Document ID: chunk:federal_register_of_legislation:C2025C00180:clause:1_2:p8
Version: federal_register_of_legislation:C2025C00180
Segment Type: clause
Provision Reference: sch 1 cl 2 (pt 8/16)
Character Range: 1377988–1380667

a *tax exploitation scheme if:
 (a) the entity:
 (i) markets the scheme; or
 (ii) otherwise encourages the growth of the scheme or interest in it; and
 (b) the entity or an *associate of the entity receives (directly or indirectly) a benefit in respect of that marketing or encouragement; and
 (c) having regard to all relevant matters, it is reasonable to conclude that the entity has had a substantial role in respect of that marketing or encouragement.
 (2) However, an entity is not a promoter of a *tax exploitation scheme merely because the entity provides advice about the *scheme.
 (3) An employee is not to be taken to have had a substantial role in respect of that marketing or encouragement merely because the employee distributes information or material prepared by another entity.

290‑65  Meaning of tax exploitation scheme
 (1) A *scheme is a tax exploitation scheme if, at the time of the conduct mentioned in subsection 290‑50(1):
 (a) one of these conditions is satisfied:
 (i) if the scheme has been implemented—it is reasonable to conclude that an entity that (alone or with others) entered into or carried out the scheme did so with the sole or dominant purpose of that entity or another entity getting a *scheme benefit from the scheme;
 (ii) if the scheme has not been implemented—it is reasonable to conclude that, if an entity (alone or with others) had entered into or carried out the scheme, it would have done so with the sole or dominant purpose of that entity or another entity getting a scheme benefit from the scheme; and
 (b) one of these conditions is satisfied:
 (i) if the scheme has been implemented—it is not *reasonably arguable that the scheme benefit is available at law;
 (ii) if the scheme has not been implemented—it is not reasonably arguable that the scheme benefit would be available at law if the scheme were implemented.
Note: The condition in paragraph (b) would not be satisfied if the implementation of the scheme for all participants were in accordance with binding advice given by or on behalf of the Commissioner of Taxation (for example, if that implementation were in accordance with a public ruling under this Act, or all participants had private rulings under this Act and that implementation were in accordance with those rulings).
 (1A) A *scheme is also a tax exploitation scheme if, at the time of the conduct mentioned in subsection 290‑50(1):
 (a) one of these conditions is satisfied:
 (i) if the scheme has been implemented—Part IVA of the Income Tax Assessment Act 1936 applies to the scheme because of section 177DA or 177J of that Act;
 (ii) if the scheme has not been implemented—it is reasonable to conclude