This instrument is made under subsections 376-260(2) and (3) of the Income Tax Assessment Act 1997.
4 Schedules
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
5 Objects of Rules
The objects of these Rules are:
(a) to provide for the issue of provisional certificates in relation to the PDV offset (see subsection 376‑260(2) of the Act); and
(b) to specify how applications for certificates (including provisional certificates) in relation to the PDV offset are to be made (see subsection 376‑260(3) of the Act).
6 Interpretation
Note: A number of expressions used in this instrument are defined in section 995-1 of the Act, including the following:
(a) ABN;
(b) accounting standards;
(c) arm’s length;
(d) arrangement;
(e) Arts Minister;
(f) associate;
(g) Australian resident;
(h) company;
(i) completed;
(j) film;
(k) permanent establishment;
(l) production expenditure;
(m) qualifying Australian production expenditure;
(n) tax offset.
(1) In this instrument:
Act means the Income Tax Assessment Act 1997.
application for a certificate for the PDV offset means an application made under subsection 376‑230(2) of the Act.
Arts Department means the Department administered by the Arts Minister.
Board has the meaning given by rule 7 of the Film Certification Advisory Board Rules 2018.
certificate for the PDV offset means a certificate issued by the Arts Minister under section 376‑45 of the Act.
estimated qualifying Australian production expenditure means an amount worked out having regard to the matters in Subdivision 376‑C of the Act.
independent line producer means a person who, in the Board’s opinion:
(a) has recent relevant experience in film production management; and
(b) is independent of the company in relation to whom he or she is asked, under subrule 11(3) or 21(3), to provide a report.
PDV offset means the tax offset mentioned in subsection 376‑35(1) of the Act.
provisional certificate means a certificate issued by the Board under rule 15.
registered company auditor has the meaning given by section 9 of the Corporations Act 2001.
related body corporate has the meaning given by section 9 of the Corporations Act 2001.
(2) For the purposes of this instrument, if a company (the incoming company) takes over the post, digital and visual effects production for a film from another company (the outgoing company):
(a) any of the activities that constitute post, digital and visual effects production for the film and that were carried out by the outgoing company are taken to have been carried out by the incoming company in relation to the film; and
(b) any arrangements made, by the outgoing company, for the purposes of post, digital and visual effects production for the film are taken to have been made by the incoming company in relation to the film.
Part 2—Provisional certificates for PDV offset
7 Definition for Part 2
In this Part:
applicant means a company that has applied for a provisional certificate for the PDV offset in accordance with this Part.
8 Application for provisional certificate
A company may apply to the Board for a provisional certificate for the PDV offset if:
(a) the company:
(i) is an Australia resident; or
(ii) is a foreign resident who intends to establish a permanent establishment in Australia; or
(iii) is a foreign resident that has a permanent establishment in Australia and has an ABN; and
(b) the company is the company that is carrying out, or is making the arrangements for the carrying out of, all the activities in Australia that are necessary for the post, digital and visual effects production for the film.
9 Form of application for provisional certificate
Information in application
(1) An application for a provisional certificate for the PDV offset must:
(a) be made to the Board in writing; and
(b) include the information specified in Divisions 1 and 2 of Part A of Schedule 1; and
(c) be signed on behalf of the applicant.
(2) If any of the information specified in Division 3 of Part A of Schedule 1 is available and is relevant to the film, the application must also include that information.
Documents attached to application
(3) The following documents must be attached to the application:
(a) the documents specified in Part B of Schedule 1;
(b) an expenditure statement, prepared in accordance with rule 25, for the estimated qualifying Australian production expenditure on the film, to the extent that it relates to post, digital and visual effects production for the film.
(4) If expenditure incurred in producing material for use in publicising or promoting the film is claimed as estimated qualifying Australian production expenditure by the applicant under item 3 of the table in subsection 376‑150(1) of the Act, either of the following must be attached to the application:
(a) evidence that the copyright in the material is held by an Australian resident; or
(b) if such evidence is not available, a statement of assurance from the applicant that the copyright in the material will be held by an Australian resident.
10 Delivery of application for provisional certificate
An application for a provisional certificate for the PDV offset must be sent to the Arts Department.
11 Board to consider application for provisional certificate
(1) On receiving an application for a provisional certificate for the PDV offset, the Board must:
(a) consider the application; and
(b) decide whether or not to issue a provisional certificate to the applicant.
(2) For paragraph (1)(a), in considering the application, the Board:
(a) may seek information or advice from any person or source; and
(b) may take into account the knowledge and experience of its members; and
(c) must consider all relevant information, including the following information:
(i) the application and attached documents;
(ii) any written report requested by the Board under subrule (3) and any written submission made by the applicant in response to that report;
(iii) any additional information provided by the applicant under rule 12;
(iv) any other relevant information or advice obtained by the Board.
(3) Without limiting paragraph (2)(a), the Board may ask an independent line producer to provide a written report to the Board about any matter that is relevant to whether a condition set out in subsection 376‑45(2), (3) or (5) of the Act will be met or is likely to be met.
(4) A report under subsection (3) may include advice about any of the following matters:
(a) whether the applicant’s expenditure statement is commercially reasonable;
(b) whether specific items claimed in the applicant’s expenditure statement are reasonably attributable to the estimated qualifying Australian production expenditure on the film (to the extent that the estimated qualifying Australian production expenditure relates to post, digital and visual effects production for the film);
(c) whether costs that are charged for specific items indicate that the parties to the transaction will be dealing with each other at arm’s length.
(5) If the Board intends to use information or advice from a third party to support a decision to refuse to issue a provisional certificate for the PDV offset to an applicant, the Board must give the applicant an opportunity to comment on the substance of that information or advice.
(6) If the Board asks an independent line producer to provide the Board with a written report under subrule (3), the Board must:
(a) give a copy of the report to the applicant to whom it relates as soon as practicable; and
(b) give the applicant opportunity to make a written submission to the Board in response to the report.
(7) If under subrules (5) or (6), the applicant is provided with an opportunity to comment on the substance of information or advice, or to make written submissions to the Board in response to a report, the applicant has 28 days from the day they are notified of the opportunity to provide a response.
(8) At the request of the applicant, the Board may extend the period in which the applicant is to provide a response.
(9) If an applicant does not provide a response within the 28 days, or any extended period under subrule (8), the Board may refuse to issue a provisional certificate to the applicant.
12 Board may request additional information from applicant
(1) If, in the opinion of the Board, it requires additional information in order to decide whether or not to issue a provisional certificate for the PDV offset, the Board may ask the applicant, in writing, to provide that information to the Board.
(2) The request must specify:
(a) the information required by the Board (the additional information); and
(b) the period within which the information must be provided to the Board (the notification period).
(3) An applicant may request that the Board extend the notification period.
(4) A request under subrule (3) must be made:
(a) in writing; and
(b) within 28 days of the applicant’s receipt of the written request given under subrule (1).
(5) If a request is made by an applicant under subrule (3), the Board may extend the notification period.
(6) If an applicant does not provide the additional information within the notification period, or within the notification period as extended under subrule (5), the Board may refuse to issue a provisional certificate to the applicant.
13 Refusal to issue provisional certificate
The Board may refuse to issue a provisional certificate for the PDV offset for a film if it is not satisfied that the conditions set out in subsections 376‑45(2), (3) and (5) of the Act will be met, or are likely to be met, if the post, digital and visual effect production for the film is completed in accordance with the information supplied in the application.
14 Notice of refusal to issue provisional certificate
(1) If the Board decides not to issue a provisional certificate for the PDV offset for a film, the Board must give the applicant written notice of the decision.
(2) The written notice must set out each condition specified in section 376‑45 of the Act that the Board was not satisfied would be met, or likely to be met, if the film was completed in accordance with the information supplied in the application.
(3) The Board must give the written notice to the applicant no later than 28 days after the Board’s decision not to issue the provisional certificate.
15 Issue of provisional certificate
(1) The Board must issue a provisional certificate for the PDV offset for a film to the applicant if it is satisfied that the conditions set out in subsections 376‑45(2), (3) and (5) of the Act will be met, or are likely to be met, if the post, digital and visual effects production for the film is completed in accordance with the information supplied in the application.
(2) A provisional certificate is subject to any condition specified by the Board in the certificate.
16 Content of provisional certificate
(1) A provisional certificate must state that the Board is satisfied that the conditions set out in subsections 376‑45(2), (3) and (5) of the Act will be met, or are likely to be met, if the post, digital and visual effects production for the film is completed in accordance with:
(a) the information supplied in the application; and
(b) the conditions (if any) specified in the provisional certificate.
(2) A provisional certificate must also state that it:
(a) does not entitle an applicant to claim a tax offset under Division 376 of the Act; and
(b) does not prevent a decision by the Arts Minister to refuse to grant a certificate under Division 376 of the Act; and
(c) is not a guarantee that the Arts Minister will issue a certificate to the applicant under section 376‑45 of the Act.
17 Effect of provisional certificate
A provisional certificate for the PDV offset:
(a) does not entitle an applicant to claim a tax offset under Division 376 of the Act; and
(b) does not prevent a decision by the Arts Minister to refuse to grant a certificate under Division 376 of the Act; and
(c) is not a guarantee that the Arts Minister will issue a certificate to the applicant under section 376‑45 of the Act.
Part 3—Certificates for PDV offset
18 Definition for Part 3
In this Part:
applicant means a company that has applied for a certificate for the PDV offset in accordance with this Part.
19 Form of application for certificate for the PDV offset
Information in application
(1) An application for a certificate for the PDV offset must:
(a) be made to the Arts Minister in writing; and
(b) include the information specified in Divisions 1 to 3 of Part A of Schedule 2; and
(c) be signed on behalf of the applicant.
Documents attached to application
(2) The following documents must be attached to the application:
(a) the documents specified in Part B of Schedule 2;
(b) an expenditure statement, prepared in accordance with rule 26, for the estimated qualifying Australian production expenditure on the film, to the extent that it relates to post, digital and visual effects production for the film;
(c) an auditor’s statement that:
(i) includes an audited qualifying Australian production expenditure figure; and
(ii) includes a statement that the audit was conducted in compliance with rule 28; and
(iii) is signed by a person who:
(A) is a registered company auditor; and
(B) is not an officer, employee or partner of the applicant or of a body corporate that is a related body corporate in relation to the applicant;
(d) if the expenditure statement contains an amount of estimated qualifying Australian production expenditure that has been translated into Australian currency using the special translation rule in item 9A or 9B of the table in subsection 960‑50(6) of the Act, a foreign currency statement, prepared in accordance with rule 27.
(3) If expenditure incurred to acquire copyright, or a licence in relation to copyright, in a pre‑existing work for use in the film is claimed, by the applicant, as estimated qualifying Australian production expenditure under item 2 of the table in subsection 376‑150(1) of the Act, the following documents must also be attached to the application:
(a) evidence that the copyright is held by an Australian resident;
(b) proof of the acquisition of the copyright or a licence in relation to the copyright (including any agreement in relation to the acquisition).
(4) If expenditure is claimed, by the applicant, as estimated qualifying Australian production expenditure under item 3 of the table in subsection 376‑150(1) of the Act because it was incurred in producing material for use in publicising or otherwise promoting the film, the following documents must also be attached to the application:
(a) evidence that the copyright in the material is held by an Australian resident;
(b) evidence that the expenditure was so incurred.
(5) If expenditure is claimed, by the applicant, as estimated qualifying Australian production expenditure under item 4 of the table in subsection 376‑150(1) of the Act because it was incurred in producing audio or visual content for the film, the following documents must also be attached to the application:
(a) evidence that the content was produced otherwise than for use in the first copy of the film;
(b) evidence that the expenditure was incurred in Australia prior to the completion of the film.
20 Delivery of application for certificate for the PDV offset
An application for a certificate for the PDV offset must be sent to the Arts Department.
21 Board to consider application for certificate for the PDV offset
(1) If the Arts Minister asks the Board to advise him or her about an application for a certificate for the PDV offset, the Board must:
(a) consider the application; and
(b) advise the Arts Minister as requested.
(2) For paragraph (1)(a), in considering the application, the Board:
(a) may seek information or advice from any person or source; and
(b) may take into account the knowledge and experience of its members; and
(c) must consider all relevant information, including the following information:
(i) the application and attached documents;
(ii) any written report requested by the Board under subrule (3) and any written submission made by the applicant in response to that report;
(iii) any additional information provided by the applicant under rule 22;
(iv) any other relevant information or advice obtained by the Board.
(3) Without limiting paragraph (2)(a), the Board may ask an independent line producer to provide a written report to the Board about any matter that is relevant to whether a condition set out in subsection 376‑45(2), (3) or (5) of the Act has been met.
(4) A report under subsection (3) may include advice about any of the following matters:
(a) whether the applicant’s expenditure statement is commercially reasonable;
(b) whether specific items claimed in the applicant’s expenditure statement are reasonably attributable to the production expenditure on the film or to the estimated qualifying Australian production expenditure on the film (to the extent that the estimated qualifying Australian production expenditure relates to post, digital and visual effects production for the film);
(c) whether costs that are charged for specific items indicate that the parties to the transaction were dealing with each other at arm’s length.
(5) If the Board intends to use information or advice from a third party to support advice to the Arts Minister not to issue a certificate for the PDV offset to an applicant, the Board must give the applicant an opportunity to comment on the substance of that information or advice.
(6) If the Board asks an independent line producer to provide the Board with a written report under subrule (3), the Board must:
(a) give a copy of the report to the applicant to whom it relates as soon as practicable; and
(b) give the applicant an opportunity to make a written submission to the Board in response to the report.
(7) If under subrules (5) or (6), the applicant is provided with an opportunity to comment on the substance of information or advice, or to make written submissions to the Board in response to a report, the applicant has 28 days from the day they are notified of the opportunity to provide a response.
(8) At the request of the applicant, the Board may extend the period in which the applicant is to provide a response.
(9) If an applicant does not provide a response within the 28 days, or any extended period under subrule (8), the Board may proceed to advise the Arts Minister in accordance with rule 23.
22 Board may request additional information from applicant
(1) If, in the opinion of the Board, it requires additional information in order to provide advice to the Arts Minister about an application, the Board may ask the applicant, in writing, to provide that information to the Board.
Note: Example: The Board may ask an applicant, in writing, to provide an audit opinion on the production expenditure on the film.
(2) The request must specify:
(a) the information required by the Board (the additional information); and
(b) the period within which the information must be provided to the Board (the notification period).
(3) An applicant may request that the Board extend the notification period.
(4) A request under subrule (3) must be made:
(a) in writing; and
(b) within 28 days of the applicant’s receipt of the written request given under subrule (1).
(5) If a request is made by an applicant under subrule (3), the Board may extend the notification period.
(6) If an applicant does not provide the additional information within the notification period, or within the notification period as extended under subrule (5), the Board may proceed to advise the Arts Minister in accordance with rule 23.
23 Board to advise Arts Minister
(1) For paragraph 21(1)(b), if the Arts Minister has asked the Board to advise whether to issue a certificate for the PDV offset to an applicant, the Board must advise the Arts Minister, in writing:
(a) whether the Board is satisfied that the conditions set out in subsection 376‑45(2), (3) and (5) of the Act are met in relation to the application, assuming, as far as is practicable, that:
(i) the Board were acting under Division 376 of the Act; and
(ii) the Board had determined the qualifying Australian production expenditure on the film, to the extent that it relates to post, digital and visual effects production for the film; and
(b) whether or not to issue a certificate for the PDV offset to the applicant.
(2) If the Board advises the Arts Minister:
(a) that it is not satisfied that a condition set out in section 376‑45 of the Act is met in relation to an application; or
(b) not to issue a certificate for the PDV offset to an applicant;
the Board’s written advice to the Arts Minister must include a reason for that advice.
Part 4—Expenditure statements and foreign currency statements
24 Definition for Part 4
In this Part:
applicant means a company that has applied, or that intends to apply, for a provisional certificate, or a certificate, for the PDV offset.
25 Expenditure statements for provisional certificates
(1) For paragraph 9(3)(b), an expenditure statement for a provisional certificate for the PDV offset must comply with subrules (2) to (6).
(2) An expenditure statement must:
(a) specify any estimated qualifying Australian production expenditure on the film, to the extent that it relates to post, digital and visual effects production for the film, claimed under:
(i) item 4 of the table in subsection 376‑150(1) of the Act (expenditure incurred in producing additional content); or
(ii) an item of the table in subsection 376‑165(1) of the Act; and
(b) specify any expenditure incurred by an outgoing company.
(3) The expenditure statement must also include:
(a) a statement of the estimated qualifying Australian production expenditure on the film, to the extent that it relates to post, digital and visual effects production for the film; and
(b) a description of each budget item; and
(c) the amount of projected expenditure on each budget item; and
(d) details of each service provider by budget item; and
(e) details of the location in which, and the period over which, each service or good has been, or will be, provided; and
(f) details of the location of any land to be used in making the film, and the period of use of the land.
Note: The estimated qualifying Australian production expenditure on the film, to the extent that it relates to post, digital and visual effects production for the film, must be at least A$500,000 for PDV work commenced on or after 1 July 2010, and A$5 million for PDV work commenced on or after 1 July 2007 but prior to 1 July 2010 (see paragraph 376‑45(5)(a) of the Act).
(4) An amount in an expenditure statement must be expressed in Australian currency.
(5) For the purposes of an expenditure statement, an amount in foreign currency that is relevant for a purpose mentioned in column 2 of item 9A of the table in subsection 960‑50(6) of the Act must be translated into Australian currency using the special translation rule in that item as if:
(a) a reference in that item to qualifying Australian production expenditure were a reference to estimated qualifying Australian production expenditure; and
(b) if post, digital and visual effects production for the film has not commenced at the time that the expenditure statement is prepared—a reference to the exchange rate applicable when post, digital and visual effects production for the film commences is a reference to an exchange rate estimated by the applicant.
(6) If an expenditure statement includes an amount in foreign currency that has been translated into Australian currency using the special translation rule in item 9A of the table in subsection 960‑50(6) of the Act, as applied in accordance with subrule (5), the expenditure statement must also include the exchange rate, or estimated exchange rate, used to translate the amount.
26 Expenditure statements for certificates for the PDV offset
(1) For paragraph 19(2)(b), an expenditure statement for a certificate for the PDV offset must comply with subrules (2) to (5).
(2) An expenditure statement must:
(a) specify any estimated qualifying Australian production expenditure on the film, to the extent that it relates to post, digital and visual effects production for the film, claimed under:
(i) item 4 of the table in subsection 376‑150(1) of the Act (expenditure incurred in producing additional content); or
(ii) an item of the table in subsection 376‑165(1) of the Act; and
(b) specify any expenditure incurred by an outgoing company.
(3) The expenditure statement must also include:
(a) a statement of the estimated qualifying Australian production expenditure on the film, to the extent that it relates to post, digital and visual effects production for the film; and
(b) a description of each budget item; and
(c) the amount of projected expenditure on each budget item; and
(d) details of each service provider by budget item; and
(e) details of the location in which, and the period over which, each service or good has been, or will be, provided; and
(f) details of the location of any land to be used in making the film, and the period of use of the land.
Note: The estimated qualifying Australian production expenditure on the film, to the extent that it relates to post, digital and visual effects production for the film, must be at least A$500,000 for PDV work commenced on or after 1 July 2010, and A$5 million for PDV work commenced on or after 1 July 2007 but prior to 1 July 2010 (see paragraph 376‑45(5)(a) of the Act).
(4) An amount in an expenditure statement must be expressed in Australian currency.
(5) For the purposes of an expenditure statement, an amount in foreign currency that is relevant for a purpose mentioned in column 2 of item 9A or 9B of the table in subsection 960‑50(6) of the Act must be translated into Australian currency using the special translation rule in the relevant item as if a reference in that item to qualifying Australian production expenditure were a reference to estimated qualifying Australian production expenditure.
27 Foreign currency statement for certificates for the PDV offset
For paragraph 19(2)(d), a foreign currency statement for a certificate for the PDV offset must set out:
(a) each amount, expressed in the relevant foreign currency, of estimated qualifying Australian production expenditure that has been expended in a foreign currency (the foreign expenditure amount); and
(b) for a foreign expenditure amount that is to be translated into Australian currency using the special translation rule in item 9A of the table in subsection 960‑50(6) of the Act, as applied in accordance with subrule 26(5) (an item 9A foreign expenditure amount):
(i) the amount, expressed in Australian currency; and
(ii) the sum of all of the item 9A foreign expenditure amounts, expressed in Australian currency; and
(c) for a foreign expenditure amount that is to be translated into Australian currency in accordance with the special translation rule in item 9B of the table in subsection 960‑50(6) of the Act, as applied in accordance with subrule 26(5) (an item 9B foreign expenditure amount):
(i) the amount, expressed in Australian currency; and
(ii) the sum of all of the item 9B foreign expenditure amounts, expressed in Australian currency.
Part 5—Audit requirements
28 Conduct of audit
A company that has applied, or that intends to apply, for a certificate for the PDV offset must ensure that an audit that is conducted for paragraph 19(2)(c) is conducted in accordance with all applicable accounting standards, including any standards relating to the independence of auditors.