Section 456 to 459A amount means the section 456 to 459A amount.
(2) Where:
(a) apart from this subsection, an amount (in this subsection called the subsection (1) amount) is included under subsection (1) in the assessable income of an attributable taxpayer in relation to a CFT; and
(b) the following conditions are satisfied in respect of one or more other amounts (each of which is in this subsection called an assessed attributable amount);
(i) each is:
(A) apart from this subsection, included in the assessable income of a taxpayer (whether or not the attributable taxpayer), other than a trust or partnership; or
(B) assessed to a trustee under section 98, 99 or 99A;
(ii) each is attributable directly through the CFT, or indirectly through the CFT and any interposed partnerships or trusts (or any combination thereof), to the section 456 to 459A amount referred to in subsection (1);
then the subsection (1) amount is reduced to the extent that the Commissioner considers it represents an assessed attributable amount or assessed attributable amounts.
(3) A reference in subsection (1) to an Australian trust or in subsection (2) to a trust does not include a reference respectively to an Australian trust or a trust that is, in relation to the year of income concerned:
(b) a public trading trust within the meaning of Division 6C of that Part; or
(c) a complying superannuation fund, a non‑complying superannuation fund, a complying approved deposit fund, a non‑complying approved deposit fund or a pooled superannuation trust.
460 Only resident partners, beneficiaries etc. liable to be assessed as a result of attribution
(1) This section applies where an amount is included under section 456, 457, or 459A in the assessable income of an Australian partnership or an Australian trust of a year of income, except where the Australian trust is, in relation to the year of income:
(b) a public trading trust within the meaning of Division 6C of that Part; or
(c) a complying superannuation fund, a non‑complying superannuation fund, a complying approved deposit fund, a non‑complying approved deposit fund or a pooled superannuation trust.
(2) Where:
(a) as a result of the amount being so included, there is, apart from this subsection, a tax detriment for:
(i) a partner in the Australian partnership; or
(ii) a partner in another partnership (in this subsection called the ultimate partnership), where the tax detriment occurred because there were one or more partnerships or trusts (but not companies) interposed between the partner and the Australian partnership or the Australian trust; and
(b) the partner is not, in respect of his or her interest in the net income or partnership loss of the Australian partnership or the ultimate partnership, in the capacity of trustee of a trust; and
(c) the tax detriment would be reduced by an amount if it were recalculated on the assumption that section 92 applied only to so much of the partner’s interest in the net income or partnership loss of the Australian partnership or the ultimate partnership as is attributable to periods when the partner was a Part X Australian resident;
then, for the purposes of this Act, the tax detriment is taken to be reduced by that amount.
(3) Where:
(a) as a result of the amount being included as mentioned in subsection (1), there is, apart from this subsection, a tax detriment for:
(i) a beneficiary in the Australian trust; or
(ii) a beneficiary in another trust (in this subsection called the ultimate trust), where the tax detriment occurred because there were one or more partnerships or trusts (but not companies) interposed between the beneficiary and the Australian partnership or the Australian trust; and
(b) the beneficiary is not a partnership and is not, in respect of his or her share of the net income of the Australian trust or the ultimate trust, in the capacity of trustee of another trust; and
(c) the tax detriment would be reduced by an amount if it were recalculated on the following assumptions:
(i) sections 97, 98A and 100 applied only to so much of the beneficiary’s share of the net income of the Australian trust or the ultimate trust as is attributable to periods when the beneficiary was a Part X Australian resident;
(ii) Subdivision 115‑C of the Income Tax Assessment Act 1997 applied only to so much of the beneficiary’s share of each capital gain of the Australian trust or the ultimate trust as is attributable to periods when the beneficiary was a Part X Australian resident;
(iii) Subdivision 207‑B of the Income Tax Assessment Act 1997 applied only to so much of the beneficiary’s share of each franked distribution of the Australian trust or the ultimate trust as is attributable to periods when the beneficiary was a Part X Australian resident;
then, for the purposes of this Act, the tax detriment is taken to be reduced by that amount.
(4) Where:
(a) as a result of the amount being included as mentioned in subsection (1), there is, apart from this subsection, a tax detriment for:
(i) the trustee of the Australian trust; or
(ii) the trustee of another trust (in this subsection called the ultimate trust), where the tax detriment occurred because there were one or more partnerships or trusts (but not companies) interposed between the trustee and the Australian partnership or the Australian trust; and
(b) the tax detriment would be reduced by an amount if it were recalculated on the assumption that:
(i) section 98 applied only to so much of a beneficiary’s share of the net income of the Australian trust or the ultimate trust as is attributable to periods when the beneficiary was a Part X Australian resident; and
(ii) sections 99 and 99A applied only to the Australian trust or the ultimate trust if it were a resident trust estate within the meaning of Division 6 of Part III;
then, for the purposes of this Act, the tax detriment is taken to be reduced by that amount.
460A Effect of reducing section CGT event J1 amount
(1) This section applies in either of the following cases:
(a) one or more schemes or arrangements have the effect of reducing the attribution percentage of an attributable taxpayer in relation to a company that is a CFC, and are intended by the attributable taxpayer or an associate of the attributable taxpayer to have that effect;
(b) a company ceases to be a CFC in relation to a particular taxpayer.
(2) Work out the amount (if any) included under this Division in the taxpayer’s assessable income because of CGT event J1 (as it notionally happens to the company under Division 7) as though the reduction or cessation had not happened.
Note: CGT event J1 is about companies ceasing to be related after a roll‑over.
Division 10—Post‑attribution asset disposals
461 Reduction of disposal consideration or capital proceeds if attributed income not distributed
(1) If:
(a) it is necessary, for the purposes of applying a provision of this Act in the assessment of a taxpayer for a year of income, to take into account:
(i) the amount of consideration received, entitled to be received or taken to have been received, by the taxpayer in respect of the disposal of an asset; or
(ii) the capital proceeds from a CGT event happening in relation to a CGT asset;
being an asset that is an interest in an attribution account entity (the disposal entity); and
(b) immediately before the disposal or CGT event takes place, either or both of the following conditions are satisfied:
(i) there is an attribution surplus for the disposal entity in relation to the taxpayer;
(ii) there is an attribution surplus for one or more other attribution account entities in relation to the taxpayer, where each such entity is one in which the taxpayer has an indirect attribution account interest held through the disposal entity;
then, for the purposes of this Act:
(c) the consideration or capital proceeds that, apart from this section, would be taken into account under the provision referred to in paragraph (a) in respect of the disposal or CGT event is, subject to subsection (3), taken to be reduced by so much of the amount of the attribution surplus, or sum of the attribution surpluses, as the case requires; and
(d) an attribution debit is taken to arise at the time of the disposal or the CGT event under section 372, in relation to the taxpayer, for each attribution account entity (the surplus entity) in relation to which there is a surplus to which paragraph (c) applies; and
(e) the amount of the attribution debit is equal to so much of the surplus as is taken into account under paragraph (c); and
(f) there is no grossed‑up amount in relation to the attribution debit under section 373.
(3) For the purposes of paragraph (1)(c):
(a) if the disposal of the asset or the CGT event causes the taxpayer’s attribution account percentage for a surplus entity to be reduced by a proportion, then only that proportion of the attribution surplus for the entity is, subject to this subsection, to be taken into account under that paragraph; and
(b) if there is only one attribution surplus referred to in that paragraph and (after any application of paragraph (a) of this subsection) it exceeds the consideration from the disposal or the capital proceeds from the CGT event, then only so much of the surplus as does not exceed that consideration or those capital proceeds is to be taken into account under paragraph (1)(c); and
(c) where there are 2 or more attribution surpluses referred to in paragraph (1)(c) and (after any application of paragraph (a) of this subsection) their sum exceeds the consideration from the disposal or the capital proceeds from the CGT event, then:
(i) if the taxpayer makes an election that, for the purposes of this paragraph, a part of each surplus (after any application of paragraph (a)) such that the sum of the amounts to which the election relates equals that consideration or those capital proceeds—only the part to which the election relates of each surplus is to be taken into account under paragraph (1)(c); or
(ii) if subparagraph (i) does not apply—only a proportion of each surplus (after any application of paragraph (a)) is to be taken into account under paragraph (1)(c), being the proportion calculated using the formula:
Start formula start fraction Consideration over Total surplus end fraction end formula
where:
consideration means the amount of the consideration or the capital proceeds.
total surplus means the sum of the attribution surpluses (after any application of paragraph (a)).
(4) An election for the purposes of paragraph (3)(c) must be made on or before the date of lodgment of the taxpayer’s return of income for the year of income referred to in paragraph (1)(a) or within such further period after the lodgment of the return as the Commissioner allows.
(4A) In determining, for the purposes of this section, whether there was an attribution surplus immediately before a CGT event, and the amount of such a surplus, also take into account any attribution credit that later arises because the CGT event caused section 104‑175 of the Income Tax Assessment Act 1997 (as it notionally applies to the CGT event entity under Division 7) to operate.
(5) In this section:
interest, in relation to an attribution account entity, means:
(a) if the entity is a company—an interest in shares in the company, or an entitlement to acquire such an interest; or
(b) if the entity is a partnership—an interest of a partner in the profits or property of the partnership, or an entitlement of a partner to acquire such an interest; or
(c) if the entity is a trust—an entitlement of a beneficiary to a share of the income or corpus of the trust, or an entitlement of a beneficiary to acquire such an entitlement.
Division 11—Keeping of records
462 Keeping of records—section 456
Subject to this Division, where:
(a) a person is an attributable taxpayer in relation to a CFC at the end of a statutory accounting period of the CFC; and
(b) the CFC has attributable income for the statutory accounting period in respect of the person;
the person must keep records (in Australia or elsewhere) containing particulars of:
(c) the acts, transactions and other circumstances that resulted in the person being an attributable taxpayer in relation to the CFC at that time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the CFC held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the person in relation to the CFC at that time; and
(f) the basis of the calculation of the amount (including a nil amount) included in the assessable income of the person under section 456 in relation to the CFC’s attributable income for the statutory accounting period in respect of the person.
Note: There is an administrative penalty if you do not keep or retain records as required by this Division: see section 288‑25 in Schedule 1 to the Taxation Administration Act 1953.
462A Keeping of records—section 457
Subject to this Division, where:
(a) subsection 457(1) applies to a change of residence of a CFC; and
(b) at the residence‑change time referred to in that subsection, a person is an attributable taxpayer in relation to the CFC;
the person must keep records (in Australia or elsewhere) containing particulars of:
(c) the acts, transactions and other circumstances that resulted in the person being an attributable taxpayer in relation to the CFC at that time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the CFC held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the person in relation to the CFC at that time; and
(f) the basis of the calculation of the amount (including a nil amount) included in the assessable income of the person under section 457 in relation to the change of residence concerned.
464A Keeping of records—section 459A
Subject to this Division, where:
(a) subsection 459A(1) applies in relation to an amount (in this section called the trigger amount) included in the assessable income of an Australian partnership or of an Australian trust as mentioned in paragraph 459A(1)(a); and
(b) at the time referred to in whichever subparagraph of paragraph 459A(1)(c) is applicable, a person is an attributable taxpayer in relation to the CFC or the CFT mentioned in that paragraph;
the person must keep records (in Australia or elsewhere) containing particulars of:
(c) the acts, transactions and other circumstances that resulted in the person being an attributable taxpayer in relation to the CFC or the CFT at that time; and
(d) the basis of the calculation of:
(i) the direct attribution interest; and
(ii) the aggregate of the indirect attribution interests;
in the CFC or the CFT held by the person at that time; and
(e) the basis of the calculation of the attribution percentage of the person in relation to the CFC or the CFT at that time; and
(f) the basis of the calculation of the amount (including a nil amount) that, apart from subsection 459A(2), would be included in the assessable income of the person under subsection 459A(1) in relation to the trigger amount.
465 Offence of failing to keep records
(1) A person who contravenes section 462, 462A, or 464A commits an offence punishable on conviction by a fine not exceeding 30 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
(2) An offence under section 462, 462A, or 464A is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
466 Manner in which records required to be kept
A person who is required by this Division to keep records must:
(a) keep the records in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and
(b) keep the records so as to enable the person’s liability under this Act to be readily ascertained.
467 Circumstances where records not required to be kept—reasonable excuse etc.
This Division does not require a person to keep a record of information if:
(a) the person did not know, and had no reasonable grounds to suspect, that section 462, 462A or 464A, as the case requires, was applicable to the person; or
(b) the person did not know that, and made all reasonable efforts to ascertain whether, section 462, 462A or 464A, as the case requires, was applicable to the person; or
(c) the person did not know, and made all reasonable efforts to obtain, the information.
468 Treatment of partnerships
(1) Subject to subsections (2) and (3), the following provisions apply to a partnership as if the partnership were a person:
(a) sections 462 to 467 (inclusive);
(b) subsections 262A(4) and (5), in so far as those subsections apply to records kept under or for the purposes of this Division;
(c) Part III of the Taxation Administration Act 1953, in so far as that Part of that Act relates to the provisions covered by paragraph (a) or (b) of this subsection.
(2) Where, by virtue of subsection (1), an offence is taken to have been committed by a partnership, that offence is taken to have been committed by each of the partners.
(3) In a prosecution of a person for an offence by virtue of subsection (2), it is a defence if the person proves that the person:
(a) did not aid, abet, counsel or procure the act or omission by virtue of which the offence was taken to have been committed; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, an act or omission by virtue of which the offence is taken to have been committed.