11Declaration excluding persons from eligible promoters class

##### 11 Declaration excluding persons from eligible promoters class (1) Where prescribed proceedings in relation to a person in relation to promoters recoupment tax are pending in any court, the person may make an application to the Federal Court for a declaration that, by reason of special circumstances, it is not just and equitable, for the purposes of those prescribed proceedings, that the person be included in the eligible promoters class to which the promoters recoupment tax relates and, where the person makes such an application, those prescribed proceedings, and any other prescribed proceedings in relation to the person that are pending in any court at the time when the application is made and relate to promoters recoupment tax to which the eligible promoters class relates, are, by force of this subsection, transferred to the Federal Court. (2) Where proceedings are transferred from a court under subsection (1): (a) all documents filed of record in that court, and all moneys lodged with that court, in relation to the proceedings shall be transmitted to the Registrar of the Federal Court; and (b) the Federal Court shall proceed as if the proceedings had originally been instituted in the Federal Court and as if the same proceedings had been taken in the Federal Court as had been taken in the court from which the proceedings were transferred. (3) The Commissioner may intervene in proceedings before the Federal Court on an application under subsection (1) and, where he so intervenes, he shall be deemed to be a party to the proceedings. (4) A person (other than the Commissioner) whose interests may be affected by the order of the Federal Court on an application under subsection (1) may, by order of the Federal Court, be made a party to the proceedings on the application. (5) In determining whether or not it is just and equitable that a person be included in the eligible promoters class in relation to a promoters taxable amount, the Federal Court shall have regard to: (a) the nature and extent of any participation of the person in the scheme referred to in paragraph 7(1)(a) or (2)(a), as the case may be, or in the arrangement or transaction referred to in paragraph 7(1)(g) or (2)(g), as the case may be; (b) the extent of any benefit that the person has obtained, or may reasonably be expected to obtain, as a result of the carrying out of the scheme referred to in paragraph 7(1)(a) or (2)(a), as the case may be; and (c) any other relevant matters. (6) Where the Federal Court makes a declaration under this section that it is not just and equitable, for the purposes of particular prescribed proceedings in relation to a person, that the person be included in an eligible promoters class, the person shall, for all purposes of this Act, be deemed not to be, and never to have been, included in that eligible promoters class. (7) Subsection (6) does not affect any order made by a court in proceedings under section 10 of this Act or section 209 of the Assessment Act before the date on which the application for the declaration referred to in that subsection was made. (8) Where proceedings are pending on an application made by a person under subsection (1) in relation to an eligible promoters class, any prescribed proceedings in relation to the person in relation to promoters recoupment tax to which that eligible promoters class relates may be instituted in the Federal Court and shall not be instituted in any other court. (9) The Federal Court has jurisdiction with respect to matters arising under this section. (10) In this section: > Federal Court means the Federal Court of Australia. > prescribed proceedings, in relation to a person, means proceedings to the extent to which they relate to: (a) the recovery from the person by the Commissioner or a Deputy Commissioner of promoters recoupment tax; or (b) the recovery from the person under section 10 of an amount by way of contribution in respect of an amount of promoters recoupment tax paid by another person. > proceedings includes cross‑proceedings and proceedings by way of appeal.