Commonwealth Consolidated Acts

INCOME TAX ASSESSMENT ACT 1997 - SECT 208.35

  (1)   The purpose of this section is to identify which * partial interests in an entity are relevant in determining whether the entity is effectively owned by prescribed persons.

  (2)   A * partial interest in an entity is an accountable partial interest if it is not an excluded partial interest.

  (3)   A * partial interest in an entity is an excluded partial interest if, having regard to:

  (a)   the purposes for which the interest was granted; and

  (b)   the nature of the interest; and

  (c)   any special or limited rights connected with or arising from:

  (i)   the interest; or

  (ii)   other * membership interests, or partial interests, in the entity held by the holder of the interest; or

  (iii)   membership interests, or partial interests, in the entity held by persons other than the holder of the interest;

    including rights that are conferred or exercisable only if the holder of the membership interests or partial interests concerned is, or is not, a prescribed person; and

  (d)   the extent to which the interest is similar to or differs from beneficial ownership; and

  (e)   the relationship between the value of the interest and the value of the entity; and

  (f)   any relationship or connection (whether of a personal or business nature) between holders of partial interests in the entity, and the holders of membership interests in the entity, of which the entity is aware; and

  (g)   any * arrangement in respect of membership interests (including unissued membership interests) in the entity, or partial interests in the entity, of which the entity is aware;

it would be reasonable to conclude that the partial interest is not relevant in determining whether the entity is effectively owned by prescribed persons because holding the membership interest to which the partial interest relates does not involve the holder bearing the risks, or result in the accrual to the holder of the opportunities, of ownership of the entity that ordinarily arise from, or are ordinarily attached to, the holding of * ordinary membership interests in an entity.

  (4)   In applying subsection   (3), the fact that a person is a trustee is to be disregarded.

  (5)   Without limiting subsection   (3), a * partial interest in an entity is also an excluded partial interest if it was granted or otherwise created, or was transferred or acquired, for a purpose (other than an incidental purpose) of ensuring that the entity is not effectively owned by prescribed persons.