Document ID: chunk:federal_register_of_legislation:C2010C00260:clause:3_1:p4
Version: federal_register_of_legislation:C2010C00260
Segment Type: clause
Provision Reference: sch 3 cl 1 (pt 4/6)
Character Range: 63885–66683

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).

 (2) In deciding whether it is *reasonably arguable that a *scheme benefit would be available at law, take into account any thing that the Commissioner can do under a *taxation law.

Example: The Commissioner may cancel a tax benefit obtained by a taxpayer in connection with a scheme under section 177F of the Income Tax Assessment Act 1936.

Subdivision 290‑C—Injunctions

Table of sections

290‑120 Conduct to which this Subdivision applies
290‑125 Injunctions
290‑130 Interim injunctions
290‑135 Delay in making ruling
290‑140 Discharge etc. of injunctions
290‑145 Certain limits on granting injunctions not to apply
290‑150 Other powers of the Federal Court unaffected

290‑120  Conduct to which this Subdivision applies

  This Subdivision applies to conduct of the kind referred to in subsection 290‑50(1) or (2).

290‑125  Injunctions

  If an entity has engaged, is engaging or is proposing to engage in conduct to which this Subdivision applies or would apply, the Federal Court of Australia may, on the application of the Commissioner, grant an injunction:
 (a) restraining the entity from engaging in the conduct; and
 (b) if, in the Court's opinion, it is desirable to do so—requiring the entity to do something.

290‑130  Interim injunctions

  The Federal Court of Australia may, before considering