Income tax: The Imperial Tobacco Australia Limited Voluntary Early Retirement Scheme 2014 (VRS 2014)

This Ruling sets out the Commissioner's opinion on the way in which the relevant provisions identified below apply to the defined class of entities, who take part in the scheme to which this Ruling relates.

The relevant provisions dealt with in this Ruling are: • section 83-170 of the Income Tax Assessment Act 1997 (ITAA 1997), and • section 83-180 of the ITAA 1997. All legislative references are to the ITAA 1997 unless otherwise indicated.

The class of employees to whom this scheme applies is all employees of Imperial Tobacco Australia Limited, shown at paragraph 14, who receive a payment under the scheme described in paragraphs 9 to 33 of this Ruling.

The Commissioner makes this Ruling based on the precise scheme identified in this Ruling.

The class of entities defined in this Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 9 to 33 of this Ruling.

If the scheme actually carried out is materially different from the scheme that is described in this Ruling, then: • this Ruling has no binding effect on the Commissioner because the scheme entered into is not the scheme on which the Commissioner has ruled, and • this Ruling may be withdrawn or modified.

The Ruling applies from 9 October 2014 to 30 June 2015. The Ruling continues to apply after 30 June 2015 to all entities within the specified class who entered into the specified scheme during the term of the Ruling. However, the Ruling will not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of the Ruling (see paragraphs 75 and 76 of Taxation Ruling TR 2006/10).

The following description of the scheme is based on information provided by the applicant.

Imperial Tobacco Australia Limited (ITA) is seeking the Commissioner's approval to implement an early retirement scheme (ERS) in accordance with section 83-180.

The scheme will be titled 'the Imperial Tobacco Australia Limited Voluntary Early Retirement Scheme 2014 (VRS 2014)', referred to as the Scheme.

ITA has been in operation since 1999. Prior to 1999, many of its current employees were employed by WD&HO Wills, who became employees of ITA when the company merged into ITA. Employing nearly 350 people across Australia, ITA has experienced low turnover of employees since the company commenced operations.

ITA is making changes to the way the company is structured with the aim to bring it into line with the company's global structure and to ensure its viability and profitability in the Australian market. Over the past 12 months, ITA has had a particular focus on operational efficiencies by introducing a more centralised operational sales business and improving efficiencies within other parts of the business.

With the introduction of new technologies and the recent restructure, ITA is now able to realise efficiencies in the management of the field force by rationalising and re-organising ITA's operating model and reduce, by voluntary means, the size of ITA's work force and recruit workers with more modern and improved skill sets. Currently, ITA employs 348 full/part-time people Australia wide.

The class of employees to whom the Scheme applies is all ITA employees who: • are aged over 55 years but under the age of 65 years as at 30 June 2015 • are currently employed by ITA on a full-time, part-time or casual basis • are willing to retire by a date to be determined by ITA, at the latest by 30 June 2015, and • apply by the application closing date.

Employees within this class may express an interest in voluntarily leaving the organisation.

The payment to be made to eligible employees under the Scheme is as follows: • a one-off payment based on years of service calculated as two weeks' salary for each year of continuous service and capped at 25 years of service.

In addition, all employees terminated under the Scheme will receive their accrued annual and long service leave entitlements, however these payments will not form part of the payment made under the Scheme.

The employees will also be entitled to a preliminary financial advice meeting with an AMP agent and access to the employee assistance program (counselling support).

There are no employees excluded from expressing an interest in the Scheme.

The maximum number of packages available for retiring employees under the Scheme is limited.

In the case where the number of employees seeking access to the Scheme exceeds the number of packages available, the offer will be made to those employees who expressed interest first, based on the 'first in' method.

There is no minimum number of early retirement offers under the Scheme.

Following approval of the Scheme, all eligible employees within the class will be invited to apply and will have four weeks to submit applications of interest in the Scheme. This will however be flexible up to an extra week if an employee needs more time to gain the relevant advice.

Offers will be made to eligible employees approximately seven weeks after the date that the Scheme is approved.

All employees who accept the offer to retire under the Scheme will receive payment and terminate employment at a date mutually agreed by ITA and the eligible employees.

It is proposed the Scheme will be implemented from 9 October 2014 to 30 June 2015.

The payment made under the Scheme is in excess of any superannuation and any other benefits to which eligible employees would otherwise be entitled.

Any employee who terminates employment other than under the Scheme, will not be entitled to receive the payment.

The retirement of employees who receive a payment under the Scheme will occur before they turn 65 years of age.

The Scheme payment will not be made in lieu of superannuation benefits.

Payments made under the Scheme will be at arm's length.

There is no agreement in place between the eligible employees and the ITA, or between ITA and another person to employ any employee after retirement under the Scheme.

All applicants will be considered and assessed equally.

The early retirement scheme to be implemented by Imperial Tobacco Australia Limited (ITA) is an early retirement scheme for the purposes of section 83-180.

Accordingly, so much of the payment received by an eligible employee that exceeds the amount that could reasonably be expected to be received by the employee in consequence of the voluntary termination of his or her employment at the time of the retirement will be an early retirement scheme payment.

In addition, so much of the early retirement scheme payment as falls within the threshold calculated in accordance with section 83-170 is not assessable income and is not exempt income.

Where a scheme satisfies the requirements of section 83-180 that scheme will be an 'early retirement scheme'.

Subsection 83-180(3) states that: A scheme is an early retirement scheme if: (a) all the employer's employees who comprise such a class of employees as the Commissioner approves may participate in the scheme; and (b) the employer's purpose in implementing the scheme is to rationalise or re-organise the employer's operations by making any change to the employer's operations, or the nature of the work force, that the Commissioner approves; and (c) before the scheme is implemented, the Commissioner, by written instrument, approves the scheme as an early retirement scheme for the purposes of this section. These three conditions are now considered.

In order to satisfy the first condition, the scheme must be offered to all employees in a class approved by the Commissioner under paragraph 83-180(3)(a).

The class of employees to whom early retirement will be offered is set out in paragraph 14 of this Ruling.

The Commissioner considers that this is an appropriate class of persons to whom the Scheme will be offered. In approving this class of employees the Commissioner has considered the nature of the rationalisation or re-organisation of the operations of the employer. It is therefore considered that these employees meet the requirements of an approved class of employees for the purposes of paragraph 83-180(3)(a).

The proposed scheme must be implemented by the employer with a view to rationalising or re-organising the operations of the employer as described in paragraph 83-180(3)(b).

Paragraphs 11 to 13 of this Ruling describe the nature of the rationalisation or re-organisation of the employer's operations. In approving the Scheme, the Commissioner has had regard to the changes in the operations and nature of the work force of the employer. It is considered that the Scheme is to be implemented by the employer with a view to rationalising or re-organising the operations of the employer for the purposes of paragraph 83-180(3)(b). Accordingly, the second condition for approval has been met.

The Scheme is proposed to operate for a period commencing from 9 October 2014 to 30 June 2015. The approval to be provided by the class ruling will have been granted prior to implementation therefore, for the purposes of paragraph 83-180(3)(c), this condition is satisfied.

The Scheme will be in operation for approximately nine months. This is considered appropriate due to the circumstances of the re-organisation and the employees that will be given the option of early retirement under the Scheme.

Under subsection 83-180(1) so much of the payment received by an employee because the employee retires under an early retirement scheme as exceeds the amount that could reasonably be expected to be received by the employee in consequence of the voluntary termination of his or her employment at the time of the retirement is an early retirement scheme payment.

It should be noted that, in order for a payment to qualify as an early retirement scheme payment, it must also satisfy the following requirements (as set out in subsections 83-180(2), 83-180(5) and 83-180(6)): • the retirement occurred before the employee turned age 65 or such earlier date on which the employee's employment would have terminated under the terms of employment because of the employee attaining a certain age or completing a particular period of service (as the case may be) • if the employee and the employer are not dealing with each other at arm's length (for example because they are related in some way), the payment does not exceed the amount that could reasonably be expected to be made if the retirement was at arm's length • at the time of retirement there was no arrangement between the employee and the employer, or between the employer and another person, to employ the employee after the retirement • the payment must not be made in lieu of superannuation benefits, and • it is not a payment mentioned in section 82-135 (apart from paragraph 82-135(e)).

The term 'arrangement' is defined in subsection 995-1(1) as meaning 'any arrangement, agreement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable (or intended to be enforceable) by legal proceedings'.

An early retirement scheme payment that falls within the specified limit is referred to as the 'tax-free' amount and will not be assessable income and will not be exempt income.

For the 2014-15 income year, the proposed tax-free amount is limited to $9,514 (base amount) plus $4,758 (service amount) for each whole year of completed employment service to which the early retirement scheme payment relates. It should be noted that six months, eight months or even eleven months do not count as a whole year for the purposes of this calculation.

The total of the amount received on termination of employment calculated in accordance with paragraph 16 of this ruling may qualify as an early retirement scheme payment.

The total payment calculated in accordance with paragraph 16 of this ruling will be measured against the limit calculated in accordance with the formula mentioned in paragraph 50 of this ruling to determine the 'tax-free' amount of the early retirement scheme payment.

The 'tax-free' amount will: • not be an employment termination payment (ETP), and • not be able to be rolled-over into a superannuation fund.

Any payment in excess of this limit will be an ETP where the payment is received no later than 12 months after termination of employment and will be split into tax- free and taxable components. The tax- free component of an ETP includes the pre-July 83 segment of the payment. The tax-free component is not assessable income and is not exempt income. The taxable component of the ETP will be taxed at various rates depending on the person's age. It should be noted the 'whole of income' cap does not apply to any part of the early retirement scheme payment.

The following is a detailed contents list for this Ruling: What this Ruling is about 1 Relevant provision(s) 2 Class of entities 3 Qualifications 4 Date of effect 7 Scheme 8 Ruling 34 Appendix 1 - Explanation 37 All employees within a class approved by the Commissioner may participate in the scheme 39 The employer's purpose in implementing the scheme is to rationalise or re organise the employer's operations in a way approved by the Commissioner 42 The scheme must be approved by the Commissioner 44 Other relevant information 46 Appendix 2 - Detailed contents list 55