Product Ruling PR 2010/21
Date of effect: 1 November 2004

What this ruling is about: 1. This Product Ruling sets out the Commissioner's opinion on the way in which the relevant provision(s) identified in the Ruling section (below) apply to the defined class of entities, who take part in the scheme to which this Ruling relates. All legislative references in this Ruling are to the Income Tax Assessment Act 1997 (ITAA 1997) unless otherwise indicated. 2. In this Product Ruling, this scheme is referred to as the National Viticulture Fund of Australia Project No. 3 (1 November 2004 - 15 June 2005 Growers) or simply as 'the Project'. Class of entities 3. This part of the Product Ruling specifies which entities can rely on the tax benefits set out in the Ruling section of this Product Ruling and which entities cannot rely on those tax benefits. In this Product Ruling, those entities that can rely on the tax benefits set out in this Ruling are referred to as Growers. 4. The class of entities who can rely on those tax benefits consists of those entities who were specifically identified in paragraphs 49 to 50 of Product Ruling PR 2004/70 and who entered into the specific scheme that is set out in paragraphs 14 to 48 of that Ruling between 1 November 2004 and 15 June 2005. 5. The class of entities who can rely on the tax benefits set out in the Ruling section of this Product Ruling does not include entities who: Superannuation Industry (Supervision) Act 1993 6. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA). The Commissioner gives no assurance that the scheme is an appropriate investment for a superannuation fund. The trustees of superannuation funds are advised that no consideration has been given in this Product Ruling as to whether investment in this scheme may contravene the provisions of SISA. Qualifications 7. The class of entities defined in this Product Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 14 to 48 of PR 2004/70. 8. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then: 9. This work is copyright. Apart from any use as permitted under the Copyright Act 1968 , no part may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to:

Class of entities or scheme: 3. This part of the Product Ruling specifies which entities can rely on the tax benefits set out in the Ruling section of this Product Ruling and which entities cannot rely on those tax benefits. In this Product Ruling, those entities that can rely on the tax benefits set out in this Ruling are referred to as Growers. 4. The class of entities who can rely on those tax benefits consists of those entities who were specifically identified in paragraphs 49 to 50 of Product Ruling PR 2004/70 and who entered into the specific scheme that is set out in paragraphs 14 to 48 of that Ruling between 1 November 2004 and 15 June 2005. 5. The class of entities who can rely on the tax benefits set out in the Ruling section of this Product Ruling does not include entities who: | Superannuation Industry (Supervision) Act 1993: 6. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA). The Commissioner gives no assurance that the scheme is an appropriate investment for a superannuation fund. The trustees of superannuation funds are advised that no consideration has been given in this Product Ruling as to whether investment in this scheme may contravene the provisions of SISA. | Qualifications: 7. The class of entities defined in this Product Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 14 to 48 of PR 2004/70. 8. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then: 9. This work is copyright. Apart from any use as permitted under the Copyright Act 1968 , no part may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to: 10. This Product Ruling applies only to the specified class of entities that entered into the scheme set out in paragraphs 14 to 48 of PR 2004/70 between 1 November 2004 and 15 June 2005. 11. However, the Product Ruling only applies to the extent that there is no change in the scheme or in the entity's involvement in the scheme. | Continuing application of PR 2004/70: 12. Although now withdrawn, the tax benefits set out in PR 2004/70 continue to apply to Growers who are within the specified class of entities to which the Product Ruling applied and who entered into the specified scheme between 1 November 2004 and 15 June 2005. This is subject to there being no material difference in the scheme or in the entities involved in the scheme. | Division 35 - deferral of losses from non-commercial business activities: 13. A Grower who is an individual and within the defined class of entities outlined in paragraphs 3 to 5 of this Ruling may have losses arising from their participation in the Project that would be deferred to a later income year under section 35-10. | 2008-09 income year: 14. Subject to the Project being carried out in the manner described in paragraphs 14 to 48 of PR 2004/70, the Commissioner will exercise the discretion in paragraph 35-55(1)(b) for Growers for the 2008-09 income year. This conditional exercise of the discretion will allow those losses to be offset against the Grower's other assessable income in the income year in which the losses arise. | 2009-10 income year: 15. For the 2009-10 income year, the Commissioner will exercise the discretion in subsection 35-55(1) once the following conditions are satisfied: 16. If these conditions are met for the 2009-10 income year, the Commissioner will exercise the discretion under: 17. The scheme that is the subject of this Ruling is called the National Viticulture Fund of Australia Project No. 3 (1 November 2004 - 15 June 2005 Growers) and is described in paragraphs 14 to 48 of PR 2004/70. It also incorporates the following additional documents: Note: certain information has been provided on a commercial-in-confidence basis and will not be disclosed or released under Freedom of Information legislation. 18. For the purposes of describing the scheme to which this Ruling applies, there are no other agreements, whether formal or informal, and whether or not legally enforceable, which a Grower, or any associate of a Grower, will be a party to, which are a part of the scheme. 19. All Australian Securities and Investment Commission (ASIC) requirements are, or will be, complied with for the term of the agreements. Commissioner of Taxation 22 September 2010 | Sections 35-10 and 35-55 - deferral of losses from non-commercial business activities and the exercise of the Commissioner's discretion: 20. Based on information provided with the application for this Product Ruling, a Grower within the class of entities defined in paragraphs 3 to 5 of this Ruling who carries on a business of viticulture individually (alone or in partnership) is expected to incur losses from their participation in the Project which will be subject to Division 35. [1] These losses will be subject to the loss deferral rule in section 35-10 unless an exception applies or, for each income year in which losses are incurred, the Commissioner exercises the discretion in subsection 35-55(1) 21. The exceptions to the loss deferral rule depend upon the circumstances of individual Growers and are outside the scope of this Ruling. 22. The Commissioner will apply the principles set out in Taxation Ruling TR 2007/6 Income tax: non-commercial business losses: Commissioner's discretion when exercising the discretion. | 2008-09 income year: 23. The discretion in subsection 35-55(1)(b) has been exercised for the 2008-09 income year because the Commissioner has determined: 24. The exercise of the Commissioner's discretion under paragraph 35-55(1)(b) is conditional on the Project being carried on in the manner described in paragraphs 14 to 48 of PR 2004/70 during the income year specified. If the Project is carried out in a materially different way to that described in the Ruling, a Grower will need to apply for a private ruling on the application of section 35-55 to those changed circumstances. | 2009-10 income year: 25. From the 2009-10 income year an income requirement was introduced in subsection 35-10(2E) (see paragraph 30 of this Ruling). 26. Where, in the 2009-10 income year, a Grower with income for non-commercial loss purposes of less than $250,000 (that is, the Grower satisfies the income requirement in subsection 35-10(2E)) the discretion in subsection 35-55(1)(b) has been exercised for the 2009-10 income year because the Commissioner has determined: 27. Where, in the 2009-10 income year, a Grower with income for non-commercial loss purposes of $250,000 or more (that is, the Grower does not satisfy the income requirement in subsection 35-10(2E)) the discretion in subsection 35-55(1)(c) has been exercised for the 2009-10 income year because the Commissioner has determined: 28. The exercise of the Commissioner's discretion under paragraph 35-55(1)(b) or 35-55(1)(c) is conditional on the Project being carried on in the manner described in paragraphs 14 to 48 of PR 2004/70 during the income years specified. If the Project is carried out in a materially different way to that described in the Ruling, a Grower will need to apply for a private ruling on the application of section 35-55 to those changed circumstances. 29. In each individual year where the Commissioner's discretion is exercised a Grower within either paragraph 35-55(1)(b) or paragraph 35-55(1)(c) who would otherwise be required to defer a loss arising from their participation in the Project under section 35-10 until a later income year is able to offset that loss against their other assessable income. | Subsection 35-10(2E) - income requirement: 30. A Grower will satisfy the income requirement in subsection 35-10(2E) where the sum of the following amounts is less than $250,000: 31. The following is a detailed contents list for this Ruling: Not previously issued as a draft

Ruling: This Product Ruling has been given on the basis that the entity(s) who applied for the Product Ruling, and their associates, will abide by strict terms of use. Any failure to comply with the terms of use may lead to the withdrawal of this Product Ruling. 1. This Product Ruling sets out the Commissioner's opinion on the way in which the relevant provision(s) identified in the Ruling section (below) apply to the defined class of entities, who take part in the scheme to which this Ruling relates. All legislative references in this Ruling are to the Income Tax Assessment Act 1997 (ITAA 1997) unless otherwise indicated. 2. In this Product Ruling, this scheme is referred to as the National Viticulture Fund of Australia Project No. 3 (1 November 2004 - 15 June 2005 Growers) or simply as 'the Project'. | Class of entities: 3. This part of the Product Ruling specifies which entities can rely on the tax benefits set out in the Ruling section of this Product Ruling and which entities cannot rely on those tax benefits. In this Product Ruling, those entities that can rely on the tax benefits set out in this Ruling are referred to as Growers. 4. The class of entities who can rely on those tax benefits consists of those entities who were specifically identified in paragraphs 49 to 50 of Product Ruling PR 2004/70 and who entered into the specific scheme that is set out in paragraphs 14 to 48 of that Ruling between 1 November 2004 and 15 June 2005. 5. The class of entities who can rely on the tax benefits set out in the Ruling section of this Product Ruling does not include entities who: | Superannuation Industry (Supervision) Act 1993: 6. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA). The Commissioner gives no assurance that the scheme is an appropriate investment for a superannuation fund. The trustees of superannuation funds are advised that no consideration has been given in this Product Ruling as to whether investment in this scheme may contravene the provisions of SISA. | Qualifications: 7. The class of entities defined in this Product Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 14 to 48 of PR 2004/70. 8. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then: 9. This work is copyright. Apart from any use as permitted under the Copyright Act 1968 , no part may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to:


Appendix: Sections 35-10 and 35-55 - deferral of losses from non-commercial business activities and the exercise of the Commissioner's discretion: 20. Based on information provided with the application for this Product Ruling, a Grower within the class of entities defined in paragraphs 3 to 5 of this Ruling who carries on a business of viticulture individually (alone or in partnership) is expected to incur losses from their participation in the Project which will be subject to Division 35. [1] These losses will be subject to the loss deferral rule in section 35-10 unless an exception applies or, for each income year in which losses are incurred, the Commissioner exercises the discretion in subsection 35-55(1) 21. The exceptions to the loss deferral rule depend upon the circumstances of individual Growers and are outside the scope of this Ruling. 22. The Commissioner will apply the principles set out in Taxation Ruling TR 2007/6 Income tax: non-commercial business losses: Commissioner's discretion when exercising the discretion. | 2008-09 income year: 23. The discretion in subsection 35-55(1)(b) has been exercised for the 2008-09 income year because the Commissioner has determined: 24. The exercise of the Commissioner's discretion under paragraph 35-55(1)(b) is conditional on the Project being carried on in the manner described in paragraphs 14 to 48 of PR 2004/70 during the income year specified. If the Project is carried out in a materially different way to that described in the Ruling, a Grower will need to apply for a private ruling on the application of section 35-55 to those changed circumstances. | 2009-10 income year: 25. From the 2009-10 income year an income requirement was introduced in subsection 35-10(2E) (see paragraph 30 of this Ruling). 26. Where, in the 2009-10 income year, a Grower with income for non-commercial loss purposes of less than $250,000 (that is, the Grower satisfies the income requirement in subsection 35-10(2E)) the discretion in subsection 35-55(1)(b) has been exercised for the 2009-10 income year because the Commissioner has determined: 27. Where, in the 2009-10 income year, a Grower with income for non-commercial loss purposes of $250,000 or more (that is, the Grower does not satisfy the income requirement in subsection 35-10(2E)) the discretion in subsection 35-55(1)(c) has been exercised for the 2009-10 income year because the Commissioner has determined: 28. The exercise of the Commissioner's discretion under paragraph 35-55(1)(b) or 35-55(1)(c) is conditional on the Project being carried on in the manner described in paragraphs 14 to 48 of PR 2004/70 during the income years specified. If the Project is carried out in a materially different way to that described in the Ruling, a Grower will need to apply for a private ruling on the application of section 35-55 to those changed circumstances. 29. In each individual year where the Commissioner's discretion is exercised a Grower within either paragraph 35-55(1)(b) or paragraph 35-55(1)(c) who would otherwise be required to defer a loss arising from their participation in the Project under section 35-10 until a later income year is able to offset that loss against their other assessable income. | Subsection 35-10(2E) - income requirement: 30. A Grower will satisfy the income requirement in subsection 35-10(2E) where the sum of the following amounts is less than $250,000:


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. | Potential participants must form their own view about the commercial and financial viability of the product. The Commissioner recommends a financial (or other) adviser be consulted for such information. | This Product Ruling provides certainty for potential participants by confirming that the tax benefits set out in the Ruling part of this document are available, provided that the scheme is carried out in accordance with the information we have been given, and have described below in the Scheme part of this document. If the scheme is not carried out as described, participants lose the protection of this Product Ruling. | Section 35-55 - exercise of Commissioner's discretion | Appendix 2 - Detailed contents list


Related rulings: TR 2007/6 PR 2004/70
Legislative references: ITAA 1997 ITAA 1997 Div 35 ITAA 1997 35-10 ITAA 1997 35-10(2) ITAA 1997 35-10(2C) ITAA 1997 35-10(2E) ITAA 1997 35-55 ITAA 1997 35-55(1) ITAA 1997 35-55(1)(b) ITAA 1997 35-55(1)(c) SISA 1993 TAA 1953 Copyright Act 1968
Subject references: Commissioner's discretion non commercial loss product rulings