Veterans' Entitlements (Modification of Asset Deprivation Rules) Principles 2002 (Cth)
Veterans' Entitlements (Modification of Asset Deprivation Rules) Principles 2002
The Repatriation Commission formulates these Principles under section 52ZZZQ of the Veterans' Entitlements Act 1986.
Dated 11 February 2002
| NEIL JOHNSTON PRESIDENT | IAN CAMPBELL DEPUTY PRESIDENT | PAUL STEVENS COMMISSIONER |
__________________________________________________________________
THE REPATRIATION COMMISSION
Contents
Page
Part 1Preliminary
1Name of Principles 3
2Commencement 3
3Definitions 3
4Purpose 3
Part 2Disposal of asset (on or after 1 January 2002) by individual
5Purpose of Part 2 4
6Definitions 4
7Transferor as sole attributable stakeholder 4
8Transferor as member of couple 4
9Transfer to company or trust with 2 or more attributable stakeholders 4
10Transfer to company or trust by individual who becomes attributable stakeholder 5
Part 3Disposal of asset (on or after 1 January 2002) by company or trust
11Purpose of Part 3 6
12Disposal to individual by company or trust 6
13Disposal by way of dividend or distribution to genuine investor 6
Part 4Disposal of asset (before 1 January 2002) by attributable stakeholder
14Purpose of Part 4 8
15Definitions 8
16Application of asset disposal provisions where value of asset same or greater 8
17Application of asset disposal provisions where value of asset decreased after disposal 8
18Application of asset disposal provisions where company or trust retains value of transferred asset 9
19Transfer by member of couple 9
Part 5Disposal of asset (before 1 January 2002) by individual whose spouse is attributable stakeholder
20Purpose of Part 5 10
21Definitions 10
22Application of asset disposal provisions where value of asset same or greater 10
23Application of asset disposal provisions where value of asset decreased after disposal 10
24Application of asset disposal provisions where company or trust retains value of transferred asset 11
Part 1 Preliminary
Name of Principles
These Principles are the Veterans' Entitlements (Modification of Asset Deprivation Rules) Principles 2002.
Commencement
These Principles commence on gazettal.
Definitions
In these Principles:
Act means the Veterans' Entitlements Act 1986.
asset disposal provisions means Subdivision B of Division 11 of Part IIIB of the Act and section 45UT of the Act.
Purpose
These Principles set out decision-making principles with which the Commission must comply for the purposes of making a determination under subsection 52ZZW (1), 52ZZX (3), 52ZZZ (1) or 52ZZZA (1) of the Act.
Part 2 Disposal of asset (on or after 1 January 2002) by individual
Purpose of Part 2
This Part sets out decision-making principles with which the Commission must comply in making a determination for subsection 52ZZW (1) of the Act.
Definitions
In this Part:
individual means an individual who transfers property to a company or trust in accordance with subsection 52ZZW (1) of the Act.
transfer of property means a transfer of property by way of capital contribution.
Transferor as sole attributable stakeholder
(1)This section applies to an individual who is not a member of a couple.
(2)The Commission must take into account whether the individual was the only attributable stakeholder of the company or trust, either before or after the transfer.
Transferor as member of couple
(1)This section applies to an individual who is a member of a couple.
(2)The Commission must take into account whether:
(a)the individual was the only attributable stakeholder of the company or trust, before or after the transfer; or
(b)both members of the couple were the only attributable stakeholders of the company or trust, before or after the transfer.
Transfer to company or trust with 2 or more attributable stakeholders
(1)This section applies if, in relation to a transfer of property to a company or a trust:
(a)the transfer is made by an attributable stakeholder of the company or trust; and
(b)before the transfer, there were 2 or more attributable stakeholders of the company or trust.
(2)This section also applies if, in relation to a transfer of property to a company or a trust:
(a)the transfer is made by an attributable stakeholder of the company or trust; and
(b)after the transfer, there were 2 or more attributable stakeholders of the company or trust.
(3)The Commission must take into account the asset attribution percentage of each attributable stakeholder of the company or trust, before and after the transfer of the property.
Transfer to company or trust by individual who becomes attributable stakeholder
(1)This section applies if, in relation to a transfer of property to a company or a trust:
(a)the transfer is made by an individual who is not an attributable stakeholder of the company or trust; and
(b)as a result of the transfer, the individual is an attributable stakeholder.
(2)The Commission must take into account the asset attribution percentage of each attributable stakeholder of the company or trust, before and after the transfer of the property.
Part 3 Disposal of asset (on or after 1 January 2002) by company or trust
Purpose of Part 3
This Part sets out decision-making principles with which the Commission must comply in making a determination for subsection 52ZZX (3) of the Act.
Disposal to individual by company or trust
(1)This section applies if:
(a)a company pays a dividend to an individual who is an attributable stakeholder of the company; and
(b)the asset disposal provisions apply, and are taken to have applied, as if the individual had disposed of an asset of the individual.
(2)This section also applies if:
(a)a trust makes a distribution to an individual who is an attributable stakeholder of the trust; and
(b)the asset disposal provisions apply, and are taken to have applied, as if the individual had disposed of an asset of the individual.
(3)The Commission must consider whether the amount of the dividend or the value of the distribution is reasonable, having regard to the individual’s asset attribution percentage, in relation to the company or trust, before and after the disposal of the asset.
Disposal by way of dividend or distribution to genuine investor
(1)This section applies if:
(a)during a derivation period of a company, the company pays a dividend to an individual who is not an attributable stakeholder of the company; and
(b)the individual has, before or during the derivation period, made a genuine transfer of capital to the company.
(2)This section also applies if:
(a)during a derivation period of a trust, the trust makes a distribution to an individual who is not an attributable stakeholder of the trust; and
(b)the individual has, before or during the derivation period, made a genuine transfer of capital to the trust.
(3)For subsections (1) and (2), a transfer of capital is a genuine transfer of capital if:
(a)the individual receives, as consideration for the transfer, shares in the company, or units in the trust, of a value that is equivalent to the value of the capital transferred; and
(b)the individual has a legal or equitable right to a share of the capital on the winding-up of the company or trust; and
(c)the individual has a legal or equitable right to receive dividends or distributions in accordance with the constituent documents of the company or under the terms of the trust; and
(d)the individual is over 18 years.
(4)The Commission must consider whether the amount of the dividend or the value of the distribution is reasonable, having regard to the proportion of the value of the capital transferred by the individual to the total value of the assets owned by the company or trust at the time of the transfer.
Part 4 Disposal of asset (before 1 January 2002) by attributable stakeholder
Purpose of Part 4
This Part sets out decision-making principles with which the Commission must comply in making a determination for subsection 52ZZZ (1) of the Act.
Definitions
In this Part:
individual means an individual who transfers property to a company or trust in accordance with subsection 52ZZZ (1) of the Act.
Application of asset disposal provisions where value of asset same or greater
(1)This section applies if:
(a)an asset is disposed of by an individual to a company or trust; and
(b)on 1 January 2002, the asset is owned by the company or trust; and
(c)on 1 January 2002, the value of the asset is the same as, or greater than, it was at the time of its disposal.
(2)The Commission must consider whether, in all the circumstances, the application of the asset disposal provisions would be unfair or unreasonable in relation to the individual.
Application of asset disposal provisions where value of asset decreased after disposal
(1)This section applies if:
(a)an asset is disposed of by an individual to a company or trust; and
(b)on 1 January 2002, the asset is owned by the company or trust; and
(c)on 1 January 2002, the value of the asset is less than it was at the time of its disposal; and
(d)the decrease in the value of the asset is not attributable to any conduct that the Commission reasonably believes was intended to avoid the operation, or minimise the effect, of Division 11A of Part IIIB of the Act.
(2)The Commission must consider whether, in all the circumstances, the application of the asset disposal provisions would be unfair or unreasonable in relation to the individual.
Application of asset disposal provisions where company or trust retains value of transferred asset
(1)This section applies if:
(a)an asset is disposed of by an individual to a company or trust; and
(b)before 1 January 2002, the company or trust transferred the asset to another individual or other entity in consideration of an arm’s length amount; and
(c)the company or trust retained the amount or value of the consideration.
(2)The Commission must consider whether, in all the circumstances, the application of the asset disposal provisions would be unfair or unreasonable in relation to the individual.
Transfer by member of couple
(1)This section applies if:
(a)an individual, who is a member of a couple, disposes of an asset to a company or trust before 1 January 2002; and
(b)as a result of the transfer:
(i)the individual is the only attributable stakeholder, on 1 January 2002, of the company or trust; or
(ii)both members of the couple are the only attributable stakeholders, on 1 January 2002, of the company or trust.
(2)The Commission must consider whether, in all the circumstances, the application of the asset disposal provisions would be unfair or unreasonable in relation to the individual.
Part 5 Disposal of asset (before 1 January 2002) by individual whose spouse is attributable stakeholder
Purpose of Part 5
This Part sets out decision-making principles with which the Commission must comply in making a determination for subsection 52ZZZA (1) of the Act.
Definitions
In this Part:
individual means an individual who transfers property to a company or trust in accordance with subsection 52ZZZA (1) of the Act.
Application of asset disposal provisions where value of asset same or greater
(1)This section applies if:
(a)an asset is disposed of by an individual to a company or trust; and
(b)on 1 January 2002, the asset is owned by the company or trust; and
(c)on 1 January 2002, the value of the asset is the same as, or greater than, it was at the time of its disposal.
(2)The Commission must consider whether, in all the circumstances, the application of the asset disposal provisions would be unfair or unreasonable in relation to the individual.
Application of asset disposal provisions where value of asset decreased after disposal
(1)This section applies if:
(a)an asset is disposed of by an individual to a company or trust; and
(b)on 1 January 2002, the asset is owned by the company or trust; and
(c)on 1 January 2002, the value of the asset is less than it was at the time of its disposal; and
(d)the decrease in the value of the asset is not attributable to any conduct that the Commission reasonably believes was intended to avoid the operation, or minimise the effect, of Division 11A of Part IIIB of the Act.
(2)The Commission must consider whether, in all the circumstances, the application of the asset disposal provisions would be unfair or unreasonable in relation to the individual.
Application of asset disposal provisions where company or trust retains value of transferred asset
(1)This section applies if:
(a)an asset is disposed of by an individual to a company or trust; and
(b)before 1 January 2002, the company or trust transferred the asset to another individual or other entity in consideration of an arm’s length amount; and
(c)the company or trust retained the amount or value of the consideration.
(2)The Commission must consider whether, in all the circumstances, the application of the asset disposal provisions would be unfair or unreasonable in relation to the individual.
0
0
0