Income Tax: change from a co-operative to a company

Is the taxpayer the same 'entity' for all purposes under the Income Tax Assessment Act 1997 (ITAA 1997) after the conversion from an incorporated co-operative to a company?

Yes. The taxpayer's registration as a company under the Corporations Act 2001 (Cth) (Corporations Act) does not create a new legal entity. Therefore it is the same 'entity' for all purposes of the ITAA 1997 as defined in section 960-100 of the ITAA 1997.

The taxpayer is a co-operative incorporated under the Co-operatives Act 1992 (NSW) (Co-op Act). The taxpayer is treated as a body corporate pursuant to its incorporation under the Co-op Act.

The taxpayer will transfer its incorporation under the Co-op Act to become a company registered under the Corporations Act. It will continue to be regarded as a body corporate pursuant to its registration under the Corporations Act.

The taxpayer is regarded as the same entity with the same rights under the relevant provisions of the Co-op Act (subsections 316(1) and 321(1), sections 317 and 342) and the Corporations Act (subsection 601BM(1)).

The co-operative incorporated under the Co-op Act is a body corporate under that Act and at general law.

Section 995-1 of the ITAA 1997 defines an 'entity' to have the meaning in section 960-100 of the ITAA 1997. An 'entity' is defined to mean any of the following: (a) an individual; (b) a body corporate; (c) a body politic; (d) a partnership; (e) any other incorporated association or body of persons; (f) a trust; (g) a superannuation fund.

In addition, section 995-1 of the ITAA 1997 defines a 'company' to mean: (a) a body corporate; or (b) any other unincorporated association or body or persons; but does not include a partnership . . .

Relevant to both definitions is the meaning of 'body corporate' which takes its meaning at general law. However, for the purposes of the ITAA 1997, the taxpayer as incorporated under the Co-op Act is an 'entity' as defined in paragraph 960-100(1)(b) of the ITAA 1997. It is also a 'company' as defined in section 995-1 of the ITAA 1997.

After the taxpayer's registration under the Corporations Act, it will continue to be a 'body corporate', 'company' and 'entity' as relevantly defined in the ITAA 1997. Notwithstanding the taxpayer's transfer of incorporation to a separate Act, the taxpayer preserves its identity and continues to be the same legal entity.

The provisions in the Co-op Act and the Corporations Act both provide for the continuation of the taxpayer as the 'same entity as the body corporate' which was the co-operative, and the act of registration under a different Act of itself will not create a 'new legal entity' (subsection 321(1) of the Co-op Act and paragraph 601BM(1)(a) of the Corporations Act).

In addition, the assets, rights and liabilities of the taxpayer vest in and are preserved when the taxpayer is registered under the Corporations Act without the need for any 'conveyance, transfer or assignment or assurance' (subsection 342(2) of the Co-op Act). This indicates that the identity of the body corporate is preserved and continues with the same assets, rights and liabilities, albeit as a company by registration.

Therefore, the taxpayer is the same body corporate and 'entity' for the purposes of the ITAA 1997 both before and after it completes its transfer of incorporation.