Income tax: 2001 Timbercorp Almond Project

This Ruling sets out the Commissioner's opinion on the way in which the relevant provision(s) identified in the Ruling section (below) apply to the defined class of entities, who take part in the scheme to which this Ruling relates. All legislative references in this Ruling are to the Income Tax Assessment Act 1997 (ITAA 1997) unless otherwise indicated. In this Product Ruling this scheme is referred to as the 2001 Timbercorp Almond Project or simply as 'the Project'.

This part of the Product Ruling specifies which entities can rely on the tax benefits set out in the Ruling section of this Product Ruling and which entities cannot rely on those tax benefits.

The class of entities who can rely on this Ruling consists of the entities who are described in Product Ruling PR 2001/15 and who, between 2 March 2001 and 30 June 2001, entered into the scheme that is set out in paragraphs 15 to 36 of that Ruling. They will have a purpose of staying in the scheme until it is completed (that is, being a party to the relevant Agreements until their term expires) and deriving assessable income from this involvement. In this Ruling these entities are referred to as 'Growers'.

The class of entities to whom this Ruling applies does not include entities who have terminated or who intend to terminate their involvement in the scheme prior to its completion, or who otherwise do not intend to derive assessable income from the Project.

This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA 1993). The Tax Office gives no assurance that the product is an appropriate investment for a superannuation fund. The trustees of superannuation funds are advised that no consideration has been given in this Product Ruling as to whether investment in this product may contravene the provisions of SISA 1993.

The class of entities defined in this Product Ruling may rely on it provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 15 to 36 of PR 2001/15.

If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then: • this Product 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because the scheme entered into is not the scheme on which the Commissioner has ruled; and • this Product Ruling may be withdrawn or modified.

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This Ruling applies for the income years ending 30 June 2006 and 30 June 2007 for Growers who, between 2 March 2001 and 30 June 2001, entered into the scheme that is set out in paragraphs 15 to 36 of PR 2001/15. This Product Ruling provides advice on the availability of tax benefits to the specified class of entities up to 30 June 2007. This Product Ruling will continue to apply to those entities even after its period of application for schemes entered into during the period of application.

However, the Product Ruling only applies to the extent that: • there is no change in the scheme or in the entity's involvement in the scheme; • it is not later withdrawn by notice in the Gazette ; or • the relevant provisions are not amended.

If this Product Ruling is inconsistent with a later public or private ruling, the relevant class of entities may rely on either ruling which applies to them (item 1 of subsection 357-75(1) of Schedule 1 to the Taxation Administration Act 1953 (TAA)).

If this Product Ruling is inconsistent with an earlier private ruling, the private ruling is taken not to have been made if, when the Product Ruling is made, the following two conditions are met: • the income year or other period to which the rulings relate has not begun; and • the scheme to which the rulings relate has not begun to be carried out. If the above two conditions do not apply, the relevant class of entities may rely on either ruling which applies to them (item 3 of subsection 357-75(1) of Schedule 1 to the TAA).

Although this Product Ruling deals with the laws enacted at the time it was issued, later amendments may impact on this Product Ruling. Any such changes will take precedence over the application of the Ruling and, to that extent, this Product Ruling will have no effect.

Entities who are considering participating in the scheme are advised to confirm with their taxation adviser that changes in the law have not affected this Product Ruling since it was issued.

Product Rulings were introduced for the purpose of providing certainty about tax consequences for entities in schemes such as this. In keeping with that intention the Tax Office suggests that promoters and advisers ensure that participants are fully informed of any legislative changes after the Product Ruling is issued.

Although now withdrawn, the tax benefits set out in PR 2001/15 continue to apply to participants who are within the specified class of entities to which the Ruling applied and who entered into the specified scheme between 2 March 2001 and 30 June 2001. This is subject to there being no material difference in the scheme or in the entities' involvement in the scheme.

A Grower who is an individual accepted into the Project between 2 March 2001 and 30 June 2001 may have losses arising from their participation in the Project that would be deferred to a later income year under section 35-10. Subject to the Project being carried out in the manner described in paragraphs 15 to 36 of PR 2001/15, the Commissioner will exercise the discretion in paragraph 35-55(1)(b) for the income years ending 30 June 2006 and 30 June 2007.

This conditional exercise of the discretion allows those losses to be offset against the Grower's other assessable income in the income year in which the losses arise.

The scheme that is the subject of this Ruling is described in paragraphs 15 to 36 of PR 2001/15 (now withdrawn). A copy of PR 2001/15 can be obtained on the Tax Office's Internet site at http://www.ato.gov.au.

Division 35 applies to losses from certain business activities from the income year ended 30 June 2001 and subsequent years. Under the rule in subsection 35-10(2) a deduction for a loss incurred by an individual (including an individual in a general law partnership) from certain business activities will not be taken into account in an income year unless: • the 'exception' in subsection 35-10(4) applies; • one of four tests in section 35-30, 35-35, 35-40 or 35-45 is met; or • if one of the tests is not satisfied, the Commissioner exercises the discretion in section 35-55.

In deciding to exercise the discretion in paragraph 35-55(1)(b) on a conditional basis for the income years ended 30 June 2006 and 30 June 2007 , the Commissioner has applied the principles set out in Taxation Ruling TR 2007/6 Income tax: non-commercial business losses: Commissioner's discretion. Accordingly, based on the evidence supplied, the Commissioner has determined that for those income years: • it is because of its nature the business activity of a Grower will not satisfy one of the four tests in Division; and • there is an objective expectation that within a period that is commercially viable for the almond growing industry, a Grower's business activity will satisfy one of the four tests or produce a taxation profit.

A Grower who would otherwise be required to defer a loss arising from their participation in the Project under subsection 35-10(2) until a later income year is able to offset that loss against their other assessable income in the year it is incurred.

The exercise of the Commissioner's discretion under paragraph 35-55(1)(b) is conditional on the Project being carried on in the manner described in this Ruling during the income years specified. If the Project is carried on in a materially different way from that described in the Ruling a Grower will need to apply for a private ruling on the application of section 35-55 to those changed circumstances.

The following is a detailed contents list for this Ruling: Paragraph What this Ruling is about 1 Class of entities 2 Superannuation Industry (Supervision) Act 1993 5 Qualifications 6 Date of effect 9 Changes in the law 13 Note to promoters and advisers 15 Ruling 16 Continuing application of Product Ruling PR 2001/15 16 Division 35 - deferral of losses from non-commercial business activities 17 Section 35-55 - exercise of Commissioner's discretion 17 Scheme 19 Appendix 1 - Explanation 20 Division 35 - deferral of losses from non-commercial business activities 20 Exercise of Commissioner's discretion 21 Appendix 2 - Detailed contents list 24