax offset: 65. Holders will be entitled to a tax offset equal to the franking credit received on Distributions paid in respect of the WCN 2 (subsection 207-20(2) of the ITAA 1997) unless the Distribution is exempt income or non-assessable non-exempt income in the hands of the Holder. | Exempt income or non-assessable non-exempt income: 66. If the Distribution (or a part of it) is either exempt income or non-assessable non-exempt income in the hands of the relevant Holder, then the amount of any franking credit on the Distribution is not included in the assessable income of the Holder and the Holder is not entitled to a tax offset under Division 207 of the ITAA 1997 (Subdivision 207-D of the ITAA 1997). | Franking credit subject to the refundable tax offset rules: 67. Holders who are entitled to a tax offset under subsection 207-20(2) of the ITAA 1997, in respect of the franking credits received in relation to the WCN 2, will be subject to the refundable tax offset rules in Division 67 of the ITAA 1997, unless they are specifically excluded under section 67-25 of the ITAA 1997. | Imputation benefits - streaming of imputation benefits: 68. The Commissioner will not make a determination under paragraph 204-30(3)(c) of the ITAA 1997 to deny the whole, or any part, of the imputation benefits received by a Holder in relation to Distributions paid in respect of the WCN 2. | Section 177EA of the ITAA 1936: 69. The Commissioner will not make a determination under paragraph 177EA(5)(b) of the ITAA 1936 to deny the whole, or any part, of the imputation benefits received by Holders in relation to Distributions paid in respect of the WCN 2. | Gross-up and tax offset denied in certain circumstances: 70. Section 207-145 of the ITAA 1997 will not apply to the whole, or any part, of the Distributions paid to Holders. Accordingly, section 207-145 will not adjust the gross-up of the Holders' assessable income to exclude the franking credit, nor will it deny the tax offset to which the Holders would have otherwise been entitled. | Each WCN 2 will not be a traditional security: 71. Section 26BB of the ITAA 1936 will not apply to include any amount in the assessable income of Holders upon disposal of their WCN 2. 72. Section 70B of the ITAA 1936 will not apply to allow a deduction to Holders upon disposal of their WCN 2. | The WCN 2 are convertible interests: 73. Each WCN 2 is a convertible interest under item 4 of the table in subsection 974-75(1) of the ITAA 1997. | Conversion of the WCN 2 - ordinary income: 74. As the WCN 2 will be held by Holders on capital account, no amount will be included in the assessable income of a Holder on the Conversion of a WCN 2 under section 6-5 of the ITAA 1997. 75. Similarly, Holders will not incur a deductible loss under section 8-1 of the ITAA 1997 as a consequence of a Conversion. | Conversion of the WCN 2 - CGT implications: 76. CGT event C2 (section 104-25 of the ITAA 1997) will happen for Holders on Conversion of the WCN 2 for Ordinary Shares. Conversion is constituted by the WCN 2 (a convertible interest) being converted into Ordinary Shares. 77. Any capital gain or capital loss made by a Holder from CGT event C2 happening on Conversion of the WCN 2 will be disregarded (subsection 130-60(3) of the ITAA 1997). | Cost base and reduced cost base of Ordinary Shares acquired on Conversion: 78. On Conversion of the WCN 2, Subdivision 130-C of the ITAA 1997 will apply so that the first element of the cost base and reduced cost base of each Ordinary Share acquired from Conversion of a WCN 2 will be a pro-rata portion of the cost base of the WCN 2 at the time of Conversion (item 2 of the table in subsection 130-60(1) of the ITAA 1997). | Acquisition time of Ordinary Shares on Conversion: 79. Ordinary Shares acquired on Conversion of the WCN 2 (being convertible interests) will be taken to be acquired when the Conversion happens on the relevant Conversion Date (subsection 130-60(2) of the ITAA 1997). | Allotment of Ordinary Shares on Conversion not a dividend: 80. Other than in respect of a Distribution paid on the Conversion Date, Conversion of the WCN 2 will not result in Holders being taken to have received a dividend as defined in subsection 6(1) of the ITAA 1936. | Redemption or Transfer of the WCN 2 - ordinary income: 81. As the WCN 2 will be held by Holders on capital account, no amount will be included in the assessable income of a Holder on the Redemption or Transfer of a WCN 2 under section 6-5 of the ITAA 1997. 82. Similarly, Holders will not incur a deductible loss under section 8-1 of the ITAA 1997 as a consequence of Redemption or Transfer of their WCN 2. | Redemption of the WCN 2 - CGT implications: 83. CGT event C2 (section 104-25 of the ITAA 1997) will happen on the Redemption of the WCN 2. Redemption is constituted by the redemption of all or some of the WCN 2 for their Face Value. 84. As the capital proceeds received by Holders will not be more than the cost base of the WCN 2, Holders should not make a capital gain as a result of the Redemption of their WCN 2 under the scheme. 85. If the Face Value of the WCN 2 has been reduced because there has been a Capital Trigger Event or a Non-Viability Trigger Event, Holders will make a capital loss on the Redemption of their WCN 2. | Transfer of the WCN 2 - CGT implications: 86. CGT event A1 (section 104-10 of the ITAA 1997) will happen on the Transfer of the WCN 2. The Transfer of the WCN 2 will be for the Face Value of the WCN 2. 87. As the capital proceeds received by Holders will not be more than the cost base of the WCN 2, Holders should not make a capital gain as a result of the Transfer of their WCN 2 under the scheme. 88. If the Face Value of the WCN 2 has been reduced because there has been a Capital Trigger Event or a Non-Viability Trigger Event, Holders will make a capital loss on the Transfer of their WCN 2. | Section 45 of the ITAA 1936: 89. Section 45 of the ITAA 1936 will not apply to treat the Ordinary Shares issued on Conversion as an unfranked dividend paid by Westpac. | Section 45A of the ITAA 1936: 90. The Commissioner will not make a determination under subsection 45A(2) of the ITAA 1936 that section 45C of the ITAA 1936 applies to treat the whole, or part of, a capital benefit that arises on Conversion or Redemption of the WCN 2 as an unfranked dividend in the hands of Holders. | Section 45B of the ITAA 1936: 91. The Commissioner will not make a determination under paragraph 45B(3)(b) of the ITAA 1936 that section 45C of the ITAA 1936 applies to treat the whole, or part of, a capital benefit that arises on Conversion or Redemption of the WCN 2 as an unfranked dividend in the hands of Holders. Commissioner of Taxation 4 June 2014 | Acquisition time of the WCN 2: 92. An equity interest that is issued or allotted by a company is acquired when the contract is entered into or, if there is no contract, when the equity interests are issued or allotted (item 2 of the table in section 109-10 of the ITAA 1997). 93. The WCN 2 are equity interests in Westpac for the purposes of Division 974 of the ITAA 1997. When an investor's application for the WCN 2 is accepted by Westpac, this leads to the formation of a contract for the issue of the WCN 2 to the investor (who will become a Holder). Under item 2 of the table in section 109-10, a Holder will acquire their WCN 2 on 23 June 2014, being the date on which the contract for the issue of the WCN 2 is entered into. | Cost base and reduced cost base of the WCN 2: 94. The first element of the cost base and reduced cost base of a CGT asset includes the money paid, or required to be paid, in respect of acquiring the CGT asset (paragraph 110-25(2 )(a) of the ITAA 1997 and subsection 110-55(2) of the ITAA 1997). 95. The issue price of each WCN 2 is $100. Accordingly, when the WCN 2 are issued, the first element of the cost base and reduced cost base of each WCN 2 is $100. | Inclusion of Distributions and franking credits in assessable income: 96. Subsection 44(1) of the ITAA 1936 provides that the assessable income of a resident shareholder in a company includes all dividends and non-share dividends paid to the shareholder by the company. 97. The WCN 2 are non-share equity interests within the meaning of section 995-1 of the ITAA 1997. Distributions paid in respect of non-share equity interests are non-share distributions pursuant to section 974-115 of the ITAA 1997. Section 974-120 of the ITAA 1997 provides that all non-share distributions are non-share dividends unless a non-share dividend is debited against the company's non-share capital account or share capital account. 98. Distributions will not be debited against Westpac's non-share capital account or share capital account. Therefore, Distributions paid in respect of the WCN 2 are non-share dividends under section 974-120 of the ITAA 1997. Accordingly, Holders must include in their assessable income Distributions paid in respect of the WCN 2 under subparagraph 44(1)(a)(ii) of the ITAA 1936. 99. Distributions are expected to be franked. If a company makes a franked distribution to another entity, subsection 207-20(1) of the ITAA 1997 requires that the assessable income of the receiving entity include the amount of the franking credit on the distribution in addition to the amount of the franked distribution. Subsection 207-20(2) of the ITAA 1997 provides that the receiving entity is entitled to a tax offset equal to the franking credit on the distribution. 100. In accordance with subsection 207-20(1) of the ITAA 1997, any franking credit attached to a Distribution must also be included in the relevant Holder's assessable income for the income year in which the Distribution is made. | Entitlement to a tax offset: 101. In accordance with subsection 207-20(2) of the ITAA 1997, Holders are entitled to receive a tax offset equal to the franking credit which has been included in their assessable income in respect of Distributions they receive. | Exempt income or non-assessable non-exempt income: 102. If the Distribution is exempt income or non-assessable non-exempt income in the hands of the Holder and none of the exceptions in Subdivision 207-E of the ITAA 1997 apply, then the amount of any franking credit on the Distribution is not included in the assessable income of the Holder and the Holder is not entitled to a tax offset under Division 207 of the ITAA 1997 (Subdivision 207-D of the ITAA 1997). | Franking credit subject to the refundable tax offset rules: 103. Holders who are entitled to a tax offset under subsection 207-20(2) of the ITAA 1997, in respect of the franking credit received, will also be subject to the refundable tax offset rules in Division 67 of the ITAA 1997, unless they are specifically excluded under section 67-25 of the ITAA 1997. 104. The refundable tax offset rules ensure that certain taxpayers are entitled to a refund once their available tax offsets have been utilised to reduce any income tax liability to nil. 105. Entities excluded under section 67-25 of the ITAA 1997 include corporate tax entities (such as companies, corporate limited partnerships, corporate unit trusts and public trading trusts), unless they satisfy the requisite conditions as set out in subsections 67-25(1C) or 67-25(1D) of the ITAA 1997. | Imputation benefits - streaming of imputation benefits: 106. Subdivision 204-D of the ITAA 1997 enables the Commissioner to make a determination where distributions with attached imputation benefits are streamed to a member of a corporate tax entity in preference to another member. 107. Section 204-30 of the ITAA 1997 prescribes the circumstances that are required to exist before the Commissioner may make such a determination. Section 204-30 of the ITAA 1997 applies where an entity 'streams' the payment of distributions in such a way that: 108. If all the conditions in subsection 204-30 are satisfied, the Commissioner may make one or more of the following determinations listed under subsection 204-30(3) of the ITAA 1997: 109. The meaning of the word 'streams' is not defined for the purposes of Subdivision 204-D of the ITAA 1997. However, the Commissioner understands it to refer to a company 'selectively directing the flow of franked distributions to those members who can most benefit from the imputation credits' (paragraph 3.28 of the Explanatory Memorandum to the New Business Tax System (Imputation) Bill 2002). 110. Westpac has indicated that all Holders will receive franked Distributions regardless of their tax attributes or their individual tax position. Westpac's policy in relation to the franking of its frankable distributions is not expected to change as a result of the issue of the WCN 2. 111. Foreign residents will not be precluded from participating in the Offer, where the Offer is made in accordance with the laws of their jurisdiction. 112. The Ordinary Shares allotted on Conversion of the WCN 2 will not attract the application of section 204-30 of the ITAA 1997. This is because the issue of Ordinary Shares does not constitute a distribution, as defined in section 960-120 of the ITAA 1997 and the allotment of Ordinary Shares will not affect Westpac's dividend franking policy. 113. Based on the information provided, the Commissioner has concluded that the requisite element of streaming does not exist in relation to the franked distributions to be paid by Westpac to Holders. Accordingly, the Commissioner will not make a determination under paragraph 204-30(3)(c) of the ITAA 1997 to deny the whole, or any part, of the imputation benefits received by a Holder in relation to Distributions paid in respect of the WCN 2. | Section 177EA of the ITAA 1936: 114. Section 177EA of the ITAA 1936 is a general anti-avoidance provision that applies where one of the purposes (other than an incidental purpose) of the scheme is to obtain an imputation benefit. In these circumstances, subsection 177EA(5) of the ITAA 1936 enables the Commissioner to make a determination with the effect of either: 115. Pursuant to subsection 177EA(3) of the ITAA 1936, the provision applies if the following conditions are satisfied: 116. Subsection 177EA(12) of the ITAA 1936 extends the operation of section 177EA to non-share equity interests. Subsection 177EA(12) provides that section 177EA: 117. The Commissioner considers that the conditions in paragraphs 177EA(3)(a) to 177EA(3)(d) of the ITAA 1936 are satisfied because: 118. Accordingly, the issue is whether, having regard to the relevant circumstances of the scheme, it would be concluded that a person, or one of the persons, who entered into or carried out the scheme, did so for a purpose (whether or not the dominant purpose but not including an incidental purpose) of enabling the relevant taxpayer (Holders of the WCN 2) to obtain an imputation benefit (paragraph 177EA(3)(e) of the ITAA 1936). 119. Circumstances which are relevant in determining whether any person has the requisite purpose include, but are not limited to, the factors listed in subsection 177EA(17) of the ITAA 1936. 120. The relevant circumstances listed encompass a range of circumstances which taken individually or collectively could indicate the requisite purpose. Due to the diverse nature of these circumstances, some may or may not be present at any one time in relation to a particular scheme. 121. Based on the information provided and the qualifications set out in this Ruling, and having regard to all the relevant circumstances of the scheme, the Commissioner has concluded that the purpose of enabling the Holders to obtain imputation benefits is not more than incidental to Westpac's purpose of raising Tier 1 Capital to meet its capital adequacy requirements. 122. Accordingly, the Commissioner will not make a determination under paragraph 177EA(5)(b) of the ITAA 1936 to deny the whole, or any part, of the imputation benefits received by Holders in relation to Distributions paid in respect of the WCN 2. | Gross-up and tax offset denied in certain circumstances: 123. Subdivision 207-F of the ITAA 1997 creates the appropriate adjustment to cancel the effect of the gross-up and tax offset rules where the entity concerned has manipulated the imputation system in a manner that is not permitted under the income tax law. 124. Section 207-145 of the ITAA 1997 provides the circumstances that must exist before this adjustment can occur. Pursuant to subsection 207-145(1) of the ITAA 1997 a 'manipulation of the imputation system' may occur where a franked distribution is made to an entity in one or more of the following circumstances: 125. A person is a 'qualified person' for the purposes of Division 1A of former Part IIIAA of the ITAA 1936 if, generally speaking, they satisfy the holding period rule and the related payments rule (see former section 160APHO of the ITAA 1936). 126. By virtue of former section 160AOA of the ITAA 1936, the holding period rule and the related payments rule apply to non-share equity interests, equity holders and non-share dividends in the same way as they apply to shares, shareholders and dividends respectively. 127. The holding period rule applies where neither the holder nor an associate of the holder has made, is under an obligation to make, or is likely to make, a related payment in respect of the dividend (or non-share dividend), and requires the shares (or non-share equity interests) to have been continuously held at risk throughout the primary qualification period (former paragraph 160APHO(1)(a) of the ITAA 1936). 128. The related payments rule applies where the holder or an associate of the holder has made, is under an obligation to make, or is likely to make, a related payment in respect of the dividend (or non-share dividend) and requires the shares (or non-share equity interests) to have been continuously held at risk throughout the secondary qualification period (former paragraph 160APHO(1)(b) and former section 160APHN of the ITAA 1936). 129. A Holder of a WCN 2 will be a 'qualified person' in relation to a Distribution received in respect of their WCN 2, provided that: 130. If either, or both, of the above two considerations are not met, the Holders will not be a 'qualified person' for the purposes of Division 1A of former Part IIIAA of the ITAA 1936. 131. In determining whether a shareholder is a 'qualified person' in relation to dividends paid on their shares, all 'positions' in respect of the shares are taken into account in identifying a 'net position' to ensure that there is no material diminution in the risks of loss or opportunities for gain. 132. The Commissioner has concluded that the Transfer and Conversion mechanisms in relation to the WCN 2 will not of themselves affect a Holder's risks of loss or opportunities for gain in respect of the WCN 2. Therefore, paragraph 207-145(1)(a) of the ITAA 1997 does not apply. 133. The Commissioner will not make a determination under paragraph 177EA(5)(b) of the ITAA 1936 or paragraph 204-30(3)(c) of the ITAA 1997 to deny the imputation benefits attached to Distributions paid to Holders in respect of the WCN 2. 134. A distribution will be taken to be made as part of a dividend stripping operation, pursuant to paragraph 207-145(1)(d) of the ITAA 1997, where the distribution arose out of, or was made in the course of, a scheme or substantially similar arrangement that was in the nature of dividend stripping. 135. The Prospectus and Terms provide no indication that the offering of the WCN 2 and the associated payment of franked Distributions to Holders in any way constitutes a dividend stripping arrangement. 136. Accordingly, section 207-145 of the ITAA 1997 will not apply to adjust the Holders' assessable income to exclude the franking credit on the Distributions, nor will it deny the tax offset to which the Holders would otherwise be entitled. | Each WCN 2 will not be a traditional security: 137. A traditional security is defined in subsection 26BB(1) of the ITAA 1936 as a security held by the taxpayer that was acquired by the taxpayer after 10 May 1989, is not a prescribed security within the meaning of section 26C of the ITAA 1936, is not trading stock of the taxpayer, and either does not have an eligible return, or has an eligible return that satisfies the conditions listed in the definition of traditional security in subparagraph 26BB(1)(b)(ii) of the ITAA 1936. 138. The term 'security' is defined in subsection 26BB(1) of the ITAA 1936 by reference to subsection 159GP(1) of the ITAA 1936. Pursuant to subsection 159GP(1), 'security' means: 139. The WCN 2 is not stock, a bond, debenture, certificate of entitlement, bill of exchange, or a promissory note. 140. The term 'or other security' in paragraph (a) of the definition of security only encompasses instruments that evidence an obligation on the part of the issuer or drawer to pay an amount to the holder or acceptor, whether during the term of the instrument or at its maturity. The types of securities referred to in paragraph (a) of the definition of security will generally be recognised as debt instruments (Taxation Ruling TR 96/14). 141. Paragraphs (b) and (c) of the definition of security do not apply because the WCN 2 is neither a deposit with a bank or other financial institution, nor a secured or unsecured loan. 142. Only those contracts that have debt like obligations will usually fall under paragraph (d) of the definition of security (TR 96/14). 143. The Terms do not evidence a liability by Westpac to pay an amount or amounts to Holders of the WCN 2 at a particular time. 144. The WCN 2 are perpetual and Holders do not have a right to require Redemption. 145. The payment by Westpac of Distributions is subject to the Distribution Payment Conditions. Distributions are discretionary and non-cumulative. If a Distribution is not paid, Westpac has no liability to pay the Distribution and Holders have no claim in respect of non-payment. 146. Upon Conversion, Westpac will allot and issue a number of Ordinary Shares based on a formula set out in the Terms for each WCN 2 held by the Holder. Each Holder's rights in relation to each WCN 2 that is being converted are immediately and irrevocably terminated for an amount equal to the Face Value and Westpac will apply that amount by way of payment for the subscription for Ordinary Shares issued to Holders. Westpac cannot be said to have a liability to pay an amount under the Terms of the WCN 2 pursuant to the Conversion. 147. Early Redemption of the WCN 2 is possible. However it is at the option of Westpac and will only occur upon the happening of certain events and requires the prior written approval of APRA. This does not establish a liability on Westpac to pay an amount. 148. Westpac would not become liable to pay an amount under the WCN 2 upon a wind-up if, as it would be expected, before a wind-up commences, the WCN 2 are either converted into Ordinary Shares pursuant to a Capital Trigger Event or a Non-Viability Trigger Event (in which case any distribution would be made to the Holders as ordinary shareholders as opposed to under the terms of the WCN 2), or Holders' rights are terminated where Westpac is not able to issue Ordinary Shares within the time stated in the Terms. 149. As the WCN 2 is not a security within the meaning of subsection 159GP(1) of the ITAA 1936, it cannot be a traditional security under subsection 26BB of the ITAA 1936. 150. Section 26BB of the ITAA 1936 will not apply to include any amount in the assessable income of the Holder upon disposal of the WCN 2. 151. Section 70B of the ITAA 1936 will not apply to allow a deduction to Holders upon disposal of their WCN 2. | The WCN 2 are convertible interests: 152. Subsection 995-1(1) of the ITAA 1997 defines a 'convertible interest' in a company as an interest of the kind referred to in item 4 of the table in subsection 974-75(1) of the ITAA 1997. Paragraph (b) of item 4 of the table in subsection 974-75(1) provides that an interest is an equity interest if it is an interest issued by the company that is an interest that will, or may, convert into an equity interest in the company. 153. Under section 974-165 of the ITAA 1997, an interest is an interest that will or may convert into another interest if: 154. Each WCN 2 is a convertible interest because it will or may be redeemed, repaid or satisfied by the issue of Ordinary Shares upon Conversion. | Conversion of the WCN 2 - ordinary income: 155. Section 6-5 of the ITAA 1997 provides that assessable income includes income according to ordinary concepts, otherwise known as ordinary income. 156. Subsection 6-10(2) of the ITAA 1997 also includes in assessable income amounts of statutory income, that is, amounts that are not ordinary income but are included in assessable income by the income tax legislation. Statutory income includes net capital gains (sections 10-5 and 102-5 of the ITAA 1997). 157. The WCN 2 will be held by Holders on capital account as the Holders will acquire a CGT asset pursuant to Item 2 in section 109-10 of the ITAA 1997. Accordingly, any capital gain will be statutory income, and no amount will be included in the assessable income of a Holder on the Conversion of a WCN 2 under section 6-5 of the ITAA 1997. 158. Similarly, Holders will not be entitled to a deductible loss under section 8-1 of the ITAA 1997 in respect of the Conversion of their WCN. | Conversion of the WCN 2 - CGT implications: 159. CGT event C2 will happen to Holders on Conversion of the WCN 2. Under paragraph 104-25(1)(f) of the ITAA 1997, CGT event C2 happens if an entity's ownership of an intangible CGT asset ends by the asset (if it is a convertible interest) being converted. 160. The WCN 2 are convertible interests. Conversion of the WCN 2 for Ordinary Shares constitutes the conversion of a convertible interest. 161. Conversion of the WCN 2 happens as part of a conversion to which Subdivision 130-C of the ITAA 1997 applies. Under subsection 130-60(3) of the ITAA 1997, a capital gain or capital loss made from converting a convertible interest is disregarded. Any capital gain or capital loss made by a Holder from CGT event C2 happening on Conversion of the WCN 2 will be disregarded. | Cost base and reduced cost base of Ordinary Shares acquired on Conversion: 162. On Conversion, Subdivision 130-C of the ITAA 1997 will apply so that the first element of the cost base and reduced cost base of each Ordinary Share acquired from Conversion of a WCN 2 will be a pro-rata portion of the cost base of their WCN 2 at the time of Conversion (item 2 of the table in subsection 130-60(1) of the ITAA 1997). | Acquisition time of Ordinary Shares acquired on Conversion: 163. Ordinary Shares acquired on Conversion of the WCN 2 (being convertible interests) will be taken to be acquired when the Conversion happens on the relevant Conversion Date (subsection 130-60(2) of the ITAA 1997). | Allotment of Ordinary Shares on Conversion not a dividend: 164. The issue of Ordinary Shares to Holders on Conversion is a distribution of property to holders of a non-share equity interest and a non-share distribution under subparagraph 974-115(b)(ii) of the ITAA 1997. A non-share distribution is a non-share dividend under subsection 974-120(1) of the ITAA 1997. 165. Subsection 974-120(2) of the ITAA 1997 provides that a non-share distribution is not a non-share dividend to the extent to which the company debits the distribution against the company's share capital account or non-share capital account. 166. On Conversion, Westpac will debit the Face Value of the WCN 2 to its non-share capital account. Accordingly, the issue of Ordinary shares on Conversion is not a non-share dividend and will not be included in assessable income under subparagraph 44(1)(a)(ii) of the ITAA 1936. | Redemption or Transfer of the WCN 2 - ordinary income: 167. The WCN 2 will be held by Holders on capital account. Accordingly, no amount will be included in the assessable income of a Holder on the Redemption or Transfer of a WCN 2 under section 6-5 of the ITAA 1997. 168. Similarly, Holders will not be entitled to a deductible loss under section 8-1 of the ITAA 1997 in respect of a Redemption or Transfer of their WCN 2. | Redemption of the WCN 2 - CGT implications: 169. CGT event C2 (section 104-25 of the ITAA 1997) will happen on the Redemption of the WCN 2. Under paragraph 104-25(1)(a) of the ITAA 1997, CGT event C2 happens if an entity's ownership of an intangible CGT asset ends by the asset being redeemed or cancelled. 170. On Redemption, a Holder's ownership of the WCN 2 (being an intangible CGT asset) will end by being redeemed for an amount equal to its Face Value. 171. As the capital proceeds received by Holders will not be more than the cost base of the WCN 2, Holders should not make a capital gain as a result of the Redemption of their WCN 2 under the scheme. 172. If the Face Value of the WCN 2 has been reduced because there has been a Capital Trigger Event or a Non-Viability Trigger Event, Holders will make a capital loss on the Redemption of their WCN 2 under subparagraph 104-25(3) of the ITAA 1997. | Transfer of the WCN 2 - CGT implications: 173. CGT event A1 (section 104-10 of the ITAA 1997) will happen on the Transfer of the WCN 2. Under section 104-10 of the ITAA 1997, CGT event A1 happens if there is a disposal of a CGT asset. You dispose of a CGT asset if a change of ownership occurs from you to another entity (subsection 104-10(2) of the ITAA 1997). 174. The Transfer of the WCN 2 constitutes a disposal of a CGT asset as it results in the transfer of the ownership of the WCN 2 from the Holder to the Nominated Party. 175. As the capital proceeds received by Holders will not be more than the cost base of the WCN 2, Holders should not make a capital gain as a result of the Transfer of their WCN 2 under the scheme. 176. If the Face Value of the WCN 2 has been reduced because there has been a Capital Trigger Event or a Non-Viability Trigger Event, Holders will make a capital loss on the Transfer of their WCN 2 under subparagraph 104-25(3) of the ITAA 1997. | Section 45 of the ITAA 1936: 177. Section 45 of the ITAA 1936 applies where a company streams the provision of shares and the payment of minimally franked dividends to its shareholders in such a way that the shares are received by some shareholders and minimally franked dividends are received by other shareholders. Minimally franked dividends are dividends which are franked to less than 10%. 178. Westpac has consistently paid fully franked dividends/distributions (to the extent such dividends/distributions are frankable). Westpac has stated its intention to continue paying such fully franked dividends/distributions to all its shareholders and non-share equity holders into the foreseeable future. 179. Based on the information provided and having regard to the circumstances of the scheme, section 45 of the ITAA 1936 will not apply to treat the issue of Ordinary Shares on Conversion as an unfranked dividend in the hands of Holders. | Section 45A of the ITAA 1936: 180. Section 45A of the ITAA 1936 applies in circumstances where a company streams the provision of capital benefits to certain shareholders who derive a greater benefit from the receipt of capital (the advantaged shareholders) and it is reasonable to assume that the other shareholders have received or will receive dividends (the disadvantaged shareholders). 181. The Commissioner may make a determination under subsection 45A(2) of the ITAA 1936 that section 45C of the ITAA 1936 applies. The effect of such a determination is that the capital benefit is taken to be an unfranked dividend. 182. A provision of capital benefits includes the provision to the shareholder of shares in the company pursuant to paragraph 45A(3)(a) of the ITAA 1936. The issue of Ordinary Shares to Holders on Conversion of the WCN 2 will constitute the provision of capital benefits. 183. The issue of Ordinary Shares on Conversion of the WCN 2 is in effect a restatement of the Holder's interest in the capital of Westpac. In the absence of any other factors that would contribute to an alternative conclusion, there will not be any streaming of capital benefits. 184. The Redemption of the WCN 2 will involve the provision of a capital benefit within the meaning of subsection 45A(3) of the ITAA 1936 as it will constitute a non-share capital return (subsection 45A(3A) of the ITAA 1936). The amount paid to Holders on Redemption is limited to the amount of the Face Value of the WCN 2 and any Distribution entitlements on the WCN 2 will be separately paid as Distributions given that the Redemption Date will also be a Distribution Payment Date under the Terms. 185. Accordingly, it cannot be said that Holders would derive a greater benefit from capital benefits than other Westpac shareholders. Therefore, the Redemption or the issue of Ordinary Shares on Conversion of the WCN 2 will not trigger the application of section 45A of the ITAA 1936. 186. Therefore, the Commissioner will not make a determination under subsection 45A(2) of the ITAA 1936. | Section 45B of the ITAA 1936: 187. Section 45B of the ITAA 1936 applies where certain capital benefits are provided to shareholders in substitution for dividends and the conditions in subsection 45B(2) of the ITAA 1936 are met. 188. The Commissioner may make a determination under paragraph 45B(3)(b) of the ITAA 1936 that section 45C of the ITAA 1936 applies. The effect of such a determination is that the capital benefit is taken to be an unfranked dividend. 189. The issue of Ordinary Shares to Holders on Conversion will constitute a scheme under which the Holders are provided with a capital benefit by Westpac (paragraph 45B(5)(a) of the ITAA 1936). Similarly, Redemption of the WCN 2 will also constitute a scheme under which the Holders are provided with a capital benefit by Westpac (paragraph 45B(5)(b) of the ITAA 1936 (subsection 45B(7) of the ITAA 1936). 190. For the provision to apply, among other things, paragraph 45B(2)(c) of the ITAA 1936 requires that, having regard to the relevant circumstances of the scheme, it would be concluded that the person, or one of the persons, entered into the scheme or carried out the scheme or any part of the scheme for a purpose, other than an incidental purpose, of enabling a taxpayer to obtain a tax benefit. A non-exhaustive list of relevant circumstances of the scheme are provided in subsection 45B(8) of the ITAA 1936. 191. Having regard to the relevant circumstances surrounding the issue of the WCN 2, it cannot be concluded that Westpac, the Holders or any other person entered into or carried out the issue of the WCN 2 for the purpose of enabling Holders to obtain a capital benefit. 192. Similarly, it cannot be said that Redemption will involve any benefit provided to Holders that is in substitution for Distributions. The amount paid to Holders on Redemption is limited to an amount equal to the Face Value of the WCN 2 and any Distribution entitlements on the WCN 2 will be separately paid as a Distribution given that the Redemption Date will also be a Distribution Payment Date under the Terms. 193. Accordingly, the Commissioner will not make a determination under paragraph 45B(3)(b) of the ITAA 1936. 194. The following is a detailed contents list for this Ruling: © AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products). Not previously issued as a draft

Ruling: Acquisition time of the WCN 2: 61. Under item 2 of the table in section 109-10 of the ITAA 1997, a Holder will acquire their WCN 2 on 23 June 2014, being the date the contract for the issue of the WCN 2 is entered into. | Cost base and reduced cost base of the WCN 2: 62. The first element of the cost base and reduced cost base of each WCN 2 is $100, being the money paid by the Holder to acquire the WCN 2 from Westpac (subsections 110-25(2) and 110-55(2) of the ITAA 1997). | Inclusion of Distributions and franking credits in assessable income: 63. Distributions paid in respect of each WCN 2 are non-share dividends under section 974-120 of the ITAA 1997 and must be included in the Holders' assessable income (subparagraph 44(1)(a)(ii) of the ITAA 1936). 64. Holders must also include in their assessable income an amount equal to the franking credits attached to the Distribution (subsection 207-20(1) of the ITAA 1997). | Entitlement to a tax offset: 65. Holders will be entitled to a tax offset equal to the franking credit received on Distributions paid in respect of the WCN 2 (subsection 207-20(2) of the ITAA 1997) unless the Distribution is exempt income or non-assessable non-exempt income in the hands of the Holder. | Exempt income or non-assessable non-exempt income: 66. If the Distribution (or a part of it) is either exempt income or non-assessable non-exempt income in the hands of the relevant Holder, then the amount of any franking credit on the Distribution is not included in the assessable income of the Holder and the Holder is not entitled to a tax offset under Division 207 of the ITAA 1997 (Subdivision 207-D of the ITAA 1997). | Franking credit subject to the refundable tax offset rules: 67. Holders who are entitled to a tax offset under subsection 207-20(2) of the ITAA 1997, in respect of the franking credits received in relation to the WCN 2, will be subject to the refundable tax offset rules in Division 67 of the ITAA 1997, unless they are specifically excluded under section 67-25 of the ITAA 1997. | Imputation benefits - streaming of imputation benefits: 68. The Commissioner will not make a determination under paragraph 204-30(3)(c) of the ITAA 1997 to deny the whole, or any part, of the imputation benefits received by a Holder in relation to Distributions paid in respect of the WCN 2. | Section 177EA of the ITAA 1936: 69. The Commissioner will not make a determination under paragraph 177EA(5)(b) of the ITAA 1936 to deny the whole, or any part, of the imputation benefits received by Holders in relation to Distributions paid in respect of the WCN 2. | Gross-up and tax offset denied in certain circumstances: 70. Section 207-145 of the ITAA 1997 will not apply to the whole, or any part, of the Distributions paid to Holders. Accordingly, section 207-145 will not adjust the gross-up of the Holders' assessable income to exclude the franking credit, nor will it deny the tax offset to which the Holders would have otherwise been entitled. | Each WCN 2 will not be a traditional security: 71. Section 26BB of the ITAA 1936 will not apply to include any amount in the assessable income of Holders upon disposal of their WCN 2. 72. Section 70B of the ITAA 1936 will not apply to allow a deduction to Holders upon disposal of their WCN 2. | The WCN 2 are convertible interests: 73. Each WCN 2 is a convertible interest under item 4 of the table in subsection 974-75(1) of the ITAA 1997. | Conversion of the WCN 2 - ordinary income: 74. As the WCN 2 will be held by Holders on capital account, no amount will be included in the assessable income of a Holder on the Conversion of a WCN 2 under section 6-5 of the ITAA 1997. 75. Similarly, Holders will not incur a deductible loss under section 8-1 of the ITAA 1997 as a consequence of a Conversion. | Conversion of the WCN 2 - CGT implications: 76. CGT event C2 (section 104-25 of the ITAA 1997) will happen for Holders on Conversion of the WCN 2 for Ordinary Shares. Conversion is constituted by the WCN 2 (a convertible interest) being converted into Ordinary Shares. 77. Any capital gain or capital loss made by a Holder from CGT event C2 happening on Conversion of the WCN 2 will be disregarded (subsection 130-60(3) of the ITAA 1997). | Cost base and reduced cost base of Ordinary Shares acquired on Conversion: 78. On Conversion of the WCN 2, Subdivision 130-C of the ITAA 1997 will apply so that the first element of the cost base and reduced cost base of each Ordinary Share acquired from Conversion of a WCN 2 will be a pro-rata portion of the cost base of the WCN 2 at the time of Conversion (item 2 of the table in subsection 130-60(1) of the ITAA 1997). | Acquisition time of Ordinary Shares on Conversion: 79. Ordinary Shares acquired on Conversion of the WCN 2 (being convertible interests) will be taken to be acquired when the Conversion happens on the relevant Conversion Date (subsection 130-60(2) of the ITAA 1997). | Allotment of Ordinary Shares on Conversion not a dividend: 80. Other than in respect of a Distribution paid on the Conversion Date, Conversion of the WCN 2 will not result in Holders being taken to have received a dividend as defined in subsection 6(1) of the ITAA 1936. | Redemption or Transfer of the WCN 2 - ordinary income: 81. As the WCN 2 will be held by Holders on capital account, no amount will be included in the assessable income of a Holder on the Redemption or Transfer of a WCN 2 under section 6-5 of the ITAA 1997. 82. Similarly, Holders will not incur a deductible loss under section 8-1 of the ITAA 1997 as a consequence of Redemption or Transfer of their WCN 2. | Redemption of the WCN 2 - CGT implications: 83. CGT event C2 (section 104-25 of the ITAA 1997) will happen on the Redemption of the WCN 2. Redemption is constituted by the redemption of all or some of the WCN 2 for their Face Value. 84. As the capital proceeds received by Holders will not be more than the cost base of the WCN 2, Holders should not make a capital gain as a result of the Redemption of their WCN 2 under the scheme. 85. If the Face Value of the WCN 2 has been reduced because there has been a Capital Trigger Event or a Non-Viability Trigger Event, Holders will make a capital loss on the Redemption of their WCN 2. | Transfer of the WCN 2 - CGT implications: 86. CGT event A1 (section 104-10 of the ITAA 1997) will happen on the Transfer of the WCN 2. The Transfer of the WCN 2 will be for the Face Value of the WCN 2. 87. As the capital proceeds received by Holders will not be more than the cost base of the WCN 2, Holders should not make a capital gain as a result of the Transfer of their WCN 2 under the scheme. 88. If the Face Value of the WCN 2 has been reduced because there has been a Capital Trigger Event or a Non-Viability Trigger Event, Holders will make a capital loss on the Transfer of their WCN 2. | Section 45 of the ITAA 1936: 89. Section 45 of the ITAA 1936 will not apply to treat the Ordinary Shares issued on Conversion as an unfranked dividend paid by Westpac. | Section 45A of the ITAA 1936: 90. The Commissioner will not make a determination under subsection 45A(2) of the ITAA 1936 that section 45C of the ITAA 1936 applies to treat the whole, or part of, a capital benefit that arises on Conversion or Redemption of the WCN 2 as an unfranked dividend in the hands of Holders. | Section 45B of the ITAA 1936: 91. The Commissioner will not make a determination under paragraph 45B(3)(b) of the ITAA 1936 that section 45C of the ITAA 1936 applies to treat the whole, or part of, a capital benefit that arises on Conversion or Redemption of the WCN 2 as an unfranked dividend in the hands of Holders. Commissioner of Taxation 4 June 2014


Appendix: Acquisition time of the WCN 2: 92. An equity interest that is issued or allotted by a company is acquired when the contract is entered into or, if there is no contract, when the equity interests are issued or allotted (item 2 of the table in section 109-10 of the ITAA 1997). 93. The WCN 2 are equity interests in Westpac for the purposes of Division 974 of the ITAA 1997. When an investor's application for the WCN 2 is accepted by Westpac, this leads to the formation of a contract for the issue of the WCN 2 to the investor (who will become a Holder). Under item 2 of the table in section 109-10, a Holder will acquire their WCN 2 on 23 June 2014, being the date on which the contract for the issue of the WCN 2 is entered into. | Cost base and reduced cost base of the WCN 2: 94. The first element of the cost base and reduced cost base of a CGT asset includes the money paid, or required to be paid, in respect of acquiring the CGT asset (paragraph 110-25(2 )(a) of the ITAA 1997 and subsection 110-55(2) of the ITAA 1997). 95. The issue price of each WCN 2 is $100. Accordingly, when the WCN 2 are issued, the first element of the cost base and reduced cost base of each WCN 2 is $100. | Inclusion of Distributions and franking credits in assessable income: 96. Subsection 44(1) of the ITAA 1936 provides that the assessable income of a resident shareholder in a company includes all dividends and non-share dividends paid to the shareholder by the company. 97. The WCN 2 are non-share equity interests within the meaning of section 995-1 of the ITAA 1997. Distributions paid in respect of non-share equity interests are non-share distributions pursuant to section 974-115 of the ITAA 1997. Section 974-120 of the ITAA 1997 provides that all non-share distributions are non-share dividends unless a non-share dividend is debited against the company's non-share capital account or share capital account. 98. Distributions will not be debited against Westpac's non-share capital account or share capital account. Therefore, Distributions paid in respect of the WCN 2 are non-share dividends under section 974-120 of the ITAA 1997. Accordingly, Holders must include in their assessable income Distributions paid in respect of the WCN 2 under subparagraph 44(1)(a)(ii) of the ITAA 1936. 99. Distributions are expected to be franked. If a company makes a franked distribution to another entity, subsection 207-20(1) of the ITAA 1997 requires that the assessable income of the receiving entity include the amount of the franking credit on the distribution in addition to the amount of the franked distribution. Subsection 207-20(2) of the ITAA 1997 provides that the receiving entity is entitled to a tax offset equal to the franking credit on the distribution. 100. In accordance with subsection 207-20(1) of the ITAA 1997, any franking credit attached to a Distribution must also be included in the relevant Holder's assessable income for the income year in which the Distribution is made. | Entitlement to a tax offset: 101. In accordance with subsection 207-20(2) of the ITAA 1997, Holders are entitled to receive a tax offset equal to the franking credit which has been included in their assessable income in respect of Distributions they receive. | Exempt income or non-assessable non-exempt income: 102. If the Distribution is exempt income or non-assessable non-exempt income in the hands of the Holder and none of the exceptions in Subdivision 207-E of the ITAA 1997 apply, then the amount of any franking credit on the Distribution is not included in the assessable income of the Holder and the Holder is not entitled to a tax offset under Division 207 of the ITAA 1997 (Subdivision 207-D of the ITAA 1997). | Franking credit subject to the refundable tax offset rules: 103. Holders who are entitled to a tax offset under subsection 207-20(2) of the ITAA 1997, in respect of the franking credit received, will also be subject to the refundable tax offset rules in Division 67 of the ITAA 1997, unless they are specifically excluded under section 67-25 of the ITAA 1997. 104. The refundable tax offset rules ensure that certain taxpayers are entitled to a refund once their available tax offsets have been utilised to reduce any income tax liability to nil. 105. Entities excluded under section 67-25 of the ITAA 1997 include corporate tax entities (such as companies, corporate limited partnerships, corporate unit trusts and public trading trusts), unless they satisfy the requisite conditions as set out in subsections 67-25(1C) or 67-25(1D) of the ITAA 1997. | Imputation benefits - streaming of imputation benefits: 106. Subdivision 204-D of the ITAA 1997 enables the Commissioner to make a determination where distributions with attached imputation benefits are streamed to a member of a corporate tax entity in preference to another member. 107. Section 204-30 of the ITAA 1997 prescribes the circumstances that are required to exist before the Commissioner may make such a determination. Section 204-30 of the ITAA 1997 applies where an entity 'streams' the payment of distributions in such a way that: 108. If all the conditions in subsection 204-30 are satisfied, the Commissioner may make one or more of the following determinations listed under subsection 204-30(3) of the ITAA 1997: 109. The meaning of the word 'streams' is not defined for the purposes of Subdivision 204-D of the ITAA 1997. However, the Commissioner understands it to refer to a company 'selectively directing the flow of franked distributions to those members who can most benefit from the imputation credits' (paragraph 3.28 of the Explanatory Memorandum to the New Business Tax System (Imputation) Bill 2002). 110. Westpac has indicated that all Holders will receive franked Distributions regardless of their tax attributes or their individual tax position. Westpac's policy in relation to the franking of its frankable distributions is not expected to change as a result of the issue of the WCN 2. 111. Foreign residents will not be precluded from participating in the Offer, where the Offer is made in accordance with the laws of their jurisdiction. 112. The Ordinary Shares allotted on Conversion of the WCN 2 will not attract the application of section 204-30 of the ITAA 1997. This is because the issue of Ordinary Shares does not constitute a distribution, as defined in section 960-120 of the ITAA 1997 and the allotment of Ordinary Shares will not affect Westpac's dividend franking policy. 113. Based on the information provided, the Commissioner has concluded that the requisite element of streaming does not exist in relation to the franked distributions to be paid by Westpac to Holders. Accordingly, the Commissioner will not make a determination under paragraph 204-30(3)(c) of the ITAA 1997 to deny the whole, or any part, of the imputation benefits received by a Holder in relation to Distributions paid in respect of the WCN 2. | Section 177EA of the ITAA 1936: 114. Section 177EA of the ITAA 1936 is a general anti-avoidance provision that applies where one of the purposes (other than an incidental purpose) of the scheme is to obtain an imputation benefit. In these circumstances, subsection 177EA(5) of the ITAA 1936 enables the Commissioner to make a determination with the effect of either: 115. Pursuant to subsection 177EA(3) of the ITAA 1936, the provision applies if the following conditions are satisfied: 116. Subsection 177EA(12) of the ITAA 1936 extends the operation of section 177EA to non-share equity interests. Subsection 177EA(12) provides that section 177EA: 117. The Commissioner considers that the conditions in paragraphs 177EA(3)(a) to 177EA(3)(d) of the ITAA 1936 are satisfied because: 118. Accordingly, the issue is whether, having regard to the relevant circumstances of the scheme, it would be concluded that a person, or one of the persons, who entered into or carried out the scheme, did so for a purpose (whether or not the dominant purpose but not including an incidental purpose) of enabling the relevant taxpayer (Holders of the WCN 2) to obtain an imputation benefit (paragraph 177EA(3)(e) of the ITAA 1936). 119. Circumstances which are relevant in determining whether any person has the requisite purpose include, but are not limited to, the factors listed in subsection 177EA(17) of the ITAA 1936. 120. The relevant circumstances listed encompass a range of circumstances which taken individually or collectively could indicate the requisite purpose. Due to the diverse nature of these circumstances, some may or may not be present at any one time in relation to a particular scheme. 121. Based on the information provided and the qualifications set out in this Ruling, and having regard to all the relevant circumstances of the scheme, the Commissioner has concluded that the purpose of enabling the Holders to obtain imputation benefits is not more than incidental to Westpac's purpose of raising Tier 1 Capital to meet its capital adequacy requirements. 122. Accordingly, the Commissioner will not make a determination under paragraph 177EA(5)(b) of the ITAA 1936 to deny the whole, or any part, of the imputation benefits received by Holders in relation to Distributions paid in respect of the WCN 2. | Gross-up and tax offset denied in certain circumstances: 123. Subdivision 207-F of the ITAA 1997 creates the appropriate adjustment to cancel the effect of the gross-up and tax offset rules where the entity concerned has manipulated the imputation system in a manner that is not permitted under the income tax law. 124. Section 207-145 of the ITAA 1997 provides the circumstances that must exist before this adjustment can occur. Pursuant to subsection 207-145(1) of the ITAA 1997 a 'manipulation of the imputation system' may occur where a franked distribution is made to an entity in one or more of the following circumstances: 125. A person is a 'qualified person' for the purposes of Division 1A of former Part IIIAA of the ITAA 1936 if, generally speaking, they satisfy the holding period rule and the related payments rule (see former section 160APHO of the ITAA 1936). 126. By virtue of former section 160AOA of the ITAA 1936, the holding period rule and the related payments rule apply to non-share equity interests, equity holders and non-share dividends in the same way as they apply to shares, shareholders and dividends respectively. 127. The holding period rule applies where neither the holder nor an associate of the holder has made, is under an obligation to make, or is likely to make, a related payment in respect of the dividend (or non-share dividend), and requires the shares (or non-share equity interests) to have been continuously held at risk throughout the primary qualification period (former paragraph 160APHO(1)(a) of the ITAA 1936). 128. The related payments rule applies where the holder or an associate of the holder has made, is under an obligation to make, or is likely to make, a related payment in respect of the dividend (or non-share dividend) and requires the shares (or non-share equity interests) to have been continuously held at risk throughout the secondary qualification period (former paragraph 160APHO(1)(b) and former section 160APHN of the ITAA 1936). 129. A Holder of a WCN 2 will be a 'qualified person' in relation to a Distribution received in respect of their WCN 2, provided that: 130. If either, or both, of the above two considerations are not met, the Holders will not be a 'qualified person' for the purposes of Division 1A of former Part IIIAA of the ITAA 1936. 131. In determining whether a shareholder is a 'qualified person' in relation to dividends paid on their shares, all 'positions' in respect of the shares are taken into account in identifying a 'net position' to ensure that there is no material diminution in the risks of loss or opportunities for gain. 132. The Commissioner has concluded that the Transfer and Conversion mechanisms in relation to the WCN 2 will not of themselves affect a Holder's risks of loss or opportunities for gain in respect of the WCN 2. Therefore, paragraph 207-145(1)(a) of the ITAA 1997 does not apply. 133. The Commissioner will not make a determination under paragraph 177EA(5)(b) of the ITAA 1936 or paragraph 204-30(3)(c) of the ITAA 1997 to deny the imputation benefits attached to Distributions paid to Holders in respect of the WCN 2. 134. A distribution will be taken to be made as part of a dividend stripping operation, pursuant to paragraph 207-145(1)(d) of the ITAA 1997, where the distribution arose out of, or was made in the course of, a scheme or substantially similar arrangement that was in the nature of dividend stripping. 135. The Prospectus and Terms provide no indication that the offering of the WCN 2 and the associated payment of franked Distributions to Holders in any way constitutes a dividend stripping arrangement. 136. Accordingly, section 207-145 of the ITAA 1997 will not apply to adjust the Holders' assessable income to exclude the franking credit on the Distributions, nor will it deny the tax offset to which the Holders would otherwise be entitled. | Each WCN 2 will not be a traditional security: 137. A traditional security is defined in subsection 26BB(1) of the ITAA 1936 as a security held by the taxpayer that was acquired by the taxpayer after 10 May 1989, is not a prescribed security within the meaning of section 26C of the ITAA 1936, is not trading stock of the taxpayer, and either does not have an eligible return, or has an eligible return that satisfies the conditions listed in the definition of traditional security in subparagraph 26BB(1)(b)(ii) of the ITAA 1936. 138. The term 'security' is defined in subsection 26BB(1) of the ITAA 1936 by reference to subsection 159GP(1) of the ITAA 1936. Pursuant to subsection 159GP(1), 'security' means: 139. The WCN 2 is not stock, a bond, debenture, certificate of entitlement, bill of exchange, or a promissory note. 140. The term 'or other security' in paragraph (a) of the definition of security only encompasses instruments that evidence an obligation on the part of the issuer or drawer to pay an amount to the holder or acceptor, whether during the term of the instrument or at its maturity. The types of securities referred to in paragraph (a) of the definition of security will generally be recognised as debt instruments (Taxation Ruling TR 96/14). 141. Paragraphs (b) and (c) of the definition of security do not apply because the WCN 2 is neither a deposit with a bank or other financial institution, nor a secured or unsecured loan. 142. Only those contracts that have debt like obligations will usually fall under paragraph (d) of the definition of security (TR 96/14). 143. The Terms do not evidence a liability by Westpac to pay an amount or amounts to Holders of the WCN 2 at a particular time. 144. The WCN 2 are perpetual and Holders do not have a right to require Redemption. 145. The payment by Westpac of Distributions is subject to the Distribution Payment Conditions. Distributions are discretionary and non-cumulative. If a Distribution is not paid, Westpac has no liability to pay the Distribution and Holders have no claim in respect of non-payment. 146. Upon Conversion, Westpac will allot and issue a number of Ordinary Shares based on a formula set out in the Terms for each WCN 2 held by the Holder. Each Holder's rights in relation to each WCN 2 that is being converted are immediately and irrevocably terminated for an amount equal to the Face Value and Westpac will apply that amount by way of payment for the subscription for Ordinary Shares issued to Holders. Westpac cannot be said to have a liability to pay an amount under the Terms of the WCN 2 pursuant to the Conversion. 147. Early Redemption of the WCN 2 is possible. However it is at the option of Westpac and will only occur upon the happening of certain events and requires the prior written approval of APRA. This does not establish a liability on Westpac to pay an amount. 148. Westpac would not become liable to pay an amount under the WCN 2 upon a wind-up if, as it would be expected, before a wind-up commences, the WCN 2 are either converted into Ordinary Shares pursuant to a Capital Trigger Event or a Non-Viability Trigger Event (in which case any distribution would be made to the Holders as ordinary shareholders as opposed to under the terms of the WCN 2), or Holders' rights are terminated where Westpac is not able to issue Ordinary Shares within the time stated in the Terms. 149. As the WCN 2 is not a security within the meaning of subsection 159GP(1) of the ITAA 1936, it cannot be a traditional security under subsection 26BB of the ITAA 1936. 150. Section 26BB of the ITAA 1936 will not apply to include any amount in the assessable income of the Holder upon disposal of the WCN 2. 151. Section 70B of the ITAA 1936 will not apply to allow a deduction to Holders upon disposal of their WCN 2. | The WCN 2 are convertible interests: 152. Subsection 995-1(1) of the ITAA 1997 defines a 'convertible interest' in a company as an interest of the kind referred to in item 4 of the table in subsection 974-75(1) of the ITAA 1997. Paragraph (b) of item 4 of the table in subsection 974-75(1) provides that an interest is an equity interest if it is an interest issued by the company that is an interest that will, or may, convert into an equity interest in the company. 153. Under section 974-165 of the ITAA 1997, an interest is an interest that will or may convert into another interest if: 154. Each WCN 2 is a convertible interest because it will or may be redeemed, repaid or satisfied by the issue of Ordinary Shares upon Conversion. | Conversion of the WCN 2 - ordinary income: 155. Section 6-5 of the ITAA 1997 provides that assessable income includes income according to ordinary concepts, otherwise known as ordinary income. 156. Subsection 6-10(2) of the ITAA 1997 also includes in assessable income amounts of statutory income, that is, amounts that are not ordinary income but are included in assessable income by the income tax legislation. Statutory income includes net capital gains (sections 10-5 and 102-5 of the ITAA 1997). 157. The WCN 2 will be held by Holders on capital account as the Holders will acquire a CGT asset pursuant to Item 2 in section 109-10 of the ITAA 1997. Accordingly, any capital gain will be statutory income, and no amount will be included in the assessable income of a Holder on the Conversion of a WCN 2 under section 6-5 of the ITAA 1997. 158. Similarly, Holders will not be entitled to a deductible loss under section 8-1 of the ITAA 1997 in respect of the Conversion of their WCN. | Conversion of the WCN 2 - CGT implications: 159. CGT event C2 will happen to Holders on Conversion of the WCN 2. Under paragraph 104-25(1)(f) of the ITAA 1997, CGT event C2 happens if an entity's ownership of an intangible CGT asset ends by the asset (if it is a convertible interest) being converted. 160. The WCN 2 are convertible interests. Conversion of the WCN 2 for Ordinary Shares constitutes the conversion of a convertible interest. 161. Conversion of the WCN 2 happens as part of a conversion to which Subdivision 130-C of the ITAA 1997 applies. Under subsection 130-60(3) of the ITAA 1997, a capital gain or capital loss made from converting a convertible interest is disregarded. Any capital gain or capital loss made by a Holder from CGT event C2 happening on Conversion of the WCN 2 will be disregarded. | Cost base and reduced cost base of Ordinary Shares acquired on Conversion: 162. On Conversion, Subdivision 130-C of the ITAA 1997 will apply so that the first element of the cost base and reduced cost base of each Ordinary Share acquired from Conversion of a WCN 2 will be a pro-rata portion of the cost base of their WCN 2 at the time of Conversion (item 2 of the table in subsection 130-60(1) of the ITAA 1997). | Acquisition time of Ordinary Shares acquired on Conversion: 163. Ordinary Shares acquired on Conversion of the WCN 2 (being convertible interests) will be taken to be acquired when the Conversion happens on the relevant Conversion Date (subsection 130-60(2) of the ITAA 1997). | Allotment of Ordinary Shares on Conversion not a dividend: 164. The issue of Ordinary Shares to Holders on Conversion is a distribution of property to holders of a non-share equity interest and a non-share distribution under subparagraph 974-115(b)(ii) of the ITAA 1997. A non-share distribution is a non-share dividend under subsection 974-120(1) of the ITAA 1997. 165. Subsection 974-120(2) of the ITAA 1997 provides that a non-share distribution is not a non-share dividend to the extent to which the company debits the distribution against the company's share capital account or non-share capital account. 166. On Conversion, Westpac will debit the Face Value of the WCN 2 to its non-share capital account. Accordingly, the issue of Ordinary shares on Conversion is not a non-share dividend and will not be included in assessable income under subparagraph 44(1)(a)(ii) of the ITAA 1936. | Redemption or Transfer of the WCN 2 - ordinary income: 167. The WCN 2 will be held by Holders on capital account. Accordingly, no amount will be included in the assessable income of a Holder on the Redemption or Transfer of a WCN 2 under section 6-5 of the ITAA 1997. 168. Similarly, Holders will not be entitled to a deductible loss under section 8-1 of the ITAA 1997 in respect of a Redemption or Transfer of their WCN 2. | Redemption of the WCN 2 - CGT implications: 169. CGT event C2 (section 104-25 of the ITAA 1997) will happen on the Redemption of the WCN 2. Under paragraph 104-25(1)(a) of the ITAA 1997, CGT event C2 happens if an entity's ownership of an intangible CGT asset ends by the asset being redeemed or cancelled. 170. On Redemption, a Holder's ownership of the WCN 2 (being an intangible CGT asset) will end by being redeemed for an amount equal to its Face Value. 171. As the capital proceeds received by Holders will not be more than the cost base of the WCN 2, Holders should not make a capital gain as a result of the Redemption of their WCN 2 under the scheme. 172. If the Face Value of the WCN 2 has been reduced because there has been a Capital Trigger Event or a Non-Viability Trigger Event, Holders will make a capital loss on the Redemption of their WCN 2 under subparagraph 104-25(3) of the ITAA 1997. | Transfer of the WCN 2 - CGT implications: 173. CGT event A1 (section 104-10 of the ITAA 1997) will happen on the Transfer of the WCN 2. Under section 104-10 of the ITAA 1997, CGT event A1 happens if there is a disposal of a CGT asset. You dispose of a CGT asset if a change of ownership occurs from you to another entity (subsection 104-10(2) of the ITAA 1997). 174. The Transfer of the WCN 2 constitutes a disposal of a CGT asset as it results in the transfer of the ownership of the WCN 2 from the Holder to the Nominated Party. 175. As the capital proceeds received by Holders will not be more than the cost base of the WCN 2, Holders should not make a capital gain as a result of the Transfer of their WCN 2 under the scheme. 176. If the Face Value of the WCN 2 has been reduced because there has been a Capital Trigger Event or a Non-Viability Trigger Event, Holders will make a capital loss on the Transfer of their WCN 2 under subparagraph 104-25(3) of the ITAA 1997. | Section 45 of the ITAA 1936: 177. Section 45 of the ITAA 1936 applies where a company streams the provision of shares and the payment of minimally franked dividends to its shareholders in such a way that the shares are received by some shareholders and minimally franked dividends are received by other shareholders. Minimally franked dividends are dividends which are franked to less than 10%. 178. Westpac has consistently paid fully franked dividends/distributions (to the extent such dividends/distributions are frankable). Westpac has stated its intention to continue paying such fully franked dividends/distributions to all its shareholders and non-share equity holders into the foreseeable future. 179. Based on the information provided and having regard to the circumstances of the scheme, section 45 of the ITAA 1936 will not apply to treat the issue of Ordinary Shares on Conversion as an unfranked dividend in the hands of Holders. | Section 45A of the ITAA 1936: 180. Section 45A of the ITAA 1936 applies in circumstances where a company streams the provision of capital benefits to certain shareholders who derive a greater benefit from the receipt of capital (the advantaged shareholders) and it is reasonable to assume that the other shareholders have received or will receive dividends (the disadvantaged shareholders). 181. The Commissioner may make a determination under subsection 45A(2) of the ITAA 1936 that section 45C of the ITAA 1936 applies. The effect of such a determination is that the capital benefit is taken to be an unfranked dividend. 182. A provision of capital benefits includes the provision to the shareholder of shares in the company pursuant to paragraph 45A(3)(a) of the ITAA 1936. The issue of Ordinary Shares to Holders on Conversion of the WCN 2 will constitute the provision of capital benefits. 183. The issue of Ordinary Shares on Conversion of the WCN 2 is in effect a restatement of the Holder's interest in the capital of Westpac. In the absence of any other factors that would contribute to an alternative conclusion, there will not be any streaming of capital benefits. 184. The Redemption of the WCN 2 will involve the provision of a capital benefit within the meaning of subsection 45A(3) of the ITAA 1936 as it will constitute a non-share capital return (subsection 45A(3A) of the ITAA 1936). The amount paid to Holders on Redemption is limited to the amount of the Face Value of the WCN 2 and any Distribution entitlements on the WCN 2 will be separately paid as Distributions given that the Redemption Date will also be a Distribution Payment Date under the Terms. 185. Accordingly, it cannot be said that Holders would derive a greater benefit from capital benefits than other Westpac shareholders. Therefore, the Redemption or the issue of Ordinary Shares on Conversion of the WCN 2 will not trigger the application of section 45A of the ITAA 1936. 186. Therefore, the Commissioner will not make a determination under subsection 45A(2) of the ITAA 1936. | Section 45B of the ITAA 1936: 187. Section 45B of the ITAA 1936 applies where certain capital benefits are provided to shareholders in substitution for dividends and the conditions in subsection 45B(2) of the ITAA 1936 are met. 188. The Commissioner may make a determination under paragraph 45B(3)(b) of the ITAA 1936 that section 45C of the ITAA 1936 applies. The effect of such a determination is that the capital benefit is taken to be an unfranked dividend. 189. The issue of Ordinary Shares to Holders on Conversion will constitute a scheme under which the Holders are provided with a capital benefit by Westpac (paragraph 45B(5)(a) of the ITAA 1936). Similarly, Redemption of the WCN 2 will also constitute a scheme under which the Holders are provided with a capital benefit by Westpac (paragraph 45B(5)(b) of the ITAA 1936 (subsection 45B(7) of the ITAA 1936). 190. For the provision to apply, among other things, paragraph 45B(2)(c) of the ITAA 1936 requires that, having regard to the relevant circumstances of the scheme, it would be concluded that the person, or one of the persons, entered into the scheme or carried out the scheme or any part of the scheme for a purpose, other than an incidental purpose, of enabling a taxpayer to obtain a tax benefit. A non-exhaustive list of relevant circumstances of the scheme are provided in subsection 45B(8) of the ITAA 1936. 191. Having regard to the relevant circumstances surrounding the issue of the WCN 2, it cannot be concluded that Westpac, the Holders or any other person entered into or carried out the issue of the WCN 2 for the purpose of enabling Holders to obtain a capital benefit. 192. Similarly, it cannot be said that Redemption will involve any benefit provided to Holders that is in substitution for Distributions. The amount paid to Holders on Redemption is limited to an amount equal to the Face Value of the WCN 2 and any Distribution entitlements on the WCN 2 will be separately paid as a Distribution given that the Redemption Date will also be a Distribution Payment Date under the Terms. 193. Accordingly, the Commissioner will not make a determination under paragraph 45B(3)(b) of the ITAA 1936.


What this Ruling is about | NOT LEGALLY BINDING SECTION: | A public ruling is an expression of the Commissioner's opinion about the way in which a relevant provision applies, or would apply, to entities generally or to a class of entities in relation to a particular scheme or a class of schemes. | If you rely on this ruling, the Commissioner must apply the law to you in the way set out in the ruling (unless the Commissioner is satisfied that the ruling is incorrect and disadvantages you, in which case the law may be applied to you in a way that is more favourable for you - provided the Commissioner is not prevented from doing so by a time limit imposed by the law). You will be protected from having to pay any underpaid tax, penalty or interest in respect of the matters covered by this ruling if it turns out that it does not correctly state how the relevant provision applies to you. | Capital Trigger Event and Non-Viability Event | Acquisition time of the WCN 2 - CGT implications | Acquisition of the WCN 2- CGT implications | Appendix 2 - Detailed contents list


Related rulings: TR 96/14 TR 2006/10
Legislative references: ITAA 1936 6(1) ITAA 1936 26BB ITAA 1936 26BB(1) ITAA 1936 26C ITAA 1936 43B(1)(b) ITAA 1936 44(1) ITAA 1936 44(1)(a)(ii) ITAA 1936 45 ITAA 1936 45A ITAA 1936 45A(2) ITAA 1936 45A(3) ITAA 1936 45A(3)(a) ITAA 1936 45A(3A) ITAA 1936 45B ITAA 1936 45B(2) ITAA 1936 45B(2)(c) ITAA 1936 45B(3)(b) ITAA 1936 45B(5)(a) ITAA 1936 45B(5)(b) ITAA 1936 45B(7) ITAA 1936 45B(8) ITAA 1936 45C ITAA 1936 70B ITAA 1936 159GP(1) ITAA 1936 Pt III Div 2 Subdiv D ITAA 1936 Pt IIIAA Div 1A ITAA 1936 160AOA ITAA 1936 160APHJ ITAA 1936 160APHJ(2) ITAA 1936 160APHM ITAA 1936 160APHN ITAA 1936 160APHO ITAA 1936 160APHO(1)(a) ITAA 1936 160APHO(1)(b) ITAA 1936 160APHO(2) ITAA 1936 160APHO(3) ITAA 1936 177EA ITAA 1936 177EA(3) ITAA 1936 177EA(3)(a) ITAA 1936 177EA(3)(b) ITAA 1936 177EA(3)(c) ITAA 1936 177EA(3)(d) ITAA 1936 177EA(5) ITAA 1936 177EA(5)(b) ITAA 1936 177EA(12) ITAA 1936 177EA(12)(a) ITAA 1936 177EA(14)(a) ITAA 1936 177EA(17) ITAA 1997 6-5 ITAA 1997 6-10(2) ITAA 1997 8-1 ITAA 1997 10-5 ITAA 1997 Div 67 ITAA 1997 67-25 ITAA 1997 67-25(1C) ITAA 1997 67-25(1D) ITAA 1997 102-5 ITAA 1997 104-10 ITAA 1997 104-10(2) ITAA 1997 104-10(4) ITAA 1997 104-25 ITAA 1997 104-25(1)(f) ITAA 1997 109-10 ITAA 1997 110-25(2) ITAA 1997 110-25(2)(a) ITAA 1997 110-55(2) ITAA 1997 116-20(1) ITAA 1997 Subdiv 130-C ITAA 1997 130-60(1) ITAA 1997 130-60(2) ITAA 1997 130-60(3) ITAA 1997 Div 197 ITAA 1997 202-40 ITAA 1997 202-45 ITAA 1997 Subdiv 204-D ITAA 1997 204-30 ITAA 1997 204-30(1)(a) ITAA 1997 204-30(1)(b) ITAA 1997 204-30(1)(c) ITAA 1997 204-30(3)(c) ITAA 1997 Div 207 ITAA 1997 Subdiv 207-D ITAA 1997 Subdiv 207-E ITAA 1997 Subdiv 207-F ITAA 1997 207-20(1) ITAA 1997 207-20(2) ITAA 1997 207-145 ITAA 1997 207-145(1) ITAA 1997 207-145(1)(a) ITAA 1997 207-145(1)(b) ITAA 1997 207-145(1)(c) ITAA 1997 207-145(1)(d) ITAA 1997 215-20 ITAA 1997 Div 230 ITAA 1997 Div 974 ITAA 1997 974-75(1) ITAA 1997 974-115(b)(ii) ITAA 1997 974-120 ITAA 1997 974-120(1) ITAA 1997 974-120(2) ITAA 1997 974-165 ITAA 1997 974-165(a) ITAA 1997 974-165(b)(i) ITAA 1997 995-1(1) Copyright Act 1968
Case references: Mills v. Commissioner of Taxation [2012] HCA 51 2012 ATC 20-360 (2012) 83 ATR 514
Subject references: acquisition dates anti-avoidance measures capital gains tax CGT cost base dividend imputation qualified persons
Other references: Explanatory Memorandum to the Taxation Laws Amendment Bill (No.2) 1999 Explanatory Memorandum to the New Business Tax System (Imputation) Bill 2002