INCOME TAX ASSESSMENT ACT 1997
|CHAPTER 2 - LIABILITY RULES OF GENERAL APPLICATION
|PART 2-40 - RULES AFFECTING EMPLOYEES AND OTHER TAXPAYERS RECEIVING PAYG WITHHOLDING PAYMENTS
|| View history reference
Part 2-40 inserted by No 9 of 2007, s 3 and Sch 2 item 1, applicable on and after 1 July 2007.
Div 83A inserted by No 133 of 2009, s 3 and Sch 1 item 1, effective 14 December 2009. No 133 of 2009, s 3 and Sch 1 item 87 contains the following transitional provision:
87 Transitional - regulations
87 Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations that:
(a) are made for the purposes of Division 83A of the Income Tax Assessment Act 1997; or
(b) are made for the purposes of a taxation law (within the meaning of that Act) and relate to the amendments made;
may take effect from any time on or after 1 July 2009, if the regulations are made before the end of the period of 3 months commencing on 14 December 2009.
Subdiv 83A-B inserted by No 133 of 2009, s 3 and Sch 1 item 1, effective 14 December 2009.
This subsection applies to an *ESS interest in a company if, when you acquire the interest, you are employed by:
(a) the company; or
(b) a *subsidiary of the company.
Employee share scheme relates only to ordinary shares
This subsection applies to an *ESS interest you acquire under an *employee share scheme if, when you acquire the interest, all the ESS interests available for acquisition under the scheme relate to ordinary *shares.
Integrity rule about share trading and investment companies.
This subsection applies to an *ESS interest in a company unless, when you acquire the interest:
(a) the predominant business of the company (whether or not stated in its constituent documents) is the acquisition, sale or holding of *shares, securities or other investments (whether directly or indirectly through one or more companies, partnerships or trusts); and
(b) you are employed by the company; and
(c) you are also employed by any other company that is:
(i) a *subsidiary of the first company; or
(ii) a holding company (within the meaning of the Corporations Act 2001) of the first company; or
(iii) a subsidiary of a holding company (within the meaning of the Corporations Act 2001) of the first company.
Minimum holding period
This subsection applies to an *ESS interest you acquire under an *employee share scheme if, at all times during the interest's *minimum holding period, the scheme is operated so that every acquirer of an ESS interest (the scheme interest) under the scheme is not permitted to dispose of:
(a) the scheme interest; or
(b) a beneficial interest in a *share acquired as a result of the scheme interest;
during the scheme interest's minimum holding period.
This subsection is taken to apply in the case of a takeover or restructure: see subsection 83A-130(3).
An *ESS interest's minimum holding period is the period starting when the interest is acquired under the *employee share scheme and ending at the earlier of:
(a) 3 years later, or such earlier time as the Commissioner allows if the Commissioner is satisfied that:
(i) the operators of the scheme intended for subsection (4) to apply to the interest during the 3 years after that acquisition of the interest; and
(ii) at the earlier time that the Commissioner allows, all *membership interests in the relevant company were disposed of under a particular *scheme; and
(b) when the acquirer of the interest ceases being employed by the relevant employer.
10% limit on shareholding and voting power
This subsection applies to an *ESS interest in a company if, immediately after you acquire the interest:
(a) you do not hold a beneficial interest in more than 10% of the *shares in the company; and
(b) you are not in a position to cast, or to control the casting of, more than 10% of the maximum number of votes that might be cast at a general meeting of the company.
For the purposes of subsection (6), you are taken to:
(a) hold a beneficial interest in any *shares in the company that you can acquire under an *ESS interest that is a beneficial interest in a right to acquire a beneficial interest in such shares; and
(b) be in a position to cast votes as a result of holding that interest in those shares.
S 83A-45 inserted by No 105 of 2015, s 3 and Sch 1 item 11, applicable in relation to ESS interests acquired on or after 1 July 2015.