1 Will Company X have an obligation to give a statement to the Commissioner and to an individual under paragraph 392-5(1)(a) of Schedule 1 to the Taxation Administration Act 1953 (TAA) if incentive units are provided to Australian-resident employees of Company Y or Company Z under an Incentive Unit Plan (Plan)?
Yes. Question 2 Will Company X have an obligation to give a statement to the Commissioner and to an individual under paragraph 392-5(1)(b) of the TAA if incentive units are provided to Australian-resident employees of Company Y or Company Z under the Plan? Answer No. This ruling applies for the following periods: Relevant income tax years ending 30 June 20XX The scheme commenced: In a particular income year
Background Company X 1. Company X was incorporated overseas and is a limited liability company (LLC) governed by an LLC Agreement, which outlines the management and control of Company X, including the appointment of managers who together form the board of managers (Board). 2. Company X is a foreign resident and is treated as a partnership in its foreign jurisdiction. 3. Company X is treated as a company for Australian tax purposes as it is not a 'controlled foreign company' pursuant to section 340 of the Income Tax Assessment Act 1936 (ITAA 1936). 4. Company X carries on a business for the purpose of gaining or producing assessable income. 5. Neither Company X nor any of its relevant subsidiaries are in the business of acquiring, selling or holding shares, securities or other investments. Subsidiary LLC 6. Subsidiary LLC is a wholly owned subsidiary of Company X. 7. Subsidiary LLC carries on a similar business to Company X for the purpose of gaining or producing assessable income. 8. Subsidiary LLC operates in Australia through a wholly owned subsidiary, Company Y. Company Y
9. Company Y carries on business in Australia for the purpose of gaining or producing assessable income. 10. Company Y is the provisional head company of a multiple entry consolidated group consisting of itself and Company Z. 11. Company Y's activities are all conducted within Australia, and it employs a number of Australian residents. Company Z 12. Company Z is an indirect wholly owned subsidiary of Subsidiary LLC. 13. Company Z carries on business in Australia for the purpose of gaining or producing assessable income. Unitholding of Company X 14. Company X has on issue the following securities which are not publicly listed or traded: (a) common units issued to each common member in respect of the common interest of such members, and (b) incentive units issued to the employees of which the Plan includes two separate (but related) classes of incentive units: - Class A Incentive Units, and - Class B Incentive Units. 15. The term 'Members' means, collectively, the Common Members (holders of common units) and the Incentive Members (holders of Incentive Units).
16. Common Members make capital contributions on the issue of common units and have the right to one vote for each common unit. Incentive Members do not have any voting rights. 17. The membership interests and units have not been registered under any securities laws. Accordingly, neither the common units nor the incentive units may be sold, offered, assigned, pledged or otherwise disposed of at any time. There is no established market in which to trade these units. The Plan 18. Company X adopted the Plan for the purposes of promoting the interests of Company X and its affiliates by: attracting and retaining employees and consultants of Company X and its affiliates, and enabling such persons to acquire an equity-based interest in and participate in the long-term growth and financial success of Company X and its affiliates. 19. The terms of the Plan are governed by: (a) the Plan rules (b) the following grant agreements (collectively, the Incentive Unit Agreements) executed between Company X and the relevant employee: (i) Class A Incentive Unit Grant Agreement (Class A Agreement) (ii) Class B Incentive Unit Grant Agreement (Class B Agreement), and (c) the LLC Agreement.
20. The Plan shall terminate on the day before the tenth anniversary of the date it is adopted by the Board. Issue of incentive units 21. Under the LLC Agreement and the Plan, Company X is authorised to issue two separate classes of incentive units to its employees: (a) Class A Incentive Units as governed by the Class A Agreement; and (b) Class B Incentive Units as governed by the Class B Agreement. 22. The incentive units are granted in consideration of services to be performed to or for the benefit of Company X or its subsidiaries. Employees pay no monetary consideration nor make any capital contribution for the grant of incentive units and the incentive units are not part of a salary sacrifice arrangement. 23. Incentive units were first offered to two Australian-resident employees of Company Z, whose employment was transferred to Company Y. Thereafter, the participants of the Plan have only been Australian-resident employees of Company Y. 24. The Plan was offered to at least 75% of the Australian-resident employees of Company Y and Company Z who had completed at least 3 years of service (whether continuous or non-continuous).
25. Neither the Plan nor any award made under the Plan creates a trust nor a fiduciary relationship between Company X and the Incentive Members. 26. Under the Plan: • the Board has full power, authority and sole discretion to make any decisions under the Plan and these decisions need not be the same with respect to each Incentive Member (even though similarly situated) • designation of an individual as an Incentive Member does not guarantee the person to receive an incentive unit, nor the same type or amount of incentive unit, in any other year • the provisions of each separate Incentive Unit Agreement need not be identical, and • there is no obligation for uniformity of treatment of Incentive Members regarding the number of incentive units awarded or the manner in which awards are made, and the terms and conditions under the Plan need not be the same with respect to each Incentive Member. Vesting Conditions 27. The Board may, in its sole discretion, accelerate the vesting of all or any portion of an incentive unit. 28. The vesting conditions for each type of incentive unit are as follows: Class A Incentive Units
29. Under the Class A Agreement, 25% of the Class A Incentive Units vests on each of the first, second, third and fourth anniversaries of the grant date, subject to a termination event not having occurred prior to the vesting date. 30. All unvested Class A Incentive Units shall vest in connection with a sale subject to a termination event not having occurred prior to the consummation of such sale. Class B Incentive Units 31. Class B Incentive Units vest as follows: (a) 50% of Class B Incentive Units shall be eligible to vest in two equal tranches (25% in Tranche A and 25% in Tranche B) based upon the attainment of a performance target, subject to a termination event not having occurred prior to the vesting date, and (b) if a sale is consummated, all unvested Class B Incentive Units shall vest solely based on the achievement of the performance target and any such Incentive Units which do not so vest shall be forfeited for no consideration. Upon consummation of a sale, 50% of the Class B Incentive Units shall be eligible to vest, subject to a termination event not having previously occurred prior to the Sale. Termination Event
32. Unvested incentive units shall expire and are immediately forfeited and cancelled in their entirety without any consideration to the Incentive Member upon the occurrence of a termination event. 33. In terms of vested incentive units, different occurrences of a termination event gives rise to different outcomes: (a) termination not for cause, death or permanent disability - incentive units remain vested and Incentive Members are entitled to effect the conversion of all vested Class A Incentive Units within 6 months of the termination date, and (b) termination for any other reason - incentive units are forfeited, terminated and cancelled effective as of the day immediately preceding the termination date. Conversion and Conversion Price 34. 'Conversion' means the conversion by a Member of one vested incentive unit into one common unit by making a conversion contribution, which will be deemed to be a capital contribution. 35. Class B Incentive Units cannot be subject to Conversion. Incentive units are 'profits interest' 36. Under the LLC Agreement:
(a) each incentive unit is treated as a separate 'profits interest' and distributions to each Incentive Member shall be limited to the extent necessary so that the incentive unit of such Incentive Member qualifies as a 'profits interest', and (b) Company X treats Incentive Members as the owner of such incentive unit from the date it is granted, allocating to such Member its distributive share of all items of income, gain, loss, deduction and credit associated with such incentive unit, as if it were fully vested. Each Incentive Member agrees to take into account such distributive share in determining its income tax liability for the entire period during which it holds the interest. Distributions 37. The Members shall be entitled to receive distributions, including distributions in connection with the liquidation, dissolution or winding up of the affairs of the company, when and as determined by the Board in its sole discretion. 38. Any distribution to the Members (on liquidation or otherwise) shall be made in the following order: (a) firstly, the common units, until such time as the Hurdle Amount is achieved
(b) secondly, the vested incentive units, until such time as the Unpaid Suspended Distribution Amount has been reached (c) thirdly, the vested Class B Incentive Units, until such time as the Unreturned Catch-Up Amount has been reached, and (d) lastly, the vested incentive units receive distributions on equal priority to the common units. 39. Unvested incentive units receive no distributions (although the allocated distributed share for unvested incentive units are still accrued). Hurdle Amount 40. 'Hurdle Amount' means the aggregate amount that would be received by a Common Member in respect of one common unit in a hypothetical liquidation immediately prior to the issuance of each incentive unit. 41. The 'Hurdle Amount' for each incentive unit is determined on the date of granting of the incentive unit and the purpose is to ensure that the Incentive Members only share in the upside of Company X from the date of grant and do not share in the capital contributions made by Common Members. Unpaid Suspended Distribution Amount
42. The 'Suspended Distribution Amount' means the cumulative amount of any proposed distributions to an Incentive Member in respect of unvested incentive units that are not paid because such unvested incentive units were not vested at the time such distribution was made. The 'Unpaid Suspended Distribution Amount' means the excess of the Suspended Distribution Amount over the amounts paid in respect of an incentive unit. Unreturned Catch-Up Amount 43. The 'Catch-Up Amount' entitles a Class B Incentive Member to a distribution equal to the total contributed capital of Company X divided by the number of common units and Class B Incentive Units, once all contributed capital has been returned to the Common Members. The 'Unreturned Catch-Up Amount' means the excess of the 'Catch Up Amount' for such Class B Incentive Unit over the sum of all distributions previously made in respect of such Class B Incentive Units.
44. The purpose of the Catch-Up Amount is to place the Class B Incentive Member in the same shoes as the Common Members by entitling them to a distribution that represents a notional return of capital, with such entitlement only crystallising after the actual contributed capital has been returned to the Common Members. This is to prevent a dilution of the capital otherwise owing to the Common Members. Tax Distributions 45. Incentive Members do not receive Tax Distributions until the Hurdle Amount has been reached. 46. Tax Distributions are quarterly distributions made out of funds of Company X to the Members pro-rated in accordance with their respective Tax Amounts. The Tax Distributions are essentially prepayments to cover their personal income tax liability in respect of their distributive share. Such Tax Distributions are considered as an advance against future distributions payable to the Members and shall reduce such distributions. 47. To date, no Tax Distributions have been made. Transfer of incentive units 48. No Member may transfer any units prior to an IPO, unless the transfer is: (a) to a 'permitted transferee' under the LLC Agreement
(b) made in its capacity as a 'tagging person' under the LLC Agreement, or (c) made in an approved sale under the LLC Agreement. 49. A person will only be considered a 'permitted transferee' if the transferring Incentive Member would continue to be treated as the owner of the transferred incentive unit for income tax purposes of the foreign jurisdiction. Other Matters 50. Company X is permitted to issue Equity Securities and to amend the LLC Agreement to reflect the terms and conditions of any Equity Securities issued, including amendments to the rights to distribution. 51. If the Board determines that additional common units or Equity Securities (the pre-emptive units) are issued, Common Members are provided with the opportunity to purchase the pre-emptive units. If the right to purchase the pre-emptive units are not fully taken up by Common Members, the excess pre-emptive units will be offered to other persons to purchase. 52. At present, there is no intention by Company X to issue such Equity Securities. 53. There is no intention by Company X to make any distribution until there is a liquidation event.
54. Neither the Incentive Members nor their associates hold more than 10% of the total units in Company X or are in a position to cast or control the casting of more than 10% of the votes at a general meeting of Company X. 55. The scope of this Ruling is limited to employees of Company Y or Company Z who are residents of Australia (as defined in subsection 6(1) of the ITAA 1936) and issued with incentive units under the Plan. Assumptions 56. The Commissioner makes the following assumptions in making this private ruling: (a) The terms of the Incentive Unit Agreements are consistent across each grant of incentive units to any Australian-resident participant in the Plan. The Incentive Unit Agreements provided by Company X are template documents which are completed with each employee on a case-by-case basis. (b) The incentive units have a market value greater than $0 at the time of their grant.
Subsection 392-5(1) of Schedule 1 to the Taxation Administration Act 1953 Paragraph 392-5(1)(a) of Schedule 1 to the Taxation Administration Act 1953 Paragraph 392-5(1)(b) of Schedule 1 to the Taxation Administration Act 1953 Section 83A-10 of the Income Tax Assessment Act 1997 Paragraph 83A-10(1)(a) of the Income Tax Assessment Act 1997 Subsection 83A-10(2) of the Income Tax Assessment Act 1997 Subsection 83A-20(1) of the Income Tax Assessment Act 1997 Subsection 83A-45(2) of the Income Tax Assessment Act 1997 Paragraph 83A-105(1)(b) of the Income Tax Assessment Act 1997 Subdivision 83A-B of the Income Tax Assessment Act 1997 Subdivision 83A-C of the Income Tax Assessment Act 1997 Subsection 995-1(1) of the Income Tax Assessment Act 1997 Section 340 of the Income Tax Assessment Act 1936 S
All legislative references are to the ITAA 1997 unless otherwise indicated. Question 1 Paragraph 392-5(1)(a) of Schedule 1 to the Taxation Administration Act 1953 (TAA) requires a provider to give a statement to the Commissioner and to an individual for a financial year if the provider provides ESS interests to the individual during the year and either Subdivision 83A-B or 83A-C applies (paragraph 392-5(1)(a) of the TAA). Company X is the provider The provider is the entity that issues the ESS interests and may be the employer or the holding company of the employer. In this case, Company X is the provider as it is issuing the incentive units, even though the Australian employees were or are employed by Company Y or Company Z (both wholly owned indirect subsidiaries of Company X). Hence, the obligation to provide statements under subsection 392-5(1) of the TAA falls on Company X. Incentive units are ESS interests An 'ESS interest' in a company includes a beneficial interest in a share of a company (paragraph 83A-10(1)(a)). (i) Company X is a company
Company X is treated as a company for Australian tax purposes because it is not a controlled foreign company pursuant to section 340 of the ITAA 1936. (ii) Beneficial interest in the incentive unit The incentive units are issued to the Incentive Members in consideration of services to be performed to or for the benefit of Company X or Company X's subsidiaries. Company X treats Incentive Members as the owner of their incentive unit from the date it is granted. The Incentive Members do not hold the incentive units on trust for another person or entity. Hence, the Incentive Members have a beneficial interest in the incentive units. (iii) Incentive units are shares Subsection 995-1(1) defines a 'share' as a share in the capital of the company, and includes stock. Under the LLC Agreement, each incentive unit is treated as a separate profits interest. and any distributions to each Incentive Member is limited to the extent necessary to qualify the incentive unit as a profits interest. A profits interest reflects the potential future increase in value of Company X from the date of grant.
To the extent the Board determines that any distributions shall be made, the amount distributable to each Member is provided in the LLC Agreement in an iterative manner as follows: (a) firstly, to the common unitholders until such time as the Hurdle Amount is achieved (b) secondly, to the vested incentive unitholders until such time as the Unpaid Suspended Distribution Amount has been reached (c) thirdly, to the vested Class B incentive unitholders until such time as the Unreturned Catch-Up Amount has been reached, and (d) lastly, equally among common unitholders and incentive unitholders. In relation to the Member's rights in liquidation to receive a share of the capital of the company, the LLC Agreement specifies that the proceeds of liquidation shall be distributed in the following order of priority: (a) firstly, to the creditors, and (b) secondly, to the Members in the same manner as provided above. Therefore, the incentive units confer upon the Incentive Members a right to share in the capital of Company X that may accrue after their date of grant. The incentive units meet the definition of 'share' in subsection 995-1(1).
In conclusion, an incentive unit constitutes an 'ESS interest' as defined in paragraph 83A-10(1)(a) as it is a share in the capital of Company X. Subdivision 83A-B applies to the incentive units Subdivision 83A-B applies to an ESS interest acquired under an employee share scheme at a discount (subsection 83A-20(1)). The incentive units are provided under an employee share scheme An 'employee share scheme' is a scheme under which ESS interests in a company are provided to employees of the company, or subsidiaries of the company, in relation to the employees' employment (subsection 83A-10(2)). The scheme established by the Plan, the Incentive Unit Agreements and the LLC Agreement is an employee share scheme for the purposes of subsection 83A-10(2) because it provides to the employees of Company Y and Z (subsidiaries of Company X) incentive units (which are ESS interests) in consideration of services to be performed for the benefit of Company X or Company X's subsidiaries. The incentive units are provided at a discount
The term 'discount' is not defined in the ITAA 1997 or ITAA 1936. The Explanatory Memorandum to the Tax Laws Amendment (2009 Budget Measures No. 2) Bill 2009 (ESS EM) states at paragraph 1.102 that 'the discount is the market value of the ESS interest less any consideration paid, or to be paid by the employee'. The Commissioner assumes that the incentive units have a market value greater than $0 at the time of their grant. Employees pay no monetary consideration nor make any capital contribution for the grant of incentive units. Accordingly, the incentive units were provided to the employees at a discount. Therefore, Subdivision 83A-B applies to the incentive units issued under the Plan and Company X will have an obligation to give a statement to the Commissioner and to an individual under paragraph 392-5(1)(a) of the TAA in respect of incentive units provided to Australian-resident employees of Company Y and Company Z under the Plan. Question 2
Paragraph 392-5(1)(b) of theTAA requires a provider to give a statement to the Commissioner and to an individual for a financial year if the provider has provided ESS interests to the individual (whether during the current or a prior year) to which Subdivision 83A-C applies and the ESS deferred taxing point for the interests occurs during the year. As discussed in Question 1 above, Company X is the provider and the incentive units are ESS interests provided under an employee share scheme for the purposes of section 83A-10. For Subdivision 83A-C to apply to an ESS interest, one of the conditions that need to be satisfied is the condition in subsection 83A-45(2) (paragraph 83A-105(1)(b)). Subsection 83-45(2) requires that the ESS interest must only relate to ordinary shares. Definition of ordinary share The term 'ordinary share' is not defined in the ITAA 1997, ITAA 1936 or the Corporations Act 2001 . In Norman v Norman
(1990) 19 NSWLR 314, McLelland J stated at 316 that an ordinary share has the meaning in ordinary usage and that, in ordinary usage, ordinary shares mean shares other than preference shares. His Honour noted that different contexts may yield different interpretations. The decision should therefore not be read as proposing an inflexible dichotomy between ordinary and preference shares necessarily applicable to a context which must account for an especially broad statutory definition of 'share'. As a composite expression, the term 'ordinary share' should be interpreted as a whole, rather than by a mechanical examination of the meaning of its component parts ( Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68 at [34]; Lorimer v Smail [1911] HCA 44). The expression has born particular connotations since the nineteenth century which have developed outside the context of the definition of 'share' in section 995-1 ( Beck v Weinstock [2013] HCA 15 at [27]).
In construing 'ordinary shares' for the purposes of subsection 83A-45(2), it is appropriate to have regard to the purpose of Division 83A and, more specifically, the purpose of the requirement that the ESS interest offered under the employee share scheme must relate to ordinary shares. The interpretation which best serves those purposes is to be preferred (section 15AA of the Acts Interpretation Act 1901 ). The ESS EM explains at paragraphs 1.120 and 1.121 that ESS interests must relate to ordinary shares because shares other than ordinary shares may have less risk associated with them such that they are less likely to align the employees' interests with those of the company. In the Explanatory Memorandum to the Tax Laws Amendment Bill (No.5) 1988 which introduced the requirement in the predecessor to Division 83A that all rights available for acquisition under an employee share scheme must relate to ordinary shares, it explained that this requirement was to ensure that the voting rights of shares under an employee share scheme are not disadvantaged against similar shares offered by the company.
Paragraphs 1.85 and 1.86 of the ESS EM explain that providing tax concessions to employees participating in employee share scheme arrangements recognises the economic benefits derived from those arrangements and that participation will help foster better working relationships and increase productivity by aligning the employee and employer interests. Similarly, paragraph 1.164 explains that the deferred tax concession is restricted to ordinary shares as ESS interests that are not ordinary shares are less likely to align the shareholder's interest with that of the company. Whether or not a share is an ordinary share must ultimately be determined by reference to the rights which attach to it. If the rights attaching to a share are insufficient to achieve the purpose of subsection 83A-45(2) and bear little resemblance to a share as traditionally conceived ( Sydney Futures Exchange LtdvAustralian Stock Exchange Ltd & Anor [1995] FCA 86, National Mutual Life Association of Australasia Limited v Commissioner of Taxation [2008] FCA 1871 at [46]), it is less likely to meet the meaning of 'ordinary share'.
The rights of an ordinary shareholder must be ascertained by having regard to the legal framework provided by the company's rules for internal management. In Australia, these rules are found in the Corporations Act 2001 , the company's constitution and the company's replaceable rules. Where the company is incorporated in another jurisdiction, regard must be had to similar governing provisions of the company. Application to Company X For the purposes of determining whether the incentive units issued by Company X are ordinary shares, the relevant documents for considering the rights attaching to the incentive units are the LLC Agreement, the Incentive Unit Agreements and the Plan. Some of the features of the incentive units that sets them apart from being ordinary shares include: (a) the intention to treat the incentive units as a 'profits interest' . Relevantly, the holder of a profits interest only receives a share of future profits or capital appreciation and does not acquire an interest in any existing capital or value of the LLC at the date of grant. To this end, the incentive units are subject to the following conditions:
i. limitations on distributions (if any) necessary to qualify the incentive unit as a profits interest ii. right to receive a share of the company in the event of liquidation is similarly limited to qualify the incentive unit as a profits interest, and iii. the Hurdle Amount applicable to any incentive unit is specified at the time of issuance to cause the incentive unit to constitute a profits interest. (b) the absence of any established market to trade these incentive units. (c) Incentive Members do not make any capital contributions in respect of their incentive units and do not have voting rights. (d) if the Board determines to issue pre-emptive units, Common Members are given the opportunity to purchase these pre-emptive units to prevent a dilution of their holdings. Incentive Members are only given this opportunity if pre-emptive units are not fully taken up by Common Members. (e) the incentive units can only be transferred in limited circumstances.
(f) the Board has full power, authority and sole discretion to make any decisions under the Plan and these decisions need not be the same with respect to each Incentive Member (even though they may be similarly situated). (g) designation of an individual as an Incentive Member does not guarantee the person to receive an incentive unit, nor the same type or amount of incentive unit, in any other year. (h) provisions of separate Incentive Unit Agreement need not be identical. (i) there is no obligation for uniformity of treatment of Incentive Members regarding the number of incentive units awarded or the manner in which awards are made. Further, terms and conditions under the Plan need not be the same with respect to each Incentive Member.
While the incentive units meet the broad definition of 'share' in section 995-1(1), they bear little resemblance to the traditional conception of an ordinary share. As a profits interest, an Incentive Member does not gain an interest in any capital of the company existing at the time the incentive unit is issued. It is an unvested interest in future capital which may arise from the accumulation of future profits. The right to a share in the company's capital only vests upon liquidation, assuming there are sufficient liquidation proceeds. Even then, the Incentive Member's rights to the company's capital is restricted to that accrued from the time the incentive units are issued. The incentive units confer no voting rights, nor any expectation of dividends.
The policy intent of subsection 83A-45(2) was ultimately to ensure that the interests of employees were suitably aligned with those of the company (ESS EM at [1.121]). As a matter of practicality, the holder of an incentive unit will only ever receive a distribution in the event that Company X ceases to operate as a going concern. This calls into question the extent to which it serves to align the Incentive Member's interests with those of the company. If it is indeed in the company's interests for workers to be remunerated upon its dissolution, this alignment of interests is less than that would be achieved if the ESS interest related to ordinary shares as that expression is normally understood. Ordinary shares which pay dividends and facilitate participation through shareholder votes more obviously provide for the intended alignment of interests insofar as they reward employees for working towards the long-term prosperity of their employer company.
The Incentive Members' entitlements, which are practically contingent on the liquidation of the company, which will not pay dividends, which confer no right to receive capital upon a reduction of capital by the company, which confer no right to vote at general meetings, which carry no obligation to subscribe capital and which cannot be transferred, do not answer the meaning of an 'ordinary share'. Conclusion As the incentive units granted under the Plan are not ordinary shares, subsection 83A-45(2) is not satisfied. Consequently, Subdivision 83A-C does not apply to the incentive units. Company X will not have an obligation to give a statement to the Commissioner and to an individual under paragraph 392-5(1)(b) of the TAA in respect of incentive units provided to Australian-resident employees of Company Y or Company Z under the Plan.