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Can a loss company validly transfer various amounts of tax losses to two or more income companies in a single document (the Document) for the purposes of section 80G of the Income Tax Assessment Act 1936 (ITAA 1936)?

Yes. As the Document specifies the relevant right to an allowable deduction that is to be transferred for the purposes of section 80G of the ITAA, the fact that the Document incorporates several written agreements does not of itself invalidate those agreements.

The public officer of a loss company and the public officer of several income companies in a wholly owned group agreed for the loss company to transfer various amounts of tax loss incurred by the loss company to the several income companies for an income year that ended before 1 July 1997.

Rather than preparing a separate written agreement for each loss transfer, the public officer for the loss company and the public officer for the several income companies, incorporated the relevant written agreements for the purposes of paragraph 80G(6)(c) of the ITAA 1936 into the Document.

The Document was signed by the public officers of the loss company and the several income companies. It stated that various amounts of tax losses are transferred from the loss company to the income companies in accordance with the attached schedule.

The schedule specified for each loss transfer: (i) the income year of the transfer, (ii) the amount of tax loss being transferred, (iii) the name of the loss company, and (iv) the name of the income company.

Each written agreement that formed part of the Document was made within the requisite period specified in paragraph 80G(6A)(b) of the ITAA 1936.

In order to address the possibility that the loss company is subsequently found to have insufficient tax losses available to satisfy all of the several written agreements contained in the Document, the Document specified the order in which the tax loss agreements were entered into.

Section 80G of the ITAA 1936 does not prescribe that the written agreement must be in any particular form.

Paragraph 80G(6A)(a) of the ITAA 1936 does, however, require that a transfer of a tax loss must be made by a written agreement and signed by the public officer of each of the loss company and the income company.

As the Document specifies the relevant right to an allowable deduction that is to be transferred for the purposes of section 80G of the ITAA, the fact that the Document incorporates several written agreements does not of itself invalidate those agreements.

Section 80G of the ITAA 1936 applies to assessments for the year ended 30 June 1997 and earlier income years.