93IInfrastructure borrowings—borrower requirements

#### 93I Infrastructure borrowings—borrower requirements \[Borrower requirements\] (1) For a borrowing to be an infrastructure borrowing, the requirements of this section must be met. \[Basic requirements\] (2) The borrower must: (a) be: (i) in any case—an incorporated body (not in the capacity of trustee) at the time of the borrowing or a corporate limited partnership (not in the capacity of trustee) in relation to the year of income in which the borrowing takes place; or (ii) in the case of a direct infrastructure borrowing or a refinancing infrastructure borrowing that relates to a direct infrastructure borrowing—a public trading trust (within the meaning of section 102R of the Tax Act), in relation to the year of income in which the borrowing takes place; and (b) where the borrower is an incorporated body or a corporate limited partnership and the borrowing is a direct infrastructure borrowing or a refinancing infrastructure borrowing that relates to such a direct infrastructure borrowing—at the time of the borrowing, intend to be an incorporated body (not in the capacity of trustee) throughout the borrower requirement period, or a corporate limited partnership (not in the capacity of trustee) throughout each year of income in which any part of the borrower requirement period occurs; and (c) where the borrower is a trust to which subparagraph (a)(ii) applies—at the time of the borrowing, intend to be such a trust in relation to each year of income in which any part of the borrower requirement period occurs; and (d) where the borrower is an incorporated body or a trust to which subparagraph (a)(ii) applies—not be making the borrowing in partnership with anyone else; and (e) in any case—subject to subsection (4), not be a government body or government owned (see subsection (3)) at the time of the borrowing. \[Meaning of government owned\] (3) For the purposes of paragraph (2)(e): (a) an incorporated body is government owned if: (i) it is limited by shares; and (ii) a government body is the beneficial owner of at least 50% of the total rights: (A) to dividends paid by the body; or (B) to distributions of capital of the body on winding‑up or otherwise; or (C) to vote at meetings of shareholders of the body; and (b) a corporate limited partnership is government owned if a government body is the beneficial owner of more than 50% of the interests in profits or capital of the partnership; and (c) a trust is government owned if a government body is the beneficial owner of more than 50% of the interests in income or corpus of the trust. \[Paragraph (2)(e) not to apply to certain bodies\] (4) Paragraph (2)(e) does not apply to a borrower if the borrower is, in accordance with criteria published in the Gazette by the Minister for the purposes of this subsection, a body that operates on a commercial basis. (4A) In the case of: (a) an indirect infrastructure borrowing; or (b) a refinancing infrastructure borrowing that relates to an indirect infrastructure borrowing; the borrower must be: (c) a non‑exempt resident company at the time of the borrowing; or (d) a non‑exempt resident corporate limited partnership in relation to the year of income in which the borrowing takes place. (4B) If the borrower is an incorporated company (not in the capacity of trustee) and the borrowing is: (a) an indirect infrastructure borrowing that relates to a direct infrastructure borrowing; or (b) a refinancing infrastructure borrowing that relates to an indirect infrastructure borrowing covered by paragraph (a); the borrower must, at the time of the borrowing, intend to be a non‑exempt resident company throughout the applicable borrower requirement period. For this purpose, the applicable borrower requirement period is the borrower requirement period in relation to the direct infrastructure borrowing. (4C) If the borrower is a corporate limited partnership (not in the capacity of trustee) in relation to the year of income in which the borrowing takes place and the borrowing is: (a) an indirect infrastructure borrowing that relates to a direct infrastructure borrowing; or (b) a refinancing infrastructure borrowing that relates to an indirect infrastructure borrowing covered by paragraph (a); the borrower must, at the time of the borrowing, intend to be a non‑exempt resident corporate limited partnership in relation to each year of income in which any part of the applicable borrower requirement period occurs. For this purpose, the applicable borrower requirement period is the borrower requirement period in relation to the direct infrastructure borrowing. \[Direct infrastructure borrowings by listed companies\] (5) If: (a) the infrastructure borrowing is: (i) a direct infrastructure borrowing; or (ii) a refinancing infrastructure borrowing that relates to a direct infrastructure borrowing; by an incorporated body limited by shares; and (b) the incorporated body is a listed company; and (c) at the time of the borrowing, a person is the beneficial owner of shares carrying more than half the voting rights in the incorporated body; that person must not, at the time of the borrowing, intend to dispose of enough of those shares to cause the number of voting rights to fall to or below half during the borrower requirement period in relation to the direct infrastructure borrowing. \[Direct infrastructure borrowings by unlisted companies\] (6) If: (a) the infrastructure borrowing is: (i) a direct infrastructure borrowing; or (ii) a refinancing infrastructure borrowing that relates to a direct infrastructure borrowing; by an incorporated body limited by shares; and (b) the incorporated body is not a listed company; and (c) at the time of the borrowing, a person either alone or together with an associate or associates is the beneficial owner of shares carrying more than half the voting rights in the incorporated body; that person, or that person and the associates, must not intend, at the time of the borrowing, to dispose of enough of those shares to cause the number of voting rights to fall to or below half during the borrower requirement period in relation to the direct infrastructure borrowing.