Income Tax Assessment (1936 Act) Amendment (Period of Review) Regulations 2022 (Cth)

Income Tax Assessment (1936 Act) Amendment (Period of Review) Regulations 2022

I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated 8 December 2022

David Hurley

Governor‑General

By His Excellency’s Command

Stephen Jones

Assistant Treasurer

Minister for Financial Services

Contents

1Name

This instrument is the Income Tax Assessment (1936 Act) Amendment (Period of Review) Regulations 2022.

2Commencement

1. (1)

   Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. The whole of this instrument	The day after this instrument is registered.	9 December 2022

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

1. (2)

   Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3Authority

This instrument is made under the Income Tax Assessment Act 1936.

4Schedules

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1Amendments

Income Tax Assessment (1936 Act) Regulation 2015

1. 1

   Section 14 (table item 1, column 2, paragraph (b))

Repeal the paragraph, substitute:

(b) any of the following apply:

(i) the parties were not dealing with each other at arm’s length in relation to the transaction;

(ii) the transaction results in an amount of $200,000 or more being included in or allowable as a deduction from the assessable income of any of the parties in respect of the assessment year;

(iii) the transaction involves one or more CGT events, and the sum of the capital proceeds from the events is $200,000 or more;

1. 2

   Section 14 (table item 1, column 2, paragraph (c))

Repeal the paragraph.

3

Section 14 (after table item 5)

Insert:

5A	(a) Paragraph (f) of item 1; or (b) paragraph (e) of item 2; or (c) paragraph (d) of item 3	The sum of the amounts of assessable income from sources other than an Australian source (within the meaning of the Income Tax Assessment Act 1997) of the following for the assessment year is $200,000 or more: (a) the assessed entity; (b) an affiliate (within the meaning of that Act) of the assessed entity; (c) an entity that is connected with (within the meaning of that Act) the assessed entity.
5B	(a) Paragraph (e) of item 2; or (b) paragraph (d) of item 3	The assessed entity is, at any time in the assessment year: (a) a foreign controlled Australian entity (within the meaning of the Income Tax Assessment Act 1997); or (b) a non‑resident.

1. 4

   Section 14 (table item 8, column 2, after paragraph (c))

Insert:

(ca) section 177DA of the Act (schemes that limit a taxable presence in Australia);

1. 5

   Section 14 (table item 8, column 2, after paragraph (e))

Insert:

(ea) subsection 177J(1) of the Act (diverted profits tax);

6

Section 14 (at the end of the table)

Add:

10	(a) Paragraph (e) of item 2; or (b) paragraph (d) of item 3	At any time during the assessment year, the total number of entities that are connected with (within the meaning of the Income Tax Assessment Act 1997), or are an affiliate of (within the meaning of that Act), the assessed entity is 10 or more.
11	(a) Paragraph (e) of item 2; or (b) paragraph (d) of item 3	The assessed entity: (a) has claimed a tax offset under Division 355 of the Income Tax Assessment Act 1997 (research and development) for the assessment year; or (b) might be able to deduct an amount under a provision mentioned in subsection 355‑105(2) of that Act for the assessment year; or (c) has an amount that might be included in the assessed entity’s assessable income for the assessment year under section 355‑450 of that Act.
12	(a) Paragraph (f) of item 1; or (b) paragraph (e) of item 2; or (c) paragraph (d) of item 3	Any of the following apply in the assessment year: (a) the assessed entity has chosen to obtain a roll‑over under Division 125 of the Income Tax Assessment Act 1997 (demerger relief); (b) there is a roll‑over under Subdivision 126‑B of that Act (companies in the same wholly‑owned group) in respect of which the assessed entity is the originating company or the recipient company mentioned in that Subdivision; (c) the assessed entity has chosen, or is taken to have chosen, to obtain a roll‑over under Division 615 of that Act (roll‑overs for business restructures).
13	(a) Paragraph (f) of item 1; or (b) paragraph (e) of item 2; or (c) paragraph (d) of item 3	The assessed entity disregarded a capital gain or capital loss in relation to the assessment year under section 855‑10 of the Income Tax Assessment Act 1997 (capital gains and losses of foreign residents).

7

At the end of Part 9

Add:

27Application of the Income Tax Assessment (1936 Act) Amendment (Period of Review) Regulations 2022

The amendments made by Schedule 1 to the Income Tax Assessment (1936 Act) Amendment (Period of Review) Regulations 2022 apply in relation to an assessment for an income year if:

1. (a)

   the assessment is made after the commencement of that Schedule; and

2. (b)

   the income year begins on or after 1 July 2021.