Income tax: National Viticultural Fund of Australia Project No. 3

This Product Ruling sets out the Commissioner's opinion on the way in which the relevant provisions 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 Product 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 National Viticultural Fund of Australia Project No. 3 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 paragraphs 51 to 53 of Product Ruling PR 2004/63 and who entered into the specific scheme that is set out in paragraphs 14 to 50 of that Ruling on or after 19 May 2004 and on or before 15 June 2004 (2004 Growers) and on or after 1 July 2004 and on or before 31 October 2004 (2005 Growers).

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 19 May 2004, or during the period 16 June 2004 to 30 June 2004, or after 31 October 2004; or • have participated in the scheme through offers made other than through the Product Disclosure Statement.

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 50 of PR 2004/63.

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because the scheme entered into is not the scheme on which the Commissioner has ruled; and • this Product Ruling may be withdrawn or modified.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 50 of PR 2004/63 on or after 19 May 2004 and on or before 15 June 2004 (2004 Growers) on or after 1 July 2004 and on or before 31 October 2004 (2005 Growers).

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 2004/63 continue to apply to participants who are within the specified class of persons to which the Ruling applied and who entered into the specified arrangement on or after 19 May 2004 and on or before 15 June 2004 (2004 Growers) on or after 1 July 2004 and on or before 31 October 2004 (2005 Growers). This is subject to there being no material difference in the scheme or in the entities involvement in the scheme.

For the 2010-11 income year, the Commissioner will exercise the discretion in subsection 35-55(1) once the following conditions are satisfied: • the Grower carried on their business of viticulture during the income year; • the business activity that is carried on is not materially different to that in the scheme described in this Ruling; 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 2010-11 income year, the Commissioner will exercise the discretion for that year 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 National Viticultural Fund of Australia Project No. 3 and is described in paragraphs 14 to 50 of PR 2004/63. It also incorporates the following additional documents: • Correspondence dated 15th March 2012; • Revised cash flow model for Growers received 15th March 2012; • National Viticultural Fund of Australia Winter 2011 Project Update; • Food and Beverage Australia Limited presentation to Growers and Investors dated August 2011; and • National Viticultural Fund of Australia Project No. 3 Annual Works Programme dated June 2010 and June 2011. 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 Investments Commission requirements are, or will be, complied with for the term of the agreements.

Based on the information provided with the application for this Product Ruling, a Grower who was accepted into the Project within the class of entities defined in paragraphs 3 to 5 of this Ruling who carries on a business of viticulture individually (alone or in a 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 rules 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 a Grower with income for NCL purposes of less than $250,000 (that is, the Grower satisfies the income requirement in subsection 35-10(2E)) incurs a loss in an income year from carrying on their business activity in a way that is not materially different to the Scheme described in this Product Ruling, and the discretion in paragraph 35-55(1)(b) is exercised for that year, the Commissioner will be satisfied that: • 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 primary production 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 a Grower with income for NCL purposes of $250,000 or more (that is, the Grower does not satisfy the income requirement in subsection 35-10(2E)) incurs a loss in an income year from carrying on their business activity in a way that is not materially different to the scheme described in this product Ruling, and the discretion in paragraph 35-55(1)(c) is exercised for that year, the Commissioner will be satisfied that: • 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 primary production 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)).

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.

Whether or not the necessary objective expectation about the future performance of the Project exists, it must be determined for each particular year and may change from year to year. Therefore, whether or not an objective expectation exists in any income year, it can be affected by decisions about how a particular activity is operated over the life of the project.

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.

The following is a detailed contents list for this Ruling: Paragraph What this Product Ruling is about 1 Class of entities 3 Qualifications 6 Date of effect 9 Ruling 11 Application of this Ruling 11 Continuing application of PR 2004/70 11 Division 35 - deferral of losses from non-commercial business activities 12 Section 35-55 - exercise of Commissioner's discretion 12 Scheme 16 Appendix 1 - Explanation 19 Division 35 - deferral of losses from non-commercial business activities 19 Sections 35-10 and 35-55 19 Appendix 2 - Detailed contents list 27