ASIC Corporations (Attribution Managed Investment Trusts) Instrument 2016/489

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ASIC Corporations (Attribution Managed Investment Trusts) Instrument 2016/489

 

About this compilation

 

Compilation No. 1

 

This is a compilation of ASIC Corporations (Attribution Managed Investment Trusts) Instrument 2016/489 as in force on 24 June 2016. It includes any commenced amendment affecting the legislative instrument to that date.

 

This compilation was prepared by the Australian Securities and Investments Commission.

 

The notes at the end of this compilation (the endnotes) include information

about amending instruments and the amendment history of each amended provision.

 

 

Contents

Part 1—Preliminary

1 Name of legislative instrument

3 Authority

4 Definitions

Part 2—Exemption

5 Equality of treatment: attribution for tax purposes

Part 3—Declaration

6  Changing the scheme’s constitution to meet AMIT requirements

Endnotes

Endnote 1—Instrument history

Endnote 2—Amendment history

 

Part 1—Preliminary

1 Name of legislative instrument

This is the ASIC Corporations (Attribution Managed Investment Trusts) Instrument 2016/489.

3 Authority

This instrument is made under subsection 601QA(1) of the Corporations Act 2001.

4 Definitions

In this instrument:

Act means the Corporations Act 2001.

attribution managed investment trust (or AMIT) has the meaning given by section 276-10 of the ITA Act.

ITA Act means the Income Tax Assessment Act 1997.

Part 2—Exemption

5 Equality of treatment: attribution for tax purposes

A responsible entity of a registered scheme that is an AMIT does not have to comply with paragraph 601FC(1)(d) of the Act to the extent that it requires the responsible entity to treat the members of the scheme who hold interests of the same class equally where the responsible entity is attributing any part of a determined trust component of a particular character to the interests held by a member of the scheme in accordance with section 276-210 of the ITA Act.

Note: The attribution must be worked out on a fair and reasonable basis in accordance with the constituent documents of the AMIT: see subsection 276-210(3) of the ITA Act.

Part 3—Declaration

6  Changing the scheme’s constitution to meet AMIT requirements

Chapter 5C of the Act applies to a responsible entity as if Part 5C.3 were modified or varied as follows:

(a)  in paragraph 601GC(1)(b), omit “rights.”, substitute “rights; or”;

(b) after paragraph 601GC(1)(b) insert:

“(c) by the responsible entity in accordance with section 601GCA.”;

(c) after section 601GC insert:

“601GCA Changing the constitution to meet AMIT requirements

(1) Subject to subsection (3), a responsible entity of a registered scheme may modify the constitution of the scheme to the extent that the responsible entity reasonably considers that the modification is necessary for or incidental to the scheme being able to be operated in a manner permitted by the ITA Act as an attribution managed investment trust with the responsible entity as its trustee.

(2) Without limitation, modifications that may be made under subsection (1) include modifications which have the effect of:

(a) enabling the responsible entity to make a choice for the purposes of subparagraph 276-10(1)(e)(i) or
paragraph 276-20(1)(d) of the ITA Act; or

(b) where applicable, enabling the responsible entity to treat each separate class of interests in the scheme as a separate attribution managed investment trust; or

(c) ensuring that the responsible entity is indemnified out of scheme property for any liability that:

(i) is incurred by the responsible entity in relation to the proper performance of its duties; and

(ii) either:

(A)  is an attribution income tax liability of the responsible entity; or

(B) results from a member or former member making a claim against the responsible entity in relation to an attribution income tax liability of the member or former member that results from an attribution by the responsible entity under section 276-210 of the ITA Act to the interests held by the member or former member.

(3) The responsible entity may modify the constitution under subsection (1) where:

(a) in the case where all members of the scheme acquired their interests in the scheme as wholesale clients—the responsible entity has taken reasonable steps to consult with each member of the scheme about the proposed modification of the constitution before making it; or

(b) in any case—the responsible entity:

(i) has published a notice that complies with subsection (4) on its website:

(A) for a period (the relevant period) of not less than 7 days; and

(B) in a way that it is likely to come to the attention of a person looking for information about the scheme on the website; and

(ii) has not received requests from members with at least 5% of the votes that may be cast on the resolution to call and arrange to hold a meeting as specified in the notice.

(4) A notice complies with this subsection if it:

(a) sets out a summary of the reason for, and the effect of, the proposed modification of the constitution; and

(b) states that the responsible entity will modify the constitution as proposed unless it receives requests to call and arrange to hold a meeting of the scheme’s members to consider and vote on a special resolution to modify the constitution as proposed:

(i) from members with at least 5% of the votes that may be cast on the resolution; and

(ii) by a specified date that is the last day of the relevant period; and

(c) states that a request referred to in paragraph (b) must be made in writing and may be sent to a specified email address of the responsible entity; and

(d) is worded and presented in a clear, concise and effective manner.

(5) The responsible entity may repeal and replace the constitution instead of modifying it where:

(a) the replacement constitution has the effect that the constitution would have had if it had instead been modified in accordance with subsection (1); and

(b) subsection (3) had been satisfied as if references in subsections (3) and (4) to modifying the constitution included references to repealing and replacing it.

(6) The responsible entity may modify or repeal and replace the constitution under subsections (1) and (5) even if the constitution includes provisions to the effect that it may only be modified or repealed and replaced in accordance with paragraphs 601GC(1)(a) or (b) or provisions to the effect of those paragraphs.

(7) For the purposes of this section:

attribution income tax liability of a person in relation to a managed investment scheme means an income tax liability of the person under the ITA Act that results from the scheme being operated as an AMIT.

attribution managed investment trust (or AMIT) has the meaning given by section 276-10 of the ITA Act.

ITA Act means the Income Tax Assessment Act 1997.

wholesale client has the meaning given by section 761G.

(8) To avoid doubt:

(a) the consultation referred to in paragraph (3)(a) may take place partly or wholly before the commencement of this section; and

(b) the relevant period referred to in paragraph (3)(b) may be a period that partly or wholly occurs before the commencement of this section.

Note: The responsible entity must act in the best interests of the members in exercising the power in subsections (1) and (5) to modify, or repeal and replace the constitution: see paragraph 601FC(1)(c).

601GCB Notice of modification etc. of constitution for AMIT implementation

(1) This section applies if a responsible entity modifies or repeals and replaces the constitution of a registered scheme in accordance with section 601GCA.

(2) The responsible entity must give each member of the scheme a notice in writing that sets out a summary of the reasons for, and the effect of, the modification or how the effect of the replacement constitution is different from that of the constitution before its repeal (as relevant).

(3) The notice must be:

(a) given no later than the date of the giving of the first communication by the responsible entity to all members of the scheme after the date when the modification is made, or the repeal and replacement occurs; and

(b) worded and presented in a clear, concise and effective manner.”.

Endnotes

Endnote 1—Instrument history

Instrument number

Date of FRL registration

Date of commencement

Application, saving or transitional provisions

2016/489

21/6/2016 (see F2016L01050)

22/6/2016

 

2016/514

23/6/2016 (see F2016L01064)

24/6/2016

-

Endnote 2—Amendment history

ad. = added or inserted     am. = amended     LA = Legislation Act 2003    rep. = repealed    

rs. = repealed and substituted

Provision affected 

How affected

Section 2

rep. s48D LA

Section 6 (notional paragraph 601GCA(3)(b))

am. 2016/514

 

 

Overview

The ASIC Corporations (Attribution Managed Investment Trusts) Instrument 2016/489 was enacted to address specific issues related to the operation of Attribution Managed Investment Trusts (AMIT) under the Corporations Act 2001. The instrument was made under subsection 601QA(1) of the Corporations Act 2001 by the Australian Securities and Investments Commission (ASIC). The primary objective of the instrument is to facilitate the administration of AMITs by providing exemptions and enabling responsible entities to modify their schemes' constitutions to comply with income tax laws. This was necessitated by the need to ensure that AMITs could operate in a manner that aligned with the requirements set out in the Income Tax Assessment Act 1997 without compromising the regulatory framework provided by the Corporations Act. The instrument allows responsible entities of registered schemes that are AMITs to exempt certain tax attribution requirements, ensuring that members holding interests of the same class are treated equally where appropriate. Additionally, it provides the legal basis for responsible entities to modify their schemes' constitutions to meet the requirements of operating as an AMIT, including the ability to make necessary modifications for tax purposes and to ensure the responsible entity is indemnified for certain liabilities. This legislative instrument aims to streamline the operation of AMITs, providing clarity and flexibility while maintaining the integrity of the existing legal framework.

Scope and Application

The ASIC Corporations (Attribution Managed Investment Trusts) Instrument 2016/489 applies to responsible entities of registered schemes that are Attribution Managed Investment Trusts (AMITs), as defined by the Income Tax Assessment Act 1997. This legislative instrument provides specific exemptions and modifications to the Corporations Act 2001 to facilitate the operation of AMITs in compliance with the Income Tax Assessment Act 1997. The instrument allows responsible entities to modify the scheme's constitution to meet the requirements of operating as an AMIT, provided that the modifications are necessary for this purpose and are made in the best interests of the members. The modifications can include enabling the responsible entity to make specific choices under the Income Tax Assessment Act and ensuring the entity is indemnified for certain liabilities. The instrument also stipulates consultation and notification requirements for members when modifications are made to the scheme's constitution. These provisions are subject to the overarching authority of the Corporations Act 2001 and are designed to ensure that AMITs can operate effectively under both corporate and tax laws.

Key Provisions

The ASIC Corporations (Attribution Managed Investment Trusts) Instrument 2016/489, specifically Sections 5 and 6, outlines the primary operational aspects concerning attribution managed investment trusts (AMITs). Section 5 exempts the responsible entity of a registered AMIT from certain equal treatment obligations under the Corporations Act 2001 (section 601FC(1)(d)) when attributing trust components in accordance with the Income Tax Assessment Act 1997 (ITA Act) (section 276-210). This exemption is subject to the attribution being calculated on a fair and reasonable basis as per the AMIT's constituent documents. Section 6 allows the responsible entity to modify the scheme's constitution to facilitate compliance with AMIT requirements under the ITA Act, subject to certain conditions. Modifications can include enabling choices under the ITA Act, treating different classes of interests as separate AMITs, or ensuring indemnity for certain tax liabilities. The Act imposes several obligations on responsible entities regarding AMITs. Firstly, responsible entities must act in the best interests of the members when modifying or repealing the scheme's constitution (subsection 601GCA(3)). Secondly, when all members are wholesale clients, the responsible entity must consult with each member about proposed constitutional changes before implementing them (subsection 601GCA(3)(a)). Alternatively, the responsible entity must publish a notice detailing the proposed modifications on its website for at least seven days and not receive requests from members holding at least 5% of the voting rights to call a meeting to vote on the changes (subsection 601GCA(3)(b)). Additionally, responsible entities must inform members in writing about any constitutional changes and their implications (subsection 601GCB(2)). Breaches of the provisions outlined in the ASIC Corporations (Attribution Managed Investment Trusts) Instrument 2016/489 can lead to various legal consequences. While the legislation does not explicitly state penalties for non-compliance, failing to adhere to the Act's requirements could result in actions under the Corporations Act 2001. For instance, acting contrary to the best interests of members could be deemed a breach of the responsible entity's fiduciary duties, potentially leading to civil penalties, disqualification from managing corporations, or other sanctions as prescribed by the Corporations Act. Furthermore, the responsible entity could face legal challenges from members or regulatory scrutiny from ASIC if the modifications to the scheme's constitution do not comply with the stipulated conditions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.