Class Ruling CR 2021/32

What this ruling is about: 1. This Ruling sets out the tax consequences for shareholders of Ampol Limited (Ampol) who participated in Ampol's off-market share buy-back (Buy-Back) which was announced on 23 November 2020. 2. Full details of the Buy-Back are set out in paragraphs 36 to 55 of this Ruling. 3. All legislative references in this Ruling are to provisions of the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 (as detailed in the table in Appendix 2 to this Ruling). Who this Ruling applies to 4. This Ruling applies to you if you held shares in Ampol and sold some or all of those shares under the Buy-Back. 5. This Ruling does not apply to you if you are subject to the taxation of financial arrangements rules in Division 230 in relation to the scheme outlined in paragraphs 36 to 55 of this Ruling. Note: Division 230 will not apply to individuals, unless they have made an election for it to apply. When this Ruling applies 6. This Ruling applies from 1 July 2020 to 30 June 2021. Off-market share buy-back 7. The Buy-Back is an off-market purchase for the purposes of section 159GZZZK. The Dividend Component 8. You are taken to have been paid a dividend of $24.33 (Dividend Component) on 25 January 2021 for each Ampol share you sold in the Buy-Back (section 159GZZZP). 9. The Dividend Component is a frankable distribution pursuant to section 202-40 and is capable of being franked in accordance with section 202-5. 10. The difference between the buy-back price of $26.34 (Buy-Back Price) and the Dividend Component (Capital Component) is not taken to be a dividend (subsection 159GZZZP(2)). Assessability of the Dividend Component and tax offset Direct distributions 11. If you are a resident individual, a resident corporate shareholder, or the trustee of a resident complying superannuation fund who participated in the Buy-Back, then your assessable income for the income year in which the Buy-Back occurred includes: 12. You will be entitled to a tax offset equal to the amount of the franking credits attached to the Dividend Component, subject to the qualified person rules (subsection 207-20(2)). Indirect distributions Partnerships 13. If you are a partnership, your assessable income in the income year in which the Buy-Back occurred for the purposes of calculating the net income of the partnership includes: Trusts 14. If you are a trustee of a trust, your assessable income in the income year in which the Buy-Back occurred for the purposes of calculating the net income of the trust includes: Partners and beneficiaries 15. If you are a partner of a partnership or a beneficiary of a trustee that participated in the Buy-Back and a franked distribution flowed indirectly (within the meaning of Subdivision 207-B) to you, subsections 207-35(3) to (6) set out the circumstances in which you are required to gross up your assessable income for your share of the franking credit on the franked distribution. 16. Where the franked distribution flows indirectly through a trust or partnership to you and you are a resident individual, a resident corporate tax entity (at the time the distribution flows indirectly to it), or a trustee mentioned in paragraphs 207-45(c) or (d), you will (subject to the qualified person rules) be entitled to a tax offset equal to your share of the franking credit on the franked distribution (section 207-45). Refundable tax offset 17. The franking credit tax offset you are entitled to is subject to the refundable tax offset rules in Division 67. Certain trustees and corporate tax entities are not entitled to the refundable tax offset rules in accordance with subsections 67-25(1A) to (1D). Non-residents 18. If you are a non-resident, you are not liable to Australian withholding tax in respect of the Dividend Component because it is fully franked (paragraph 128B(3)(ga)). Sale consideration 19. You are taken to have received $5.31 (Sale Consideration) for each Ampol share you sold in the Buy-Back on 25 January 2021 (section 159GZZZQ), unless you are a corporate tax entity to which subsections 159GZZZQ(8) and (9) apply. Capital gains tax consequences 20. You are taken to have disposed of your Ampol shares for capital gains tax (CGT) purposes on 25 January 2021 (CGT event A1 under section 104-10). 21. The Sale Consideration represents the capital proceeds you received for each Ampol share (section 116-20). 22. If you did not hold your Ampol shares through a partnership, you made a capital gain on each share if the Sale Consideration was more than the share's cost base. Alternatively, you made a capital loss if the Sale Consideration was less than the share's reduced cost base (subsection 104-10(4)). 23. Where you made a capital gain, you can treat the capital gain as a 'discounted capital gain' if you held your Ampol share since 25 January 2020 and the other conditions of Subdivision 115-A are met. 24. If you held the Ampol shares through a partnership, then you have a separate Cost base / reduced cost base for your interest in each Ampol share sold in the Buy-Back by the partnership (subsection 106-5(2)). The partnership would allocate to you an appropriate share of the Sale Consideration which the partnership received for the sale of Ampol shares in the Buy-Back. Shares held as trading stock 25. If you held shares as trading stock (as defined in subsection 995-1(1)) and sold them in the Buy-Back in the ordinary course of your business, the Sale Consideration you received for each Ampol share you sold in the Buy-Back is included in your assessable income (subsection 70-80(1)). 26. While CGT event A1 also happened when you sold your shares in the Buy-Back, any capital gain or capital loss made as a result of selling the shares you held as trading stock, or if you are a partner in a partnership, the shares that your partnership held as trading stock, will be disregarded if you held the shares as trading stock on 25 January 2021 (section 118-25). Shares held on revenue account 27. If you held shares as revenue assets (as defined in section 977-50), and they were not trading stock, the amount by which the Sale Consideration exceeds the cost of each share is included in your assessable income. Correspondingly, if the cost of each share exceeds the Sale Consideration, the difference is an allowable deduction. 28. CGT event A1 also happened when you sold your Ampol shares in the Buy-Back. Where you made a capital gain as a result of selling your Ampol shares in the Buy-Back, you reduce the amount of the capital gain by the amount you otherwise include in your assessable income (section 118-20). The capital gain is reduced to zero if it does not exceed the amount otherwise included in assessable income (subsection 118-20(2)). If the capital gain exceeds the amount otherwise included in assessable income, the capital gain will be reduced by the amount otherwise included in assessable income (subsection 118-20(3)). There is a similar reduction if you are a partner in a partnership (paragraphs 118-20(1)(b) and (2)(b), and subsection 118-20(3)). Foreign resident shareholders - capital gains tax consequences 29. If you are a foreign resident who participated in the Buy-Back, you will only have CGT consequences if the shares you sold under the Buy-Back are 'taxable Australian property' (section 855-10). Qualified persons 30. You will satisfy the qualified person rules in relation to the Dividend Component for the purposes of paragraphs 207-145(1)(a) and 207-150(1)(a) (which refers to Division 1A of former Part IIIAA) if: 31. The announcement of the Buy-Back, the making of an invitation to shareholders to offer to sell their Ampol shares, or the making of an offer by a shareholder to sell their Ampol shares to Ampol do not affect whether the shares bought back under the Buy-Back are held 'at risk' for the purposes of Division 1A of former Part IIIA. 32. The 'last-in first-out' rule in former subsection 160APHI(4) has no effect for the purposes of the Buy-Back in respect of Ampol shares acquired on or after 26 November 2020 as the shares did not confer an entitlement to participate in the Buy-Back. The anti-avoidance provisions 33. The Commissioner will not make a determination under subsections 45A(2) or 45B(3) that section 45C applies to the whole, or any part, of the Capital Component of the Buy-Back Price you received from participating in the Buy-Back. 34. The Commissioner will not make a determination under paragraph 177EA(5)(b) to deny the whole, or any part, of the imputation benefits you received in relation to the Dividend Component of the Buy-Back Price from participating in the Buy-Back. 35. The Commissioner will not make a determination under paragraph 204-30(3)(c) to deny the whole, or any part, of the imputation benefits you received in relation to the Dividend Component of the Buy-Back Price from participating in the Buy-Back. 36. The following description of the scheme is based on information provided by the applicant. If the scheme is not carried out as described, this Ruling cannot be relied upon. Ampol Limited 37. Ampol is an Australian-resident public company listed on the Australian Securities Exchange (ASX). 38. As at 31 December 2020, Ampol had approximately 250 million ordinary shares on issue. The financial statements disclosed total share capital of $502.6 million and retained profits of $2,444 million. 39. Ampol's ordinary shareholders are a mix of individuals, companies, trusts, partnerships and superannuation funds, some of whom are non-residents. 40. Ampol has maintained, and is expected to maintain, its franking policy of providing fully franked dividends to the extent that it has sufficient franking credits in its franking account. Ampol does not intend to alter its dividend distribution policy as a consequence of the Buy-Back. Off-market share buy-back 41. On 23 November 2020, Ampol announced its intention to undertake an off-market share buy-back of its ordinary shares. Ampol announced it was targeting the repurchase of around $300 million worth of its shares. However, Ampol reserved the right to vary the size of the Buy-Back (subject to any legal restrictions) or not to proceed with the Buy-Back. 42. The Buy-Back forms part of Ampol's capital management program which continues to focus on achieving two main objectives - maintaining balance sheet flexibility to cover investment requirements and/or operational risks, and cost-effectively returning surplus capital to shareholders. 43. The Buy-Back was conducted through a tender process and was open to all shareholders that held ordinary shares on 27 November 2020, except for ordinary shares: 44. Ampol's Board has determined that directors and specific senior management involved in determining the final pricing and size of the Buy-Back should not participate in the Buy-Back in respect of shares held legally or beneficially by them. 45. The tender period opened on 7 December 2020 and closed on 22 January 2021. 46. Participating in the Buy-Back was voluntary. Hence, shareholders not wishing to participate were not required to do anything. Shareholders who did not participate did not receive any property, dividends or distributions as compensation for not participating in the Buy-Back. 47. Under the tender process, eligible shareholders could make an offer to sell some or all of their ordinary shares to Ampol at specified discount percentages (Tender Discounts) to the volume weighted average price (VWAP) of all trades on the ASX excluding not 'at-market' trades of Ampol's ordinary shares over the last five trading days up to and including the date the tender closed. The Tender Discounts ranged from 10% to 14% inclusive, in 1% intervals. Eligible shareholders also had the option of offering to sell their shares as a final price tender, which was the final Buy-Back Price determined by Ampol after the close of the Buy-Back. 48. Eligible shareholders who held 190 ordinary shares or less, and who wished to participate in the Buy-Back, were required to tender all of their shares at either a Tender Discount that is equal to or greater than the Buy-Back discount, or as a final price tender. 49. Tenders at prices above the Buy-Back Price, or which were subject to a specified minimum price that was greater than the Buy-Back Price, were not accepted. 50. Tenders at prices equal to or less than the Buy-Back Price, and final price tenders, were successful (subject to any specified minimum price). As the number of shares tendered that satisfied the Buy-Back criteria exceeded the number of shares Ampol had determined to buy back, Ampol scaled back successful tenders. 51. The Buy-Back Price was subject to two overriding limits: 52. On 25 January 2021, Ampol announced that: 53. All shares bought back under the Buy-Back were cancelled. 54. Under the Buy-Back, $2.01 per share was debited to Ampol's untainted share capital account, and the balance of the Buy-Back Price (the Dividend Component) was debited to Ampol's retained profits. The Dividend Component of the Buy-Back Price was fully franked. 55. The following table is a summary of the key dates of the Buy-Back: Commissioner of Taxation 5 May 2021 Off-market share buy-back 56. For the purposes of Division 16K, where a company buys a share in itself from a shareholder, it is either an 'on-market purchase' (paragraph 159GZZZK(c)) or an 'off-market purchase' (paragraph 159GZZZK(d)). 57. Although Ampol's ordinary shares are listed for quotation in the official list of the ASX, the Buy-Back was not made in the ordinary course of trading on the ASX. Therefore, the Buy-Back was an off-market purchase. The Dividend Component 58. The difference between the Buy-Back Price and the part of the Buy-Back Price which was debited against amounts standing to the credit of Ampol's share capital account is taken to be a dividend paid by Ampol to you. 59. The Buy-Back Price was $26.34, and $2.01 was debited against the amounts standing to the credit of Ampol's share capital account. Therefore, the Dividend Component is taken to be $24.33 per share. 60. The Dividend Component is a frankable distribution, but only to the extent that the Buy-Back Price does not exceed the market value of an Ampol share at the time of the Buy-Back if the buy-back did not occur and was never proposed to occur (paragraph 202-45(c)). 61. TD 2004/22 sets out the Commissioner's view as to how to determine what would have been the market value of an Ampol share at the time of the Buy-Back if the buy-back did not occur and was never proposed to occur. In respect of the Buy-Back, the Buy-Back Price per share did not exceed the market value (determined in accordance with TD 2004/22) of $29.64. As a result, the entire Dividend Component is frankable. Calculation of Sale Consideration 62. For the purposes of determining the amount of a gain or loss you made for the Ampol shares you sold in the Buy-Back, the consideration in respect of the disposal of a share that you are taken to have received is determined in accordance with section 159GZZZQ. 63. Subsection 159GZZZQ(1) provides that you are taken to have received an amount equal to the purchase price (in this case the Buy-Back price you received for each Ampol share you sold) as consideration in respect of the sale of the share bought back. However, this amount is subject to certain adjustments in order to arrive at the Sale Consideration. 64. Subsection 159GZZZQ(2) is one of the adjusting provisions. It provides that if the purchase price is less than the market value of the share at the time of the buy-back (calculated as if the buy-back did not occur and was never proposed to occur), then you are taken to have received an amount equal to the market value of the share as consideration in respect of the sale of the share bought back. 65. For the purposes of determining the application of subsection 159GZZZQ(2), Ampol has proposed to use the methodology outlined in TD 2004/22 to calculate the market value of the share (which the Commissioner accepts) - the relevant market value of an Ampol share is the VWAP of the share on the ASX over the last five trading days before the first announcement of the Buy-Back, adjusted for the percentage change in the S&P/ASX 200 Index from the commencement of trading on 23 November 2020 to the close of trading on 22 January 2021. 66. Under this methodology, the market value of an Ampol share bought back was calculated by Ampol as $29.64. As a result, you are taken to have instead received consideration of $29.64 for the sale of each Ampol share rather than the Buy-Back Price. 67. Pursuant to subsection 159GZZZQ(3), the deemed consideration of $29.64 is reduced by a 'reduction amount'. The reduction amount is an amount calculated pursuant to subsection 159GZZZQ(4). In the circumstances of the Buy-Back, the reduction amount is equivalent to the Dividend Component , unless you are a corporate tax entity to whom subsection 159GZZZQ(8) applies. As a result, the Sale Consideration for each Ampol share you sold under the Buy-Back is $5.31 (being $29.64 less the Dividend Component). 68. If you are a company and you made a loss, the Sale Consideration is subject to further adjustments pursuant to subsections 159GZZZQ(8) and (9). Foreign resident shareholders - capital gains tax consequences 69. If you are a foreign resident, you will only have CGT consequences if the shares you sold under the Buy-Back are 'taxable Australian property' (section 855-10). Your Ampol share will constitute taxable Australian property if the share: Qualified persons 70. Paragraph 207-145(1)(a) provides that, in relation to a franked dividend made by an entity, only a qualified person in relation to the distribution for the purposes of Division 1A of former Part IIIAA is required to include the franking credit in its assessable income and is entitled to claim the franking credit as a tax offset. Paragraph 207-150(1)(a) is a similar provision that applies to indirect distributions. Broadly speaking, to be a qualified person in relation to the Dividend Component paid under the Buy-Back, you must satisfy the 'holding period rule' (former section 160APHO) and the 'related payments rule' (former section 160APHN). 71. Broadly, you will not satisfy the related payments rule if you, or an associate of yours, is under an obligation to make, or makes, a payment in respect of the dividend, which effectively passes on the economic benefit of the dividend to another person. 72. The holding period rule requires a shareholder to hold the shares on which the dividend is paid 'at risk' for a continuous period of at least 45 days during the relevant qualification period. In the absence of a related payment, the relevant qualification period is the primary qualification period, which commences on the day after the shares are acquired and ends on the 45th day after the day on which they became ex dividend. In determining whether a shareholder has satisfied the holding period rule, any days during which there is a materially diminished risk of loss or opportunity for gain in respect of the relevant shares are not counted. The day of acquisition and the day of disposal of the relevant shares are also not counted. 73. Under former subsection 160APHM(2), a shareholder is taken to have materially diminished the risks of loss and opportunities for gain with respect to shares if the 'net position' in respect of the risks of loss and opportunity for gain of the shareholder results in the shareholder having less than 30% of the risks and opportunities relating to the shares. 74. The Commissioner does not regard the announcement of the Buy-Back, the making of an invitation to shareholders to offer to sell their Ampol shares or the making of an offer by a shareholder to Ampol in respect of an Ampol share as affecting whether Ampol shares were held at risk or not. 75. There are at least 45 clear days from 26 November 2020 (the ex entitlement date) and 24 January 2021 (the date prior to the date tender offers were accepted). If you acquired shares on or before 25 November 2020, which is the last day that you can acquire shares on the ASX to be eligible to participate in the Buy-Back and to quality for franking credit entitlements in respect of the Buy-Back consideration, then you would have satisfied the holding period rule as long as those shares were held at risk for at least 45 continuous days. 76. Generally, under the holding period rule a shareholder will be deemed to have disposed of their most recently acquired shares first (former subsection 160APHI(4)). The 45-day rule operates on a 'last-in first-out' basis, so that shareholders will be deemed to have disposed of their most recently acquired shares first for the purposes of applying the 45-day rule. 77. If you acquired ex entitlement Ampol shares and participated in the Buy-Back with cum entitlement shares (which conferred an entitlement to participate in the Buy-Back), you will not be considered, for the purposes of the 45-day rule, to be subject to the last-in first-out rule in former subsection 160APHI(4) and so you will not be considered to have participated in the Buy-Back with the 'ex entitlement' shares. Ampol shares commenced trading on an ex entitlement basis on 26 November 2020, and ex entitlement shares do not constitute 'related securities' for the purposes of former subsection 160APHI(2) in relation to any cum entitlement shares. Therefore, the last-in first-out rule will not apply to any additional Ampol shares you acquired on or after 26 November 2020 on an ex entitlement basis. The anti-avoidance provisions Section 45A 78. Section 45A applies in circumstances where capital benefits are streamed to certain shareholders (the advantaged shareholders) who derive a greater benefit from the receipt of share capital and it is reasonable to assume that the other shareholders (the disadvantaged shareholders) have received or will receive dividends. 79. Although a 'capital benefit' (as defined in paragraph 45A(3)(b)) was provided to you under the Buy-Back, the circumstances of the Buy-Back indicate that there was no streaming of capital benefits to some shareholders and dividends to other shareholders. Therefore, section 45A does not apply to the Buy-Back. Section 45B 80. Section 45B applies where certain capital payments are paid to shareholders in substitution for dividends. 81. While the conditions of paragraphs 45B(2)(a) and (b) were met in respect of the Buy-Back, the requisite purpose of enabling a person to obtain a tax benefit, by way of capital distribution, was not present. 82. Having regard to the relevant circumstances (as set out in subsection 45B(8)) of the Buy-Back, it cannot be concluded that a person would have entered into, or carried out, the Buy-Back for a more than incidental purpose of enabling a participating shareholder to obtain a tax benefit. Therefore, section 45B does not apply to the Buy-Back. Section 177EA 83. Section 177EA is a general anti-avoidance provision that applies to a wide range of schemes designed to obtain imputation benefits. In essence, it applies to schemes for the disposition of shares or an interest in shares, where a franked distribution is paid or payable in respect of the shares or an interest in shares. This would include a buy-back with a franked dividend component. 84. The Commissioner has come to the view that section 177EA applies to the Buy-Back, having regard to all the relevant circumstances of the scheme as outlined in subsection 177EA(17). Among the circumstances of the Buy-Back reflected in subsection 177EA(17) is the greater attraction of the Buy-Back to resident shareholders (because of the franking credits on the Dividend Component of the Buy-Back Price) than to non-resident shareholders. 85. Where section 177EA applies, the Commissioner has a discretion pursuant to subsection 177EA(5) to make a determination to debit Ampol's franking account pursuant to paragraph 177EA(5)(a), or deny the imputation benefit to each participating shareholder pursuant to paragraph 177EA(5)(b). 86. The Commissioner will exercise their discretion in such a way that they will not make a determination that the whole, or any part, of the imputation benefits you obtained by participating in the Buy-Back will be denied under paragraph 177EA(5)(b). Section 204-30 87. Subsection 204-30(1) empowers the Commissioner to make a determination under paragraph 204-30(3)(c) if an entity streams distributions in a certain way. 88. The requirements of subsection 204-30(1) are satisfied in respect of the Buy-Back because: 89. Accordingly, the conditions in subsection 204-30(1) are met and the Commissioner can make a determination under subsection 204-30(3), including a determination under paragraph 204-30(3)(a) to debit Ampol's franking account. 90. As the Commissioner intends to exercise their discretion under section 177EA, the Commissioner will not make a determination under subsection 204-30(3), including a determination under paragraph 204-30(3)(a). 91. This paragraph sets out the details of the provisions ruled upon or referenced in this Ruling. © AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products). Not previously issued as a draft

Class of entities or scheme: 36. The following description of the scheme is based on information provided by the applicant. If the scheme is not carried out as described, this Ruling cannot be relied upon. | Ampol Limited: 37. Ampol is an Australian-resident public company listed on the Australian Securities Exchange (ASX). 38. As at 31 December 2020, Ampol had approximately 250 million ordinary shares on issue. The financial statements disclosed total share capital of $502.6 million and retained profits of $2,444 million. 39. Ampol's ordinary shareholders are a mix of individuals, companies, trusts, partnerships and superannuation funds, some of whom are non-residents. 40. Ampol has maintained, and is expected to maintain, its franking policy of providing fully franked dividends to the extent that it has sufficient franking credits in its franking account. Ampol does not intend to alter its dividend distribution policy as a consequence of the Buy-Back. | Off-market share buy-back: 41. On 23 November 2020, Ampol announced its intention to undertake an off-market share buy-back of its ordinary shares. Ampol announced it was targeting the repurchase of around $300 million worth of its shares. However, Ampol reserved the right to vary the size of the Buy-Back (subject to any legal restrictions) or not to proceed with the Buy-Back. 42. The Buy-Back forms part of Ampol's capital management program which continues to focus on achieving two main objectives - maintaining balance sheet flexibility to cover investment requirements and/or operational risks, and cost-effectively returning surplus capital to shareholders. 43. The Buy-Back was conducted through a tender process and was open to all shareholders that held ordinary shares on 27 November 2020, except for ordinary shares: 44. Ampol's Board has determined that directors and specific senior management involved in determining the final pricing and size of the Buy-Back should not participate in the Buy-Back in respect of shares held legally or beneficially by them. 45. The tender period opened on 7 December 2020 and closed on 22 January 2021. 46. Participating in the Buy-Back was voluntary. Hence, shareholders not wishing to participate were not required to do anything. Shareholders who did not participate did not receive any property, dividends or distributions as compensation for not participating in the Buy-Back. 47. Under the tender process, eligible shareholders could make an offer to sell some or all of their ordinary shares to Ampol at specified discount percentages (Tender Discounts) to the volume weighted average price (VWAP) of all trades on the ASX excluding not 'at-market' trades of Ampol's ordinary shares over the last five trading days up to and including the date the tender closed. The Tender Discounts ranged from 10% to 14% inclusive, in 1% intervals. Eligible shareholders also had the option of offering to sell their shares as a final price tender, which was the final Buy-Back Price determined by Ampol after the close of the Buy-Back. 48. Eligible shareholders who held 190 ordinary shares or less, and who wished to participate in the Buy-Back, were required to tender all of their shares at either a Tender Discount that is equal to or greater than the Buy-Back discount, or as a final price tender. 49. Tenders at prices above the Buy-Back Price, or which were subject to a specified minimum price that was greater than the Buy-Back Price, were not accepted. 50. Tenders at prices equal to or less than the Buy-Back Price, and final price tenders, were successful (subject to any specified minimum price). As the number of shares tendered that satisfied the Buy-Back criteria exceeded the number of shares Ampol had determined to buy back, Ampol scaled back successful tenders. 51. The Buy-Back Price was subject to two overriding limits: 52. On 25 January 2021, Ampol announced that: 53. All shares bought back under the Buy-Back were cancelled. 54. Under the Buy-Back, $2.01 per share was debited to Ampol's untainted share capital account, and the balance of the Buy-Back Price (the Dividend Component) was debited to Ampol's retained profits. The Dividend Component of the Buy-Back Price was fully franked. 55. The following table is a summary of the key dates of the Buy-Back: Commissioner of Taxation 5 May 2021

Ruling: 1. This Ruling sets out the tax consequences for shareholders of Ampol Limited (Ampol) who participated in Ampol's off-market share buy-back (Buy-Back) which was announced on 23 November 2020. 2. Full details of the Buy-Back are set out in paragraphs 36 to 55 of this Ruling. 3. All legislative references in this Ruling are to provisions of the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 (as detailed in the table in Appendix 2 to this Ruling). | Who this Ruling applies to: 4. This Ruling applies to you if you held shares in Ampol and sold some or all of those shares under the Buy-Back. 5. This Ruling does not apply to you if you are subject to the taxation of financial arrangements rules in Division 230 in relation to the scheme outlined in paragraphs 36 to 55 of this Ruling. Note: Division 230 will not apply to individuals, unless they have made an election for it to apply. | When this Ruling applies: 6. This Ruling applies from 1 July 2020 to 30 June 2021. | Off-market share buy-back: 7. The Buy-Back is an off-market purchase for the purposes of section 159GZZZK. | The Dividend Component: 8. You are taken to have been paid a dividend of $24.33 (Dividend Component) on 25 January 2021 for each Ampol share you sold in the Buy-Back (section 159GZZZP). 9. The Dividend Component is a frankable distribution pursuant to section 202-40 and is capable of being franked in accordance with section 202-5. 10. The difference between the buy-back price of $26.34 (Buy-Back Price) and the Dividend Component (Capital Component) is not taken to be a dividend (subsection 159GZZZP(2)). | Direct distributions: 11. If you are a resident individual, a resident corporate shareholder, or the trustee of a resident complying superannuation fund who participated in the Buy-Back, then your assessable income for the income year in which the Buy-Back occurred includes: 12. You will be entitled to a tax offset equal to the amount of the franking credits attached to the Dividend Component, subject to the qualified person rules (subsection 207-20(2)). | Indirect distributions: Partnerships 13. If you are a partnership, your assessable income in the income year in which the Buy-Back occurred for the purposes of calculating the net income of the partnership includes: Trusts 14. If you are a trustee of a trust, your assessable income in the income year in which the Buy-Back occurred for the purposes of calculating the net income of the trust includes: Partners and beneficiaries 15. If you are a partner of a partnership or a beneficiary of a trustee that participated in the Buy-Back and a franked distribution flowed indirectly (within the meaning of Subdivision 207-B) to you, subsections 207-35(3) to (6) set out the circumstances in which you are required to gross up your assessable income for your share of the franking credit on the franked distribution. 16. Where the franked distribution flows indirectly through a trust or partnership to you and you are a resident individual, a resident corporate tax entity (at the time the distribution flows indirectly to it), or a trustee mentioned in paragraphs 207-45(c) or (d), you will (subject to the qualified person rules) be entitled to a tax offset equal to your share of the franking credit on the franked distribution (section 207-45). | Refundable tax offset: 17. The franking credit tax offset you are entitled to is subject to the refundable tax offset rules in Division 67. Certain trustees and corporate tax entities are not entitled to the refundable tax offset rules in accordance with subsections 67-25(1A) to (1D). | Non-residents: 18. If you are a non-resident, you are not liable to Australian withholding tax in respect of the Dividend Component because it is fully franked (paragraph 128B(3)(ga)). | Sale consideration: 19. You are taken to have received $5.31 (Sale Consideration) for each Ampol share you sold in the Buy-Back on 25 January 2021 (section 159GZZZQ), unless you are a corporate tax entity to which subsections 159GZZZQ(8) and (9) apply. | Capital gains tax consequences: 20. You are taken to have disposed of your Ampol shares for capital gains tax (CGT) purposes on 25 January 2021 (CGT event A1 under section 104-10). 21. The Sale Consideration represents the capital proceeds you received for each Ampol share (section 116-20). 22. If you did not hold your Ampol shares through a partnership, you made a capital gain on each share if the Sale Consideration was more than the share's cost base. Alternatively, you made a capital loss if the Sale Consideration was less than the share's reduced cost base (subsection 104-10(4)). 23. Where you made a capital gain, you can treat the capital gain as a 'discounted capital gain' if you held your Ampol share since 25 January 2020 and the other conditions of Subdivision 115-A are met. 24. If you held the Ampol shares through a partnership, then you have a separate Cost base / reduced cost base for your interest in each Ampol share sold in the Buy-Back by the partnership (subsection 106-5(2)). The partnership would allocate to you an appropriate share of the Sale Consideration which the partnership received for the sale of Ampol shares in the Buy-Back. | Shares held as trading stock: 25. If you held shares as trading stock (as defined in subsection 995-1(1)) and sold them in the Buy-Back in the ordinary course of your business, the Sale Consideration you received for each Ampol share you sold in the Buy-Back is included in your assessable income (subsection 70-80(1)). 26. While CGT event A1 also happened when you sold your shares in the Buy-Back, any capital gain or capital loss made as a result of selling the shares you held as trading stock, or if you are a partner in a partnership, the shares that your partnership held as trading stock, will be disregarded if you held the shares as trading stock on 25 January 2021 (section 118-25). | Shares held on revenue account: 27. If you held shares as revenue assets (as defined in section 977-50), and they were not trading stock, the amount by which the Sale Consideration exceeds the cost of each share is included in your assessable income. Correspondingly, if the cost of each share exceeds the Sale Consideration, the difference is an allowable deduction. 28. CGT event A1 also happened when you sold your Ampol shares in the Buy-Back. Where you made a capital gain as a result of selling your Ampol shares in the Buy-Back, you reduce the amount of the capital gain by the amount you otherwise include in your assessable income (section 118-20). The capital gain is reduced to zero if it does not exceed the amount otherwise included in assessable income (subsection 118-20(2)). If the capital gain exceeds the amount otherwise included in assessable income, the capital gain will be reduced by the amount otherwise included in assessable income (subsection 118-20(3)). There is a similar reduction if you are a partner in a partnership (paragraphs 118-20(1)(b) and (2)(b), and subsection 118-20(3)). | Foreign resident shareholders - capital gains tax consequences: 29. If you are a foreign resident who participated in the Buy-Back, you will only have CGT consequences if the shares you sold under the Buy-Back are 'taxable Australian property' (section 855-10). | Qualified persons: 30. You will satisfy the qualified person rules in relation to the Dividend Component for the purposes of paragraphs 207-145(1)(a) and 207-150(1)(a) (which refers to Division 1A of former Part IIIAA) if: 31. The announcement of the Buy-Back, the making of an invitation to shareholders to offer to sell their Ampol shares, or the making of an offer by a shareholder to sell their Ampol shares to Ampol do not affect whether the shares bought back under the Buy-Back are held 'at risk' for the purposes of Division 1A of former Part IIIA. 32. The 'last-in first-out' rule in former subsection 160APHI(4) has no effect for the purposes of the Buy-Back in respect of Ampol shares acquired on or after 26 November 2020 as the shares did not confer an entitlement to participate in the Buy-Back. | The anti-avoidance provisions: 33. The Commissioner will not make a determination under subsections 45A(2) or 45B(3) that section 45C applies to the whole, or any part, of the Capital Component of the Buy-Back Price you received from participating in the Buy-Back. 34. The Commissioner will not make a determination under paragraph 177EA(5)(b) to deny the whole, or any part, of the imputation benefits you received in relation to the Dividend Component of the Buy-Back Price from participating in the Buy-Back. 35. The Commissioner will not make a determination under paragraph 204-30(3)(c) to deny the whole, or any part, of the imputation benefits you received in relation to the Dividend Component of the Buy-Back Price from participating in the Buy-Back. 36. The following description of the scheme is based on information provided by the applicant. If the scheme is not carried out as described, this Ruling cannot be relied upon. | Ampol Limited: 37. Ampol is an Australian-resident public company listed on the Australian Securities Exchange (ASX). 38. As at 31 December 2020, Ampol had approximately 250 million ordinary shares on issue. The financial statements disclosed total share capital of $502.6 million and retained profits of $2,444 million. 39. Ampol's ordinary shareholders are a mix of individuals, companies, trusts, partnerships and superannuation funds, some of whom are non-residents. 40. Ampol has maintained, and is expected to maintain, its franking policy of providing fully franked dividends to the extent that it has sufficient franking credits in its franking account. Ampol does not intend to alter its dividend distribution policy as a consequence of the Buy-Back. | Off-market share buy-back: 41. On 23 November 2020, Ampol announced its intention to undertake an off-market share buy-back of its ordinary shares. Ampol announced it was targeting the repurchase of around $300 million worth of its shares. However, Ampol reserved the right to vary the size of the Buy-Back (subject to any legal restrictions) or not to proceed with the Buy-Back. 42. The Buy-Back forms part of Ampol's capital management program which continues to focus on achieving two main objectives - maintaining balance sheet flexibility to cover investment requirements and/or operational risks, and cost-effectively returning surplus capital to shareholders. 43. The Buy-Back was conducted through a tender process and was open to all shareholders that held ordinary shares on 27 November 2020, except for ordinary shares: 44. Ampol's Board has determined that directors and specific senior management involved in determining the final pricing and size of the Buy-Back should not participate in the Buy-Back in respect of shares held legally or beneficially by them. 45. The tender period opened on 7 December 2020 and closed on 22 January 2021. 46. Participating in the Buy-Back was voluntary. Hence, shareholders not wishing to participate were not required to do anything. Shareholders who did not participate did not receive any property, dividends or distributions as compensation for not participating in the Buy-Back. 47. Under the tender process, eligible shareholders could make an offer to sell some or all of their ordinary shares to Ampol at specified discount percentages (Tender Discounts) to the volume weighted average price (VWAP) of all trades on the ASX excluding not 'at-market' trades of Ampol's ordinary shares over the last five trading days up to and including the date the tender closed. The Tender Discounts ranged from 10% to 14% inclusive, in 1% intervals. Eligible shareholders also had the option of offering to sell their shares as a final price tender, which was the final Buy-Back Price determined by Ampol after the close of the Buy-Back. 48. Eligible shareholders who held 190 ordinary shares or less, and who wished to participate in the Buy-Back, were required to tender all of their shares at either a Tender Discount that is equal to or greater than the Buy-Back discount, or as a final price tender. 49. Tenders at prices above the Buy-Back Price, or which were subject to a specified minimum price that was greater than the Buy-Back Price, were not accepted. 50. Tenders at prices equal to or less than the Buy-Back Price, and final price tenders, were successful (subject to any specified minimum price). As the number of shares tendered that satisfied the Buy-Back criteria exceeded the number of shares Ampol had determined to buy back, Ampol scaled back successful tenders. 51. The Buy-Back Price was subject to two overriding limits: 52. On 25 January 2021, Ampol announced that: 53. All shares bought back under the Buy-Back were cancelled. 54. Under the Buy-Back, $2.01 per share was debited to Ampol's untainted share capital account, and the balance of the Buy-Back Price (the Dividend Component) was debited to Ampol's retained profits. The Dividend Component of the Buy-Back Price was fully franked. 55. The following table is a summary of the key dates of the Buy-Back: Commissioner of Taxation 5 May 2021 | Off-market share buy-back: 56. For the purposes of Division 16K, where a company buys a share in itself from a shareholder, it is either an 'on-market purchase' (paragraph 159GZZZK(c)) or an 'off-market purchase' (paragraph 159GZZZK(d)). 57. Although Ampol's ordinary shares are listed for quotation in the official list of the ASX, the Buy-Back was not made in the ordinary course of trading on the ASX. Therefore, the Buy-Back was an off-market purchase. | The Dividend Component: 58. The difference between the Buy-Back Price and the part of the Buy-Back Price which was debited against amounts standing to the credit of Ampol's share capital account is taken to be a dividend paid by Ampol to you. 59. The Buy-Back Price was $26.34, and $2.01 was debited against the amounts standing to the credit of Ampol's share capital account. Therefore, the Dividend Component is taken to be $24.33 per share. 60. The Dividend Component is a frankable distribution, but only to the extent that the Buy-Back Price does not exceed the market value of an Ampol share at the time of the Buy-Back if the buy-back did not occur and was never proposed to occur (paragraph 202-45(c)). 61. TD 2004/22 sets out the Commissioner's view as to how to determine what would have been the market value of an Ampol share at the time of the Buy-Back if the buy-back did not occur and was never proposed to occur. In respect of the Buy-Back, the Buy-Back Price per share did not exceed the market value (determined in accordance with TD 2004/22) of $29.64. As a result, the entire Dividend Component is frankable. | Calculation of Sale Consideration: 62. For the purposes of determining the amount of a gain or loss you made for the Ampol shares you sold in the Buy-Back, the consideration in respect of the disposal of a share that you are taken to have received is determined in accordance with section 159GZZZQ. 63. Subsection 159GZZZQ(1) provides that you are taken to have received an amount equal to the purchase price (in this case the Buy-Back price you received for each Ampol share you sold) as consideration in respect of the sale of the share bought back. However, this amount is subject to certain adjustments in order to arrive at the Sale Consideration. 64. Subsection 159GZZZQ(2) is one of the adjusting provisions. It provides that if the purchase price is less than the market value of the share at the time of the buy-back (calculated as if the buy-back did not occur and was never proposed to occur), then you are taken to have received an amount equal to the market value of the share as consideration in respect of the sale of the share bought back. 65. For the purposes of determining the application of subsection 159GZZZQ(2), Ampol has proposed to use the methodology outlined in TD 2004/22 to calculate the market value of the share (which the Commissioner accepts) - the relevant market value of an Ampol share is the VWAP of the share on the ASX over the last five trading days before the first announcement of the Buy-Back, adjusted for the percentage change in the S&P/ASX 200 Index from the commencement of trading on 23 November 2020 to the close of trading on 22 January 2021. 66. Under this methodology, the market value of an Ampol share bought back was calculated by Ampol as $29.64. As a result, you are taken to have instead received consideration of $29.64 for the sale of each Ampol share rather than the Buy-Back Price. 67. Pursuant to subsection 159GZZZQ(3), the deemed consideration of $29.64 is reduced by a 'reduction amount'. The reduction amount is an amount calculated pursuant to subsection 159GZZZQ(4). In the circumstances of the Buy-Back, the reduction amount is equivalent to the Dividend Component , unless you are a corporate tax entity to whom subsection 159GZZZQ(8) applies. As a result, the Sale Consideration for each Ampol share you sold under the Buy-Back is $5.31 (being $29.64 less the Dividend Component). 68. If you are a company and you made a loss, the Sale Consideration is subject to further adjustments pursuant to subsections 159GZZZQ(8) and (9). | Foreign resident shareholders - capital gains tax consequences: 69. If you are a foreign resident, you will only have CGT consequences if the shares you sold under the Buy-Back are 'taxable Australian property' (section 855-10). Your Ampol share will constitute taxable Australian property if the share: | Qualified persons: 70. Paragraph 207-145(1)(a) provides that, in relation to a franked dividend made by an entity, only a qualified person in relation to the distribution for the purposes of Division 1A of former Part IIIAA is required to include the franking credit in its assessable income and is entitled to claim the franking credit as a tax offset. Paragraph 207-150(1)(a) is a similar provision that applies to indirect distributions. Broadly speaking, to be a qualified person in relation to the Dividend Component paid under the Buy-Back, you must satisfy the 'holding period rule' (former section 160APHO) and the 'related payments rule' (former section 160APHN). 71. Broadly, you will not satisfy the related payments rule if you, or an associate of yours, is under an obligation to make, or makes, a payment in respect of the dividend, which effectively passes on the economic benefit of the dividend to another person. 72. The holding period rule requires a shareholder to hold the shares on which the dividend is paid 'at risk' for a continuous period of at least 45 days during the relevant qualification period. In the absence of a related payment, the relevant qualification period is the primary qualification period, which commences on the day after the shares are acquired and ends on the 45th day after the day on which they became ex dividend. In determining whether a shareholder has satisfied the holding period rule, any days during which there is a materially diminished risk of loss or opportunity for gain in respect of the relevant shares are not counted. The day of acquisition and the day of disposal of the relevant shares are also not counted. 73. Under former subsection 160APHM(2), a shareholder is taken to have materially diminished the risks of loss and opportunities for gain with respect to shares if the 'net position' in respect of the risks of loss and opportunity for gain of the shareholder results in the shareholder having less than 30% of the risks and opportunities relating to the shares. 74. The Commissioner does not regard the announcement of the Buy-Back, the making of an invitation to shareholders to offer to sell their Ampol shares or the making of an offer by a shareholder to Ampol in respect of an Ampol share as affecting whether Ampol shares were held at risk or not. 75. There are at least 45 clear days from 26 November 2020 (the ex entitlement date) and 24 January 2021 (the date prior to the date tender offers were accepted). If you acquired shares on or before 25 November 2020, which is the last day that you can acquire shares on the ASX to be eligible to participate in the Buy-Back and to quality for franking credit entitlements in respect of the Buy-Back consideration, then you would have satisfied the holding period rule as long as those shares were held at risk for at least 45 continuous days. 76. Generally, under the holding period rule a shareholder will be deemed to have disposed of their most recently acquired shares first (former subsection 160APHI(4)). The 45-day rule operates on a 'last-in first-out' basis, so that shareholders will be deemed to have disposed of their most recently acquired shares first for the purposes of applying the 45-day rule. 77. If you acquired ex entitlement Ampol shares and participated in the Buy-Back with cum entitlement shares (which conferred an entitlement to participate in the Buy-Back), you will not be considered, for the purposes of the 45-day rule, to be subject to the last-in first-out rule in former subsection 160APHI(4) and so you will not be considered to have participated in the Buy-Back with the 'ex entitlement' shares. Ampol shares commenced trading on an ex entitlement basis on 26 November 2020, and ex entitlement shares do not constitute 'related securities' for the purposes of former subsection 160APHI(2) in relation to any cum entitlement shares. Therefore, the last-in first-out rule will not apply to any additional Ampol shares you acquired on or after 26 November 2020 on an ex entitlement basis. | Section 45A: 78. Section 45A applies in circumstances where capital benefits are streamed to certain shareholders (the advantaged shareholders) who derive a greater benefit from the receipt of share capital and it is reasonable to assume that the other shareholders (the disadvantaged shareholders) have received or will receive dividends. 79. Although a 'capital benefit' (as defined in paragraph 45A(3)(b)) was provided to you under the Buy-Back, the circumstances of the Buy-Back indicate that there was no streaming of capital benefits to some shareholders and dividends to other shareholders. Therefore, section 45A does not apply to the Buy-Back. | Section 45B: 80. Section 45B applies where certain capital payments are paid to shareholders in substitution for dividends. 81. While the conditions of paragraphs 45B(2)(a) and (b) were met in respect of the Buy-Back, the requisite purpose of enabling a person to obtain a tax benefit, by way of capital distribution, was not present. 82. Having regard to the relevant circumstances (as set out in subsection 45B(8)) of the Buy-Back, it cannot be concluded that a person would have entered into, or carried out, the Buy-Back for a more than incidental purpose of enabling a participating shareholder to obtain a tax benefit. Therefore, section 45B does not apply to the Buy-Back. | Section 177EA: 83. Section 177EA is a general anti-avoidance provision that applies to a wide range of schemes designed to obtain imputation benefits. In essence, it applies to schemes for the disposition of shares or an interest in shares, where a franked distribution is paid or payable in respect of the shares or an interest in shares. This would include a buy-back with a franked dividend component. 84. The Commissioner has come to the view that section 177EA applies to the Buy-Back, having regard to all the relevant circumstances of the scheme as outlined in subsection 177EA(17). Among the circumstances of the Buy-Back reflected in subsection 177EA(17) is the greater attraction of the Buy-Back to resident shareholders (because of the franking credits on the Dividend Component of the Buy-Back Price) than to non-resident shareholders. 85. Where section 177EA applies, the Commissioner has a discretion pursuant to subsection 177EA(5) to make a determination to debit Ampol's franking account pursuant to paragraph 177EA(5)(a), or deny the imputation benefit to each participating shareholder pursuant to paragraph 177EA(5)(b). 86. The Commissioner will exercise their discretion in such a way that they will not make a determination that the whole, or any part, of the imputation benefits you obtained by participating in the Buy-Back will be denied under paragraph 177EA(5)(b). | Section 204-30: 87. Subsection 204-30(1) empowers the Commissioner to make a determination under paragraph 204-30(3)(c) if an entity streams distributions in a certain way. 88. The requirements of subsection 204-30(1) are satisfied in respect of the Buy-Back because: 89. Accordingly, the conditions in subsection 204-30(1) are met and the Commissioner can make a determination under subsection 204-30(3), including a determination under paragraph 204-30(3)(a) to debit Ampol's franking account. 90. As the Commissioner intends to exercise their discretion under section 177EA, the Commissioner will not make a determination under subsection 204-30(3), including a determination under paragraph 204-30(3)(a). 91. This paragraph sets out the details of the provisions ruled upon or referenced in this Ruling. © AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products). Not previously issued as a draft


Appendix: Off-market share buy-back: 56. For the purposes of Division 16K, where a company buys a share in itself from a shareholder, it is either an 'on-market purchase' (paragraph 159GZZZK(c)) or an 'off-market purchase' (paragraph 159GZZZK(d)). 57. Although Ampol's ordinary shares are listed for quotation in the official list of the ASX, the Buy-Back was not made in the ordinary course of trading on the ASX. Therefore, the Buy-Back was an off-market purchase. | The Dividend Component: 58. The difference between the Buy-Back Price and the part of the Buy-Back Price which was debited against amounts standing to the credit of Ampol's share capital account is taken to be a dividend paid by Ampol to you. 59. The Buy-Back Price was $26.34, and $2.01 was debited against the amounts standing to the credit of Ampol's share capital account. Therefore, the Dividend Component is taken to be $24.33 per share. 60. The Dividend Component is a frankable distribution, but only to the extent that the Buy-Back Price does not exceed the market value of an Ampol share at the time of the Buy-Back if the buy-back did not occur and was never proposed to occur (paragraph 202-45(c)). 61. TD 2004/22 sets out the Commissioner's view as to how to determine what would have been the market value of an Ampol share at the time of the Buy-Back if the buy-back did not occur and was never proposed to occur. In respect of the Buy-Back, the Buy-Back Price per share did not exceed the market value (determined in accordance with TD 2004/22) of $29.64. As a result, the entire Dividend Component is frankable. | Calculation of Sale Consideration: 62. For the purposes of determining the amount of a gain or loss you made for the Ampol shares you sold in the Buy-Back, the consideration in respect of the disposal of a share that you are taken to have received is determined in accordance with section 159GZZZQ. 63. Subsection 159GZZZQ(1) provides that you are taken to have received an amount equal to the purchase price (in this case the Buy-Back price you received for each Ampol share you sold) as consideration in respect of the sale of the share bought back. However, this amount is subject to certain adjustments in order to arrive at the Sale Consideration. 64. Subsection 159GZZZQ(2) is one of the adjusting provisions. It provides that if the purchase price is less than the market value of the share at the time of the buy-back (calculated as if the buy-back did not occur and was never proposed to occur), then you are taken to have received an amount equal to the market value of the share as consideration in respect of the sale of the share bought back. 65. For the purposes of determining the application of subsection 159GZZZQ(2), Ampol has proposed to use the methodology outlined in TD 2004/22 to calculate the market value of the share (which the Commissioner accepts) - the relevant market value of an Ampol share is the VWAP of the share on the ASX over the last five trading days before the first announcement of the Buy-Back, adjusted for the percentage change in the S&P/ASX 200 Index from the commencement of trading on 23 November 2020 to the close of trading on 22 January 2021. 66. Under this methodology, the market value of an Ampol share bought back was calculated by Ampol as $29.64. As a result, you are taken to have instead received consideration of $29.64 for the sale of each Ampol share rather than the Buy-Back Price. 67. Pursuant to subsection 159GZZZQ(3), the deemed consideration of $29.64 is reduced by a 'reduction amount'. The reduction amount is an amount calculated pursuant to subsection 159GZZZQ(4). In the circumstances of the Buy-Back, the reduction amount is equivalent to the Dividend Component , unless you are a corporate tax entity to whom subsection 159GZZZQ(8) applies. As a result, the Sale Consideration for each Ampol share you sold under the Buy-Back is $5.31 (being $29.64 less the Dividend Component). 68. If you are a company and you made a loss, the Sale Consideration is subject to further adjustments pursuant to subsections 159GZZZQ(8) and (9). | Foreign resident shareholders - capital gains tax consequences: 69. If you are a foreign resident, you will only have CGT consequences if the shares you sold under the Buy-Back are 'taxable Australian property' (section 855-10). Your Ampol share will constitute taxable Australian property if the share: | Qualified persons: 70. Paragraph 207-145(1)(a) provides that, in relation to a franked dividend made by an entity, only a qualified person in relation to the distribution for the purposes of Division 1A of former Part IIIAA is required to include the franking credit in its assessable income and is entitled to claim the franking credit as a tax offset. Paragraph 207-150(1)(a) is a similar provision that applies to indirect distributions. Broadly speaking, to be a qualified person in relation to the Dividend Component paid under the Buy-Back, you must satisfy the 'holding period rule' (former section 160APHO) and the 'related payments rule' (former section 160APHN). 71. Broadly, you will not satisfy the related payments rule if you, or an associate of yours, is under an obligation to make, or makes, a payment in respect of the dividend, which effectively passes on the economic benefit of the dividend to another person. 72. The holding period rule requires a shareholder to hold the shares on which the dividend is paid 'at risk' for a continuous period of at least 45 days during the relevant qualification period. In the absence of a related payment, the relevant qualification period is the primary qualification period, which commences on the day after the shares are acquired and ends on the 45th day after the day on which they became ex dividend. In determining whether a shareholder has satisfied the holding period rule, any days during which there is a materially diminished risk of loss or opportunity for gain in respect of the relevant shares are not counted. The day of acquisition and the day of disposal of the relevant shares are also not counted. 73. Under former subsection 160APHM(2), a shareholder is taken to have materially diminished the risks of loss and opportunities for gain with respect to shares if the 'net position' in respect of the risks of loss and opportunity for gain of the shareholder results in the shareholder having less than 30% of the risks and opportunities relating to the shares. 74. The Commissioner does not regard the announcement of the Buy-Back, the making of an invitation to shareholders to offer to sell their Ampol shares or the making of an offer by a shareholder to Ampol in respect of an Ampol share as affecting whether Ampol shares were held at risk or not. 75. There are at least 45 clear days from 26 November 2020 (the ex entitlement date) and 24 January 2021 (the date prior to the date tender offers were accepted). If you acquired shares on or before 25 November 2020, which is the last day that you can acquire shares on the ASX to be eligible to participate in the Buy-Back and to quality for franking credit entitlements in respect of the Buy-Back consideration, then you would have satisfied the holding period rule as long as those shares were held at risk for at least 45 continuous days. 76. Generally, under the holding period rule a shareholder will be deemed to have disposed of their most recently acquired shares first (former subsection 160APHI(4)). The 45-day rule operates on a 'last-in first-out' basis, so that shareholders will be deemed to have disposed of their most recently acquired shares first for the purposes of applying the 45-day rule. 77. If you acquired ex entitlement Ampol shares and participated in the Buy-Back with cum entitlement shares (which conferred an entitlement to participate in the Buy-Back), you will not be considered, for the purposes of the 45-day rule, to be subject to the last-in first-out rule in former subsection 160APHI(4) and so you will not be considered to have participated in the Buy-Back with the 'ex entitlement' shares. Ampol shares commenced trading on an ex entitlement basis on 26 November 2020, and ex entitlement shares do not constitute 'related securities' for the purposes of former subsection 160APHI(2) in relation to any cum entitlement shares. Therefore, the last-in first-out rule will not apply to any additional Ampol shares you acquired on or after 26 November 2020 on an ex entitlement basis. | Section 45A: 78. Section 45A applies in circumstances where capital benefits are streamed to certain shareholders (the advantaged shareholders) who derive a greater benefit from the receipt of share capital and it is reasonable to assume that the other shareholders (the disadvantaged shareholders) have received or will receive dividends. 79. Although a 'capital benefit' (as defined in paragraph 45A(3)(b)) was provided to you under the Buy-Back, the circumstances of the Buy-Back indicate that there was no streaming of capital benefits to some shareholders and dividends to other shareholders. Therefore, section 45A does not apply to the Buy-Back. | Section 45B: 80. Section 45B applies where certain capital payments are paid to shareholders in substitution for dividends. 81. While the conditions of paragraphs 45B(2)(a) and (b) were met in respect of the Buy-Back, the requisite purpose of enabling a person to obtain a tax benefit, by way of capital distribution, was not present. 82. Having regard to the relevant circumstances (as set out in subsection 45B(8)) of the Buy-Back, it cannot be concluded that a person would have entered into, or carried out, the Buy-Back for a more than incidental purpose of enabling a participating shareholder to obtain a tax benefit. Therefore, section 45B does not apply to the Buy-Back. | Section 177EA: 83. Section 177EA is a general anti-avoidance provision that applies to a wide range of schemes designed to obtain imputation benefits. In essence, it applies to schemes for the disposition of shares or an interest in shares, where a franked distribution is paid or payable in respect of the shares or an interest in shares. This would include a buy-back with a franked dividend component. 84. The Commissioner has come to the view that section 177EA applies to the Buy-Back, having regard to all the relevant circumstances of the scheme as outlined in subsection 177EA(17). Among the circumstances of the Buy-Back reflected in subsection 177EA(17) is the greater attraction of the Buy-Back to resident shareholders (because of the franking credits on the Dividend Component of the Buy-Back Price) than to non-resident shareholders. 85. Where section 177EA applies, the Commissioner has a discretion pursuant to subsection 177EA(5) to make a determination to debit Ampol's franking account pursuant to paragraph 177EA(5)(a), or deny the imputation benefit to each participating shareholder pursuant to paragraph 177EA(5)(b). 86. The Commissioner will exercise their discretion in such a way that they will not make a determination that the whole, or any part, of the imputation benefits you obtained by participating in the Buy-Back will be denied under paragraph 177EA(5)(b). | Section 204-30: 87. Subsection 204-30(1) empowers the Commissioner to make a determination under paragraph 204-30(3)(c) if an entity streams distributions in a certain way. 88. The requirements of subsection 204-30(1) are satisfied in respect of the Buy-Back because: 89. Accordingly, the conditions in subsection 204-30(1) are met and the Commissioner can make a determination under subsection 204-30(3), including a determination under paragraph 204-30(3)(a) to debit Ampol's franking account. 90. As the Commissioner intends to exercise their discretion under section 177EA, the Commissioner will not make a determination under subsection 204-30(3), including a determination under paragraph 204-30(3)(a).


What this Ruling is about | Appendix 2 - Legislative provisions | If this Ruling applies to you, and you correctly rely on it, we will apply the law to you in the way set out in this Ruling. That is, you will not pay any more tax or penalties or interest in respect of the matters covered by this Ruling. | Last day that Ampol shares can be acquired on the ASX to be eligible to participate in the Buy-Back and qualify for franking credits | Opening date for the tender period | The five trading days over which VWAP is calculated | Closing date for the tender period


Related rulings: TD 2004/22
Legislative references: TAA 1953
Other references: PS LA 2007/9