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Are the contributions made by Company A to a Plan Company to cover the Plan company's shortfall in the event that it is required to acquire the shares for more than their market value from the participants, in the event of forfeiture, deductible under Section 8-1 of the Income Tax Assessment Act 1997 ('ITAA 1997')?

Yes. The contributions made by Company A to the Plan Company in respect of its employees, to cover the Plan Company's shortfall in the event that it is required to acquire the shares from the participants for more than their market value at the time, are deductible under Section 8-1 of the ITAA 1997.

Company A wish to establish an Employee Share Plan (ESP) as part of a broad remuneration strategy. To benefit under the ESP, participating employees are required to satisfy certain performance criteria.

Company A through its Human Resource Committee would provide selected employees with the opportunity to acquire shares in Company A. The Human Resource Committee will impose offer conditions on these shares based on performance and continued employment within Company A.

A Plan Company will be engaged to administer certain aspects of the ESP in accordance with the Plan Rules. The Plan Company will be a third party for Corporations Law reasons, it will not be controlled or owned by Company A.

The participants will fund the acquisition cost of shares by way of a loan provided by an associate of Company A. The loan provided is non-interest bearing and fully recourse in nature.

In the event that the Human Resource Committee determines that a participants shares are to be forfeited, such forfeiture will generally be effected by the Plan Company acquiring the shares for an amount being the greater of the market value of the shares or the amount of the participant's loan which ever is greater.

In these circumstances, if there are insufficient funds standing to the balance of the "Plan Account", Company A will make a payment to the Plan Company to cover the shortfall between the proceeds from the Plan Company's sale of the forfeited shares and the amount the Plan Company is required to pay to acquire the forfeited shares from the participant.

Under Section 8-1 of ITAA 1997, a deduction can be claimed to the extent that it is incurred in gaining assessable income or is necessarily incurred in carrying on a business for the purpose of gaining assessable income provided that (amongst other things) the outgoing is not of a capital nature.

Payment by Company A to cover shortfalls represents a cost or outgoing to or in connection with the operation of the Plan which is designed to provide remuneration benefits to participants.

The expenditure is not considered to be of a capital nature, as the nature of the advantage sought is the continuing operation of the Plan.

It is considered that any contributions made by Company A to the Plan Company are on revenue account and should be deductible under section 8-1 of ITAA 1997.

Date of Amendment Part Comment 22 December 2017 Related ATO Interpretative Decisions Removed ATO ID 2002/848 (withdrawn) Date Reviewed 27 November 2017

Date of Amendment | Part | Comment

22 December 2017 | Related ATO Interpretative Decisions | Removed ATO ID 2002/848 (withdrawn)

Date Reviewed | 27 November 2017