Taxpayer Alert TA 2008/11: Land Impairment Trust Arrangement
Date of issue: 6 June 2008
Status: Current


Description: The alert applies to arrangements having the following features. 1. A forestry MIS arrangement is associated with a land trust arrangement. 2. A land company within the group owns (or acquires) the land and grants a head-lease to the responsible entity (also within the group) for the land to be used in the forestry MIS. 3. The responsible entity grants a sub-lease over the land to the investors in the forestry MIS. 4. The fees payable under both the head-lease and sub-lease are usually set as a proportion of the value of distributions to be made at the end of the MIS arrangements, payable from the harvest proceeds. 5. As soon as the forestry MIS arrangement begins, the land is immediately sold by the land company to a land trust which sits outside the group. 6. This sale is said to give rise to a loss as the value of the land is impaired by the lease fees payable being lower than market value for the duration of the lease (usually more than 10 years). 7. The trustee for the land trust may be a member of the group or an associate of such a member. 8. Entities that are members of the group may hold some of the units in the land trust, frequently up to 20%. 9. The unit-holders in the land trust usually also include some or all of the investors in the forestry MIS and associates of members of the group, such as employees. 10. There may also be an option for the land company to re-acquire the land from the land trust. 11. The basic structure of the arrangement can be summarised diagrammatically as follows: | 1. A forestry MIS arrangement is associated with a land trust arrangement. 2. A land company within the group owns (or acquires) the land and grants a head-lease to the responsible entity (also within the group) for the land to be used in the forestry MIS. 3. The responsible entity grants a sub-lease over the land to the investors in the forestry MIS. 4. The fees payable under both the head-lease and sub-lease are usually set as a proportion of the value of distributions to be made at the end of the MIS arrangements, payable from the harvest proceeds. 5. As soon as the forestry MIS arrangement begins, the land is immediately sold by the land company to a land trust which sits outside the group. 6. This sale is said to give rise to a loss as the value of the land is impaired by the lease fees payable being lower than market value for the duration of the lease (usually more than 10 years). 7. The trustee for the land trust may be a member of the group or an associate of such a member. 8. Entities that are members of the group may hold some of the units in the land trust, frequently up to 20%. 9. The unit-holders in the land trust usually also include some or all of the investors in the forestry MIS and associates of members of the group, such as employees. 10. There may also be an option for the land company to re-acquire the land from the land trust. 11. The basic structure of the arrangement can be summarised diagrammatically as follows: | FEATURES WHICH CONCERN US | Depending upon the individual facts and circumstances, the Tax Office considers that arrangements that have the above features may give rise to taxation issues including whether: (a) the sale of land by the land company to the land trust is at an impaired value and, if so, whether it gives rise to a revenue or capital loss (b) the distributions from the land trust to unit holders (these may include growers, the forestry manager or other entities) should have a capital or revenue character (c) the proceeds from disposal of the units in the land trust by unit-holders should have a capital or revenue character (d) the forestry MIS arrangement will meet the requirements of Division 394 of the Income Tax Assessment Act 1997 (particularly the 70% direct forestry expenditure test) (e) the potential application of the general anti-avoidance rule in Part IVA of the Income Tax Assessment Act 1936 to cancel a tax benefit arising from a scheme involving some or all of the transactions in this arrangement, and (f) whether any entity involved in the arrangement is a promoter of a tax exploitation scheme for the purposes of Division 290 of Schedule 1 to the Taxation Administration Act 1953 . | (a) the sale of land by the land company to the land trust is at an impaired value and, if so, whether it gives rise to a revenue or capital loss (b) the distributions from the land trust to unit holders (these may include growers, the forestry manager or other entities) should have a capital or revenue character (c) the proceeds from disposal of the units in the land trust by unit-holders should have a capital or revenue character (d) the forestry MIS arrangement will meet the requirements of Division 394 of the Income Tax Assessment Act 1997 (particularly the 70% direct forestry expenditure test) (e) the potential application of the general anti-avoidance rule in Part IVA of the Income Tax Assessment Act 1936 to cancel a tax benefit arising from a scheme involving some or all of the transactions in this arrangement, and (f) whether any entity involved in the arrangement is a promoter of a tax exploitation scheme for the purposes of Division 290 of Schedule 1 to the Taxation Administration Act 1953 . | The Australian Taxation Office is examining these arrangements. Note 1: Where a taxpayer is an entity covered by the defined class of entities in a current forestry MIS product ruling then the tax implications outlined in the ruling will apply, provided that the forestry MIS arrangement is implemented in accordance with that ruling. Specifically, that entity's entitlement to deductions under section 8-1 of the Income Tax Assessment Act 1997 will not be affected by their entry into the land trust arrangement. However, the taxation consequences of distributions from these land trust arrangements are not covered by such product rulings. Note 2: Penalties of up to 50% of the tax avoided can apply where Part IVA of the Income Tax Assessment Act 1936 is applied. Reductions in base penalty will be available if the taxpayer makes a voluntary disclosure to the Tax Office. If you have any information about the current arrangement, phone us on 1800 060 062. Tax agents wanting to provide information about people or companies who may be promoting arrangements covered by this Alert should call 13 72 86 (Fast Key Code 3 4 ). Note 3: Penalties of up to 5,000 penalty units for individuals, 25,000 penalty units for bodies corporate or up to twice the amount of consideration received or receivable may apply to promoters of tax exploitation schemes under Division 290 of Schedule 1 to the Taxation Administration Act 1953. The Commissioner can also apply to the Federal Court of Australia for restraining and performance injunctions against promoters where prohibited conduct has occurred, is occurring or is proposed. | Date of amendment Comment 3 May 2024 Updated Tax Agent tip off hotline number 20 February 2024 Updated ATO tip-off hotline numbers | Date of Issue: 6 June 2008 | Date of Effect: 6 June 2008 | Related Practice Statements: PS LA 2005/13 - Taxpayer Alerts | Subject References: forestry managed investment schemes managed investment schemes land impairment land impairment trust valuation of land direct forestry expenditure Division 394 deduction forestry deductions | Legislative References: Income Tax Assessment Act 1997 Division 394 Section 8-1 Income Tax Assessment Act 1936 Part IVA Taxation Administration Act 1953 Division 290 of Schedule 1 | Contact Officer: Bruce Collins Business Line: Aggressive Tax Planning Section: Technical & Case Leadership Phone: (02) 6216 2710





Related documents: PS LA 2005/13 - Taxpayer Alerts | Division 394 | Section 8-1 | Part IVA | Division 290 of Schedule 1

This Taxpayer Alert describes land impairment trust arrangements associated with forestry managed investment schemes (MIS). These arrangements involve the sale of land at an impaired value by a member of a group of entities that are treated as a consolidated group for income tax purposes (the group).