Income tax: 2005 Swan Hill Almond Grower Project (2005 Growers)

This Product 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 2005 Swan Hill Almond Grower Project - 2005 Growers 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. In this Product Ruling, those entities that can rely on the tax benefits set out in this Ruling are referred to as Growers.

The class of entities who can rely on those tax benefits consists of those entities who were specifically identified in paragraph 48 of Product Ruling PR 2005/28 and who entered into the specific scheme that is set out in paragraphs 14 to 47 of that Ruling between 16 March 2005 and 15 June 2005.

The class of entities who can rely on the tax benefits set out in the Ruling section of this Product Ruling does not include entities who: • intend to terminate their involvement in the scheme prior to its completion, or who otherwise do not intend to derive assessable income from it; • were accepted into this Project before 16 March 2005 or after 15 June 2005; • have participated in the scheme through offers made other than through the Product Disclosure Statement; or • have elected to take their own almonds.

This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA). The Commissioner gives no assurance that the scheme 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 scheme may contravene the provisions of SISA.

The class of entities defined in this Product Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 14 to 47 of PR 2005/28.

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 Product Ruling applies only to the specified class of entities that entered into the scheme set out in paragraphs 14 to 47 of PR 2005/28 between 16 March 2005 and 15 June 2005.

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.

Although now withdrawn, the tax benefits set out in Product Ruling PR 2005/28 continue to apply to participants who are within the specified class of entities to which the Product Ruling applied and who entered into the specified scheme after 16 March 2005 and on or before 15 June 2005. 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 and within the defined class of entities outlined in paragraphs 3 to 5 of this Ruling may have losses arising from their participation in the Project that would be deferred to a later income year under section 35-10.

For the 2009-10 and 2010-11 income years, the Commissioner will exercise the discretion in subsection 35-55(1) once the following conditions are satisfied: • the Grower carried on their business of almond growing during the income year; • the business activity that is carried on is not materially different to that in the scheme described in paragraphs 14 to 47 of PR 2005/28; and • the Grower has incurred a taxation loss for the income year from carrying on that business activity.

If these conditions are met for the 2009-10 and 2010-11 income years, the Commissioner will exercise the discretion under: • paragraph 35-55(1)(b) for a Grower in the Project who satisfies the income requirement in subsection 35-10(2E); and • paragraph 35-55(1)(c) for a Grower in the Project who does not satisfy the income requirement in subsection 35-10(2E).

If the Commissioner determines that the discretion will not be exercised for a particular year or years the Grower will be informed of that decision and the reasons. In any year where the discretion is not exercised losses incurred by a Grower will be subject to the loss deferral rule in section 35-10 and the Grower will not be able to offset the losses from the Project against other assessable income.

The issue of this Product Ruling of itself does not constitute the exercise of the Commissioner's discretion in subsection 35-55(1) for any income year.

The scheme that is the subject of this Ruling is called the 2005 Swan Hill Almond Grower Project - 2005 Growers and is described in paragraphs 14 to 47 of PR 2005/28. It also incorporates the following additional documents: • application for a Product Ruling received on 17 May 2010; and • correspondence and information received on 6 September 2010. Note: certain information has been provided on a commercial-in-confidence basis and will not be disclosed or released under Freedom of Information legislation.

For the purposes of describing the scheme to which this Ruling applies, there are no other agreements, whether formal or informal, and whether or not legally enforceable, which a Grower or any associate of a Grower, will be a party to, which are a part of the scheme.

All Australian Securities and Investment Commission (ASIC) requirements are, or will be, complied with for the term of the agreements.

Based on information provided with the application for this Product Ruling, a Grower within the class of entities defined in paragraphs 3 to 5 of this Ruling who carries on a business of almond growing individually (alone or in partnership) is expected to incur losses from their participation in the Project which will be subject to Division 35 [1] .These losses will be subject to the loss deferral rule in section 35-10 unless an exception applies or, for each income year in which losses are incurred, the Commissioner exercises the discretion in subsection 35-55(1) on 30 June of that specific income year.

The exceptions to the loss deferral rule depend upon the circumstances of individual Growers and are outside the scope of this Ruling.

The Commissioner will apply the principles set out in Taxation Ruling TR 2007/6 Income tax: non-commercial business losses: Commissioner's discretion when exercising the discretion.

Where, in the 2009-10 and 2010-11 income years, a Grower with income for non-commercial loss purposes of less than $250,000 (that is, the Grower satisfies the income requirement in subsection 35-10(2E)) incurs a loss from carrying on their business activity the discretion in subsection 35-55(1)(b) is exercised for those years, because the Commissioner has determined: • it is because of its nature that the business activity of the Grower will not satisfy one of the four tests in Division 35; and • there is an objective expectation that within a period that is commercially viable for the almond growing industry, the Grower's business activity will satisfy one of the four tests set out in Division 35 or produce assessable income for an income year greater than the deductions attributable to it for that year (apart from the operation of subsections 35-10(2) and (2C).

Where, in the 2009-10 or 2010-11 income years, a Grower with income for non-commercial loss purposes of $250,000 or more (that is, the Grower does not satisfy the income requirement in subsection 35-10(2E)) incurs a loss from carrying on their business activity, the discretion in subsection 35-55(1)(c) is exercised for those years, because the Commissioner has determined: • it is because of its nature that the business activity of the Grower will not produce assessable income greater than the deductions attributable to it; and • there is an objective expectation that within a period that is commercially viable for the almond growing industry, the Grower's business activity will produce assessable income for an income year greater than the deductions attributable to it for that year (apart from the operation of subsections 35-10(2) and (2C).

The exercise of the Commissioner's discretion under paragraph 35-55(1)(b) or 35-55(1)(c) is conditional on the Project being carried on the manner described in paragraphs 14 to 47 of PR 2005/28 during the income years specified.If the Project is carried out in a materially different way to 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.

In each individual year where the Commissioner's discretion is exercised a Grower within either paragraph 22 or paragraph 23 of this Ruling who would otherwise be required to defer a loss arising from their participation in the Project under section 35-10 until a later income year is able to offset that loss against their other assessable income.

A Grower will satisfy the income requirement in subsection 35-10(2E) where the sum of the following amounts is less than $250,000: • taxable income for that year (ignoring any loss arising from participation in the Project or any other business activity); • total reportable fringe benefits for that year; • reportable superannuation contributions for that year; and • total net investment losses for that year.

The following is a detailed contents list for this Ruling: Paragraph What this Ruling is about 1 Class of entities 3 Superannuation Industry (Supervision) Act 1993 6 Qualifications 7 Date of effect 10 Ruling 12 Division 35 - deferral of losses from non-commercial business activities 13 Section 35-55 13 2009 and 2010-11 income years 14 Scheme 16 Appendix 1 - Explanation 19 Deferral of losses from non-commercial business activities and the Commissioner's discretion 19 Sections 35-10 and 35-55 19 Section 35-55 - exercise of the Commissioner's discretion 22 2009-10 and 2010-11 income years 14 Subsection 35-10(2E) - income requirement 22 Appendix 2 - Detailed contents list 27