Taxation Determination TD 2022/5
Date of effect: 30 March 2022




Examples: Example 1: application of the general control test to a corporate limited partnership 5. ABC LP (ABC), a corporate limited partnership, needs to work out its aggregated turnover for the 2020-21 income year to determine its eligibility for temporary full expensing. 6. Under ABC's limited partnership agreement, ABC's profits for an income year are to be allocated and distributed to each of its limited partners in accordance with their respective percentage of contributed capital relative to ABC's total capital. 7. ABC's limited partners have contributed a total of $20 million of capital to ABC. ABC's limited partners include EFG Pty Ltd (EFG), which contributed $12 million of capital to ABC (equating to 60% of ABC's total capital). ABC also has four other limited partners, which each contributed $2 million of capital to ABC (equating to a total of 40% of ABC's capital, or 10% each). ABC's limited partners are not affiliates of each other within the meaning of section 328-130. 8. ABC wants to know whether it is connected with any of its limited partners in accordance with section 328-125. 9. By virtue of holding a 60% interest in ABC's capital, EFG has the right to receive 60% of any distributions of income made by ABC. Therefore, EFG is connected with ABC under the general control test in subparagraph 328-125(2)(a)(i). 10. The other limited partners each hold less than 40% of the interests in ABC and, based on the facts, are not connected with ABC. 11. Therefore, ABC needs to include the annual turnover of EFG in its aggregated turnover for the 2020-21 income year. Note: In accordance with paragraph 328-115(3)(a), ABC's aggregated turnover does not include amounts derived by ABC or EFG from their dealings with each other, to the extent those amounts would otherwise be included in the respective annual turnovers of ABC or EFG under section 328-120. | Example 2: application of the voting control test to a corporate limited partnership 12. XYZ LP (XYZ), a corporate limited partnership, needs to work out its aggregated turnover for the 2020-21 income year to determine its eligibility for the temporary loss carry back tax offset. 13. XYZ's limited partners are A Pty Ltd (A), B Pty Ltd (B) and C Pty Ltd (C). A, B and C are not affiliates of each other within the meaning of section 328-130. 14. The limited partners hold interests in the capital of XYZ as follows: 15. The terms of the limited partnership agreement of XYZ operate such that each limited partner has the right to exercise voting power in XYZ in accordance with their equity interest. That is, the limited partners hold voting power in XYZ as follows: 16. XYZ wants to know whether it is connected with any of its limited partners. 17. Based on the facts, B has the right to exercise 54% of the voting power in XYZ and is therefore connected with XYZ under paragraph 328-125(2)(b). 18. XYZ is not connected with A or C under the voting control test in paragraph 328-125(2)(b) or the general control tests in subparagraphs 328-125(2)(a)(i) and (iii). 19. Therefore, XYZ needs to include B's annual turnover in its aggregated turnover for the 2020-21 income year. Note: In accordance with paragraph 328-115(3)(a), XYZ's aggregated turnover does not include amounts derived by XYZ or B from their dealings with each other, to the extent those amounts would otherwise be included in the respective annual turnovers of XYZ or B under section 328-120. Date of effect 20. This Determination applies both before and after its date of issue. However, the Determination will not apply to taxpayers to the extent that it conflicts with the terms of settlement of a dispute agreed to before the date of issue of the Determination (see paragraphs 75 to 76 of Taxation Ruling TR 2006/10 Public Rulings). Commissioner of Taxation 30 March 2022 Background to Subdivision 328-C 21. Under Subdivision 328-C [9] , an entity will be a small business entity for an income year if it carries on a business and its aggregated turnover is under the relevant threshold. [10] An entity's aggregated turnover for an income year is comprised of its annual turnover [11] , together with the annual turnover of any entity (including foreign resident) that is connected with it [12] , or is an affiliate of it [13] , at any time during the income year. [14] 22. The concepts of 'small business entity' and 'aggregated turnover' in Subdivision 328-C are utilised in a number of provisions in the taxation law, including the temporary loss carry back [15] and temporary full expensing [16] measures. These measures cover entities that would meet the definition of a small business entity in section 328-110 if the aggregated turnover threshold under that definition was $5 billion (instead of $10 million). [17] Consequently, the aggregation provisions in Subdivision 328-C (and related concepts) are relevant to determining whether an entity is eligible to carry back a tax loss or claim a deduction under temporary full expensing. As a result, these provisions now apply to a broader range of business structures and entities, including large businesses and multinational entities. Meaning of 'corporate limited partnership' 23. Subsection 995-1(1) defines a 'limited partnership' as [18] : 24. Division 5A of Part III of the Income Tax Assessment Act 1936 (ITAA 1936) operates to treat certain limited partnerships as companies for income tax purposes; such partnerships are referred to as 'corporate limited partnerships'. [19] A limited partnership (within the meaning of paragraph (a) of the definition) is a corporate limited partnership if it was formed on or after 19 August 1992. [20] 25. However, the following types of limited partnership cannot be a corporate limited partnership: 26. In addition, an unincorporated association of persons acting only in Australia who do not carry on a business in common with a view to profit cannot be a corporate limited partnership within the meaning of section 94D of the ITAA 1936. [23] However, an unincorporated association of persons formed outside of Australia that is not carrying on a business in common with a view to profit but is in receipt or ordinary or statutory income jointly is capable of being a corporate limited partnership, provided that the liability of at least one of the persons is limited under the applicable legal system. [24] The treatment of corporate limited partnerships for income tax purposes 27. If a limited partnership is a corporate limited partnership in relation to an income year, sections 94H to 94X of the ITAA 1936 set out a number of modifications to the income tax law [25] to treat the corporate limited partnership as a company by deeming, among other things, that [26] : Application of the 'connected with' concept to determine whether an entity directly controls a corporate limited partnership 28. An entity is connected with another entity if either entity controls the other entity in a way described in section 328-125 or both entities are controlled in a way described in that section by the same third entity. [33] 29. Subsection 328-125(2) sets out the test for determining whether an entity directly controls another entity other than a discretionary trust [34] , as follows: 30. Paragraph 328-125(2)(b) provides a specific test for determining whether an entity directly controls a company based on its control of the voting power in the company. Paragraph 2.46 of the Explanatory Memorandum to the Tax Laws Amendment (Small Business) Bill 2007 explains that this is an additional test that applies for the control by entities of companies. If either this test or the 40% ownership test is satisfied, that entity controls the company. Therefore, where an entity does not directly control a company under paragraph 328-125(2)(b), the entity will still need to consider whether direct control of the company is established under the general control tests in subparagraphs 328-125(2)(a)(i) or (iii). 31. Accordingly, a partner will directly control a corporate limited partnership under paragraph 328-125(2)(b) where the partner, its affiliate or the partner together with its affiliate have, by virtue of their interests in the corporate limited partnership, the right to exercise or control the exercise of at least 40% of the voting power in the corporate limited partnership. In this context, what constitutes the right to exercise or control the exercise of a percentage of the voting power in a corporate limited partnership is dependent on the specific facts and circumstances of the corporate limited partnership. Application of the 'affiliate' concept to corporate limited partnerships 32. Under subsection 328-130(1), an individual or company is an affiliate of yours if they act, or could reasonably be expected to act, in accordance with your directions or wishes, or in concert with you, in relation to their business affairs. However, an individual or a company is not your affiliate merely because of the nature of the business relationship you and the individual or company share. [35] 33. Therefore, by virtue of being treated as a company under the income tax law, a corporate limited partnership is capable of being an affiliate of another entity. For completeness, whether a corporate limited partnership is actually an affiliate of another entity is dependent on the specific facts and circumstances and whether they satisfy the requirements in section 328-130. © 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). Previously issued in draft format as TD 2021/D3

Appendix: Background to Subdivision 328-C: 21. Under Subdivision 328-C [9] , an entity will be a small business entity for an income year if it carries on a business and its aggregated turnover is under the relevant threshold. [10] An entity's aggregated turnover for an income year is comprised of its annual turnover [11] , together with the annual turnover of any entity (including foreign resident) that is connected with it [12] , or is an affiliate of it [13] , at any time during the income year. [14] 22. The concepts of 'small business entity' and 'aggregated turnover' in Subdivision 328-C are utilised in a number of provisions in the taxation law, including the temporary loss carry back [15] and temporary full expensing [16] measures. These measures cover entities that would meet the definition of a small business entity in section 328-110 if the aggregated turnover threshold under that definition was $5 billion (instead of $10 million). [17] Consequently, the aggregation provisions in Subdivision 328-C (and related concepts) are relevant to determining whether an entity is eligible to carry back a tax loss or claim a deduction under temporary full expensing. As a result, these provisions now apply to a broader range of business structures and entities, including large businesses and multinational entities. | Meaning of 'corporate limited partnership': 23. Subsection 995-1(1) defines a 'limited partnership' as [18] : 24. Division 5A of Part III of the Income Tax Assessment Act 1936 (ITAA 1936) operates to treat certain limited partnerships as companies for income tax purposes; such partnerships are referred to as 'corporate limited partnerships'. [19] A limited partnership (within the meaning of paragraph (a) of the definition) is a corporate limited partnership if it was formed on or after 19 August 1992. [20] 25. However, the following types of limited partnership cannot be a corporate limited partnership: 26. In addition, an unincorporated association of persons acting only in Australia who do not carry on a business in common with a view to profit cannot be a corporate limited partnership within the meaning of section 94D of the ITAA 1936. [23] However, an unincorporated association of persons formed outside of Australia that is not carrying on a business in common with a view to profit but is in receipt or ordinary or statutory income jointly is capable of being a corporate limited partnership, provided that the liability of at least one of the persons is limited under the applicable legal system. [24] | The treatment of corporate limited partnerships for income tax purposes: 27. If a limited partnership is a corporate limited partnership in relation to an income year, sections 94H to 94X of the ITAA 1936 set out a number of modifications to the income tax law [25] to treat the corporate limited partnership as a company by deeming, among other things, that [26] : | Application of the 'connected with' concept to determine whether an entity directly controls a corporate limited partnership: 28. An entity is connected with another entity if either entity controls the other entity in a way described in section 328-125 or both entities are controlled in a way described in that section by the same third entity. [33] 29. Subsection 328-125(2) sets out the test for determining whether an entity directly controls another entity other than a discretionary trust [34] , as follows: 30. Paragraph 328-125(2)(b) provides a specific test for determining whether an entity directly controls a company based on its control of the voting power in the company. Paragraph 2.46 of the Explanatory Memorandum to the Tax Laws Amendment (Small Business) Bill 2007 explains that this is an additional test that applies for the control by entities of companies. If either this test or the 40% ownership test is satisfied, that entity controls the company. Therefore, where an entity does not directly control a company under paragraph 328-125(2)(b), the entity will still need to consider whether direct control of the company is established under the general control tests in subparagraphs 328-125(2)(a)(i) or (iii). 31. Accordingly, a partner will directly control a corporate limited partnership under paragraph 328-125(2)(b) where the partner, its affiliate or the partner together with its affiliate have, by virtue of their interests in the corporate limited partnership, the right to exercise or control the exercise of at least 40% of the voting power in the corporate limited partnership. In this context, what constitutes the right to exercise or control the exercise of a percentage of the voting power in a corporate limited partnership is dependent on the specific facts and circumstances of the corporate limited partnership. | Application of the 'affiliate' concept to corporate limited partnerships: 32. Under subsection 328-130(1), an individual or company is an affiliate of yours if they act, or could reasonably be expected to act, in accordance with your directions or wishes, or in concert with you, in relation to their business affairs. However, an individual or a company is not your affiliate merely because of the nature of the business relationship you and the individual or company share. [35] 33. Therefore, by virtue of being treated as a company under the income tax law, a corporate limited partnership is capable of being an affiliate of another entity. For completeness, whether a corporate limited partnership is actually an affiliate of another entity is dependent on the specific facts and circumstances and whether they satisfy the requirements in section 328-130. © 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). Previously issued in draft format as TD 2021/D3


If this Determination applies to you, and you correctly rely on it, we will apply the law to you in the way set out in this Determination. That is, you will not pay any more tax or penalties or interest in respect of the matters covered by this Determination. | 1. All legislative references in this Determination are to the Income Tax Assessment Act 1997 (ITAA 1997), unless otherwise indicated. | 2. A 'corporate limited partnership' [1] is treated as a company for income tax purposes. [2] Therefore, the rules for determining an entity's 'aggregated turnover' [3] in Subdivision 328-C also apply to a corporate limited partnership as though it were a company, rather than a partnership. | 3. Accordingly, for the purposes of determining whether an entity is 'connected with' [4] a corporate limited partnership by virtue of directly controlling the corporate limited partnership within the meaning of subsection 328-125(2): | 4. Further, a corporate limited partnership is capable of being an 'affiliate' of another entity within the meaning of section 328-130. [8] | (a) an association of persons (other than a company) carrying on business as partners or in receipt of ordinary income or statutory income jointly, where the liability of at least one of those persons is limited; or | (b) an association of persons (other than one referred to in paragraph (a)) with legal personality separate from those persons that was formed solely for the purpose of becoming a VCLP, an ESVCLP, an AFOF or a VCMP and to carry on activities that are carried on by a body of that kind. | An entity (the first entity) controls another entity if the first entity, its affiliates, or the first entity together with its affiliates: | (b) if the other entity is a company - own, or have the right to acquire the ownership of, equity interests in the company that carry between them the right to exercise, or control the exercise of, a percentage (the control percentage) that is at least 40% of the voting power in the company.


Related rulings: TR 2006/10 TD 2008/15
Legislative references: ITAA 1936 6(1) ITAA 1936 44(1A) ITAA 1936 Div 5 ITAA 1936 Div 5A ITAA 1936 94A ITAA 1936 94B ITAA 1936 94D ITAA 1936 94D(1) ITAA 1936 94D(1)(b) ITAA 1936 94D(2) ITAA 1936 94D(5) ITAA 1936 94E ITAA 1936 94F ITAA 1936 94G ITAA 1936 94H ITAA 1936 94J ITAA 1936 94K ITAA 1936 94L ITAA 1936 94M ITAA 1936 94N ITAA 1936 94P ITAA 1936 94Q ITAA 1936 94R ITAA 1936 94S ITAA 1936 94T ITAA 1936 94U ITAA 1936 94V ITAA 1936 94X ITAA 1997 Div 160 ITAA 1997 160-20(b)(i) ITAA 1997 Subdiv 328-C ITAA 1997 328-110 ITAA 1997 328-115 ITAA 1997 328-115(3) ITAA 1997 328-115(3)(a) ITAA 1997 328-120 ITAA 1997 328-125 ITAA 1997 328-125(1) ITAA 1997 328-125(2) ITAA 1997 328-125(2)(a)(i) ITAA 1997 328-125(2)(a)(ii) ITAA 1997 328-125(2)(a)(iii) ITAA 1997 328-125(2)(b) ITAA 1997 328-125(3) ITAA 1997 328-125(4) ITAA 1997 328-125(5) ITAA 1997 328-130 ITAA 1997 328-130(1) ITAA 1997 328-130(2) ITAA 1997 Div 355 ITAA 1997 Div 830 ITAA 1997 830-10 ITAA 1997 995-1(1) ITTPA 1997 Subdiv 40-BB ITTPA 1997 40-155(b)(i) TAA 1953
Other references: Explanatory Memorandum to the Tax Laws Amendment (Small Business) Bill 2007