Product Ruling PR 2007/85
Date of effect: 3 October 2007

What this ruling is about: 1. This Product Ruling sets out the Commissioner's opinion on the way in which the relevant provision(s) identified in the Ruling section (below) apply to the defined class of entities, who take part in the scheme to which this Ruling relates. All legislative references in this Ruling are to the Income Tax Assessment Act 1997 (ITAA 1997) unless otherwise indicated. In this Product Ruling this scheme is referred to as the Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project or simply as 'the Project'. Class of entities 2. This part of the Product Ruling specifies which entities can rely on the tax benefits set out in the Ruling section of this Product Ruling and which entities cannot rely on those tax benefits. In this Product Ruling, those entities that can rely on the tax benefits set out in this Ruling are referred to as Grower. 3. The class of entities who can rely on those tax benefits consists of entities that are accepted to participate in the scheme specified below on or after the date this Product Ruling is made and which execute relevant Project Agreements mentioned in paragraph 33 of this Ruling on or before 31 May 2008 They must have a purpose of staying in the scheme until it is completed (that is, being a party to the relevant agreements until their term expires), and deriving assessable income from this involvement. 4. The class of entities who can rely on the tax benefits set out in the Ruling section of this Product Ruling does not include entities who: Superannuation Industry (Supervision) Act 1993 5. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA 1993). The Tax Office 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 6. 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 33 to 92 of this Ruling. 7. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then: 8. This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to:

Class of entities or scheme: 2. This part of the Product Ruling specifies which entities can rely on the tax benefits set out in the Ruling section of this Product Ruling and which entities cannot rely on those tax benefits. In this Product Ruling, those entities that can rely on the tax benefits set out in this Ruling are referred to as Grower. 3. The class of entities who can rely on those tax benefits consists of entities that are accepted to participate in the scheme specified below on or after the date this Product Ruling is made and which execute relevant Project Agreements mentioned in paragraph 33 of this Ruling on or before 31 May 2008 They must have a purpose of staying in the scheme until it is completed (that is, being a party to the relevant agreements until their term expires), and deriving assessable income from this involvement. 4. The class of entities who can rely on the tax benefits set out in the Ruling section of this Product Ruling does not include entities who: | Superannuation Industry (Supervision) Act 1993: 5. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA 1993). The Tax Office 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: 6. 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 33 to 92 of this Ruling. 7. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then: 8. 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: 9. This Product Ruling applies prospectively from 3 October 2007, the date this Product Ruling is made. It therefore applies only to the specified class of entities that enter into the scheme from 3 October 2007 until 31 May 2008, being the closing date for entry into the scheme. This Product Ruling provides advice on the availability of tax benefits to the specified class of entities for the income years up to 30 June 2010. 10. However the Product Ruling only applies to the extent that: 11. If this Product Ruling is inconsistent with a later public or private ruling, the relevant class of entities may rely on either ruling which applies to them (item 1 of subsection 357-75(1) of Schedule 1 to the Taxation Administration Act 1953 (TAA)). 12. If this Product Ruling is inconsistent with an earlier private ruling, the private ruling is taken not to have been made if, when the Product Ruling is made, the following two conditions are met: 13. If the above two conditions do not apply, the relevant class of entities may rely on either ruling which applies to them (item 3 of subsection 357-75(1) of Schedule 1 to the TAA). | Changes in the law: 14. Although this Product Ruling deals with the 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. 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 Tax Office suggests that promoters and advisers ensure that participants are fully informed of any legislative changes after the Product Ruling is issued. | Goods and Services Tax: 17. All fees and expenditure referred to in this Product Ruling include the Goods and Services Tax (GST) where applicable. In order for an entity (referred to in this Ruling as a Grower) to be entitled to claim input tax credits for the GST included in its expenditure, it must be registered or required to be registered for GST and hold a valid tax invoice. | Application of this Ruling: 18. Subject to the stated qualifications, this part of the Product Ruling sets out in detail the taxation obligations and benefits for a Grower in the defined class of entities who enters into the scheme described at paragraphs 33 to 92 of this Ruling. 19. The Grower's participation in the Project must constitute the carrying on of business of primary production. Provided the Project is carried out as described below, the Grower's business of primary production will commence at the time of execution of their Allotment Licence Agreement and their Allotment Management Agreement, on or before 31 May 2008. | Small business concessions: 20. From the 2007-08 income year, a range of concessions previously available under the simplified tax system (STS), will be available to an entity if it carries on a business and satisfies the $2 million aggregated turnover test (a 'small business entity'). 21. 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 Ruling. | Sections 6-5 and 17-5: 22. That part of the gross sales and insurance proceeds from the Project attributable to the Grower's business, less GST payable on those proceeds (section 17-5), will be assessable income of the Grower under section 6-5. | Section 8-1 and Division 27 of the ITAA 1997 and sections 82KZME and 82KZMF of the Income Tax Assessment Act 1936: 23. A Grower may claim tax deductions for the following fees and expenses on a per Allotment basis, as set out in the Table below. | Division 40: 24. A Grower, who is not a 'small business entity', will also be entitled to tax deductions relating to water facilities (for example, irrigation), a 'Landcare Operation' and olive trees. All deductions shown in the following Table are determined under Division 40. | D: 25. A Grower, who is a 'small business entity', will also be entitled to tax deductions relating to water facilities (for example, irrigation), a 'Landcare operation' and olive trees. A 'small business entity' may claim deductions in relation to water facilities under Subdivision 40 F and in relation to a 'Landcare operation' under Subdivision 40 G. If the 'water facility' or 'Landcare operation' expenditure is on a 'depreciating asset' used to carry on the business, they may choose to claim deductions under Division 328. Deductions for the olive trees must be determined under Subdivision 40 F. 26. The deductions shown in the following Table assume, for representative purposes only, that a Grower has either chosen to or can only claim deductions for expenditure on water facilities or a 'Landcare operation' under Subdivisions 40 F or 40 G and not under Division 328. If the expenditure has been incurred on 'depreciating assets' and is claimed under Division 328, the deduction is determined as discussed in Notes (viii) and (ix) of paragraph 27 of this Ruling. 27. Under Division 328, if the 'cost' of a 'depreciating asset' at the end of the income year is less than $1,000 (a 'low-cost asset'), it can be claimed as an immediate deduction when first used or 'installed ready for use'. This is so provided the Grower is a 'small business entity' for the income year in which it starts to 'hold' the asset and the income year in which it first uses the asset or has it 'installed ready for use' to produce assessable income. | Shares in unit trust: 28. The units in Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust are CGT assets (section 108-5) and the amount paid by a Grower to acquire those assets is an outgoing of capital and is not allowable as a deduction. 29. The amount paid for each unit will represent the first element of the cost base of the unit (subsection 110-25(2)). Any disposal of the units by a Grower will be a CGT event and may give rise to a capital gain or loss. 30. Income distributions by the unit trust are included in the assessable income of a Grower who is a unit holder. | Section 35-55 - exercise of Commissioner's discretion: 31. A Grower who is an individual accepted into the Project by 31 May 2008 may have losses arising from their participation in the Project that would be deferred to a later income year under section 35-10. Subject to the Project being carried out in the manner described below, the Commissioner will exercise the discretion in paragraph 35-55(1)(b) for Growers for the income years ended 30 June 2008 to 30 June 2012. This conditional exercise of the discretion will allow those losses to be offset against the Grower's other assessable income in the income year in which the losses arise. | Sections 82KZME, 82KZMF and 82KL and Part IVA: 32. For a Grower who commences participation in the Project and incurs expenditure as required by the Allotment Licence Agreement and Allotment Management Agreement, the following provisions of the ITAA 1936 have application as indicated: 33. 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. 34. All Australian Securities and Investment Commission (ASIC) requirements are, or will be, complied with for the term of the agreements. 35. 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: 36. The main features of the Brooklyn Park Organic Olive Groves Boni-Foi Growers' Project are as follows: 37. The Project will be a registered managed investment scheme under the Corporations Act 2001. Australian Green & Gold Ltd has been issued with an Australian Financial Service Licence, Number 246717 and will be the Responsible Entity for the Project. 38. The Project will involve the commercial growing, cultivation and harvesting of olives for sale. 39. An offer to participate in the Project will be made through a Product Disclosure Statement (PDS), Supplementary Product Disclosure Statement (SPDS) and Second Supplementary Product Disclosure Statement (SSPDS). The offer under the PDS is for 240 hectares, which corresponds to 2400 Allotments in the Project. 40. Under the terms of the PDS, the interests in the Growers' Allotments were to be issued after a minimum subscription of 600 Allotments had been achieved. Minimum subscription of 600 Allotments was achieved in the 2007 income year. Product Ruling PR 2007/29 applies to Growers who entered the Project between 4 April 2007 and 31 May 2007. 41. Huntley Custodian Ltd will be appointed Custodian under the Custody Agreement to protect the interests of the Growers in their dealing with Australian Green & Gold Ltd and its associates. 42. A Grower that participates in the Project will do so by acquiring an interest in the Project which will consist of a minimum of 1 Allotment. A Grower acquiring a single interest in the Project will hold a licence over a separate and distinct area (called an 'Allotment') of 0.10 hectare on which the Grower can plant and maintain 40 olive trees. Each Allotment will be separately identifiable on a plan prepared by Australian Green & Gold Ltd for that purpose. 43. Applicants execute a Power of Attorney contained in the PDS. The Power of Attorney irrevocably appoints Australian Green & Gold Ltd the Responsible Entity to enter into, on behalf of the Grower, an Allotment Licence Agreement, Allotment Management Agreement and any other documents required to hold an interest in the Project. The Responsible Entity will allocate Allotments and place their details in a register of Growers. 44. Growers may acquire more than one interest in the Project. However, for each interest acquired the Grower must apply for and be allotted a Unit in Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust. The cost of one Unit is $1,000. 45. For the purposes of this Ruling, Applicants who are accepted to participate in the Project and who execute the Allotment Licence Agreement and the Allotment Management Agreement on or before 31 May 2008 will become 2008 Growers. 46. Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust is the owner of the Land that will be used for the Project. The Land for the Project is located 20 kilometres west of Inglewood in the Border Rivers Region of southern Queensland. Specifically, it is described as Lot 26 on CPCVE248, County of Clive, Parish of Tandan. 47. This land to be used for the Project will be divided into Allotments each of 0.10 hectares and after Growers are accepted into the Project will have land degradation measures carried out, irrigation installed and 40 olives trees established per Allotment between 1 June 2008 and 15 June 2008. 48. Each Grower will use their Allotment/s for the purpose of carrying on a business of cultivating and harvesting olives and the sale of harvested produce. 49. Growers will enter into an Allotment Management Agreement with Australian Green & Gold Ltd, the Responsible Entity acting in its capacity as Manager, whereby the Manager will establish and maintain each Allotment during the term of the Project. 50. Unless a Grower elects otherwise, the Manager will harvest the olives on their behalf and use its best endeavours to sell the produce at the best available price. The Manager holds a contract with Boundary Bend Marketing Pty Ltd who has agreed to buy olive oil from the Project. | Constitution: 51. The Constitution establishes the Project and operates as a deed binding all Growers and Australian Green & Gold Ltd. The Constitution sets out the terms and conditions under which Australian Green & Gold 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. 52. In order to acquire an interest in the Project, the Grower must make an application for Allotments in accordance with clause 8 of the Constitution. 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 and accompanied by payment of the Application Money in a form acceptable to the Responsible Entity. 53. Under clause 7 of the Constitution, Australian Green & Gold Ltd holds the Application Money on bare trust. Australian Green & Gold Ltd will deposit all Application Moneys received from applicants in a Growers' Application Account (clause 7.2). 54. Once Australian Green & Gold Ltd has accepted the application and all of the Project Documents have been executed and remain in force (clause 9) the Application Money may be transferred and applied against the fees due to Australian Green & Gold Ltd (clause 9.1). 55. In summary, the Constitution also sets out provisions relating to: | Compliance Plan: 56. As required by the Corporations Act 2001, Australian Green & Gold Ltd has prepared a Compliance Plan. The purpose of the Compliance Plan is to ensure that Australian Green & Gold Ltd manages the Project in accordance with its obligations and responsibilities contained in the Constitution and that the interests of Growers are protected. | Lease and Sub Lease: 57. Australian Green & Gold Ltd as Responsible Entity for Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust (the owner of the Land) has entered into a Lease with Huntley Custodians Ltd, the Custodian of the Project. Huntley Custodians Ltd as Sub Lessor of the Land will sublease the land back to Australian Green & Gold Ltd as Responsible Entity of Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust. This sub lease will enable the Landowner to enter into licences with the Growers to occupy separate and distinct portions of the Land for the purpose of growing olives for commercial sale. 58. Both Lease and Sub Lease commence on 31 May 2007 and expire on 30 May 2027. | Allotment Licence Agreement (Bonni-Foi): 59. Each Grower will execute an Allotment Licence Agreement with Australian Green & Gold Ltd as Responsible Entity of the Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust, the Landowner. The Allotment Licence Agreement will be executed at the same time as when all of the Project Documents have been implemented. The Landowner will grant to the Grower the right to exclusively possess, occupy, use and enjoy the Allotment, for the conduct of the Grower's Business and to harvest and sell the olives for a commercial profit. Each Licence to Occupy will terminate on 30 June 2026. 60. The Growers shall have the right to use their Allotments for the purposes referred to in the Allotment Management Agreement, including without limitation, the planting, tending, growing, caring for and the harvesting of their olives for commercial profit. 61. The Allotment Licence Agreement sets out the rights and obligations of the parties to the Agreement. Under the terms of the Allotment Licence Agreement, each Grower will licence from the Landowner a minimum of 1 Allotment, each of 0.10 hectares. The Allotment Licence Agreement shall operate on and from the commencement date until terminated in accordance with the terms under clause 13. 62. The Grower's obligations are set out in detail in clause 4 under which the Grower agrees to use the Allotments for the purpose of establishing, maintaining and harvesting the olives in accordance with best practices of the olive industry. The Agreement permits the grower to use dams, irrigation system, roads and other infrastructure located on the Project Land (clause 2.3). The Landowner as part of the Allotment Licence Agreement has allocated a water supply of 480 megalitres to the Project. 63. The Grower is required to pay an annual Rental Fee for each year of the Agreement, commencing in Year 2. The annual Rental Fee from year 3 onwards will equal the Fee of the preceding year indexed by the All Groups Consumer Price Index for Brisbane. 64. Upon termination of the Agreement, Growers are not required to remove the trees or restore the Allotment to its original condition (clause 13.4). Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust will be legally entitled to any trees growing on the Allotment following termination of the Agreement (clause 13.5(b)). | Allotment Management Agreement (Bonni-Foi): 65. Under the Allotment Management Agreement the Grower appoints the Responsible Entity (as Manager) to manage the Allotments and to carry out the management services subject to the terms and conditions of the Agreement. The Agreement will commence on the date the Responsible Entity accepts the Grower's application under the PDS and shall continue until its termination under clause 15. 66. The parties to the Allotment Management Agreement are Australian Green & Gold Ltd (the Responsible Entity & Manager), Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust (the Landowner) and the Grower. 67. In accordance with clause 4.2 the Manager will commence the provision of the Initial Allotment Management Services on or after the Commencement Date and will complete the following services by 15 June 2008: 68. The following Initial Allotment Services will be carried out between 16 June 2008 and 30 June 2008 (clause 4.3): 69. The Landowner under clause 5.1 the Allotment Management Agreement will supply and plant 40 trees on each Allotment allocated to each Grower on or before 15 June 2008. The Landowner will be entitled to a Planting Fee of $440 per Allotment from each Grower. 70. The Manager will commence the provision of the Ongoing Management Services after the completion of the initial services and shall continue to provide the Management Services until the termination of this Agreement. 71. The Ongoing Management Services under clause 6.2 include, amongst other things: 72. The Manager guarantees survival of the Grower's Trees to the commencement of the fourth year of the term of the Agreement. Thereafter, the Manager does not guarantee survival of the Grower's Trees or that they will produce olives (clause 4.6). 73. Under the Allotment Management Agreement, Growers may elect to have the Manager harvest the Trees on their Allotment separately (clause 7(a)) or they may elect to harvest the trees on their Allotment themselves (clause 7(h)). This Ruling will not apply to any Grower who makes an election under clause 7(a) or clause 7(h). A Grower who makes such an election may request a private ruling on the taxation consequences of their participation in the Project. | Pooling of Crops and Grower's Entitlement to Net Proceeds: 74. Australian Green & Gold Ltd (the Manager) will market and sell the grower's olives for the maximum price achievable. The Manager will pool for sale the olives produced from the Grower's Allotment with that of other Growers. The proceeds of the sale of all olives will be paid to the Custodian to be divided and credited amongst all Growers as specified in clause 27 of the Constitution. 75. Clause 8.3 of the Allotment Management Agreement provides that, where the quantity of olives from a Grower's Allotment is less than 90% of the average of olives harvested on all Grower's Allotments for that particular harvest, then the Grower's Sale Proceeds will be reduced by an amount determined by the Manager. 76. The Constitution (clause 27) sets out provisions relating to the pooling and distribution of the Growers' Proceeds. Proceeds can include both sale proceeds and insurance proceeds. This Product Ruling only applies where the following principles apply to those pooling and distribution arrangements: 77. In the event of partial or total destruction of the Grower's Allotment or inadequate production compared to other Grower's Allotments the manager shall make an adjustment to the Grower's interest in the Growers Proceeds Account to take into account any deficiency. | Allotment Sub Management Agreement: 78. The Responsible Entity has entered into a Sub Management Agreement with Horticultural Developments Pty Ltd to delegate all of the functions under the Allotment Management Agreement. 79. Horticultural Developments Pty Ltd will provide farm management services, including establishing the allotments, ongoing maintenance and management of the allotments and harvesting of the olives. | Water Services Agreement (Bonni-Foi): 80. Upon acceptance of the Grower's application, the Grower becomes a party to the Water and Services Agreement. The other parties to the Agreement are Australian Green & Gold Ltd as Responsible Entity of the Brooklyn Park Organic Olive Grove Bonni-Foi Property Trust (the Landowner) and Australian Green & Gold Ltd in its capacity as the Manager of the Project. 81. Under this Agreement, the Landowner has agreed to supply additional water of up to 720 megalitres per annum that is in addition to the current water allocation of 480 megalitres of water per annum that is available for supply to all Allotments under their entitlements to water in the Allotment Licence Agreement (Bonni-Foi). This additional water equates to up to an additional 0.3 megalitres of water per annum for each Allotment. 82. The Landowner will supply without charge the additional water of up to 720 megalitres whilst it has access to the water supply or reserves of water. However, in the event that the Landowner is required to spend any money for the purpose of supplying the Additional Water Supply under the agreement the Landowner will be entitled to impose a charge on the Grower for the cost of water supplied. | Fees: 83. A Grower accepted into the Project in Year 1, the 2008 income year, will pay on an Allotment basis the following amounts on application: | Ongoing fees: 84. Under the Allotment Management Agreement and Allotment Licence Agreement the following fees will be incurred from Year 2, the 2009 income year, on an Allotment basis: | Finance: 85. A Grower who does not pay the Application Monies in full upon application can borrow from MI Professional Funding Pty Ltd, the Preferred Financier, or from an independent lender external to the Project. 86. Only the finance arrangements set out below are covered by this Product Ruling. A Grower cannot rely on this Product Ruling if they enter into a finance arrangement with the Preferred Financier that materially differs from that set out in the documentation provided to the Tax Office with the application for this Product Ruling. A Grower who enters into a finance arrangement with an independent lender external to the Project other than the Preferred Financier may request a private ruling on the deductibility or otherwise of interest incurred under finance arrangements not covered by this Product Ruling. 87. Growers cannot rely on any part of this Ruling if the Application Monies are not paid in full on or before 31 May 2008 by the Grower or, on the Grower's behalf, by a lending institution. Where an application is accepted subject to finance approval by lending institution including the Preferred Financier, Growers cannot rely on this Ruling if written evidence of that approval has not been given to the Responsible Entity by the lending institution by 31 May 2008 and the Application Monies are not paid in full to the Responsible Entity on or before 30 June 2008. | Finance offered by the Preferred Financer: 88. Subject to the terms and conditions of the Loan Agreement a Grower can finance the cost of their interest in the Project and the cost of their unit in the Property Trust by borrowing that amount from MI Professional Funding Pty Ltd the Preferred Financier (as the Lender). 89. Subject to MI Professional Funding Pty Ltd accepting the Grower's application, the Grower will be bound by the terms and conditions of the Loan Agreement. 90. The terms of the Loan Agreement offered by MI Professional Funding Pty Ltd are: 91. The Loan Agreement offered by the Preferred Financer requires that: 92. This Ruling does not apply if the finance arrangement entered into by the Grower includes or has any of the following features: Commissioner of Taxation 3 October 2007 | Is the Grower carrying on a business?: 93. For the amounts set out in the Tables above to constitute allowable deductions the Grower's horticultural activities as a participant in the Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project must amount to the carrying on of a business of primary production. 94. Two Taxation Rulings are relevant in determining whether a Grower will be carrying on of a business of primary production. 95. The general indicators used by the Courts are set out in Taxation Ruling TR 97/11 Income tax: am I carrying on a business of primary production? 96. Taxation Ruling TR 2000/8 Income tax: investment schemes, particularly paragraph 89, is more specific to arrangements such as the Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project. As Taxation Ruling TR 2000/8 sets out, the relevant principles have been established in court decisions such as Commissioner of Taxation v. Lau (1984) 6 FCR 202; 84 ATC 4929; (1984) 16 ATR 55. 97. Having applied these principles to the arrangement set out above, a Grower in the Brooklyn Park Organic Olive Groves Bonni Foi Growers Project is accepted to be carrying on a business of growing and harvesting olives for sale. | Section 8-1: 98. The Management fees, Rental fees and Insurance fees are deductible under section 8-1 (see paragraphs 43 and 44 of TR 2000/8). A 'non-income producing' purpose (see paragraphs 47 and 48 of TR 2000/8) is not identifiable in the arrangement and there is no capital component evident in the Management fees, Rental fees and Insurance fees (see paragraphs 49 to 51 of TR 2000/8). 99. The tests of deductibility under the first limb of section 8-1 are met. The exclusions do not apply. Provided that the prepayment provisions do not apply (see paragraphs 102 to 106 of this Ruling) a deduction for these amounts can be claimed in the year in which they are incurred. (Note: the meaning of incurred is explained in Taxation Ruling TR 97/7.) 100. Some Growers may finance their participation in the Project through a Loan Agreement with the Preferred Financier. Applying the same principles as that used for the Management fee and the Rental fee, interest incurred under such a loan has sufficient connection with the gaining of assessable income to be deductible under section 8-1. 101. Other than where the prepayment provisions apply (see paragraphs 102 to 106 of this Ruling), a Grower can claim a deduction for such interest in the year in which it is incurred. | Sections 82KZL to 82KZMF: 102. 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 (for example, the performance of management services or the leasing of land) that will not be wholly done within the same year of income as the year in which the expenditure is incurred. If expenditure is incurred to cover the provision of services to be provided within the same year, then it is not expenditure to which the prepayment rules apply. 103. For this Project, the only prepayment provisions that are relevant are section 82KZL of the ITAA 1936 (an interpretive provision) and sections 82KZME and 82KZMF of the ITAA 1936 (operative provisions). | Application of the prepayment provisions to this Project: 104. Under the scheme to which this Product Ruling applies Management fees, Rental fees and other fees are incurred annually and the interest payable to the Preferred Financier is incurred monthly in arrears. Accordingly, the prepayment provisions in sections 82KZME and 82KZMF of the ITAA 1936 have no application to this scheme. 105. However, sections 82KZME and 82KZMF of the ITAA 1936 may have relevance if a Grower in this Project prepays all or some of the expenditure payable under the Allotment Management Agreement and Allotment Licence Agreement, or prepays interest under a loan agreement (including loan agreements with lenders other than the Preferred Financier). Where such a prepayment is made these prepayment provisions will also apply to 'STS taxpayers' because there is no specific exclusion contained in section 82KZME that excludes them from the operation of section 82KZMF. 106. As noted in the Ruling section above, Growers who prepay fees or interest are not covered by this Product Ruling and may instead request a private ruling on the tax consequences of their participation in this Project. | Divisions 40 and 328: 107. Any part of the expenditure of a Grower that is attributable to acquiring an asset or advantage of an enduring kind is generally capital or capital in nature and will not be an allowable deduction under section 8-1. In this Project, expenditure attributable to water facilities, a 'Landcare operation', and the establishment of the olive trees is of a capital nature. This expenditure falls for consideration under Division 40 or Division 328. 108. The application and extent to which a Grower claims deductions under Division 40 and Division 328 depends on whether or not the Grower is a 'small business entity'. 109. The tax treatment of capital expenditure has been dealt with in a representative way in paragraphs 24 and 27 of this Ruling in the Tables and accompanying notes. | Section 35-10 and 35-55 - deferral of losses from non-commercial business activities and the Commissioner's discretion: 110. In deciding to exercise the discretion in paragraph 35-55(1)(b) on a conditional basis for the income years ended 30 June 2008 to 30 June 2012, based on the evidence supplied, the Commissioner has determined that for those income years: 111. A Grower who would otherwise be required to defer a loss arising from their participation in the Project under subsection 35-10(2) until a later income year is able to offset that loss against their other assessable income. 112. The exercise of the Commissioner's discretion under paragraph 35-55(1)(b) is conditional on the Project being carried on in the manner described in this Ruling during the income years specified. If the Project is carried out in a materially different way to that described in the Ruling a Grower will need to apply for a private ruling on the application of section 35-55 to those changed circumstances. | Section 82KL - recouped expenditure: 113. 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 of the ITAA 1936. It will not apply to deny the deduction otherwise allowable under section 8-1 of the ITAA 1997. | Part IVA - general tax avoidance provisions: 114. For Part IVA to apply there must be a 'scheme' (section 177A), a 'tax benefit' (section 177C) and a dominant purpose of entering into the scheme to obtain a tax benefit (section 177D). 115. The Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project will be a 'scheme'. A Grower will obtain a 'tax benefit' from entering into the scheme, in the form of tax deductions for the amounts detailed at paragraphs 23, 24 and 27 of this Ruling 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. 116. Growers to whom this Ruling applies intend to stay in the scheme for its full term and derive assessable income from the harvesting and sale of the olives. 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 participants will enter into the scheme for the dominant purpose of obtaining a tax benefit. 117. The following is a detailed contents list for this Ruling: Not previously issued as a draft

Ruling: 18. Subject to the stated qualifications, this part of the Product Ruling sets out in detail the taxation obligations and benefits for a Grower in the defined class of entities who enters into the scheme described at paragraphs 33 to 92 of this Ruling. 19. The Grower's participation in the Project must constitute the carrying on of business of primary production. Provided the Project is carried out as described below, the Grower's business of primary production will commence at the time of execution of their Allotment Licence Agreement and their Allotment Management Agreement, on or before 31 May 2008. | Small business concessions: 20. From the 2007-08 income year, a range of concessions previously available under the simplified tax system (STS), will be available to an entity if it carries on a business and satisfies the $2 million aggregated turnover test (a 'small business entity'). 21. 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 Ruling. | Sections 6-5 and 17-5: 22. That part of the gross sales and insurance proceeds from the Project attributable to the Grower's business, less GST payable on those proceeds (section 17-5), will be assessable income of the Grower under section 6-5. | Section 8-1 and Division 27 of the ITAA 1997 and sections 82KZME and 82KZMF of the Income Tax Assessment Act 1936: 23. A Grower may claim tax deductions for the following fees and expenses on a per Allotment basis, as set out in the Table below. | Division 40: 24. A Grower, who is not a 'small business entity', will also be entitled to tax deductions relating to water facilities (for example, irrigation), a 'Landcare Operation' and olive trees. All deductions shown in the following Table are determined under Division 40. | D: 25. A Grower, who is a 'small business entity', will also be entitled to tax deductions relating to water facilities (for example, irrigation), a 'Landcare operation' and olive trees. A 'small business entity' may claim deductions in relation to water facilities under Subdivision 40 F and in relation to a 'Landcare operation' under Subdivision 40 G. If the 'water facility' or 'Landcare operation' expenditure is on a 'depreciating asset' used to carry on the business, they may choose to claim deductions under Division 328. Deductions for the olive trees must be determined under Subdivision 40 F. 26. The deductions shown in the following Table assume, for representative purposes only, that a Grower has either chosen to or can only claim deductions for expenditure on water facilities or a 'Landcare operation' under Subdivisions 40 F or 40 G and not under Division 328. If the expenditure has been incurred on 'depreciating assets' and is claimed under Division 328, the deduction is determined as discussed in Notes (viii) and (ix) of paragraph 27 of this Ruling. 27. Under Division 328, if the 'cost' of a 'depreciating asset' at the end of the income year is less than $1,000 (a 'low-cost asset'), it can be claimed as an immediate deduction when first used or 'installed ready for use'. This is so provided the Grower is a 'small business entity' for the income year in which it starts to 'hold' the asset and the income year in which it first uses the asset or has it 'installed ready for use' to produce assessable income. | Shares in unit trust: 28. The units in Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust are CGT assets (section 108-5) and the amount paid by a Grower to acquire those assets is an outgoing of capital and is not allowable as a deduction. 29. The amount paid for each unit will represent the first element of the cost base of the unit (subsection 110-25(2)). Any disposal of the units by a Grower will be a CGT event and may give rise to a capital gain or loss. 30. Income distributions by the unit trust are included in the assessable income of a Grower who is a unit holder. | Section 35-55 - exercise of Commissioner's discretion: 31. A Grower who is an individual accepted into the Project by 31 May 2008 may have losses arising from their participation in the Project that would be deferred to a later income year under section 35-10. Subject to the Project being carried out in the manner described below, the Commissioner will exercise the discretion in paragraph 35-55(1)(b) for Growers for the income years ended 30 June 2008 to 30 June 2012. This conditional exercise of the discretion will allow those losses to be offset against the Grower's other assessable income in the income year in which the losses arise. | Sections 82KZME, 82KZMF and 82KL and Part IVA: 32. For a Grower who commences participation in the Project and incurs expenditure as required by the Allotment Licence Agreement and Allotment Management Agreement, the following provisions of the ITAA 1936 have application as indicated: 33. 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. 34. All Australian Securities and Investment Commission (ASIC) requirements are, or will be, complied with for the term of the agreements. 35. 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: 36. The main features of the Brooklyn Park Organic Olive Groves Boni-Foi Growers' Project are as follows: 37. The Project will be a registered managed investment scheme under the Corporations Act 2001. Australian Green & Gold Ltd has been issued with an Australian Financial Service Licence, Number 246717 and will be the Responsible Entity for the Project. 38. The Project will involve the commercial growing, cultivation and harvesting of olives for sale. 39. An offer to participate in the Project will be made through a Product Disclosure Statement (PDS), Supplementary Product Disclosure Statement (SPDS) and Second Supplementary Product Disclosure Statement (SSPDS). The offer under the PDS is for 240 hectares, which corresponds to 2400 Allotments in the Project. 40. Under the terms of the PDS, the interests in the Growers' Allotments were to be issued after a minimum subscription of 600 Allotments had been achieved. Minimum subscription of 600 Allotments was achieved in the 2007 income year. Product Ruling PR 2007/29 applies to Growers who entered the Project between 4 April 2007 and 31 May 2007. 41. Huntley Custodian Ltd will be appointed Custodian under the Custody Agreement to protect the interests of the Growers in their dealing with Australian Green & Gold Ltd and its associates. 42. A Grower that participates in the Project will do so by acquiring an interest in the Project which will consist of a minimum of 1 Allotment. A Grower acquiring a single interest in the Project will hold a licence over a separate and distinct area (called an 'Allotment') of 0.10 hectare on which the Grower can plant and maintain 40 olive trees. Each Allotment will be separately identifiable on a plan prepared by Australian Green & Gold Ltd for that purpose. 43. Applicants execute a Power of Attorney contained in the PDS. The Power of Attorney irrevocably appoints Australian Green & Gold Ltd the Responsible Entity to enter into, on behalf of the Grower, an Allotment Licence Agreement, Allotment Management Agreement and any other documents required to hold an interest in the Project. The Responsible Entity will allocate Allotments and place their details in a register of Growers. 44. Growers may acquire more than one interest in the Project. However, for each interest acquired the Grower must apply for and be allotted a Unit in Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust. The cost of one Unit is $1,000. 45. For the purposes of this Ruling, Applicants who are accepted to participate in the Project and who execute the Allotment Licence Agreement and the Allotment Management Agreement on or before 31 May 2008 will become 2008 Growers. 46. Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust is the owner of the Land that will be used for the Project. The Land for the Project is located 20 kilometres west of Inglewood in the Border Rivers Region of southern Queensland. Specifically, it is described as Lot 26 on CPCVE248, County of Clive, Parish of Tandan. 47. This land to be used for the Project will be divided into Allotments each of 0.10 hectares and after Growers are accepted into the Project will have land degradation measures carried out, irrigation installed and 40 olives trees established per Allotment between 1 June 2008 and 15 June 2008. 48. Each Grower will use their Allotment/s for the purpose of carrying on a business of cultivating and harvesting olives and the sale of harvested produce. 49. Growers will enter into an Allotment Management Agreement with Australian Green & Gold Ltd, the Responsible Entity acting in its capacity as Manager, whereby the Manager will establish and maintain each Allotment during the term of the Project. 50. Unless a Grower elects otherwise, the Manager will harvest the olives on their behalf and use its best endeavours to sell the produce at the best available price. The Manager holds a contract with Boundary Bend Marketing Pty Ltd who has agreed to buy olive oil from the Project. | Constitution: 51. The Constitution establishes the Project and operates as a deed binding all Growers and Australian Green & Gold Ltd. The Constitution sets out the terms and conditions under which Australian Green & Gold 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. 52. In order to acquire an interest in the Project, the Grower must make an application for Allotments in accordance with clause 8 of the Constitution. 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 and accompanied by payment of the Application Money in a form acceptable to the Responsible Entity. 53. Under clause 7 of the Constitution, Australian Green & Gold Ltd holds the Application Money on bare trust. Australian Green & Gold Ltd will deposit all Application Moneys received from applicants in a Growers' Application Account (clause 7.2). 54. Once Australian Green & Gold Ltd has accepted the application and all of the Project Documents have been executed and remain in force (clause 9) the Application Money may be transferred and applied against the fees due to Australian Green & Gold Ltd (clause 9.1). 55. In summary, the Constitution also sets out provisions relating to: | Compliance Plan: 56. As required by the Corporations Act 2001, Australian Green & Gold Ltd has prepared a Compliance Plan. The purpose of the Compliance Plan is to ensure that Australian Green & Gold Ltd manages the Project in accordance with its obligations and responsibilities contained in the Constitution and that the interests of Growers are protected. | Lease and Sub Lease: 57. Australian Green & Gold Ltd as Responsible Entity for Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust (the owner of the Land) has entered into a Lease with Huntley Custodians Ltd, the Custodian of the Project. Huntley Custodians Ltd as Sub Lessor of the Land will sublease the land back to Australian Green & Gold Ltd as Responsible Entity of Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust. This sub lease will enable the Landowner to enter into licences with the Growers to occupy separate and distinct portions of the Land for the purpose of growing olives for commercial sale. 58. Both Lease and Sub Lease commence on 31 May 2007 and expire on 30 May 2027. | Allotment Licence Agreement (Bonni-Foi): 59. Each Grower will execute an Allotment Licence Agreement with Australian Green & Gold Ltd as Responsible Entity of the Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust, the Landowner. The Allotment Licence Agreement will be executed at the same time as when all of the Project Documents have been implemented. The Landowner will grant to the Grower the right to exclusively possess, occupy, use and enjoy the Allotment, for the conduct of the Grower's Business and to harvest and sell the olives for a commercial profit. Each Licence to Occupy will terminate on 30 June 2026. 60. The Growers shall have the right to use their Allotments for the purposes referred to in the Allotment Management Agreement, including without limitation, the planting, tending, growing, caring for and the harvesting of their olives for commercial profit. 61. The Allotment Licence Agreement sets out the rights and obligations of the parties to the Agreement. Under the terms of the Allotment Licence Agreement, each Grower will licence from the Landowner a minimum of 1 Allotment, each of 0.10 hectares. The Allotment Licence Agreement shall operate on and from the commencement date until terminated in accordance with the terms under clause 13. 62. The Grower's obligations are set out in detail in clause 4 under which the Grower agrees to use the Allotments for the purpose of establishing, maintaining and harvesting the olives in accordance with best practices of the olive industry. The Agreement permits the grower to use dams, irrigation system, roads and other infrastructure located on the Project Land (clause 2.3). The Landowner as part of the Allotment Licence Agreement has allocated a water supply of 480 megalitres to the Project. 63. The Grower is required to pay an annual Rental Fee for each year of the Agreement, commencing in Year 2. The annual Rental Fee from year 3 onwards will equal the Fee of the preceding year indexed by the All Groups Consumer Price Index for Brisbane. 64. Upon termination of the Agreement, Growers are not required to remove the trees or restore the Allotment to its original condition (clause 13.4). Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust will be legally entitled to any trees growing on the Allotment following termination of the Agreement (clause 13.5(b)). | Allotment Management Agreement (Bonni-Foi): 65. Under the Allotment Management Agreement the Grower appoints the Responsible Entity (as Manager) to manage the Allotments and to carry out the management services subject to the terms and conditions of the Agreement. The Agreement will commence on the date the Responsible Entity accepts the Grower's application under the PDS and shall continue until its termination under clause 15. 66. The parties to the Allotment Management Agreement are Australian Green & Gold Ltd (the Responsible Entity & Manager), Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust (the Landowner) and the Grower. 67. In accordance with clause 4.2 the Manager will commence the provision of the Initial Allotment Management Services on or after the Commencement Date and will complete the following services by 15 June 2008: 68. The following Initial Allotment Services will be carried out between 16 June 2008 and 30 June 2008 (clause 4.3): 69. The Landowner under clause 5.1 the Allotment Management Agreement will supply and plant 40 trees on each Allotment allocated to each Grower on or before 15 June 2008. The Landowner will be entitled to a Planting Fee of $440 per Allotment from each Grower. 70. The Manager will commence the provision of the Ongoing Management Services after the completion of the initial services and shall continue to provide the Management Services until the termination of this Agreement. 71. The Ongoing Management Services under clause 6.2 include, amongst other things: 72. The Manager guarantees survival of the Grower's Trees to the commencement of the fourth year of the term of the Agreement. Thereafter, the Manager does not guarantee survival of the Grower's Trees or that they will produce olives (clause 4.6). 73. Under the Allotment Management Agreement, Growers may elect to have the Manager harvest the Trees on their Allotment separately (clause 7(a)) or they may elect to harvest the trees on their Allotment themselves (clause 7(h)). This Ruling will not apply to any Grower who makes an election under clause 7(a) or clause 7(h). A Grower who makes such an election may request a private ruling on the taxation consequences of their participation in the Project. | Pooling of Crops and Grower's Entitlement to Net Proceeds: 74. Australian Green & Gold Ltd (the Manager) will market and sell the grower's olives for the maximum price achievable. The Manager will pool for sale the olives produced from the Grower's Allotment with that of other Growers. The proceeds of the sale of all olives will be paid to the Custodian to be divided and credited amongst all Growers as specified in clause 27 of the Constitution. 75. Clause 8.3 of the Allotment Management Agreement provides that, where the quantity of olives from a Grower's Allotment is less than 90% of the average of olives harvested on all Grower's Allotments for that particular harvest, then the Grower's Sale Proceeds will be reduced by an amount determined by the Manager. 76. The Constitution (clause 27) sets out provisions relating to the pooling and distribution of the Growers' Proceeds. Proceeds can include both sale proceeds and insurance proceeds. This Product Ruling only applies where the following principles apply to those pooling and distribution arrangements: 77. In the event of partial or total destruction of the Grower's Allotment or inadequate production compared to other Grower's Allotments the manager shall make an adjustment to the Grower's interest in the Growers Proceeds Account to take into account any deficiency. | Allotment Sub Management Agreement: 78. The Responsible Entity has entered into a Sub Management Agreement with Horticultural Developments Pty Ltd to delegate all of the functions under the Allotment Management Agreement. 79. Horticultural Developments Pty Ltd will provide farm management services, including establishing the allotments, ongoing maintenance and management of the allotments and harvesting of the olives. | Water Services Agreement (Bonni-Foi): 80. Upon acceptance of the Grower's application, the Grower becomes a party to the Water and Services Agreement. The other parties to the Agreement are Australian Green & Gold Ltd as Responsible Entity of the Brooklyn Park Organic Olive Grove Bonni-Foi Property Trust (the Landowner) and Australian Green & Gold Ltd in its capacity as the Manager of the Project. 81. Under this Agreement, the Landowner has agreed to supply additional water of up to 720 megalitres per annum that is in addition to the current water allocation of 480 megalitres of water per annum that is available for supply to all Allotments under their entitlements to water in the Allotment Licence Agreement (Bonni-Foi). This additional water equates to up to an additional 0.3 megalitres of water per annum for each Allotment. 82. The Landowner will supply without charge the additional water of up to 720 megalitres whilst it has access to the water supply or reserves of water. However, in the event that the Landowner is required to spend any money for the purpose of supplying the Additional Water Supply under the agreement the Landowner will be entitled to impose a charge on the Grower for the cost of water supplied. | Fees: 83. A Grower accepted into the Project in Year 1, the 2008 income year, will pay on an Allotment basis the following amounts on application: | Ongoing fees: 84. Under the Allotment Management Agreement and Allotment Licence Agreement the following fees will be incurred from Year 2, the 2009 income year, on an Allotment basis: | Finance: 85. A Grower who does not pay the Application Monies in full upon application can borrow from MI Professional Funding Pty Ltd, the Preferred Financier, or from an independent lender external to the Project. 86. Only the finance arrangements set out below are covered by this Product Ruling. A Grower cannot rely on this Product Ruling if they enter into a finance arrangement with the Preferred Financier that materially differs from that set out in the documentation provided to the Tax Office with the application for this Product Ruling. A Grower who enters into a finance arrangement with an independent lender external to the Project other than the Preferred Financier may request a private ruling on the deductibility or otherwise of interest incurred under finance arrangements not covered by this Product Ruling. 87. Growers cannot rely on any part of this Ruling if the Application Monies are not paid in full on or before 31 May 2008 by the Grower or, on the Grower's behalf, by a lending institution. Where an application is accepted subject to finance approval by lending institution including the Preferred Financier, Growers cannot rely on this Ruling if written evidence of that approval has not been given to the Responsible Entity by the lending institution by 31 May 2008 and the Application Monies are not paid in full to the Responsible Entity on or before 30 June 2008. | Finance offered by the Preferred Financer: 88. Subject to the terms and conditions of the Loan Agreement a Grower can finance the cost of their interest in the Project and the cost of their unit in the Property Trust by borrowing that amount from MI Professional Funding Pty Ltd the Preferred Financier (as the Lender). 89. Subject to MI Professional Funding Pty Ltd accepting the Grower's application, the Grower will be bound by the terms and conditions of the Loan Agreement. 90. The terms of the Loan Agreement offered by MI Professional Funding Pty Ltd are: 91. The Loan Agreement offered by the Preferred Financer requires that: 92. This Ruling does not apply if the finance arrangement entered into by the Grower includes or has any of the following features: Commissioner of Taxation 3 October 2007 | Is the Grower carrying on a business?: 93. For the amounts set out in the Tables above to constitute allowable deductions the Grower's horticultural activities as a participant in the Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project must amount to the carrying on of a business of primary production. 94. Two Taxation Rulings are relevant in determining whether a Grower will be carrying on of a business of primary production. 95. The general indicators used by the Courts are set out in Taxation Ruling TR 97/11 Income tax: am I carrying on a business of primary production? 96. Taxation Ruling TR 2000/8 Income tax: investment schemes, particularly paragraph 89, is more specific to arrangements such as the Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project. As Taxation Ruling TR 2000/8 sets out, the relevant principles have been established in court decisions such as Commissioner of Taxation v. Lau (1984) 6 FCR 202; 84 ATC 4929; (1984) 16 ATR 55. 97. Having applied these principles to the arrangement set out above, a Grower in the Brooklyn Park Organic Olive Groves Bonni Foi Growers Project is accepted to be carrying on a business of growing and harvesting olives for sale. | Section 8-1: 98. The Management fees, Rental fees and Insurance fees are deductible under section 8-1 (see paragraphs 43 and 44 of TR 2000/8). A 'non-income producing' purpose (see paragraphs 47 and 48 of TR 2000/8) is not identifiable in the arrangement and there is no capital component evident in the Management fees, Rental fees and Insurance fees (see paragraphs 49 to 51 of TR 2000/8). 99. The tests of deductibility under the first limb of section 8-1 are met. The exclusions do not apply. Provided that the prepayment provisions do not apply (see paragraphs 102 to 106 of this Ruling) a deduction for these amounts can be claimed in the year in which they are incurred. (Note: the meaning of incurred is explained in Taxation Ruling TR 97/7.) 100. Some Growers may finance their participation in the Project through a Loan Agreement with the Preferred Financier. Applying the same principles as that used for the Management fee and the Rental fee, interest incurred under such a loan has sufficient connection with the gaining of assessable income to be deductible under section 8-1. 101. Other than where the prepayment provisions apply (see paragraphs 102 to 106 of this Ruling), a Grower can claim a deduction for such interest in the year in which it is incurred. | Sections 82KZL to 82KZMF: 102. 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 (for example, the performance of management services or the leasing of land) that will not be wholly done within the same year of income as the year in which the expenditure is incurred. If expenditure is incurred to cover the provision of services to be provided within the same year, then it is not expenditure to which the prepayment rules apply. 103. For this Project, the only prepayment provisions that are relevant are section 82KZL of the ITAA 1936 (an interpretive provision) and sections 82KZME and 82KZMF of the ITAA 1936 (operative provisions). | Application of the prepayment provisions to this Project: 104. Under the scheme to which this Product Ruling applies Management fees, Rental fees and other fees are incurred annually and the interest payable to the Preferred Financier is incurred monthly in arrears. Accordingly, the prepayment provisions in sections 82KZME and 82KZMF of the ITAA 1936 have no application to this scheme. 105. However, sections 82KZME and 82KZMF of the ITAA 1936 may have relevance if a Grower in this Project prepays all or some of the expenditure payable under the Allotment Management Agreement and Allotment Licence Agreement, or prepays interest under a loan agreement (including loan agreements with lenders other than the Preferred Financier). Where such a prepayment is made these prepayment provisions will also apply to 'STS taxpayers' because there is no specific exclusion contained in section 82KZME that excludes them from the operation of section 82KZMF. 106. As noted in the Ruling section above, Growers who prepay fees or interest are not covered by this Product Ruling and may instead request a private ruling on the tax consequences of their participation in this Project. | Divisions 40 and 328: 107. Any part of the expenditure of a Grower that is attributable to acquiring an asset or advantage of an enduring kind is generally capital or capital in nature and will not be an allowable deduction under section 8-1. In this Project, expenditure attributable to water facilities, a 'Landcare operation', and the establishment of the olive trees is of a capital nature. This expenditure falls for consideration under Division 40 or Division 328. 108. The application and extent to which a Grower claims deductions under Division 40 and Division 328 depends on whether or not the Grower is a 'small business entity'. 109. The tax treatment of capital expenditure has been dealt with in a representative way in paragraphs 24 and 27 of this Ruling in the Tables and accompanying notes. | Section 35-10 and 35-55 - deferral of losses from non-commercial business activities and the Commissioner's discretion: 110. In deciding to exercise the discretion in paragraph 35-55(1)(b) on a conditional basis for the income years ended 30 June 2008 to 30 June 2012, based on the evidence supplied, the Commissioner has determined that for those income years: 111. A Grower who would otherwise be required to defer a loss arising from their participation in the Project under subsection 35-10(2) until a later income year is able to offset that loss against their other assessable income. 112. The exercise of the Commissioner's discretion under paragraph 35-55(1)(b) is conditional on the Project being carried on in the manner described in this Ruling during the income years specified. If the Project is carried out in a materially different way to that described in the Ruling a Grower will need to apply for a private ruling on the application of section 35-55 to those changed circumstances. | Section 82KL - recouped expenditure: 113. 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 of the ITAA 1936. It will not apply to deny the deduction otherwise allowable under section 8-1 of the ITAA 1997. | Part IVA - general tax avoidance provisions: 114. For Part IVA to apply there must be a 'scheme' (section 177A), a 'tax benefit' (section 177C) and a dominant purpose of entering into the scheme to obtain a tax benefit (section 177D). 115. The Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project will be a 'scheme'. A Grower will obtain a 'tax benefit' from entering into the scheme, in the form of tax deductions for the amounts detailed at paragraphs 23, 24 and 27 of this Ruling 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. 116. Growers to whom this Ruling applies intend to stay in the scheme for its full term and derive assessable income from the harvesting and sale of the olives. 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 participants will enter into the scheme for the dominant purpose of obtaining a tax benefit. 117. The following is a detailed contents list for this Ruling: Not previously issued as a draft


Appendix: Is the Grower carrying on a business?: 93. For the amounts set out in the Tables above to constitute allowable deductions the Grower's horticultural activities as a participant in the Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project must amount to the carrying on of a business of primary production. 94. Two Taxation Rulings are relevant in determining whether a Grower will be carrying on of a business of primary production. 95. The general indicators used by the Courts are set out in Taxation Ruling TR 97/11 Income tax: am I carrying on a business of primary production? 96. Taxation Ruling TR 2000/8 Income tax: investment schemes, particularly paragraph 89, is more specific to arrangements such as the Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project. As Taxation Ruling TR 2000/8 sets out, the relevant principles have been established in court decisions such as Commissioner of Taxation v. Lau (1984) 6 FCR 202; 84 ATC 4929; (1984) 16 ATR 55. 97. Having applied these principles to the arrangement set out above, a Grower in the Brooklyn Park Organic Olive Groves Bonni Foi Growers Project is accepted to be carrying on a business of growing and harvesting olives for sale. | Section 8-1: 98. The Management fees, Rental fees and Insurance fees are deductible under section 8-1 (see paragraphs 43 and 44 of TR 2000/8). A 'non-income producing' purpose (see paragraphs 47 and 48 of TR 2000/8) is not identifiable in the arrangement and there is no capital component evident in the Management fees, Rental fees and Insurance fees (see paragraphs 49 to 51 of TR 2000/8). 99. The tests of deductibility under the first limb of section 8-1 are met. The exclusions do not apply. Provided that the prepayment provisions do not apply (see paragraphs 102 to 106 of this Ruling) a deduction for these amounts can be claimed in the year in which they are incurred. (Note: the meaning of incurred is explained in Taxation Ruling TR 97/7.) 100. Some Growers may finance their participation in the Project through a Loan Agreement with the Preferred Financier. Applying the same principles as that used for the Management fee and the Rental fee, interest incurred under such a loan has sufficient connection with the gaining of assessable income to be deductible under section 8-1. 101. Other than where the prepayment provisions apply (see paragraphs 102 to 106 of this Ruling), a Grower can claim a deduction for such interest in the year in which it is incurred. | Sections 82KZL to 82KZMF: 102. 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 (for example, the performance of management services or the leasing of land) that will not be wholly done within the same year of income as the year in which the expenditure is incurred. If expenditure is incurred to cover the provision of services to be provided within the same year, then it is not expenditure to which the prepayment rules apply. 103. For this Project, the only prepayment provisions that are relevant are section 82KZL of the ITAA 1936 (an interpretive provision) and sections 82KZME and 82KZMF of the ITAA 1936 (operative provisions). | Application of the prepayment provisions to this Project: 104. Under the scheme to which this Product Ruling applies Management fees, Rental fees and other fees are incurred annually and the interest payable to the Preferred Financier is incurred monthly in arrears. Accordingly, the prepayment provisions in sections 82KZME and 82KZMF of the ITAA 1936 have no application to this scheme. 105. However, sections 82KZME and 82KZMF of the ITAA 1936 may have relevance if a Grower in this Project prepays all or some of the expenditure payable under the Allotment Management Agreement and Allotment Licence Agreement, or prepays interest under a loan agreement (including loan agreements with lenders other than the Preferred Financier). Where such a prepayment is made these prepayment provisions will also apply to 'STS taxpayers' because there is no specific exclusion contained in section 82KZME that excludes them from the operation of section 82KZMF. 106. As noted in the Ruling section above, Growers who prepay fees or interest are not covered by this Product Ruling and may instead request a private ruling on the tax consequences of their participation in this Project. | Divisions 40 and 328: 107. Any part of the expenditure of a Grower that is attributable to acquiring an asset or advantage of an enduring kind is generally capital or capital in nature and will not be an allowable deduction under section 8-1. In this Project, expenditure attributable to water facilities, a 'Landcare operation', and the establishment of the olive trees is of a capital nature. This expenditure falls for consideration under Division 40 or Division 328. 108. The application and extent to which a Grower claims deductions under Division 40 and Division 328 depends on whether or not the Grower is a 'small business entity'. 109. The tax treatment of capital expenditure has been dealt with in a representative way in paragraphs 24 and 27 of this Ruling in the Tables and accompanying notes. | Section 35-10 and 35-55 - deferral of losses from non-commercial business activities and the Commissioner's discretion: 110. In deciding to exercise the discretion in paragraph 35-55(1)(b) on a conditional basis for the income years ended 30 June 2008 to 30 June 2012, based on the evidence supplied, the Commissioner has determined that for those income years: 111. A Grower who would otherwise be required to defer a loss arising from their participation in the Project under subsection 35-10(2) until a later income year is able to offset that loss against their other assessable income. 112. The exercise of the Commissioner's discretion under paragraph 35-55(1)(b) is conditional on the Project being carried on in the manner described in this Ruling during the income years specified. If the Project is carried out in a materially different way to that described in the Ruling a Grower will need to apply for a private ruling on the application of section 35-55 to those changed circumstances. | Section 82KL - recouped expenditure: 113. 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 of the ITAA 1936. It will not apply to deny the deduction otherwise allowable under section 8-1 of the ITAA 1997. | Part IVA - general tax avoidance provisions: 114. For Part IVA to apply there must be a 'scheme' (section 177A), a 'tax benefit' (section 177C) and a dominant purpose of entering into the scheme to obtain a tax benefit (section 177D). 115. The Brooklyn Park Organic Olive Groves Bonni-Foi Growers' Project will be a 'scheme'. A Grower will obtain a 'tax benefit' from entering into the scheme, in the form of tax deductions for the amounts detailed at paragraphs 23, 24 and 27 of this Ruling 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. 116. Growers to whom this Ruling applies intend to stay in the scheme for its full term and derive assessable income from the harvesting and sale of the olives. 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 participants 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, we must apply the law to you in the way set out in the ruling (or in a way that is more favourable for you if we are satisfied that the ruling is incorrect and disadvantages you, and we are 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. | No guarantee of commercial success: The Tax Office does not sanction or guarantee this product. Further, we give no assurance that the product is commercially viable, that charges are reasonable, appropriate or represent industry norms, or that projected returns will be achieved or are reasonably based. | Potential participants must form their own view about the commercial and financial viability of the product. We recommend 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. | $4,010 See notes (i), (ii) & (iii) | $880 See notes (i), (ii) & (iii) | $440 See Notes (i), (ii) & (iii) | $440 + CPI See Notes (i), (ii) & (iii) | To be advised See Notes (i), (ii) & (iii) | Interest on loans with MI Professional Funding Pty Ltd, the Preferred Financier | As incurred See Notes (iii) & (iv) | $1,126 See Notes (i) & (iv) | Establishment of horticultural plant | NIL See Notes (i) & (vii) | $268 See Notes (i) & (viii) | $1,126 See Notes (i) & (ix) | The Darling Downs Region of Queensland | Type of business to be carried on by each Grower | Commercial growing and cultivation of olives for the purpose of harvesting and selling olives | Number of hectares offered for cultivation | Number of Allotments offered | Number of olive trees per hectare | Number of olive trees per Allotment | Minimum allocation per Grower | $7,380 comprising $6,380 in the Project and $1,000 for 1 unit in Brooklyn Park Organic Olive Groves Bonni-Foi Property Trust | Ongoing Management Fees from Year 2 to Year 19 Annual Licence Fees from Year 2 to Year 19 | Insurance premium per Allotment from Year 2 onwards | Deductions for Management fees, Rental fees, Insurance fees, and Interest | Deductions for capital expenditure (Non-'small business entities') | Deductions for capital expenditure (small business entities) | Subdivisions 40-F, 40-G and 328-D | Division 35 - deferral of losses from non-commercial business activities | Prepayment provisions and anti-avoidance provisions | Deductibility of the Management fees, Rental fees, Insurance fees and interest on loans with the Preferred Financier | Expenditure of a capital nature | Sections 35-10 and 35-55 - deferral of losses from non-commercial business activities and the Commissioner's discretion | Appendix 2 - Detailed contents list


Related rulings: PR 2007/29 TR 97/7 TR 97/11 TR 98/22 TR 2000/8 TR 2007/6
Legislative references: ITAA 1936 82 KL ITAA 1936 Pt III Div 3 Subdiv H ITAA 1936 82KZL ITAA 1936 82KZM ITAA 1936 82KZMA ITAA 1936 82KZMB ITAA 1936 82KZMC ITAA 1936 82KZMD ITAA 1936 82KZME ITAA 1936 82KZMF ITAA 1936 Pt IVA ITAA 1936 177A ITAA 1936 177C ITAA 1936 177D ITAA 1936 177D(b) ITAA 1997 6-5 ITAA 1997 8-1 ITAA 1997 17-5 ITAA 1997 Div 27 ITAA 1997 Div 35 ITAA 1997 35-10 ITAA 1997 35-10(2) ITAA 1997 35-55 ITAA 1997 35-55(1)(b) ITAA 1997 Div 40 ITAA 1997 Subdiv 40-F ITAA 1997 40-515 ITAA 1997 40-515(1)(a) ITAA 1997 40-515(1)(b) ITAA 1997 40-520(1) ITAA 1997 40-520(2) ITAA 1997 40-525(1) ITAA 1997 40-525(2) ITAA 1997 40-530 ITAA 1997 40-540 ITAA 1997 40-545 ITAA 1997 Subdiv 40-G ITAA 1997 40-630 ITAA 1997 40-635 ITAA 1997 108-5 ITAA 1997 110-25(2) ITAA 1997 Div 328 ITAA 1997 Subdiv 328-D SISA 1993 TAA 1953 TAA 1953 Sch 1 357-75(1) Copyright Act 1968 Corporations Act 2001
Case references: Commissioner of Taxation v. Lau (1984) 6 FCR 202 84 ATC 4929 (1984) 16 ATR 55
Subject references: carrying on a business commencement of business management fee expense non-commercial losses primary production primary production expenses producing assessable income product rulings schemes and shams tax avoidance tax benefits under tax avoidance schemes tax shelters tax shelters project taxation administration