Product Ruling PR 2016/2
Date of effect: 1 April 2016

What this ruling is about: 1. This Product Ruling sets out the Commissioner's opinion on the way in which the relevant provisions identified in the Ruling section 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 the scheme is referred to as ANZ Cobalt offered by Australia and New Zealand Banking Group Limited (ANZ) and issued under the ANZ Cobalt Product Disclosure Statement (PDS). 3. This Product Ruling does not address: Class of entities 4. This part of the Product Ruling specifies which entities can rely on the Ruling section of this Product Ruling and which entities cannot rely on the Ruling section. In this Product Ruling, those entities that can rely on the Ruling section are referred to as the investor. 5. The class of entities who can rely on the Ruling section of this Product Ruling consists of those entities that are accepted to participate in the scheme specified below on or after 1 April 2016 and on or before 30 June 2019. They must have a purpose of remaining in the scheme until it is completed (that is, being a party to the relevant agreements until their term expires), and deriving assessable income (other than capital gains) from the investment that exceeds the deductible expenditure incurred in connection with the investment. 6. The class of entities who can rely on this Product Ruling does not include entities that: 7. 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 8. The class of entities defined in this Product Ruling may rely on it provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 16 to 20 of this Ruling. 9. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then:

Class of entities or scheme: 4. This part of the Product Ruling specifies which entities can rely on the Ruling section of this Product Ruling and which entities cannot rely on the Ruling section. In this Product Ruling, those entities that can rely on the Ruling section are referred to as the investor. 5. The class of entities who can rely on the Ruling section of this Product Ruling consists of those entities that are accepted to participate in the scheme specified below on or after 1 April 2016 and on or before 30 June 2019. They must have a purpose of remaining in the scheme until it is completed (that is, being a party to the relevant agreements until their term expires), and deriving assessable income (other than capital gains) from the investment that exceeds the deductible expenditure incurred in connection with the investment. 6. The class of entities who can rely on this Product Ruling does not include entities that: 7. 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: 8. The class of entities defined in this Product Ruling may rely on it provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 16 to 20 of this Ruling. 9. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then: 10. This Product Ruling applies prospectively from 1 April 2016. It therefore applies only to the specified class of entities that enter into the scheme from 1 April 2016 until 30 June 2019 being its period of application. This Product Ruling will continue to apply to those entities even after its period of application has ended for the scheme entered into during the period of application. 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. | Changes in the law: 12. Although this Product Ruling deals with the income tax laws enacted at the time it was issued, later amendments may impact on this Product Ruling. Any such changes will take precedence over the application of this Product Ruling and, to that extent, this Product Ruling will have no effect. 13. 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: 14. 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 Commissioner suggests that promoters and advisers ensure that participants are fully informed of any legislative changes after the Product Ruling has issued. 15. Subject to paragraph 3 of this Product Ruling and the assumptions in paragraph 20 of this Ruling: 16. The scheme that is the subject of this Ruling is identified and described in the following 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. 17. 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 an investor, or any associate of an investor, will be a party to, which are a part of the scheme. Unless otherwise defined, capitalised terms in this Product Ruling take their meaning as per the draft PDS and the Trust Deed. Any use of the singular also includes the plural unless otherwise specified. 18. All Australian Securities and Investments Commission (ASIC) requirements are, or will be, complied with for the term of the agreements. 19. Following is a summary of the scheme: | Assumptions: 20. This Ruling is made on the basis of the following necessary assumptions: Commissioner of Taxation 30 March 2016 | Section 8-1 and Division 247 - capital protected borrowings and deductibility of interest: 21. The interest paid on a borrowing used to acquire income producing assets such as Securities is generally treated as deductible under section 8-1 where it is expected that dividends, trust distributions or other assessable income would be derived from the investment (see Taxation Ruling TR 95/33). However, the ability to claim interest deductions may be subject to Division 247. 22. Division 247 limits the allowable deductions for expenditure incurred under a 'capital protected borrowing'. Broadly, a capital protected borrowing arises where an amount is borrowed under an arrangement where the borrower is protected against the fall in value of some specified securities, and where that borrowing is made for the purpose of investing in those securities. 23. Division 247 applies to the Loan where the investor uses the Loan to acquire Securities or a beneficial interest in the Securities and the investor is protected against the fall in the market value of those Securities. 24. Division 247 sets out a methodology for reasonably attributing the cost of capital protection incurred by a borrower under a capital protected borrowing (section 247-20). Division 247 ignores any amount which is not in substance for capital protection or interest in calculating the cost of capital protection, pursuant to subsection 247-20(3). 25. Where the cost of the Purchase Put Option is factored into the interest rate charged on the Loan and there is no separate charge payable by an investor for the Purchase Put Option: 26. Where either the cost of the Purchase Put Option is factored into the interest rate charged on the Loan and the investor pays a Protection Level Increase Fee in the circumstances discussed at paragraph 19(o) of this Product Ruling; or the investor elects to pay the Initial Option Fee for the Purchase Put Option as an upfront lump sum: 27. Where an investor has acquired multiple Parcels of Securities (and applied the Basket investment structure) and ANZ has applied a single blended interest rate across all the Parcels of Securities held by the investor in the Basket, the investment will be treated as one arrangement for the purposes of Division 247. 28. There is no element of capital protection connected with the Interest Assistance Loan. No part of the interest incurred by the investor on the Interest Assistance Loan for the income year will therefore be attributable to the cost of capital protection and the interest on the Interest Assistance Loan will be fully deductible under section 8-1. | Section 51AAA: 29. By acquiring the Securities, it is contemplated that an investor will derive assessable income by way of the receipt of dividend income or trust distributions and capital gains. As interest incurred on the Loan and Interest Assistance Loan would have been deductible under section 8-1 of the ITAA 1997 notwithstanding the inclusion of a net capital gain in assessable income, section 51AAA of the ITAA 1936 has no application to an investor who enters into ANZ Cobalt. | Section 82KL: 30. The operation of section 82KL of the ITAA 1936 depends, among other things, on the identification of a certain quantum of 'additional benefits'. Insufficient additional benefits will be provided to trigger the application of section 82KL. Section 82KL will not apply to deny the deductions otherwise allowable under section 8-1 of the ITAA 1997. | Subdivision H of Division 3 of Part III: 31. Subdivision H of Division 3 of Part III (Subdivision H) of the ITAA 1936 deals with the timing of deductions for certain advance expenditure incurred under an agreement in return for the doing of a thing under that agreement that will not be wholly done within the same year of income. Separate rules apply depending on whether the expenditure is incurred in the carrying on of a business, whether the investor is a small business entity, whether the investor is an individual and whether the investor is not an individual and incurs the expenditure otherwise than in carrying on a business. This Subdivision does not apply to 'excluded expenditure' which is defined in subsection 82KZL(1) of the ITAA 1936 to include amounts of less than $1,000 or amounts that are of a capital nature. | Subdivision 328-C - small business entities: 32. Under section 328-110, an investor carrying on a business in an income year will be a small business entity for that year (the current year) if: | The eligible service period for the purposes of Subdivision H: 33. The interest charged on the Loan that is deductible under section 8-1 of the ITAA 1997 is in relation to a prepayment of loan interest for a period that is 12 months or less. Paragraph 82KZL(2)(a) of the ITAA 1936 provides that a payment of interest that is made in return for the making available of a loan principal is to be taken, for the purposes of Subdivision H, to be expenditure incurred under an agreement in return for the doing of a thing under the agreement for the period to which the interest payment relates. The eligible service period in relation to a payment of loan interest is determined by reference to the period to which the interest relates, and not to the period of the loan. | Sections 82KZME and 82KZMF - prepaid expenditure and 'tax shelter' style arrangements: 34. The rules in sections 82KZME and 82KZMF of the ITAA 1936 apply, subject to the exceptions in section 82KZME, where expenditure is incurred in relation to a 'tax shelter' style arrangement for the doing of a thing that is not to be wholly done within the expenditure year. 35. For the purposes of section 82KZME of the ITAA 1936, 'agreements' are broadly defined to include an entire scheme of which a contract may form part. Under subsection 82KZME(4) of the ITAA 1936, the relevant agreement is all the contractual arrangements and activities associated with the participation in ANZ Cobalt, including the financing, Securities acquisition and Securities disposal arrangements. 36. Exception 1, as contained in subsection 82KZME(5) of the ITAA 1936, applies to exclude interest payable under the Loan from the operation of section 82KZMF of the ITAA 1936 where: 37. Deductibility of the prepaid interest must therefore be considered under the prepayment rules contained in paragraphs 38 to 43 of this Product Ruling. | Section 82KZM - prepaid expenditure incurred by certain small business entities and individuals incurring non-business expenditure: 38. Section 82KZM of the ITAA 1936 operates to spread over more than one income year a deduction for prepaid expenditure incurred by a taxpayer that is either: 39. Section 82KZM of the ITAA 1936 applies if the eligible service period for the expenditure is longer than 12 months, or the eligible service period for the expenditure is 12 months or shorter but ends after the last day of the year of income after the one in which the expenditure was incurred, the expenditure is not excluded expenditure, and the expenditure would otherwise be immediately deductible under section 8-1 of the ITAA 1997. 40. As the eligible service period in relation to the deductible interest payment under the Loan is not more than 12 months and does not end after the last day of the year of income after the one in which the expenditure was incurred, section 82KZM of the ITAA 1936 will have no application to investors who are a small business entity for the year of income that have not chosen to apply section 82KZMD of the ITAA 1936 to the expenditure, or to investors who are individuals where the expenditure is not incurred in carrying on a business. Investors who satisfy these tests will be able to claim an immediate deduction for the interest allowable under section 8-1 of the ITAA 1997 incurred under the Loan. | Sections 82KZMA and 82KZMD - prepaid non-business expenditure incurred by non-individual and non-small business entities: 41. Sections 82KZMA and 82KZMD of the ITAA 1936 set the amount and timing of deductions for expenditure for an investor (other than a small business entity for the year of income that has not chosen to apply section 82KZMD to the expenditure) that is not an individual and does not incur the expenditure in carrying on a business. 42. The expenditure must not be excluded expenditure and must be incurred in return for the doing of a thing under an agreement that is not to be wholly done within the expenditure year. 43. For these investors, the amount of prepaid interest incurred under the Loan which is allowable as a deduction under section 8-1 will be apportioned over the relevant interest payment period. | Division 235 - look-through treatment for instalment trusts: 44. The object of Division 235 is to ensure that, for most income tax purposes, the consequences of ownership of a certain type of asset (referred to as an 'instalment trust asset') flow to the investor that has a beneficial interest in that asset as the beneficiary of an 'instalment trust', instead of to the trustee of the instalment trust. Essentially, this means treating the investor (and not the trust) as the owner of the asset and treating any act done by the trustee in relation to the asset as if the act had been done by the investor (instead of by the trustee): subsections 235-820(1) and 235-820(2). 45. Each Separate Trust created under the terms of the Trust Deed for the purposes of holding the International Securities of an investor or any Securities that are the subject of the Dividend Give-Up Facility on trust by the Nominee (or a sub-custodian of the Nominee) as trustee for an investor (other than a SMSF Investor) will be an instalment trust pursuant to paragraph 235-825(1)(a) on the basis that they will be covered by section 235-830 (about instalment trust arrangements), and satisfy the requirements in section 235-835 (about the type of asset being held on trust). 46. Each Separate Trust created under the terms of the Trust Deed for the purposes of holding the Securities of a SMSF Investor on trust by the Nominee (or a sub-custodian of the Nominee) as trustee for the SMSF Investor will be an instalment trust pursuant to paragraph 235-825(1)(b) on the basis that they will be covered by section 235-840 (about limited recourse borrowings by regulated superannuation funds). | Parts 3-1 and 3-3 - application of CGT provisions to the Purchase Put Option, Capped Purchase Put Option and Securities: 47. If an investor's Purchase Put Option or Capped Purchase Put Option is exercised and the investor elects a Physical Settlement, the investor will dispose of the Securities and CGT event A1 will arise for the investor in respect of the disposal (section 104-10). Under item 2 of the table in subsection 134-1(1), the investor's cost base and reduced cost base in the Securities for these purposes will include the cost of capital protection as worked out under Division 247 plus the Protection Level Increase Fee and the Initial Option Fee (where applicable). Any capital gain or capital loss on exercise of the Purchase Put Option or Capped Purchase Put Option will be disregarded (subsection 134-1(4)). 48. If an investor's Purchase Put Option or Capped Purchase Put Option is exercised and the investor elects a Cash Settlement, CGT event C2 will arise for the investor in respect of the exercise of the relevant Option (section 104-25). The cost base and reduced cost base of the Purchase Put Option or Capped Purchase Put Option will include the cost of capital protection as worked out under Division 247 plus the Protection Level Increase Fee and the Initial Option Fee (where applicable) - sections 110-25 and 110-55. No CGT event will occur in relation to the Securities. 49. Where the investor's Purchase Put Option or Capped Purchase Put Option expires unexercised, CGT event C2 will arise for the investor in relation to the relevant Option at that time (section 104-25). As the investor will not receive any capital proceeds in respect of the expiry of the Purchase Put Option or Capped Purchase Put Option, a capital loss will be made by the investor in this regard, equal to the investor's reduced cost base in that Option. Under section 110-55, the reduced cost base of the Purchase Put Option or the Capped Purchase Put Option will include the cost of capital protection as worked out under Division 247 plus the Protection Level Increase Fee and the Initial Option Fee (where applicable); and in the case of the Capped Purchase Put Option only, any Variable Premium Amount paid by the investor. 50. If an investor's Purchase Put Option or Capped Purchase Put Option expires unexercised and the investor elects a Physical Settlement, the investor will sell the Securities and CGT event A1 will arise for the investor in respect of the disposal (section 104-10). 51. Under section 110-25 and 110-55 respectively, the investor's cost base and reduced cost base in the Securities will include the amount of the Loan used to finance the acquisition of the Securities, their Contribution (if any) and incidental costs incurred by the investor in acquiring and disposing of the Securities (this includes stamp duty and costs of transfer). As per paragraph 47 of this Product Ruling, where the investor's Purchase Put Option is exercised and the investor elects a Physical Settlement, the investor's cost base and reduced cost base in the Securities also include the cost base or reduced cost base of the Purchase Put Option. 52. Division 115 allows a taxpayer a discount on capital gains in certain circumstances. In accordance with section 115-5, any capital gain realised by an investor on the sale of the Securities or exercise of the Purchase Put Option under a Cash Settlement will be treated as a discount capital gain where the investor is an individual, a complying superannuation entity or a trust and has held the Securities or Purchase Put Option for more than 12 months (excluding the days of acquisition and disposal). | Division 230 - taxation of financial arrangements: 53. Division 230 of the ITAA 1997 sets out the tax treatment of gains or losses from a 'financial arrangement'. Where an arrangement is not a qualifying security for the purposes of Division 16E of the ITAA 1936 and an election under section 230-455 to have Division 230 of the ITAA 1997 apply to financial arrangements has not been made, then pursuant to section 230-455 of the ITAA 1997, Division 230 of the ITAA 1997 does not apply in relation to gains or losses from a financial arrangement held by: | Dividend Give-Up Facility: 54. Pursuant to the operation of section 235-820 (as per paragraphs 15(j) and 44 to 46 of this Product Ruling), an investor who elects to use the Dividend Give-Up Facility in respect of their Securities will be assessable under subsection 44(1) of the ITAA 1936 on any dividends received by the Nominee on those Securities. 55. The payment by the Nominee (or their sub-custodian) of any dividends received by the Nominee (or their sub-custodian) under the Dividend Give-Up Facility in respect of the Dividend Interest Amount owing by the investor to ANZ does not have the effect of 'passing the benefit' of those dividends to ANZ, and therefore will not constitute a related payment for the purposes of former section 160APHN under Division 1A of Part IIIAA of the ITAA 1936. | Division 770 - foreign income tax offsets: 56. Division 770 allows a non-refundable tax offset for an income year for foreign income tax paid where that amount of foreign income tax is paid in respect of an amount that is included in your assessable income for the year. 57. To the extent that the investor has paid, or is deemed to have paid, foreign income tax (such as withholding tax at source): | Division 775 - foreign currency gains and losses: 58. Division 775 operates to include in assessable income or allow as a deduction, a forex realisation gain or loss which results from a forex realisation event (FRE) happening. 59. Among other means, FRE 4 happens when an entity ceases to have an obligation, or a part of an obligation, to pay a foreign currency, and the obligation, or the part of the obligation, was incurred in return for the acquisition of a CGT asset (subsection 775-55(1)). 60. Pursuant to the operation of section 235-820 (as per paragraphs 15(j) and 44 to 46 of this Product Ruling), FRE 4 under section 775-55 will happen where the investor: The time of each of these realisation events is where the investor ceases to have the obligation, or the part of the obligation, to pay the foreign currency (subsection 775-55(2)). 61. Any forex realisation gain or loss made by the investor in this regard would be determined in accordance with section 775-55. Pursuant to item 2 of the table in subsection 775-70(1), where the investor's Loan or Capped Purchase Put Option has a Term of 12 months or less: 62. Pursuant to item 2 of the table in subsection 775-75(1), where the investor's Loan or Capped Purchase Put Option has a Term of 12 months or less: | Division 245 - commercial debt forgiveness: 63. If an SMSF Investor fails to repay the Loan, ANZ will be entitled to call on the Guarantee for this shortfall and will seek to recover the amount from the Guarantor. In this regard, any payment by the Guarantor to ANZ will meet the liability of the SMSF Investor to ANZ. Accordingly, there should be no forgiveness of a debt by ANZ for the purposes of Division 245 in these circumstances (section 245-35). | Part IVA - anti-avoidance: 64. Provided that the scheme ruled on is entered into and carried out as described in this Ruling, it is accepted that the scheme is an ordinary commercial transaction and Part IVA of the ITAA 1936 will not apply. 65. The following is a detailed contents list for this Ruling: © AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products). Not previously issued as a draft

Ruling: This Product Ruling has been given on the basis that the entity(s) that 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 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 the scheme is referred to as ANZ Cobalt offered by Australia and New Zealand Banking Group Limited (ANZ) and issued under the ANZ Cobalt Product Disclosure Statement (PDS). 3. This Product Ruling does not address: | Class of entities: 4. This part of the Product Ruling specifies which entities can rely on the Ruling section of this Product Ruling and which entities cannot rely on the Ruling section. In this Product Ruling, those entities that can rely on the Ruling section are referred to as the investor. 5. The class of entities who can rely on the Ruling section of this Product Ruling consists of those entities that are accepted to participate in the scheme specified below on or after 1 April 2016 and on or before 30 June 2019. They must have a purpose of remaining in the scheme until it is completed (that is, being a party to the relevant agreements until their term expires), and deriving assessable income (other than capital gains) from the investment that exceeds the deductible expenditure incurred in connection with the investment. 6. The class of entities who can rely on this Product Ruling does not include entities that: 7. 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: 8. The class of entities defined in this Product Ruling may rely on it provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 16 to 20 of this Ruling. 9. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then:


Appendix: Section 8-1 and Division 247 - capital protected borrowings and deductibility of interest: 21. The interest paid on a borrowing used to acquire income producing assets such as Securities is generally treated as deductible under section 8-1 where it is expected that dividends, trust distributions or other assessable income would be derived from the investment (see Taxation Ruling TR 95/33). However, the ability to claim interest deductions may be subject to Division 247. 22. Division 247 limits the allowable deductions for expenditure incurred under a 'capital protected borrowing'. Broadly, a capital protected borrowing arises where an amount is borrowed under an arrangement where the borrower is protected against the fall in value of some specified securities, and where that borrowing is made for the purpose of investing in those securities. 23. Division 247 applies to the Loan where the investor uses the Loan to acquire Securities or a beneficial interest in the Securities and the investor is protected against the fall in the market value of those Securities. 24. Division 247 sets out a methodology for reasonably attributing the cost of capital protection incurred by a borrower under a capital protected borrowing (section 247-20). Division 247 ignores any amount which is not in substance for capital protection or interest in calculating the cost of capital protection, pursuant to subsection 247-20(3). 25. Where the cost of the Purchase Put Option is factored into the interest rate charged on the Loan and there is no separate charge payable by an investor for the Purchase Put Option: 26. Where either the cost of the Purchase Put Option is factored into the interest rate charged on the Loan and the investor pays a Protection Level Increase Fee in the circumstances discussed at paragraph 19(o) of this Product Ruling; or the investor elects to pay the Initial Option Fee for the Purchase Put Option as an upfront lump sum: 27. Where an investor has acquired multiple Parcels of Securities (and applied the Basket investment structure) and ANZ has applied a single blended interest rate across all the Parcels of Securities held by the investor in the Basket, the investment will be treated as one arrangement for the purposes of Division 247. 28. There is no element of capital protection connected with the Interest Assistance Loan. No part of the interest incurred by the investor on the Interest Assistance Loan for the income year will therefore be attributable to the cost of capital protection and the interest on the Interest Assistance Loan will be fully deductible under section 8-1. | Section 51AAA: 29. By acquiring the Securities, it is contemplated that an investor will derive assessable income by way of the receipt of dividend income or trust distributions and capital gains. As interest incurred on the Loan and Interest Assistance Loan would have been deductible under section 8-1 of the ITAA 1997 notwithstanding the inclusion of a net capital gain in assessable income, section 51AAA of the ITAA 1936 has no application to an investor who enters into ANZ Cobalt. | Section 82KL: 30. The operation of section 82KL of the ITAA 1936 depends, among other things, on the identification of a certain quantum of 'additional benefits'. Insufficient additional benefits will be provided to trigger the application of section 82KL. Section 82KL will not apply to deny the deductions otherwise allowable under section 8-1 of the ITAA 1997. | Subdivision H of Division 3 of Part III: 31. Subdivision H of Division 3 of Part III (Subdivision H) of the ITAA 1936 deals with the timing of deductions for certain advance expenditure incurred under an agreement in return for the doing of a thing under that agreement that will not be wholly done within the same year of income. Separate rules apply depending on whether the expenditure is incurred in the carrying on of a business, whether the investor is a small business entity, whether the investor is an individual and whether the investor is not an individual and incurs the expenditure otherwise than in carrying on a business. This Subdivision does not apply to 'excluded expenditure' which is defined in subsection 82KZL(1) of the ITAA 1936 to include amounts of less than $1,000 or amounts that are of a capital nature. | Subdivision 328-C - small business entities: 32. Under section 328-110, an investor carrying on a business in an income year will be a small business entity for that year (the current year) if: | The eligible service period for the purposes of Subdivision H: 33. The interest charged on the Loan that is deductible under section 8-1 of the ITAA 1997 is in relation to a prepayment of loan interest for a period that is 12 months or less. Paragraph 82KZL(2)(a) of the ITAA 1936 provides that a payment of interest that is made in return for the making available of a loan principal is to be taken, for the purposes of Subdivision H, to be expenditure incurred under an agreement in return for the doing of a thing under the agreement for the period to which the interest payment relates. The eligible service period in relation to a payment of loan interest is determined by reference to the period to which the interest relates, and not to the period of the loan. | Sections 82KZME and 82KZMF - prepaid expenditure and 'tax shelter' style arrangements: 34. The rules in sections 82KZME and 82KZMF of the ITAA 1936 apply, subject to the exceptions in section 82KZME, where expenditure is incurred in relation to a 'tax shelter' style arrangement for the doing of a thing that is not to be wholly done within the expenditure year. 35. For the purposes of section 82KZME of the ITAA 1936, 'agreements' are broadly defined to include an entire scheme of which a contract may form part. Under subsection 82KZME(4) of the ITAA 1936, the relevant agreement is all the contractual arrangements and activities associated with the participation in ANZ Cobalt, including the financing, Securities acquisition and Securities disposal arrangements. 36. Exception 1, as contained in subsection 82KZME(5) of the ITAA 1936, applies to exclude interest payable under the Loan from the operation of section 82KZMF of the ITAA 1936 where: 37. Deductibility of the prepaid interest must therefore be considered under the prepayment rules contained in paragraphs 38 to 43 of this Product Ruling. | Section 82KZM - prepaid expenditure incurred by certain small business entities and individuals incurring non-business expenditure: 38. Section 82KZM of the ITAA 1936 operates to spread over more than one income year a deduction for prepaid expenditure incurred by a taxpayer that is either: 39. Section 82KZM of the ITAA 1936 applies if the eligible service period for the expenditure is longer than 12 months, or the eligible service period for the expenditure is 12 months or shorter but ends after the last day of the year of income after the one in which the expenditure was incurred, the expenditure is not excluded expenditure, and the expenditure would otherwise be immediately deductible under section 8-1 of the ITAA 1997. 40. As the eligible service period in relation to the deductible interest payment under the Loan is not more than 12 months and does not end after the last day of the year of income after the one in which the expenditure was incurred, section 82KZM of the ITAA 1936 will have no application to investors who are a small business entity for the year of income that have not chosen to apply section 82KZMD of the ITAA 1936 to the expenditure, or to investors who are individuals where the expenditure is not incurred in carrying on a business. Investors who satisfy these tests will be able to claim an immediate deduction for the interest allowable under section 8-1 of the ITAA 1997 incurred under the Loan. | Sections 82KZMA and 82KZMD - prepaid non-business expenditure incurred by non-individual and non-small business entities: 41. Sections 82KZMA and 82KZMD of the ITAA 1936 set the amount and timing of deductions for expenditure for an investor (other than a small business entity for the year of income that has not chosen to apply section 82KZMD to the expenditure) that is not an individual and does not incur the expenditure in carrying on a business. 42. The expenditure must not be excluded expenditure and must be incurred in return for the doing of a thing under an agreement that is not to be wholly done within the expenditure year. 43. For these investors, the amount of prepaid interest incurred under the Loan which is allowable as a deduction under section 8-1 will be apportioned over the relevant interest payment period. | Division 235 - look-through treatment for instalment trusts: 44. The object of Division 235 is to ensure that, for most income tax purposes, the consequences of ownership of a certain type of asset (referred to as an 'instalment trust asset') flow to the investor that has a beneficial interest in that asset as the beneficiary of an 'instalment trust', instead of to the trustee of the instalment trust. Essentially, this means treating the investor (and not the trust) as the owner of the asset and treating any act done by the trustee in relation to the asset as if the act had been done by the investor (instead of by the trustee): subsections 235-820(1) and 235-820(2). 45. Each Separate Trust created under the terms of the Trust Deed for the purposes of holding the International Securities of an investor or any Securities that are the subject of the Dividend Give-Up Facility on trust by the Nominee (or a sub-custodian of the Nominee) as trustee for an investor (other than a SMSF Investor) will be an instalment trust pursuant to paragraph 235-825(1)(a) on the basis that they will be covered by section 235-830 (about instalment trust arrangements), and satisfy the requirements in section 235-835 (about the type of asset being held on trust). 46. Each Separate Trust created under the terms of the Trust Deed for the purposes of holding the Securities of a SMSF Investor on trust by the Nominee (or a sub-custodian of the Nominee) as trustee for the SMSF Investor will be an instalment trust pursuant to paragraph 235-825(1)(b) on the basis that they will be covered by section 235-840 (about limited recourse borrowings by regulated superannuation funds). | Parts 3-1 and 3-3 - application of CGT provisions to the Purchase Put Option, Capped Purchase Put Option and Securities: 47. If an investor's Purchase Put Option or Capped Purchase Put Option is exercised and the investor elects a Physical Settlement, the investor will dispose of the Securities and CGT event A1 will arise for the investor in respect of the disposal (section 104-10). Under item 2 of the table in subsection 134-1(1), the investor's cost base and reduced cost base in the Securities for these purposes will include the cost of capital protection as worked out under Division 247 plus the Protection Level Increase Fee and the Initial Option Fee (where applicable). Any capital gain or capital loss on exercise of the Purchase Put Option or Capped Purchase Put Option will be disregarded (subsection 134-1(4)). 48. If an investor's Purchase Put Option or Capped Purchase Put Option is exercised and the investor elects a Cash Settlement, CGT event C2 will arise for the investor in respect of the exercise of the relevant Option (section 104-25). The cost base and reduced cost base of the Purchase Put Option or Capped Purchase Put Option will include the cost of capital protection as worked out under Division 247 plus the Protection Level Increase Fee and the Initial Option Fee (where applicable) - sections 110-25 and 110-55. No CGT event will occur in relation to the Securities. 49. Where the investor's Purchase Put Option or Capped Purchase Put Option expires unexercised, CGT event C2 will arise for the investor in relation to the relevant Option at that time (section 104-25). As the investor will not receive any capital proceeds in respect of the expiry of the Purchase Put Option or Capped Purchase Put Option, a capital loss will be made by the investor in this regard, equal to the investor's reduced cost base in that Option. Under section 110-55, the reduced cost base of the Purchase Put Option or the Capped Purchase Put Option will include the cost of capital protection as worked out under Division 247 plus the Protection Level Increase Fee and the Initial Option Fee (where applicable); and in the case of the Capped Purchase Put Option only, any Variable Premium Amount paid by the investor. 50. If an investor's Purchase Put Option or Capped Purchase Put Option expires unexercised and the investor elects a Physical Settlement, the investor will sell the Securities and CGT event A1 will arise for the investor in respect of the disposal (section 104-10). 51. Under section 110-25 and 110-55 respectively, the investor's cost base and reduced cost base in the Securities will include the amount of the Loan used to finance the acquisition of the Securities, their Contribution (if any) and incidental costs incurred by the investor in acquiring and disposing of the Securities (this includes stamp duty and costs of transfer). As per paragraph 47 of this Product Ruling, where the investor's Purchase Put Option is exercised and the investor elects a Physical Settlement, the investor's cost base and reduced cost base in the Securities also include the cost base or reduced cost base of the Purchase Put Option. 52. Division 115 allows a taxpayer a discount on capital gains in certain circumstances. In accordance with section 115-5, any capital gain realised by an investor on the sale of the Securities or exercise of the Purchase Put Option under a Cash Settlement will be treated as a discount capital gain where the investor is an individual, a complying superannuation entity or a trust and has held the Securities or Purchase Put Option for more than 12 months (excluding the days of acquisition and disposal). | Division 230 - taxation of financial arrangements: 53. Division 230 of the ITAA 1997 sets out the tax treatment of gains or losses from a 'financial arrangement'. Where an arrangement is not a qualifying security for the purposes of Division 16E of the ITAA 1936 and an election under section 230-455 to have Division 230 of the ITAA 1997 apply to financial arrangements has not been made, then pursuant to section 230-455 of the ITAA 1997, Division 230 of the ITAA 1997 does not apply in relation to gains or losses from a financial arrangement held by: | Dividend Give-Up Facility: 54. Pursuant to the operation of section 235-820 (as per paragraphs 15(j) and 44 to 46 of this Product Ruling), an investor who elects to use the Dividend Give-Up Facility in respect of their Securities will be assessable under subsection 44(1) of the ITAA 1936 on any dividends received by the Nominee on those Securities. 55. The payment by the Nominee (or their sub-custodian) of any dividends received by the Nominee (or their sub-custodian) under the Dividend Give-Up Facility in respect of the Dividend Interest Amount owing by the investor to ANZ does not have the effect of 'passing the benefit' of those dividends to ANZ, and therefore will not constitute a related payment for the purposes of former section 160APHN under Division 1A of Part IIIAA of the ITAA 1936. | Division 770 - foreign income tax offsets: 56. Division 770 allows a non-refundable tax offset for an income year for foreign income tax paid where that amount of foreign income tax is paid in respect of an amount that is included in your assessable income for the year. 57. To the extent that the investor has paid, or is deemed to have paid, foreign income tax (such as withholding tax at source): | Division 775 - foreign currency gains and losses: 58. Division 775 operates to include in assessable income or allow as a deduction, a forex realisation gain or loss which results from a forex realisation event (FRE) happening. 59. Among other means, FRE 4 happens when an entity ceases to have an obligation, or a part of an obligation, to pay a foreign currency, and the obligation, or the part of the obligation, was incurred in return for the acquisition of a CGT asset (subsection 775-55(1)). 60. Pursuant to the operation of section 235-820 (as per paragraphs 15(j) and 44 to 46 of this Product Ruling), FRE 4 under section 775-55 will happen where the investor: The time of each of these realisation events is where the investor ceases to have the obligation, or the part of the obligation, to pay the foreign currency (subsection 775-55(2)). 61. Any forex realisation gain or loss made by the investor in this regard would be determined in accordance with section 775-55. Pursuant to item 2 of the table in subsection 775-70(1), where the investor's Loan or Capped Purchase Put Option has a Term of 12 months or less: 62. Pursuant to item 2 of the table in subsection 775-75(1), where the investor's Loan or Capped Purchase Put Option has a Term of 12 months or less: | Division 245 - commercial debt forgiveness: 63. If an SMSF Investor fails to repay the Loan, ANZ will be entitled to call on the Guarantee for this shortfall and will seek to recover the amount from the Guarantor. In this regard, any payment by the Guarantor to ANZ will meet the liability of the SMSF Investor to ANZ. Accordingly, there should be no forgiveness of a debt by ANZ for the purposes of Division 245 in these circumstances (section 245-35). | Part IVA - anti-avoidance: 64. Provided that the scheme ruled on is entered into and carried out as described in this Ruling, it is accepted that the scheme is an ordinary commercial transaction and Part IVA of the ITAA 1936 will not apply.


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. | Appendix 2 - Detailed contents list


Related rulings: TR 95/33
Legislative references: ITAA 1936 ITAA 1936 44(1) ITAA 1936 51AAA ITAA 1936 82KL ITAA 1936 Pt III Div 3 Subdiv H ITAA 1936 82KZL(1) ITAA 1936 82KZL(2)(a) ITAA 1936 82KZM ITAA 1936 82KZMA ITAA 1936 82KZMD ITAA 1936 82KZME ITAA 1936 82KZME(4) ITAA 1936 82KZME(5) ITAA 1936 82KZME(5)(b)(ii) ITAA 1936 82KZME(5)(b)(iii) ITAA 1936 82KZMF ITAA 1936 97 ITAA 1936 Div 16E ITAA 1936 Pt IIIAA Div 1A ITAA 1936 160APHN ITAA 1936 Pt IVA ITAA 1997 ITAA 1997 8-1 ITAA 1997 Subdiv 83A-B ITAA 1997 Subdiv 83A-C ITAA 1997 Pt 3-1 ITAA 1997 104-10 ITAA 1997 104-25 ITAA 1997 104-25(1)(c) ITAA 1997 104-25(1)(e) ITAA 1997 104-25(3) ITAA 1997 109-5 ITAA 1997 110-25 ITAA 1997 110-55 ITAA 1997 Div 115 ITAA 1997 115-5 ITAA 1997 Pt 3-3 ITAA 1997 134-1(1) ITAA 1997 134-1(4) ITAA 1997 Div 230 ITAA 1997 230-455 ITAA 1997 230-455(7) ITAA 1997 Div 235 ITAA 1997 235-815(2) ITAA 1997 235-820 ITAA 1997 235-820(1) ITAA 1997 235-820(2) ITAA 1997 235-825(1)(a) ITAA 1997 235-825(1)(b) ITAA 1997 235-830 ITAA 1997 235-835 ITAA 1997 235-840 ITAA 1997 Div 245 ITAA 1997 245-35 ITAA 1997 Div 247 ITAA 1997 247-20 ITAA 1997 247-20(3) ITAA 1997 247-20(4) ITAA 1997 247-20(5) ITAA 1997 247-20(5A) ITAA 1997 247-20(6) ITAA 1997 Subdiv 328-C ITAA 1997 328-110 ITAA 1997 Div 770 ITAA 1997 770-15 ITAA 1997 770-75 ITAA 1997 770-130 ITAA 1997 Div 775 ITAA 1997 775-15 ITAA 1997 775-30 ITAA 1997 775-55 ITAA 1997 775-55(1) ITAA 1997 775-55(2) ITAA 1997 775-70 ITAA 1997 775-70(1) ITAA 1997 775-75 ITAA 1997 775-75(1) ITAA 1997 775-80 ITAA 1997 995-1 SISA 1993 SISA 1993 19 SISA 1993 67A(1) TAA 1953