Document ID: chunk:federal_register_of_legislation:C2010C00622:clause:10_37:p4
Version: federal_register_of_legislation:C2010C00622
Segment Type: clause
Provision Reference: sch 10 cl 37 (pt 4/7)
Character Range: 120208–122888

*second continuity period (both within the meaning of subsection 165‑120(2)):
 (a) both:
 (i) persons must have held fixed entitlements to all of the income and capital of the company; and
 (ii) non‑fixed trusts, other than *family trusts, must have held fixed entitlements to a 50% or greater share of the income or a 50% or greater share of the capital of the company; or
 (b) both:
 (i) a fixed trust or a company (which trust or company is the holding entity) must have held, directly or indirectly, fixed entitlements to all of the income and capital of the company; and
 (ii) non‑fixed trusts, other than *family trusts, must have held fixed entitlements to a 50% or greater share of the income or a 50% or greater share of the capital of the holding entity.

Second condition

 (3) The persons holding fixed entitlements to shares of the income, and the persons holding fixed entitlements to shares of the capital, of:
 (a) in a paragraph (2)(a) case—the company; or
 (b) in a paragraph (2)(b) case—the holding entity;
at the beginning of the *first continuity period must have held those entitlements to those shares at all times during that period and the *second continuity period (within the meaning of subsection 165‑120(2)).

Third condition

 (4) At the beginning of the *first continuity period:
 (a) individuals must not have had (between them), directly or indirectly, and for their own benefit, fixed entitlements to a greater than 50% share of the income of the company; or
 (b) individuals must not have had (between them), directly or indirectly, and for their own benefit, fixed entitlements to a greater than 50% share of the capital of the company.

Fourth condition

 (5) It must be the case that, for each non‑fixed trust (other than an excepted trust) that, at any time in the *first continuity period or the *second continuity period, held directly or indirectly a fixed entitlement to a share of the income or capital of the company, section 267‑25 of Schedule 2F to the Income Tax Assessment Act 1936 would not have prevented the non‑fixed trust from deducting the amount in respect of the debt if it, rather than the company, would otherwise be entitled to deduct the amount.

165‑235  Information about non‑fixed trusts with interests in company

Notice about non‑resident non‑fixed trust

 (1) The Commissioner may give the company a notice in accordance with section 165‑240 if the requirements of subsections (2) to (5) of this section are met.

Tax detriment under Division 165

 (2) In its return of income for the income year:
 (a) the company must have deducted a *tax loss from a *loss year where it would not be allowed to deduct the