Document ID: chunk:federal_register_of_legislation:C2024C00267:section:8:p11
Version: federal_register_of_legislation:C2024C00267
Segment Type: section
Provision Reference: s 8 (pt 11/48)
Character Range: 256284–258934

of Division 83A of the Income Tax Assessment Act 1997

83A‑5  Application of Division 83A of the Income Tax Assessment Act 1997
 (1) Division 83A of the Income Tax Assessment Act 1997 applies in relation to an ESS interest if:
 (a) the interest was acquired on or after 1 July 2009; and
 (b) the relevant share or right (within the meaning of Division 13A of Part III of the Income Tax Assessment Act 1936, as in force at the time (the pre‑Division 83A time) occurring just before Schedule 1 to the Tax Laws Amendment (2009 Budget Measures No. 2) Act 2009 commenced, (former Division 13A)) was not acquired (within the meaning of former Division 13A) before 1 July 2009.
 (2) Furthermore, Subdivision 83A‑C of the Income Tax Assessment Act 1997 (and the rest of Division 83A of that Act, to the extent that it relates to that Subdivision) also applies in relation to an ESS interest if:
 (a) all of the following subparagraphs apply:
 (i) at the pre‑Division 83A time, subsection 139B(3) of the Income Tax Assessment Act 1936 applied in relation to the interest;
 (ii) the interest was acquired (within the meaning of former Division 13A) before 1 July 2009;
 (iii) the cessation time mentioned in subsection 139B(3) of the Income Tax Assessment Act 1936, as in force at the pre‑Division 83A time, for the interest did not occur before 1 July 2009; or
 (b) all of the following subparagraphs apply:
 (i) at the pre‑Division 83A time, section 26AAC of the Income Tax Assessment Act 1936, as in force at that time, (former section 26AAC) applied in relation to the interest;
 (ii) the interest was acquired (within the meaning of former section 26AAC) before 1 July 2009;
 (iii) an amount has not been included in a person's assessable income under former section 26AAC in relation to the interest before 1 July 2009.
 (2A) To avoid doubt, for the purposes of subparagraph (2)(a)(i), section 139CDA of the Income Tax Assessment Act 1936 applied to the interest at the pre‑Division 83A time if the taxpayer in question first became or becomes an employee, as mentioned in that section, before the cessation time for the interest. It does not matter whether the employee so became or becomes an employee before, on or after the pre‑Division 83A time.
Note: Section 139CDA was about shares or rights acquired while engaged in foreign service.
 (3) Subsection (2) applies despite section 83A‑105 of the Income Tax Assessment Act 1997.
 (4) If Subdivision 83A‑C of the Income Tax Assessment Act 1997 applies in relation to an ESS interest because of subsection (2):
 (a) do not include an amount in your assessable income under subsection 83A‑110(1) of that