35‑40 Royalties35‑40 Royalties

#### 35‑40 Royalties (1) An amount of expenditure is excluded expenditure to the extent that it is any of the following: (a) a \*mining royalty; (b) a \*private mining royalty; (c) a payment that gives rise to a \*royalty credit under paragraph 60‑20(1)(b) (payments by way of recoupment for mining royalties). (2) Despite subsection (1), a \*private mining royalty is not excluded expenditure, to the extent that: (a) it is paid to an \*entity as consideration for the entity performing services that form part of \*upstream mining operations for a mining project interest; and (b) it does not represent a share of the profits made from a \*mining venture to which a mining project interest relates. (3) Despite subsection (1), a \*private mining royalty is not excluded expenditure to the extent that it is paid to an entity under an agreement entered into with the entity: (a) before 2 May 2010; and (b) at a time when the entity is an STB (within the meaning of Division 1AB of Part III of the Income Tax Assessment Act 1936) other than an \*excluded STB. (4) Despite subsection (1), a \*private mining royalty is not excluded expenditure, to the extent that it is by way of consideration for the carrying on of \*mining operations in the \*project area for a mining project interest, if it is paid: (a) to a native title holder (within the meaning of the Native Title Act 1993) whose approved determination of native title (within the meaning of that Act) relates to the project area for the mining project interest; or (b) to a registered native title claimant (within the meaning of the Native Title Act 1993) whose claimant application (within the meaning of that Act) relates to the project area for the mining project interest; or (c) to a person who holds a right that: (i) arises under another \*Australian law dealing with the rights of \*Aboriginal persons or \*Torres Strait Islanders in relation to land or waters; and (ii) relates to the project area for the mining project interest. (5) To the extent a \*private mining royalty is not \*excluded expenditure because of subsection (3) or (4), it is not excluded expenditure under section 35‑35.