1 Is a phantom unit granted under the Company A (Company A) Phantom Unit Plan an ESS interest pursuant to subsection 83A-10(1) of the Income Tax Assessment Act 1997 (ITAA 1997)?
No. Question 2 Will Company A be required to provide a statement to the Commissioner and to an individual for a financial year under section 392-5 of Schedule 1 to the Taxation Administration Act 1953 (TAA 1953)? Answer No. This ruling applies for the following : Income tax year ended 30 June 20YY The scheme commenced on: 1 July 20YY
Background A limited partnership The Limited Partnership Agreement (LP Agreement) was made by, and among, A limited partnership and other partners (the Partnership), to govern the Partnership's affairs and business operations. The Partnership is authorised to issue Class A Units, Class B Units, Class Y Units and Class Z Units. A Class Y Unit is a unit representing a fractional part of the partners' interests in the Partnership and, to the extent the holder thereof has been admitted as a partner, having the other rights and obligations specified with respect to Class Y Units in the LP Agreement. Except as otherwise provided, the Partnership may make distributions to partners at any time, as determined solely by the Board. Such distributions must comply with applicable law and any lending agreements involving the Partnership or its subsidiaries. Distributions will be made to unit holders in the order and priority as outlined in the LP Agreement:
No distributions shall be made in respect of any Class Y Unit under the LP Agreement unless and until its participation threshold has been reduced to zero, as determined immediately prior to the distribution. Only the incremental amount exceeding the threshold may be distributed. Until such time, Class Y Units will be excluded from distribution calculations, and amounts will be allocated as if those units were not outstanding. Company B is a wholly owned Australian subsidiary of Company A. The Partnership is an indirect parent of Company A and Company B. Company A Phantom Unit Plan Company A established the Phantom Unit Plan (the Plan) as a cash-based incentive program designed to support the long-term growth and profitability of the Partnership, Company A, and their subsidiaries. It provides eligible participants with notional, cash-settled interests tied to the future profits of the Partnership.
A Phantom Unit is defined as a hypothetical unit of measurement maintained by Company A in a bookkeeping account for each participant's benefit, which entitles each participant to receive a payment in the same manner and amount as the corresponding Reference Class Y Unit would receive in accordance with the terms of the LP Agreement (Phantom Unit). Under the Plan, Company A may grant Phantom Units to present and future officers, directors, managers, employees, consultants, and advisors of Company A or its affiliates (the Participants). A Reference Class Y Unit is defined as a hypothetical Class Y Unit granted by the Partnership at the same time as such Phantom Units. The Plan broadly operates as follows: • Awards under the Plan shall be made in the form of Phantom Units. Each award of Phantom Units shall represent the right to receive a payment, subject to the terms and conditions of the Plan, and is evidenced by a Grant Agreement containing any restrictions, terms, and conditions, as the Board may require
• Each award of Phantom Units shall be divided into two tranches, with 50% of the Phantom Units being 'Time-Vesting Units' and 50% of the Phantom Units being 'Performance-Vesting Units' • The vesting of each award is subject to the Participant's continued employment or service with the Partnership, Company A, or their respective subsidiaries through such a sale of the Partnership. Any Performance-Vesting Units that do not vest upon consummation of a sale of the partnership shall be forfeited and cancelled for no consideration • Unless stated in a Grant Agreement, all Phantom Units that are unvested as of a Participant's termination of service shall be automatically forfeited and cancelled for no consideration as of such termination of service. Additionally, if a Participant incurs a termination of service by the Partnership, Company A, or any of their respective subsidiaries (as applicable) for cause or at a time when cause exists, or commits a restrictive covenant breach, then all Phantom Units (whether vested or unvested) shall be automatically forfeited and cancelled for no consideration
• Vested Phantom Units shall be subject to cancellation as though such vested Phantom Units were outstanding Class Y Units which were subject to repurchase in accordance with provision of the LP Agreement • Subject to the Plan Rules, Participants holding vested Phantom Units shall participate in distributions or other payments made by the Partnership as and when vested Class Y Units receive distributions or other payments pursuant to provision of the LP Agreement • All Phantom Units are personal to a Participant and are not transferable by such Participant, other than as provided in the LP Agreement or by will or pursuant to applicable laws of descent and distribution. Any attempted transfer of the Phantom Units that is not specifically permitted under the Plan shall be null and void. No Participant shall make any transfer prohibited by provision of the Plan Rules either directly or indirectly. Any transfer or attempted transfer in violation of provision of the Plan Rules shall be null and void
• No Participant shall have any rights as an equity holder in the Partnership, Company A, or any of their respective affiliates as a result of the grant of any Phantom Units. Each Phantom Unit merely represents a right to receive a cash payment in accordance with the terms of the Plan, and nothing in the Plan or any Grant Agreement shall confer an entitlement on any Participant to acquire any security, option, or other interest in the Partnership Company A, or their respective affiliates • The Board may suspend or terminate the Plan and may amend its terms as it deems appropriate. However, no amendment or change that materially and adversely affects a Participant may be made without that Participant's prior written consent, and • The Board may amend provisions applicable to all Participants with the prior written approval of a majority in interest, provided such amendment does not materially and disproportionately disadvantage any individual Participant or group of Participants. On 1 July 20YY, xx employees of Company A were granted the Phantom Units in Company A.:
Taxation Administration Act 1953 subsection 392-5(1) of Schedule 1 Income Tax Assessment Act 1997 subsection 83A-10(1) Income Tax Assessment Act 1997 subsection 83A-10(2) Income Tax Assessment Act 1997 subsection 995-1(1)
All legislative references are to provisions of the Income Tax Assessment Act 1997 unless otherwise indicated. Question 1 Is a Phantom Unit granted under the Company A Phantom Unit Plan an ESS interest pursuant to subsection 83A-10(1)? Answer No. A Phantom Unit granted under the Company A Phantom Unit Plan is not an ESS interest pursuant to subsection 83A-10(1), as it is not a beneficial interest in a share in the company; or a beneficial interest in a right to acquire a beneficial interest in a share in the company. Detailed reasoning Division 83A deals with the taxation of discounts on shares, rights and stapled securities acquired by an employee under an employee share scheme. An interest must meet the definition of an ESS interest set out in subsection 83A-10(1) for Division 83A to apply to those interests.
Subsection 83A-10(1) defines an ESS interest, in a company, as a beneficial interest in a share in the company, or a beneficial interest in a right to acquire a beneficial interest in a share in the company. Subsection 83A-10(2) defines an employee share scheme as a scheme under which ESS interests in a company are provided to employees, or *associates of employees, (including past or prospective employees) of the company, or subsidiaries of the company, in relation to the employees' employment. In this instance, the interests granted to Participants under the Plan are the Phantom Units. Therefore, it must be determined whether a Phantom Unit satisfies the definition of an ESS interest for the purposes of subsection 83A-10(1).
Generally, a share is defined in subsection 995-1(1) as a share in the capital of the company and includes stock. The share capital is the company' s total nominal value and is divided into shares which represent fractional parts of the ownership of the company. Different types of shares may carry different rights (e.g. preference shares which carry preferential rights to receive dividends). Therefore, it is necessary to determine under the Plan whether the Phantom Unit entitles Participants to a beneficial interest ina share in Company A; ora beneficial interest in a right to acquire a beneficial interest in a share in Company A. The Plan is defined as a cash incentive compensation arrangement. Phantom Units issued by Company A represent notional, cash-settled interests tied to the future profits of the Partnership. Phantom Units are recorded as hypothetical bookkeeping entries, entitling Participants to payments equivalent to those that would be made to a corresponding Reference Class Y Unit under the LP Agreement.
Phantom Units do not confer any ownership or rights to acquire equity in Company A. They carry no entitlement to capital distributions, dividends, or voting rights. Although subject to vesting conditions, such vesting solely determines the Participant's right to receive a cash payment and do not involve the issuance or transfer of equity. Consequently, as the Phantom Units do not provide Participants with a beneficial interest in a share or a beneficial interest in a right to acquire a beneficial interest in a share, it follows that a Phantom Unit does not possess the necessary characteristics to be defined as an ESS interest in subsection 83A-10(1). They are therefore not subject to the employee share scheme rules set out in Division 83A. Question 2 Will Company A be required to provide a statement to the Commissioner and to an individual for a financial year under section 392-5 of Schedule 1 to the Taxation Administration Act 1953 ? Answer No, as a Phantom Unit is not an ESS interest pursuant to subsection 83A-10(1). Detailed reasoning Subsection 392-5(1) of Schedule 1 to the Taxation Administration Act 1953
(TAA 1953) 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 prior years). As the Phantom Units are not ESS interests for the purposes of Division 83A, Company A is not required to give a statement to the Commissioner and to an individual pursuant to subsection 392-5(1) of Schedule 1 to the TAA 1953.