Document ID: chunk:federal_register_of_legislation:C2025C00014:section:103a:p8
Version: federal_register_of_legislation:C2025C00014
Segment Type: section
Provision Reference: s 103A (pt 8/9)
Character Range: 911199–913751

be expected to be, paid; and
 (h) any other relevant matters.
 (5) Where a company would not, under the preceding provisions of this section, be a public company for the purposes of subsection (1) in relation to the year of income but the Commissioner is of the opinion that, having regard to:
 (a) the number of persons who were, at any time during the year of income, capable of controlling the company and whether any of those persons was a public company;
 (b) the market value of the shares issued by the company before the end of the year of income;
 (c) the number of persons who beneficially owned shares in the company at the end of the year of income; and
 (d) any other matters that the Commissioner thinks relevant;
it is reasonable that the company should be treated as a public company for the purposes of subsection (1) in relation to the year of income, the company shall be deemed to be a public company for those purposes in relation to the year of income.
 (5A) The Commissioner may, under subsection (5), form an opinion that it is reasonable that a company should be treated as a public company for the purposes of subsection (1) in relation to a year of income notwithstanding that the forming of such an opinion by the Commissioner would impose on the company a liability to pay a greater amount of income tax than the company would otherwise be liable to pay.
 (6) Notwithstanding anything in the preceding provisions of this section, the Commissioner may treat a company as not being, by virtue of paragraph (2)(a) or (b), a public company for the purposes of subsection (1) in relation to the year of income if the Commissioner is of the opinion that, by reason of:
 (a) any provisions in the company's constituent document, or in any contract, agreement or instrument, authorizing the variation or abrogation of the voting rights or rights to dividends in respect of any shares in the company or relating to the conversion, exchange or redemption of any such shares;
 (b) any contract, agreement, option or instrument under which a person has power to acquire shares in the company; or
 (c) any power or authority in a person in relation to the voting rights or rights to dividends in respect of any shares in the company;
the voting rights or rights to dividends in respect of any shares in the company were, at any time during the year of income, capable of being varied or abrogated in such a manner (notwithstanding that they were not in fact varied or abrogated in that manner) that:
 (d) not less than three‑quarters of