Home » News » ATO ID 2005/23 Income Tax Research and Development Tax Offset: legal ownership of interests in a company by an exempt entity

ATO ID 2005/23 Income Tax Research and Development Tax Offset: legal ownership of interests in a company by an exempt entity

August 19th, 2014

Does an exempt entity legally own interests in a company within the meaning of subsection 73J(2) of the Income Tax Assessment Act 1936 (ITAA 1936), where the Corporations Act 2001 requirements for membership of a company have not been met?

No. The exception in subsection 73J(2) of the ITAA 1936 will not operate to preclude a company from choosing a tax offset under section 73I of the ITAA 1936 where the exempt entity is not a member of the company under the Corporations Act.

Section 231 of the Corporations Act states that a person is a member of a company if they are a member of the company on its registration.

Under section 120 of the Corporations Act, a person becomes a member of a company on registration if the person is specified in the application with their consent as a proposed member of the company.

Section 175 of the Corporations Act, provides that a register of members kept under section 168 of the Corporations Act, is only evidence of the matters contained in it, in the absence of evidence to the contrary.

On the company’s Application for registration as an Australian company, lodged with the Australian Securities and Investment Commission (ASIC), an exempt entity was included as member of the company, with an interest totalling more than 25% of shares in the company.

The exempt entity was also recorded as a member of the company in its register of members kept under the Corporations Act.

The company is an eligible company within the definition in subsection 73B(1) of the ITAA 1936. It incurred research and development expenditure during the year of income and satisfied the eligibility requirements of subsection 73J(1) of the ITAA 1936.

The exempt entity had not at any time consented to become a member of the company, and nor had it authorised any payment from its own funds as consideration for the shares registered in its name.

Section 73J of the ITAA 1936 provides that an eligible company will be eligible to choose a tax offset instead of a deduction for research and development expenditure if it satisfies the requirements of subsection 73J(1) of the ITAA 1936.

Click here for full ATO ID.

Are You Eligible?


Click here for the R&D Eligibility Wizard

R&D Audit Checklist


Click here for the R&D Eligibility Wizard

Categories

Archives

 
  
 Swanson Reed - Specialist R&D Tax Advisors 
 
 
 Swanson Reed - Specialist R&D Tax Advisors
  
 39 Google reviews 
 
  
 
 
 
 
  
 Swanson Reed - Specialist R&D Tax Advisors 
 
 
 Swanson Reed - Specialist R&D Tax Advisors
  
 39 Google reviews 
 
 
 
 
 
  
 
 
 
 Daniel McGregor 
 
 
 Daniel McGregor 
 
2022-08-11
 
 
  
 
I have been using Swanson Reed for my clients for more than a decade.  Having a specialist firm that can provide practical and commercial advice that produces real outcomes is very important and we have received great feedback from our clients.
Highly recommended.
  
 
 
  
 
 
 
 John 
 
 
 John 
 
2022-06-15
 
 
  
 
Damian and the rest of the team at Swanson Reed have been supporting us for several years.  We always appreciate their insights, expertise, and efforts.
  
 
 
  
 
 
 
 Rueben Rajasingam 
 
 
 Rueben Rajasingam 
 
2022-06-06
 
 
  
 
Experienced responsive Team. They have been a great help to me and my company navigate the R&D tax claim process and have provided invaluable advice.
  
 
 
  
 
 
 
 Enrique Esquivel 
 
 
 Enrique Esquivel 
 
2022-06-06
 
 
  
 
Damian and the team at Swanson Reed have been extremely helpfully and professional during all of our consultations. Highly recommended.
  
 
 
  
 
 
 
 Jess at Y&C 
 
 
 Jess at Y&C 
 
2022-06-03
 
 
  
 
  
 
 
  
 
 
 
 Anatole Kononewsky 
 
 
 Anatole Kononewsky 
 
2022-06-02
 
 
  
 
The Swanson Reed team have provided our company with exceptional professional advice and assistance for all of our R&D claims for many years - have always achieved great results with excellent value for their services.
  
 
 
  
 
 
 
 Payam Toloo 
 
 
 Payam Toloo 
 
2022-06-02
 
 
  
 
Damian Smyth and his team are very helpful, supportive and experts in their field of R&D Tax claims. I'm always happy with the work they do and been a customer of their for over 5 years.
  
 
 
  
 
 
 
 Melissa Doddy 
 
 
 Melissa Doddy 
 
2022-05-31
 
 
  
 
The Team at Swanson Reed are very experienced R&D Tax Advisors and gave us ongoing support with all of our R&D Claims, the consultants ensured we were always working with current legislative guidelines, gave us assistance with compiling technical and government documentation and went out their way to ensure they were with us for the entire process from beginning to end.  Highly recommended to anyone who needs assistance with working through what can at times be a daunting process.
  
 
 
  
 
 
 
 Gary Watson 
 
 
 Gary Watson 
 
2022-05-31
 
 
  
 
We can highly recommend Swanson and Reed as an R & D accountant. We have worked with them for several years now as they make our R & D claim so easy and communicate quickly with both us and our accountant.
  
 
 
  
 
 
 
 Rob van den Bergh 
 
 
 Rob van den Bergh 
 
2022-05-31
 
 
  
 
Always professional.