93KDirect infrastructure borrowing—requirement relating to use or sale of facilities on which borrowed money is to be spent

#### 93K Direct infrastructure borrowing—requirement relating to use or sale of facilities on which borrowed money is to be spent \[3 kinds of intention qualify\] (1) For the borrowing to be a direct infrastructure borrowing, it is also necessary that, at the time of the borrowing, the borrower has an intention of the kind set out in subsection (2), (3) or (4). \[Intention to use\] (2) One intention that the borrower may have for the purposes of subsection (1) is that: (a) it will own, use principally for gaining or producing assessable income and effectively control the use of, the facilities on which the money will be spent (other than by leasing them); and (b) the ownership, use for gaining or producing assessable income and effective control will continue for at least 25 years after the first such use by the borrower of any of the facilities concerned after their construction or acquisition; and (c) it will not do anything that will cause section 51AD of the Tax Act or Division 16D of Part III of that Act to apply to any of the facilities concerned. \[Intention to sell\] (3) Another intention that the borrower may have for the purposes of subsection (1) is that: (a) it will own the facilities on which the money will be spent; and (b) after constructing or acquiring the facilities on which the money will be spent and before they are used, it will transfer all of its rights, interests and obligations in respect of the facilities to another person who will be able to satisfy the requirements of section 93V for the transfer of the borrower’s certificate. It is not necessary that the identity of the person be known by the borrower at the time of the borrowing. \[Intention to use before selling\] (4) Another intention that the borrower may have for the purposes of subsection (1) is that: (a) it will, after constructing or acquiring the facilities on which the money will be spent, own, use principally for gaining or producing assessable income and effectively control the use of, those facilities (other than by leasing them) for a period less than 25 years after the first such use by the borrower of any of those facilities after their construction or acquisition; and (b) it will then transfer all of its rights, interests and obligations in respect of the facilities to another person who will be able to satisfy the requirements of section 93V for the transfer of the borrower’s certificate; and (c) it will not do anything during the period before the transfer that will cause section 51AD of the Tax Act or Division 16D of Part III of that Act to apply to any of those facilities. It is not necessary that the length of the period or the identity of the person be known at the time of the borrowing.