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Deductibility of subsidiary support payments

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Draft Taxation Determination TD 2013/D3 This Draft TD states the ATO view that support payments made by a parent entity to its subsidiary are not deductible under
s 8-1 of the ITAA 1997, as the ATO considers the support payments are capital in nature for the purposes of para 8-1(2)(a). Support payments as defined in the Draft TD are typically designed to provide financial assistance to a subsidiary in a start-up period or in times of adverse business conditions or financial stress.

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The ATO considers that whether a payment is a support payment is determined by reference to its true character, rather than the label or words used to describe it. In determining if a payment by a parent to a subsidiary is a support payment, the ATO views it as necessary to consider whether the payment is, in substance, made by reference to the losses or profits of the subsidiary.

The Draft also indicates that such payments are included in the cost base and reduced cost base of the parent’s investment in the subsidiary and are therefore not deductible under s 40-880.

According to the Draft, the advantage sought by a support payment is the maintenance or enhancement of the capital value of a parent’s investment in a subsidiary. It says a support payment is required when a subsidiary suffers losses or makes insufficient profits. Payments that are calculated with reference to the losses or profits of a subsidiary are objectively to be regarded as having the purpose of maintaining the subsidiary’s capital structure, says the ATO.

Therefore, the ATO says the objective purpose of a support payment arrangement is to secure the subsidiary as a source of future income, whether in the form of fees, royalties, dividends or other amounts. It says the purpose of the payments by the parent entity is to create or maintain a profit-yielding asset as opposed to the process of operating it, and accordingly those payments have the character of capital from the parent entity’s perspective and are not deductible under s 8-1.

köpa Sildenafil Citrate säkert på nätet In addition, the Draft says support payments cannot be deducted under s 40-880, as the payments can be included in the fourth element of the cost base or reduced cost base (in relation to increasing or preserving the value of CGT assets – s 110-25(5) and 110-55(2)), since the objective purpose of the payment is to increase or preserve the value of the parent entity’s investment in the subsidiary. Therefore, the ATO considers the support payment is included in the fourth element of the cost base and reduced cost base of a parent’s direct or indirect investment in the subsidiary.

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Terry Hayes

سوق الخيارات الثنائية is editor-in-chief at Thomson Reuters and leads the Thomson Reuters Tax News Division. Follow Thomson Reuters on Twitter @TRAUS.