Product Ruling PR 2012/8
Date of effect: 2 May 2012


Class of entities or scheme: 3. This part of the Product Ruling specifies which entities; set out in the Ruling section of this Product Ruling. 4. The members of the class of entities who are subject to those taxation obligations and who can rely on those taxation benefits are referred to in this Product Ruling as Growers. 5. Growers are those entities that: 6. A Grower will have executed the relevant Project Agreements set out in paragraph 45 of this Ruling on or before 30 June 2012 and will hold a 'forestry interest' in the Project. 7. The class of entities who can rely on this Product Ruling does not include entities: | Superannuation Industry (Supervision) Act 1993: 8. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA 1993). The ATO gives no assurance that the product 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 product may contravene the provisions of SISA 1993. | Qualifications: 9. 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 45 to 102 of this Ruling. 10. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then: 11. 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: 12. This Product Ruling applies prospectively from 2 May 2012, the date this Ruling is made. It therefore applies only to the specified class of entities that enter into the scheme from 2 May 2012 until 30 June 2012, being the closing date for entry into the scheme. This Ruling provides advice on the availability of tax benefits to the specified class of entities for all income years up to the income year in which the scheme is terminated in accordance with the Constitution. 13. However, this Product Ruling only applies to the extent that there is no change in the scheme or in the entity's involvement in the scheme. | Changes in the law: 14. Although this Product Ruling deals with the laws enacted at the time it was issued, later amendments to the law may impact on this Ruling. Any such changes will take precedence over the application of this Ruling and, to the extent of those amendments this Ruling will be superseded. 15. Entities who are considering participating in the scheme are advised to confirm with their taxation adviser that changes in the law have not affected this Product Ruling since it was issued. | Note to promoters and advisers: 16. Product Rulings were introduced for the purpose of providing certainty about tax consequences for entities in schemes such as this. In keeping with that intention the ATO suggests that promoters and advisers ensure that participants are fully informed of any legislative changes after this Ruling is issued. | Goods and Services Tax: 17. All amounts and percentages referred to in this Product Ruling exclude the Goods and Services Tax (GST), unless otherwise specified. The transactions in respect of this scheme may, where appropriate, have GST implications. | Structure of the Project: 18. The Project is a 'forestry managed investment scheme' as defined in subsection 394-15(1). Its purpose is the establishment and tending of Sandalwood Trees for felling in Australia. 19. Subject to the stated qualifications, this part of the Product Ruling sets out in detail the taxation obligations and benefits for an 'initial participant' [1] in the defined class of entities (see paragraphs 3 to 7 of this Ruling) who are accepted to participate in the 'forestry managed investment scheme' described below at paragraphs 45 to 102 of this Ruling between 2 May 2012 and 30 June 2012 inclusive. 20. An entity that takes part in the Project as a 'subsequent participant' [2] is not covered by this Product Ruling but may request a private ruling on their participation in the Project. A 'subsequent participant' is an entity that does not meet the definition of 'initial participant' in subsection 394-15(5). | Carrying on a business: 21. Although not relevant for the purposes of Division 394, a Grower (as described in paragraphs 4 to 7 of this Ruling) who will stay in the Project until it is completed will be considered to be carrying on a business of primary production. Such Growers who are individuals will be subject to the operation of Division 35 of the ITAA 1997 (see paragraphs 41 to 44 and 143 to 148 of this Ruling). Concessions for 'small business entities' [3] 22. From the 2007-08 income year, a range of concessions previously available under the simplified tax system (STS) became available to an entity if it carries on a business and satisfies the $2 million aggregated turnover test (a 'small business entity'). 23. A 'small business entity' can choose the concessions that best suit its needs. Eligibility for some small business concessions is also dependent on satisfying some additional conditions. Because of these choices and the eligibility conditions the application of the small business concessions to Growers who qualify as a 'small business entity' is not able to be dealt with in this Product Ruling. | Section 394-35 and subsection 394-10(4): 24. The taxation obligations and benefits set out below have been determined using the information provided to the Commissioner by the Responsible Entity (referred to as the 'forestry manager' in Division 394). On the basis of that information the Commissioner has decided that on 30 June 2012 it will be reasonable to expect that the '70% DFE rule' [4] will be satisfied. The ATO may undertake review activities during the term of the Project to verify the information relied on for the purposes of the '70% DFE rule'. 25. This Ruling will only apply if the Responsible Entity establishes all of the Trees that were intended to be established under the Project within 18 months of the end of the income year in which the first 'participant' in the Project is accepted. [5] For this Project the Trees must be established before 31 December 2013. 26. In the context of this Project, the Trees will be established when they are planted on the land acquired for the purposes of the Project (see paragraph 51 of this Ruling). The Responsible Entity is required by section 394-10 of Schedule 1 of the TAA to notify the ATO if all of the Trees are not established by 31 December 2013. | Sections 8-5, 394-10 and 394-20 and Division 27: 27. A Grower in the Project can claim deductions for the amounts shown in the Table below that are paid to the Responsible Entity (sections 8-5 and 394-10). Note: the Responsible Entity will inform Growers of the income year in which fees set out in the Table above have been paid from proceeds and accordingly, when Growers are entitled to claim deductions. 28. The deductibility of these amounts remains subject to the requirement that: 29. An amount referred to in the table at paragraph 27 of this Ruling is deductible in the income year in which it is paid, or is paid on behalf of the Grower (subsection 394-10(2) and section 394-20). This requires cash to flow from the Grower, or from another entity on the Grower's behalf, to the Responsible Entity's bank account in the year in which the deduction is claimed. Any form of payment that does not involve the movement of cash into the Responsible Entity's bank account will not qualify for a deduction under subsection 394-10(2). 30. Where a Grower does not fully pay an amount, or it is not fully paid on their behalf in an income year, it is deductible only to the extent to which it has been paid. Any unpaid amount is then deductible in the year or years in which it is actually paid. 31. Amounts that are allowable deductions under Division 394 cannot also be claimed as deductions under section 8-1 (section 8-10). | Sections 8-1 and 25-25: 32. A Grower may claim tax deductions for the following fees and expenses set out in the following table. Notes : | Subsections 394-10(5), 394-10(5A) and 394-10(6): 33. Deductions for the Establishment Fees, the Upfront Annual Fee, the Upfront Rent, the Annual Fees and the Rent are not allowable where a 'CGT event' happens in relation to the 'forestry interest' of a Grower before 1 July 2016 (subsection 394-10(5)). 34. Where deductions for these amounts have already been claimed by a Grower the Commissioner may amend their assessment at any time within two years of the 'CGT event' happening (subsection 394-10(6)). The Commissioner's power to amend in these circumstances applies despite section 170 of the ITAA 1936. 35. Growers whose deductions are disallowed because of subsection 394-10(5) are still required to include in assessable income the market value of the 'forestry interest' at the time of the 'CGT event' or the decrease in the market value of the 'forestry interest' as a result of the 'CGT event'. 36. However, deductions will not be affected where the 'CGT event' happens because of circumstances outside of the Grower's control and the Grower could not reasonably have foreseen the 'CGT event' happening when they acquired the 'forestry interest' (subsection 394-10(5A)). | Sections 6-10, 17-5, and 394-25: 37. Where a 'CGT event' happens to a 'forestry interest' held by a Grower in this Project the market value of the 'forestry interest', or the decrease in the market value of the 'forestry interest', is included in the assessable income of the Grower (sections 6-10 and 394-25), less any GST payable on those proceeds (section 17-5). 38. The relevant amount is included in the Grower's assessable income in the income year in which the 'CGT event' happens (subsection 394-25(2)). 39. 'CGT events' for these purposes include those relating to: | Sections 6-5 and 17-5: 40. An amount received by a Grower as insurance proceeds is a distribution of ordinary income that arises as a result of a Grower holding a 'forestry interest' in the Project. Growers include their share of any insurance proceeds in their assessable income in the income year in which the amounts are derived (section 6-5) less any GST payable on those proceeds (section 17-5). | Section 35-55 - annual exercise of Commissioner's discretion: 41. For each of the income years from 2011-12 to 2024-25 the Commissioner will exercise the discretion in subsection 35-55(1) once the following conditions are satisfied for the year concerned: 42. If these conditions are met for a given year, the Commissioner will exercise the discretion for that year under: 43. If the Commissioner determines that the discretion will not be exercised for a particular year or years the Grower will be informed of that decision and the reasons. In any year where the discretion is not exercised losses incurred by a Grower will be subject to the loss deferral rule in section 35-10 and the Grower will not be able to offset the losses from the Project against other assessable income. 44. The issue of this Product Ruling of itself does not constitute the exercise of the Commissioner's discretion in subsection 35-55(1) for any income year. 45. The scheme that is the subject of this Ruling is specified below. This scheme incorporates the following: Note: certain information has been provided on a commercial-in-confidence basis and will not be disclosed or released under Freedom of Information legislation. 46. All Australian Securities and Investments Commission (ASIC) requirements are, or will be, complied with for the term of the agreements. 47. The documents highlighted are those that a Grower may enter into. 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. The effect of these agreements is summarised as follows. | Overview: 48. The main features of the Project are as follows: 49. The Project will be a registered managed investment scheme under the Corporations Act 2001 . TFS Properties Limited has been issued with an Australian Financial Service Licence 241192 and will be the Responsible Entity for the Project. 50. The Project will involve establishing an Indian Sandalwood Plantation. Approximately 14 years after the Establishment Period the Sandalwood will be Harvested, Processed and then sold. 51. The Project will be conducted on the land surrounding Kununurra, Western Australia and may also include land in the Burdekin region of northern Queensland and the Douglas Daly region of the Northern Territory. All land selected will be deemed suitable in accordance with the TFS Land Selection Policy. 52. An offer to participate in the Project will be made through a PDS. The offer under the PDS is for 4,800 Sandalwood Lots of 0.083 hectares each. There is no minimum subscription for the Project. 53. An entity that participates in the Project as a Grower will do so by acquiring an interest in the Project on or before 30 June 2012 which will consist of a minimum of one Sandalwood Lot. 54. Applicants execute a Power of Attorney contained in the PDS. The Power of Attorney irrevocably appoints the Responsible Entity to execute, on behalf of the Grower, the Constitution, which includes the Lease and Management Agreement and any other documents required to hold an interest in the Project. 55. The Sandalwood Lots will be planted out with Sandalwood seedlings at a sufficient rate to meet the survival target of 420 Trees per hectare. Water for the Ivanhoe Plain section of the Project will be supplied from Lake Argyle and water for the Kingston Rest property will be sourced from a private dam. Sufficient water will be available for any Sandalwood Lots located in the Burdekin region of northern Queensland and the Douglas Daly region of the Northern Territory. 56. The Manager of the Project will provide the irrigation system in accordance with silvicultural standards suitable for Sandalwood plantations. 57. Each Grower will use their Sandalwood Lot(s) for the purpose of carrying on a business of cultivating and Harvesting Sandalwood Trees and selling the harvested timber. | Constitution: 58. The Constitution establishes the Project and operates as a deed binding all Growers and TFS Properties Ltd. The Constitution sets out the terms and conditions under which TFS Properties Ltd agrees to act as Responsible Entity and thereby manage the Project. Upon acceptance into the Project, Growers are bound by the Constitution by virtue of their participation in the Project. 59. In order to acquire an interest in the Project, an entity must make an application for 'forestry interests' in accordance with clauses 11.2 and 11.3. Among other things, the Application must be completed in a form approved by the Responsible Entity, signed by or on behalf of the Applicant, lodged at the registered office of the Responsible Entity (or such other place as the Responsible Entity may nominate from time to time) and accompanied by payment of the Application Money in a form acceptable to the Responsible Entity. 60. Under the terms of the Constitution the Responsible Entity will create four separate funds. Application Moneys and Upfront Payment Money will be paid into an Application Fund, four equal Subsequent Establishment payments will be transferred into a Subsequent Establishment Payment Fund, the Upfront Payment Money will be transferred into an Upfront Payment Fund and the proceeds of the sale of the Forest Produce will be paid into a Proceeds Fund (clause 2.5). 61. The Application Moneys will be released from the Application Fund and the Upfront Payment Moneys will be released from the Upfront Payment Fund and applied towards payment of the Fees payable under the Lease and Management Agreement when the Responsible Entity is reasonably satisfied that the criteria specified in clause 14 of the Constitution have been satisfied. 62. The initial establishment fee is used to cover the costs of establishing the trees. Fifty percent of these funds will be transferred into an operating account. The remaining fifty percent of the fees will be deposited into an independently controlled custodian account. These funds will be released upon completion of tree planting or, in the event of an insolvency event occurring, to the Responsible Entity or other organisation appointed for the completion of planting. 63. The Constitution also sets out provisions relating to: | Compliance Plan: 64. As required by the Corporations Act 2001 , the Responsible Entity has prepared a Compliance Plan. The purpose of the Compliance Plan is to ensure that the Responsible Entity manages the Project in accordance with its obligations and responsibilities contained in the Constitution and that the interests of Growers are protected. | Head Lease: 65. The owner (the Responsible Entity or an unrelated entity) of the Project land will enter into a Head Lease with TFS Leasing Pty Ltd, as the Lessee, in respect of land required for the Project. 66. The Lessee must use the land only for the commercial silviculture of Indian Sandalwood Trees (clause 5.2 and item 6 of the Schedule). 67. The Lessee will sub-lease the land or any part of the land to Growers in the Project, for the purpose of commercial silviculture of Indian Sandalwood Trees. The Sub-Lease must be entered into in the form of a Lease and Management Agreement on the same or substantially identical terms as set out in Schedule 1 of the Constitution (clause 9.1). | Lease and Management Agreement: 68. Growers participating in the Scheme will enter into a Lease and Management Agreement with TFS Leasing Pty Ltd, as the Lessor, and TFS Properties Ltd, as the Responsible Entity. Growers are granted an interest in the land in the form of a Lease to use their Sandalwood Lot(s) for the purposes of conducting their afforestation business. The Term of the Lease will be for a period of approximately 15 years commencing on the date on which the Grower's Application is accepted by the Responsible Entity (Commencement Date) and ending when the final distribution of sale proceeds is made to the Grower or when the Project is terminated. Growers are specifically granted rights to harvest timber on their Sandalwood Lot(s) for this purpose. The Lease is granted upon the terms and conditions outlined in the Lease and Management Agreement. 69. Under the Lease and Management Agreement, each Grower appoints the Responsible Entity to perform the Services and the Responsible Entity accepts the appointment. The Responsible Entity will supervise and manage all silvicultural activity on behalf of the Grower in accordance with good silvicultural practice. Item 7 of the Schedule to the Lease and Management Agreement specifies the Establishment Services (item 7A) and Ongoing Services (item 7B) to be performed by the Responsible Entity. 70. The Establishment Services include: 71. The Ongoing Services include: | Agreement for Sub-Lease: 72. Where the Responsible Entity has not secured suitable land for the Project, it can still accept Growers into the Project under the Agreement for Sub-Lease. Under this Agreement, the Responsible Entity must secure suitable land and arrange for the Grower to enter into a Lease (the sub-lease of the Leased Area) with the Lessor in sufficient time for the Responsible Entity to perform the Establishment Services within the initial 18 month establishment period from the Commencement Date. | Pooling of timber and entitlement to Net Proceeds of Sale: 73. The Responsible Entity plans to Harvest and Process the Trees in year 14 and may engage a suitably qualified person for this process. The Harvest may be deferred if the Responsible Entity believes it would be in the best interests of the Growers to defer the Harvests to a later date. If the Harvest is deferred, no additional Annual Fees or Rent will be payable. 74. The Responsible Entity is appointed to market and sell the Forest Produce on behalf of the Growers who do not make an election under clause 15 of the Lease and Management Agreement (Non-Electing Growers), on such terms and conditions as the Responsible Entity considers appropriate (clause 17 of the Lease and Management Agreement). 75. The Constitution and the Lease and Management Agreement set out provisions relating to the pooling of Growers' timber and the distribution of proceeds from the sale of the timber (clause 16.2 of the Constitution and clause 18 of the Lease and Management Agreement). 76. The Responsible Entity must ensure that the Gross Proceeds of Sale are deposited into the Proceeds Fund (clause 18 of the Lease and Management Agreement). The Responsible Entity will pay any outstanding fees from the Proceeds Fund, with the remaining balance to be paid to the Grower in accordance with each Grower's Proportional Interest. 77. In the event of a total or partial destruction of the Trees on a Grower's Sandalwood Lot(s), the Proportional Share of the Grower will be reduced by the damaged or destroyed proportion as determined by the Responsible Entity (clauses 22.5 to 22.7 of the Lease and Management Agreement). | Fees: 78. Under the terms of the Lease and Management Agreement, a Grower will make payments as described below on a per Sandalwood Lot basis. | Establishment Fee: 79. The Establishment Fee payable to the Responsible Entity on application is $6,250 for up to 11 Sandalwood Lots and $6,000 for 12 Sandalwood Lots or more (item 9A of the Schedule to the Lease and Management Agreement). 80. Fifty percent of the Establishment Fee will be deposited with an Independent Custodian. The deposited moneys will be released quarterly during the first year of the project to fund the Establishment Services. | Upfront Annual Fee and Upfront Rent: 81. Accompanying the Establishment Fee will be the payment of one year's Annual Fee (Upfront Annual Fee) in the amount of $415 per lot and one year's Rent (Upfront Rent) in the amount of $125 per lot upfront by Growers. This will be deposited into a trust account maintained by an Independent Custodian. | Annual Fee and Rent: 82. Growers can elect to pay the Annual Fee and the Rent on an annual basis (the Annual Investment Option) or defer payment of these amounts (the Annual Deferred Investment Option). Annual Fees and Rent are payable for 12 years from Year 1 (the year after the Establishment Period ends) until Year 12. If the Harvest is deferred, no additional Annual Fees or Rent will be payable. 83. For those Growers who have elected to pay under the Annual Investment Option, the amount of the Annual Fee is $415 per Sandalwood Lot and the Rent is $125 per Sandalwood Lot. These amounts, increased by a fixed 3% per annum, are payable on or before 14 January in each financial year, following the year in which the Establishment Period ends (clause 19.3(b) and item 9C of the Schedule to the Lease and Management Agreement). 84. Alternatively, for those Growers who have elected to defer these fees under the Annual Deferred Investment Option, the Responsible Entity is entitled to a percentage of the Gross Proceeds of Sale for each financial year as per the table below (clause 19.3(c) and item 9D of the Schedule to the Lease and Management Agreement): 85. If all or substantially all of the Trees on the Grower's Sandalwood Lots are destroyed before the Harvest can take place, any Grower who has deferred their Annual Fee and Rent will be liable to pay an amount equal to 55% of the Annual Fees and Rent for all years prior to the destruction (clause 22.6 of the Lease and Management Agreement). | Other fees: 86. The following amounts are payable to the Responsible Entity from the Project's proceeds: | Insurance: 87. The Responsible Entity will insure the Plantation against fire until the end of the Establishment Period. Thereafter, if so requested, the Responsible Entity will arrange insurance of the Sandalwood Lot(s) on behalf of the Grower to cover the Sandalwood Lot(s) against fire and other usual risks. The cost of such insurance will be payable to the Responsible Entity by the Grower (clause 22 of the Lease and Management Agreement). | Finance: 88. To finance all or part of the cost of their forestry interest a Grower can: 89. Only the finance arrangement set out below is covered by this Product Ruling. A Grower cannot rely on this Ruling if they enter into a finance arrangement with Arwon that materially differs from that set out in the documentation provided with the application for this Ruling. A Grower who enters into a finance arrangement other than in accordance with paragraphs 88 to 102 of this Ruling may request a private ruling on the deductibility or otherwise of interest incurred under finance arrangements not covered by this Ruling. 90. A Grower cannot rely on any part of this Ruling if the Establishment Fee is not paid in full on or before 30 June 2012 by the Grower or, on the Grower's behalf, by a lending institution. | 12 Months Interest Free Loan offered by Arwon: 91. A Grower choosing to pay the Establishment Fee by entering into a 12 Month Interest Free Loan arrangement with Arwon must complete the Application Form attached to the PDS. Each Application can be for one or more Sandalwood Lots. 92. Growers who enter into such a loan agreement with Arwon are required to pay on Application: 93. The balance of the Establishment Fee(s) remaining after the 20% deposit has been paid is repayable in 12 equal monthly instalments commencing on the 30th day of the month after the Grower's application has been accepted and must be paid in full within 12 months of the Application being accepted. 94. The loans from Arwon are made on a full recourse commercial basis and normal debt recovery procedures, including legal action, will be taken in the case of defaulting borrowers. The loans will be secured by a charge over the Grower's Interest(s) in the Project. 95. A Grower who enters into a 12 Month Interest Free Loan arrangement with Arwon can only deduct the Establishment Fee(s) in the year in which Arwon actually pays the amount into the Responsible Entity's bank account (see paragraph 29 of this Ruling). 96. The $100 Administration Fee is deductible in the year in which it is incurred (paragraph 32 of this Ruling). | Principle and Interest Loan offered by Arwon: 97. A Grower choosing to pay the Establishment Fee, Upfront Annual Fee or Upfront Rent by entering into a principal and interest loan with Arwon for up to 10 years must complete the application form attached to the PDS. 98. Growers who enter into such agreement will be bound by the terms and conditions of the loan agreement. 99. The loan agreement offered by Arwon requires: 100. The finance provided by Arwon is made on a full recourse commercial basis and normal debt recovery procedures, including legal action will be taken in the case of defaulting borrowers. 101. Arwon will only provide loans to Growers where it has sufficient funds to do so. | Other qualifications relating to finance: 102. This Product Ruling does not apply if a finance arrangement entered into by the Grower includes or has any of the following features: Commissioner of Taxation 2 May 2012 | Structure of the Project: 103. In return for payment of the Establishment Fee and the other fees and expenses required under the Project agreements during the term of the Project, Growers will hold a 'forestry interest' in a 'forestry managed investment scheme'. The Project qualifies as a 'forestry managed investment scheme' because its purpose is for 'establishing and tending Trees for felling in Australia' (see subsection 394-15(1)). 104. Under the Constitution of the Project and the other supporting agreements, the holding of a 'forestry interest' in the Project gives each Grower a right to a share in the proceeds of the Harvest of the Trees grown on the Project land. That share of proceeds is determined using the number of 'forestry interests' held by a Grower as a proportion of all 'forestry interests' held by 'participants' [7] in the Project. | Is the Grower carrying on a business?: 105. The general indicators used by the Courts in determining whether an entity is carrying on a business are set out in Taxation Ruling TR 97/11 Income Tax: am I carrying on a business of primary production? 106. More recently, and in relation to a managed investment scheme similar to that which is the subject of this Product Ruling, the Full Federal Court in Hance v. FC of T ; Hannebery v. FC of T [2008] FCAFC 196; 2008 ATC 20-085 applied these principles to conclude that 'Growers' in that scheme were carrying on a business of producing almonds (at FCAFC 90; ATC 90). 107. Application of these principles to the arrangement set out above leads to the conclusion that Growers (as described in paragraphs 4 to 7 of this Ruling), who stay in the Project until its completion, will be carrying on a business of primary production involving afforestation activities. | Sections 8-5, 12-5, 394-10 and 394-20: 108. Section 8-5 allows certain specific deductions to be claimed against the assessable income of a taxpayer. The list of specific deductions is shown in a table in section 12-5 and includes payments under a 'forestry managed investment scheme' that meet the requirements of subsection 394-10(1). | Paragraph 394-10(1)(c) and section 394-35: 109. The threshold test for Growers in the Project to be entitled to deductions under subsection 394-10(1) is the '70% DFE rule' in paragraph 394-10(1)(c). Under that rule it must be reasonable to expect that on 30 June 2012, the amount of 'direct forestry expenditure' [8] under the scheme will be no less than 70% of the amount of payments under the scheme. [9] 110. The amount of all 'direct forestry expenditure' is the amount of the net present value of all 'direct forestry expenditure' that the Responsible Entity, as 'forestry manager' [10] of the Project, has paid or will pay under the scheme (subsection 394-35(2)). 111. The 'amount of payments under the scheme' is the amount of the net present value of all amounts (that is, the fees and expenses) that all current and future 'participants' in the scheme have paid or will pay under the scheme (subsection 394-35(3)). 112. Both of the above amounts are determined as at 30 June 2011 taking into account: 113. Applying all of these requirements to the information provided by the Responsible Entity of the Project the Commissioner has determined that the Project will satisfy the '70% DFE rule' on 30 June 2012. | The other elements for deductibility under subsection 394-10(1): 114. The requirement of paragraph 394-10(1)(d) that Growers in the Project not have day to day control over the operation of the Project (despite having a right to be consulted or give directions) is clear from the Project Agreements as are the alternative elements of paragraph 394-10(1)(e) relating to the number of Growers in the scheme and the Responsible Entity's role in other managed investment schemes. 115. The final requirement for deductibility requires all the Project Trees to be established within 18 months of 30 June 2012 (see paragraph 394-10(1)(f) and subsection 394-10(4)). The planting timeline provided with the application for this Ruling by the Responsible Entity indicates that all the Trees required to be established under the scheme will be planted on the Project land by 31 December 2013. 116. Accordingly, subject to the qualifications set out below, amounts paid by Growers to the Responsible Entity in relation to their 'forestry interests' satisfy all requirements of subsection 394-10(1). The amounts are allowable deductions in the income year in which they are paid (subsection 394-10(2)). 117. Amounts that are allowable deductions under Division 394 cannot also be claimed as deductions under section 8-1 (section 8-10). 118. Where a Grower does not fully pay an amount, or the amount is not fully paid on their behalf in an income year (see section 394-20), it is deductible only to the extent to which it has been paid. The unpaid balance is then deductible in the year or years in which it is actually paid. This may occur, for example, if all or part of the amount is borrowed and the financier fails to transfer the funds to the account of the 'forestry manager' on or before 30 June in an income year. | Loss of deductions previously allowed under subsection 394-10(1): 119. Two situations may lead to a loss of deductions previously allowed to Growers under subsection 394-10(1). 120. The first of these situations will occur if the Responsible Entity fails to establish the Trees on the Project land within 18 months. Where this occurs the Responsible Entity is required to notify the Commissioner within three months of the end of the 18 month period (section 394-10 of Schedule 1 to the TAA). 121. The second situation where a Grower may have deductions disallowed is where a 'CGT event' happens to their 'forestry interest' within four years from 30 June of the income year they paid an amount under the scheme, for example, the Establishment Fee (see subsection 394-10(5)). 122. For the purposes of this provision, the Commissioner is able to amend the assessment of a Grower within two years of the relevant 'CGT event' happening. The Commissioner's power to amend in these circumstances applies despite section 170 of the ITAA 1936 (subsection 394-10(6)). 123. Where a 'CGT event' happens to the 'forestry interest' of a Grower within four years, the market value of the forestry interest at the time of the 'CGT event' or the decrease in the market value of the 'forestry interest' as a result of the 'CGT event' is still included in the assessable income of the Grower by section 394-25. The amount must be included in assessable income even where an amendment has disallowed or may disallow the deductions previously allowed under section 394-10. 124. However, subsection 394-10(5) will have no application where the 'CGT event' happens because of circumstances outside of the Grower's control and the Grower could not reasonably have foreseen the 'CGT event' happening when they acquired the 'forestry interest' (subsection 394-10(5A)). | Section 8-1: 125. Where a Grower borrows money to fund their investment in the Project the deductibility of the interest incurred on the loan monies falls for consideration under the general deduction provisions of section 8-1. If the interest incurred by the Grower is deductible under the first positive limb in subsection 8-1(1) there is no requirement to consider whether it is also deductible under the second positive limb of that provision. Court decisions show that the same basic test applies to both limbs (see Ronpibon Tin NL v. Federal Commissioner of Taxation (1949) 78 CLR 47; (1949) 8 ATD 431, at CLR 56; ATD 435). 126. Under the first positive limb of subsection 8-1(1) the interest incurred by a Grower will be deductible if it is incurred in gaining or producing a Grower's assessable income and is not excluded by one of the negative limbs in subsection 8-1(2): 127. Growers in the Project use the borrowed funds to acquire a 'forestry interest' in a 'forestry managed investment scheme'. The holding of that 'forestry interest' will produce assessable income for a Grower in the form of the proceeds of a full or part disposal of the 'forestry interest' or, as a proportionate share of the harvest proceeds. The tests of deductibility of interest under the first limb of subsection 8-1(1) are, therefore, met unless one of the exclusions in subsection 8-1(2) apply. 128. For the purposes of this Project, only the capital exclusion in paragraph 8-1(2)(a) is relevant. The use of borrowed funds to purchase a capital asset, such as a 'forestry interest', does not mean that the interest outgoings are on capital account (see Steele v. Federal Commissioner of Taxation (1999) 197 CLR 459; 99 ATC 4242; (1999) 41 ATR 139, at CLR 470; ATC 4249; ATR 148): 129. Therefore, the capital exclusion in subsection 8-1(2) does not apply to the interest and, subject only to the potential application of the prepayment provisions, a deduction for the interest can be claimed in the year in which it is incurred (Note: the meaning of 'incurred' is explained in Taxation Ruling TR 97/7). | Sections 82KZL to 82KZMF: 130. The prepayment provisions contained in Subdivision H of Division 3 of Part III of the ITAA 1936 affect the timing of deductions for certain prepaid expenditure. These provisions apply to certain expenditure incurred under an agreement in return for the doing of a thing under the agreement that will not be wholly done within the same year of income as the year in which the expenditure is incurred. For schemes such as this Project, the main operative provisions are sections 82KZMD and section 82KZMF of the ITAA 1936. 131. However, subsection 394-10(7) specifically provides that sections 82KZMD and section 82KZMF of the ITAA 1936 do not affect the timing of amounts deductible under section 394-10. 132. Accordingly, under the scheme to which this Product Ruling applies, only deductions for interest payable under a loan with Arwon will potentially fall within the prepayment provisions. However, the conditions applying to the loans to which this Ruling applies (see paragraphs 88 to 102 of this Ruling) do not require any prepayment of interest over the term of the loan. Accordingly, the prepayment provisions have no application to Growers who enter into those loans. 133. If a Grower chooses to prepay interest on these loans that Grower may request a private ruling on how the prepayment provisions will affect the timing of their interest deduction. | Section 25-25: 134. A deduction is allowable for expenditure incurred by a Grower in borrowing money to the extent that the borrowed money is used for the purpose of producing assessable income (subsection 25-25(1)). 135. In this Project the Borrowing Costs payable to Arwon is incurred to borrow money that is used or is to be used solely for income producing purposes during each income year over the term of the loan. 136. Borrowing expenses of $100 or less are deductible in the year in which they are incurred (subsection 25-25(6)).Where the amount exceeds $100, the deduction for the borrowing expense is spread over the period of the loan or 5 years, whichever is the shorter (subsection 25-25(4)). | Sections 6-10, 10-5, and 394-25: 137. Section 6-10 includes in assessable income amounts that are not ordinary income. These amounts, called statutory income, are listed in the table in section 10-5 and include amounts that are included in the assessable income of 'initial participants' of a 'forestry managed investment scheme' by subsection 394-25(2). | Subsection 394-25(2): 138. Where a 'CGT event' happens to a 'forestry interest' held by a Grower in this Project, subsection 394-25(2) includes an amount in the assessable income of the Grower if: | Market value rule applies to' CGT events': 139. If, as a result of the 'CGT event' the Grower either: then the market value of the 'forestry interest' at the time of the event, or the reduction of the market value of the 'forestry interest' as a result of the event, is included in the assessable income of the Grower in the income year in which the 'CGT event' happens (subsection 394-25(2)). A market value rule applies rather than the amount of money actually received from the 'CGT event' (subsection 394-25(3)). However, the market value and the actual amount of money received may be the same. 140. The market value amount included in the assessable income of a Grower is the value of the 'forestry interest' just before the 'CGT event', or where the Grower continues to hold their interest after the event, the amount by which the market value of the 'forestry interest' is reduced as a result of the 'CGT event' (subsection 394-25(2)). 141. Section 394-25 will apply where the 'forestry interest' is sold, is extinguished, or ceases, and will include 'CGT events' such as a full or partial sale of the 'forestry interest' or from a full or partial clear-fell harvest of the Trees grown under the Project. | Section 6-5: 142. The receipt of an amount arising from the payment of insurance costs is a distribution that arises as an incident of the Grower holding a 'forestry interest' in the Project. It is an item of ordinary income and is assessable under section 6-5 in the year in which it is derived. | Sections 35-10 and 35-55 - deferral of losses from non-commercial business activities and the Commissioner's discretion: 143. Based on information provided with the application for this Product Ruling, a Grower accepted into the Project in the 2011-12 income year who carries on a business of afforestation individually (alone or in partnership) is expected to incur losses from their participation in the Project for each of the income years from 2011-12 to 2025-26 which will be subject to Division 35. [11] 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) on 30 June of that specific income year. 131. The exceptions to the loss deferral rule depend upon the circumstances of individual Growers and are outside the scope of this Product Ruling. 144. 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. 145. Where a Grower with income for NCL purposes of less than $250,000 (that is, the Grower satisfies the income requirement in subsection 35-10(2E)) incurs a loss in an income year from carrying on their business activity in a way that is not materially different to the Scheme described in this Product Ruling, and the discretion in paragraph 35-55(1)(b) is exercised for that year, the Commissioner will be satisfied that: 146. Where a Grower with income for NCL purposes of $250,000 or more (that is, the Grower does not satisfy the income requirement in subsection 35-10(2E)) incurs a loss in an income year from carrying on their business activity in a way that is not materially different to the scheme described in this Product Ruling, and the discretion in paragraph 35-55(1)(c) is exercised for that year, the Commissioner will be satisfied that: 147. A Grower will satisfy the income requirement in subsection 35-10(2E) where the sum of the following amounts is less than $250,000: 148. In each individual year where the Commissioner's discretion is exercised a Grower within either paragraph 145 or paragraph 146 of this Ruling 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. | Section 82KL - recouped expenditure: 149. The operation of section 82KL of the ITAA 1936 depends, among other things, on the identification of a certain quantum of 'additional benefit(s)'. Insufficient 'additional benefits' will be provided to trigger the application of section 82KL of the ITAA 1936. It will not apply to deny deductions otherwise allowable under section 8-1. | Part IVA - general tax avoidance provisions: 150. For Part IVA of the ITAA 1936 to apply there must be a 'scheme' (section 177A of the ITAA 1936), a 'tax benefit' (section 177C of the ITAA 1936) and a dominant purpose of entering into or carrying out the scheme to obtain a tax benefit (section 177D of the ITAA 1936). 151. The Project will be a 'scheme' and a Grower will obtain a 'tax benefit' from entering into the 'scheme', in the form of tax deductions for the amounts detailed at paragraphs 27 to 32 that would not have been obtained but for the scheme. However, it is not possible to conclude the scheme will be entered into or carried out with the dominant purpose of obtaining this tax benefit. 152. Growers to whom this Product Ruling applies will derive assessable income from holding or disposing of their 'forestry interest' in the Project. There are no facts that would suggest that Growers have the opportunity of obtaining a tax advantage other than the tax advantages identified in this Ruling. There is no non-recourse financing or round robin characteristics, and no indication that the parties are not dealing at arm's length or, if any parties are not dealing at arm's length, that any adverse tax consequences result. Further, having regard to the factors to be considered under paragraph 177D(b) of the ITAA 1936 it cannot be concluded, on the information available, that Growers will enter into the scheme for the dominant purpose of obtaining a tax benefit. 153. 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 provisions identified in the Ruling section (below) apply to the defined class of entities, who take part in the scheme to which this Ruling relates. In this Product Ruling this scheme is referred to as the TFS Sandalwood Project 2012, or simply as 'the Project'. 2. All legislative references in this Product Ruling are to the Income Tax Assessment Act 1997 (ITAA 1997) unless otherwise indicated. Where used in this Ruling, the word 'associate' has the meaning given in section 318 of the Income Tax Assessment Act 1936 (ITAA 1936). In this Ruling, terms defined in the Project agreements have been capitalised. | Class of entities: 3. This part of the Product Ruling specifies which entities; set out in the Ruling section of this Product Ruling. 4. The members of the class of entities who are subject to those taxation obligations and who can rely on those taxation benefits are referred to in this Product Ruling as Growers. 5. Growers are those entities that: 6. A Grower will have executed the relevant Project Agreements set out in paragraph 45 of this Ruling on or before 30 June 2012 and will hold a 'forestry interest' in the Project. 7. The class of entities who can rely on this Product Ruling does not include entities: | Superannuation Industry (Supervision) Act 1993: 8. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA 1993). The ATO gives no assurance that the product 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 product may contravene the provisions of SISA 1993. | Qualifications: 9. 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 45 to 102 of this Ruling. 10. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then: 11. 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: Structure of the Project: 103. In return for payment of the Establishment Fee and the other fees and expenses required under the Project agreements during the term of the Project, Growers will hold a 'forestry interest' in a 'forestry managed investment scheme'. The Project qualifies as a 'forestry managed investment scheme' because its purpose is for 'establishing and tending Trees for felling in Australia' (see subsection 394-15(1)). 104. Under the Constitution of the Project and the other supporting agreements, the holding of a 'forestry interest' in the Project gives each Grower a right to a share in the proceeds of the Harvest of the Trees grown on the Project land. That share of proceeds is determined using the number of 'forestry interests' held by a Grower as a proportion of all 'forestry interests' held by 'participants' [7] in the Project. | Is the Grower carrying on a business?: 105. The general indicators used by the Courts in determining whether an entity is carrying on a business are set out in Taxation Ruling TR 97/11 Income Tax: am I carrying on a business of primary production? 106. More recently, and in relation to a managed investment scheme similar to that which is the subject of this Product Ruling, the Full Federal Court in Hance v. FC of T ; Hannebery v. FC of T [2008] FCAFC 196; 2008 ATC 20-085 applied these principles to conclude that 'Growers' in that scheme were carrying on a business of producing almonds (at FCAFC 90; ATC 90). 107. Application of these principles to the arrangement set out above leads to the conclusion that Growers (as described in paragraphs 4 to 7 of this Ruling), who stay in the Project until its completion, will be carrying on a business of primary production involving afforestation activities. | Sections 8-5, 12-5, 394-10 and 394-20: 108. Section 8-5 allows certain specific deductions to be claimed against the assessable income of a taxpayer. The list of specific deductions is shown in a table in section 12-5 and includes payments under a 'forestry managed investment scheme' that meet the requirements of subsection 394-10(1). | Paragraph 394-10(1)(c) and section 394-35: 109. The threshold test for Growers in the Project to be entitled to deductions under subsection 394-10(1) is the '70% DFE rule' in paragraph 394-10(1)(c). Under that rule it must be reasonable to expect that on 30 June 2012, the amount of 'direct forestry expenditure' [8] under the scheme will be no less than 70% of the amount of payments under the scheme. [9] 110. The amount of all 'direct forestry expenditure' is the amount of the net present value of all 'direct forestry expenditure' that the Responsible Entity, as 'forestry manager' [10] of the Project, has paid or will pay under the scheme (subsection 394-35(2)). 111. The 'amount of payments under the scheme' is the amount of the net present value of all amounts (that is, the fees and expenses) that all current and future 'participants' in the scheme have paid or will pay under the scheme (subsection 394-35(3)). 112. Both of the above amounts are determined as at 30 June 2011 taking into account: 113. Applying all of these requirements to the information provided by the Responsible Entity of the Project the Commissioner has determined that the Project will satisfy the '70% DFE rule' on 30 June 2012. | The other elements for deductibility under subsection 394-10(1): 114. The requirement of paragraph 394-10(1)(d) that Growers in the Project not have day to day control over the operation of the Project (despite having a right to be consulted or give directions) is clear from the Project Agreements as are the alternative elements of paragraph 394-10(1)(e) relating to the number of Growers in the scheme and the Responsible Entity's role in other managed investment schemes. 115. The final requirement for deductibility requires all the Project Trees to be established within 18 months of 30 June 2012 (see paragraph 394-10(1)(f) and subsection 394-10(4)). The planting timeline provided with the application for this Ruling by the Responsible Entity indicates that all the Trees required to be established under the scheme will be planted on the Project land by 31 December 2013. 116. Accordingly, subject to the qualifications set out below, amounts paid by Growers to the Responsible Entity in relation to their 'forestry interests' satisfy all requirements of subsection 394-10(1). The amounts are allowable deductions in the income year in which they are paid (subsection 394-10(2)). 117. Amounts that are allowable deductions under Division 394 cannot also be claimed as deductions under section 8-1 (section 8-10). 118. Where a Grower does not fully pay an amount, or the amount is not fully paid on their behalf in an income year (see section 394-20), it is deductible only to the extent to which it has been paid. The unpaid balance is then deductible in the year or years in which it is actually paid. This may occur, for example, if all or part of the amount is borrowed and the financier fails to transfer the funds to the account of the 'forestry manager' on or before 30 June in an income year. | Loss of deductions previously allowed under subsection 394-10(1): 119. Two situations may lead to a loss of deductions previously allowed to Growers under subsection 394-10(1). 120. The first of these situations will occur if the Responsible Entity fails to establish the Trees on the Project land within 18 months. Where this occurs the Responsible Entity is required to notify the Commissioner within three months of the end of the 18 month period (section 394-10 of Schedule 1 to the TAA). 121. The second situation where a Grower may have deductions disallowed is where a 'CGT event' happens to their 'forestry interest' within four years from 30 June of the income year they paid an amount under the scheme, for example, the Establishment Fee (see subsection 394-10(5)). 122. For the purposes of this provision, the Commissioner is able to amend the assessment of a Grower within two years of the relevant 'CGT event' happening. The Commissioner's power to amend in these circumstances applies despite section 170 of the ITAA 1936 (subsection 394-10(6)). 123. Where a 'CGT event' happens to the 'forestry interest' of a Grower within four years, the market value of the forestry interest at the time of the 'CGT event' or the decrease in the market value of the 'forestry interest' as a result of the 'CGT event' is still included in the assessable income of the Grower by section 394-25. The amount must be included in assessable income even where an amendment has disallowed or may disallow the deductions previously allowed under section 394-10. 124. However, subsection 394-10(5) will have no application where the 'CGT event' happens because of circumstances outside of the Grower's control and the Grower could not reasonably have foreseen the 'CGT event' happening when they acquired the 'forestry interest' (subsection 394-10(5A)). | Section 8-1: 125. Where a Grower borrows money to fund their investment in the Project the deductibility of the interest incurred on the loan monies falls for consideration under the general deduction provisions of section 8-1. If the interest incurred by the Grower is deductible under the first positive limb in subsection 8-1(1) there is no requirement to consider whether it is also deductible under the second positive limb of that provision. Court decisions show that the same basic test applies to both limbs (see Ronpibon Tin NL v. Federal Commissioner of Taxation (1949) 78 CLR 47; (1949) 8 ATD 431, at CLR 56; ATD 435). 126. Under the first positive limb of subsection 8-1(1) the interest incurred by a Grower will be deductible if it is incurred in gaining or producing a Grower's assessable income and is not excluded by one of the negative limbs in subsection 8-1(2): 127. Growers in the Project use the borrowed funds to acquire a 'forestry interest' in a 'forestry managed investment scheme'. The holding of that 'forestry interest' will produce assessable income for a Grower in the form of the proceeds of a full or part disposal of the 'forestry interest' or, as a proportionate share of the harvest proceeds. The tests of deductibility of interest under the first limb of subsection 8-1(1) are, therefore, met unless one of the exclusions in subsection 8-1(2) apply. 128. For the purposes of this Project, only the capital exclusion in paragraph 8-1(2)(a) is relevant. The use of borrowed funds to purchase a capital asset, such as a 'forestry interest', does not mean that the interest outgoings are on capital account (see Steele v. Federal Commissioner of Taxation (1999) 197 CLR 459; 99 ATC 4242; (1999) 41 ATR 139, at CLR 470; ATC 4249; ATR 148): 129. Therefore, the capital exclusion in subsection 8-1(2) does not apply to the interest and, subject only to the potential application of the prepayment provisions, a deduction for the interest can be claimed in the year in which it is incurred (Note: the meaning of 'incurred' is explained in Taxation Ruling TR 97/7). | Sections 82KZL to 82KZMF: 130. The prepayment provisions contained in Subdivision H of Division 3 of Part III of the ITAA 1936 affect the timing of deductions for certain prepaid expenditure. These provisions apply to certain expenditure incurred under an agreement in return for the doing of a thing under the agreement that will not be wholly done within the same year of income as the year in which the expenditure is incurred. For schemes such as this Project, the main operative provisions are sections 82KZMD and section 82KZMF of the ITAA 1936. 131. However, subsection 394-10(7) specifically provides that sections 82KZMD and section 82KZMF of the ITAA 1936 do not affect the timing of amounts deductible under section 394-10. 132. Accordingly, under the scheme to which this Product Ruling applies, only deductions for interest payable under a loan with Arwon will potentially fall within the prepayment provisions. However, the conditions applying to the loans to which this Ruling applies (see paragraphs 88 to 102 of this Ruling) do not require any prepayment of interest over the term of the loan. Accordingly, the prepayment provisions have no application to Growers who enter into those loans. 133. If a Grower chooses to prepay interest on these loans that Grower may request a private ruling on how the prepayment provisions will affect the timing of their interest deduction. | Section 25-25: 134. A deduction is allowable for expenditure incurred by a Grower in borrowing money to the extent that the borrowed money is used for the purpose of producing assessable income (subsection 25-25(1)). 135. In this Project the Borrowing Costs payable to Arwon is incurred to borrow money that is used or is to be used solely for income producing purposes during each income year over the term of the loan. 136. Borrowing expenses of $100 or less are deductible in the year in which they are incurred (subsection 25-25(6)).Where the amount exceeds $100, the deduction for the borrowing expense is spread over the period of the loan or 5 years, whichever is the shorter (subsection 25-25(4)). | Sections 6-10, 10-5, and 394-25: 137. Section 6-10 includes in assessable income amounts that are not ordinary income. These amounts, called statutory income, are listed in the table in section 10-5 and include amounts that are included in the assessable income of 'initial participants' of a 'forestry managed investment scheme' by subsection 394-25(2). | Subsection 394-25(2): 138. Where a 'CGT event' happens to a 'forestry interest' held by a Grower in this Project, subsection 394-25(2) includes an amount in the assessable income of the Grower if: | Market value rule applies to' CGT events': 139. If, as a result of the 'CGT event' the Grower either: then the market value of the 'forestry interest' at the time of the event, or the reduction of the market value of the 'forestry interest' as a result of the event, is included in the assessable income of the Grower in the income year in which the 'CGT event' happens (subsection 394-25(2)). A market value rule applies rather than the amount of money actually received from the 'CGT event' (subsection 394-25(3)). However, the market value and the actual amount of money received may be the same. 140. The market value amount included in the assessable income of a Grower is the value of the 'forestry interest' just before the 'CGT event', or where the Grower continues to hold their interest after the event, the amount by which the market value of the 'forestry interest' is reduced as a result of the 'CGT event' (subsection 394-25(2)). 141. Section 394-25 will apply where the 'forestry interest' is sold, is extinguished, or ceases, and will include 'CGT events' such as a full or partial sale of the 'forestry interest' or from a full or partial clear-fell harvest of the Trees grown under the Project. | Section 6-5: 142. The receipt of an amount arising from the payment of insurance costs is a distribution that arises as an incident of the Grower holding a 'forestry interest' in the Project. It is an item of ordinary income and is assessable under section 6-5 in the year in which it is derived. | Sections 35-10 and 35-55 - deferral of losses from non-commercial business activities and the Commissioner's discretion: 143. Based on information provided with the application for this Product Ruling, a Grower accepted into the Project in the 2011-12 income year who carries on a business of afforestation individually (alone or in partnership) is expected to incur losses from their participation in the Project for each of the income years from 2011-12 to 2025-26 which will be subject to Division 35. [11] 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) on 30 June of that specific income year. 131. The exceptions to the loss deferral rule depend upon the circumstances of individual Growers and are outside the scope of this Product Ruling. 144. 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. 145. Where a Grower with income for NCL purposes of less than $250,000 (that is, the Grower satisfies the income requirement in subsection 35-10(2E)) incurs a loss in an income year from carrying on their business activity in a way that is not materially different to the Scheme described in this Product Ruling, and the discretion in paragraph 35-55(1)(b) is exercised for that year, the Commissioner will be satisfied that: 146. Where a Grower with income for NCL purposes of $250,000 or more (that is, the Grower does not satisfy the income requirement in subsection 35-10(2E)) incurs a loss in an income year from carrying on their business activity in a way that is not materially different to the scheme described in this Product Ruling, and the discretion in paragraph 35-55(1)(c) is exercised for that year, the Commissioner will be satisfied that: 147. A Grower will satisfy the income requirement in subsection 35-10(2E) where the sum of the following amounts is less than $250,000: 148. In each individual year where the Commissioner's discretion is exercised a Grower within either paragraph 145 or paragraph 146 of this Ruling 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. | Section 82KL - recouped expenditure: 149. The operation of section 82KL of the ITAA 1936 depends, among other things, on the identification of a certain quantum of 'additional benefit(s)'. Insufficient 'additional benefits' will be provided to trigger the application of section 82KL of the ITAA 1936. It will not apply to deny deductions otherwise allowable under section 8-1. | Part IVA - general tax avoidance provisions: 150. For Part IVA of the ITAA 1936 to apply there must be a 'scheme' (section 177A of the ITAA 1936), a 'tax benefit' (section 177C of the ITAA 1936) and a dominant purpose of entering into or carrying out the scheme to obtain a tax benefit (section 177D of the ITAA 1936). 151. The Project will be a 'scheme' and a Grower will obtain a 'tax benefit' from entering into the 'scheme', in the form of tax deductions for the amounts detailed at paragraphs 27 to 32 that would not have been obtained but for the scheme. However, it is not possible to conclude the scheme will be entered into or carried out with the dominant purpose of obtaining this tax benefit. 152. Growers to whom this Product Ruling applies will derive assessable income from holding or disposing of their 'forestry interest' in the Project. There are no facts that would suggest that Growers have the opportunity of obtaining a tax advantage other than the tax advantages identified in this Ruling. There is no non-recourse financing or round robin characteristics, and no indication that the parties are not dealing at arm's length or, if any parties are not dealing at arm's length, that any adverse tax consequences result. Further, having regard to the factors to be considered under paragraph 177D(b) of the ITAA 1936 it cannot be concluded, on the information available, that Growers will enter into the scheme for the dominant purpose of obtaining a tax benefit.


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. | 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 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. | $6,250 per Sandalwood Lot for up to 11 Sandalwood Lots $6,600 per Sandalwood Lot for 12 or more Sandalwood Lots | The income year in which the Establishment Fee is paid | The income year in which the Upfront Annual Fee is paid | The income year in which the Upfront Annual Rent is paid | Annual Fees payable under the Annual Investment Option | $415 per Sandalwood Lot per annum (increased by 3% annually from the 2013-14 income year onwards) | The income year in which the Annual Fee is paid | Annual Rent payable under the Annual Investment Option | $125 per Sandalwood Lot per annum (increased by 3% annually from the 2013-14 income year onwards) | The income year in which the Annual Rent is paid | Amounts payable under the Annual Deferred Investment Option for the 2013-14 to 2014-15 income years | 3% of the Gross Proceeds of Sale for each income year where Annual Fees and Annual Rent are deferred | The income year in which the Grower is entitled to proceeds and the Deferred Fee is paid from those proceeds | Amounts payable under the Annual Deferred Investment Option for the 2015-16 to 2018-19 income years | 2% of the Gross Proceeds of Sale for each income year where Annual Fees and Annual Rent are deferred | Amounts payable under the Annual Deferred Investment Option for the 2019-20 to 2024-25 income years | 1% of the Gross Proceeds of Sale for each income year where Annual Fees and Annual Rent are deferred | Costs of Harvest and Processing | The income year in which the Grower is entitled to proceeds and the Costs of Harvest and Processing are paid from those proceeds | Selling and Marketing Fees | 5% of the Gross Proceeds of Sale | The income year in which the Grower is entitled to proceeds and the Selling and Marketing Fees are paid from those proceeds | 30% of the amount by which the Net Proceeds of Sale exceed the Target Net Proceeds of Sale | The income year in which the Grower is entitled to proceeds and the Incentive Fees are paid from those proceeds | Interest payable to Arwon | As determined by the loan agreement | 30 June in the year in which the interest is incurred See note (ii) | Borrowing Costs for Principle and Interest Loan with Arwon | $300 plus 0.5% of the loan amount | Borrowing Costs for 12 month interest fee loan with Arwon | $100 Administration fee per applicant | 2011-2012 income year See note (iii) | Land surrounding Kununurra, Western Australia including Ivanhoe Plain, Packsaddle Plain and Kingston Rest; Burdekin region of northern Queensland; and the Douglas Daly region of the Northern Territory. | Species of Trees to be planted under the scheme | Indian Sandalwood ( Santalum album ) | Date all Trees are due to be planted on scheme land | Number of Trees per hectare | Targeted survival rate of approximately 420 Trees per hectare | Number of hectares offered for cultivation | Approximately 400 hectares | Size of each 'forestry interest' | Minimum allocation of 'forestry interests' per Grower | One forestry interest (Sandalwood Lot) | $6,250 per Sandalwood Lot for up to 11 Sandalwood Lots, and $6,000 per Sandalwood Lot for 12 or more Sandalwood Lots | $415 as an Upfront Annual Fee and $125 as Upfront Rent | Ongoing costs and other costs | Annual Fees; Rent; Insurance costs; Costs of Harvest and Processing; Selling and Marketing Fees; and Incentive fee | The question of whether an outgoing [is] ... incurred in gaining or producing the assessable income is a question of characterisation' (Fletcher & Ors v. Federal Commissioner of Taxation (1991) 173 CLR 1; 91 ATC 4950; (1991) 22 ATR 613, at CLR 17; ATC 4957; ATR 621). | To the extent that ... outgoings of interest ... can properly be characterised as of a kind referred to in the first limb of [section 8-1] they must draw their character from the use of the borrowed funds (Fletcher , at CLR 19; ATC 4958; ATR 623). | [T]he characterisation of interest will generally be ascertained by reference to the objective circumstances of the use to which the borrowed funds are put (Federal Commissioner of Taxation v. Roberts (1992) 37 FCR 246; 92 ATC 4380; (1992) 23 ATR 494, at FCR 257; ATC 4388; ATR 504). | Interest [is a] periodic payment for the use, but not the permanent acquisition of a capital item. Therefore, a consideration of the often-cited three matters identified by Dixon J in Sun Newspapers Ltd v FC of T ... assigns interest ... to revenue (Australian National Hotels Ltd v. Federal Commissioner of Taxation (1988); 19 FCR 234; 88 ATC 4627; (1988) 19 ATR 1575, at FCR 241; ATC 4633-4634; ATR 1582). | What this Product Ruling is about | The '70% DFE rule' and the establishment of trees | Interest on Loans to finance 'forestry interest' aborrowing costs | 'CGT event' within 4 years for Growers who are 'initial participants' | Assessable income, 'CGT events' and the 'forestry interests' of Growers who are 'initial participants' | Amounts received by Growers from insurance proceeds | Division 35 - deferral of losses from non-commercial business activities | Other qualification relating to finance | Interest on loans to finance the 'forestry interest' of a Grower | Appendix 2 - Detailed contents list


Related rulings: TR 97/7 TR 97/11 TR 98/22 TR 2007/6
Legislative references: ITAA 1936 82KL ITAA 1936 Pt III Div 3 Subdiv H ITAA 1936 82KZL ITAA 1936 82KZMD ITAA 1936 82KZMF ITAA 1936 Pt IVA ITAA 1936 170 ITAA 1936 177A ITAA 1936 177C ITAA 1936 177D ITAA 1936 177D(b) ITAA 1936 318 ITAA 1997 6-5 ITAA 1997 6-10 ITAA 1997 8-1 ITAA 1997 8-1(1) ITAA 1997 8-1(1)(a) ITAA 1997 8-1(2) ITAA 1997 8-1(2)(a) ITAA 1997 8-5 ITAA 1997 10-5 ITAA 1997 12-5 ITAA 1997 17-5 ITAA 1997 25-25 ITAA 1997 25-25(1) ITAA 1997 25-25(4) ITAA 1997 25-25(6) ITAA 1997 Div 27 ITAA 1997 Subdiv 27-A 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) ITAA 1997 Div 394 ITAA 1997 328-110 ITAA 1997 394-10 ITAA 1997 394-10(1) ITAA 1997 394-10(1)(c) ITAA 1997 394-10(1)(d) ITAA 1997 394-10(1)(e) ITAA 1997 394-10(1)(f) ITAA 1997 394-10(2) ITAA 1997 394-10(4) ITAA 1997 394-10(5) ITAA 1997 394-10(5A) ITAA 1997 394-10(6) ITAA 1997 394-10(7) ITAA 1997 394-15(1) ITAA 1997 394-15(2) ITAA 1997 394-15(4) ITAA 1997 394-15(5) ITAA 1997 394-20 ITAA 1997 394-25 ITAA 1997 394-25(1)(c) ITAA 1997 394-25(2) ITAA 1997 394-25(3) ITAA 1997 394-30 ITAA 1997 394-35 ITAA 1997 394-35(1) ITAA 1997 394-35(2) ITAA 1997 394-35(3) ITAA 1997 394-35(4) ITAA 1997 394-35(5) ITAA 1997 394-35(6) ITAA 1997 394-35(7) ITAA 1997 394-35(8) ITAA 1997 394-40 ITAA 1997 394-45 ITAA 1997 995-1 TAA 1953 TAA 1953 Sch 1 357-75(1) TAA 1953 Sch 1 394-10 SISA 1993 Copyright Act 1968 Corporations Act 2001
Case references: Hance v. FC of T; Hannebery v FC of T [2008] FCAFC 196 2008 ATC 20-085 (2008) 74 ATR 644
Subject references: 4 year holding period 70 per cent DFE rule carrying on a business DFE direct forestry expenditure forestry interest forestry MIS interest expenses managed investment schemes market value substitution rule payments under the scheme producing assessable income product rulings reasonable expectation tax avoidance taxation administration