Income Tax Assessment Act 1936
Act No.27 of 1936 as amended
This compilation was prepared on 18 April2007
taking into account amendments up to Act No.56of 2007
Volume 1 includes: Table of Contents
Sections1 – 78A
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated
may be affected by application provisions that are set out in
the Notes section
Volume 2 includes:Table of Contents
Sections79A – 121L
Volume 3 includes:Table of Contents
Sections124K – 202G
Volume 4 includes:Table of Contents
Sections204 – 624
Volume 5 includes:Table of Contents
Schedules2, 2C – 2H, 2J and 3 – 5
Volume 6 includes:Note 1
Table of Acts
Act Notes
Table of Amendments
Repeal Table
Notes 2 – 7
Tables A and B
Prepared by the Office of Legislative Drafting and Publishing,
AttorneyGeneral’s Department, Canberra
Income Tax Assessment Act 1936 1
Contents
PartI—Preliminary
1Short title [see Note 1]
6Interpretation
6AACertain sea installations and offshore areas to be treated as part of Australia
6AProvisions relating to cessation of superannuation benefits
6ABForeign income and foreign tax
6ACGrossingup of foreign income
6BIncome beneficially derived
6BATaxation treatment of certain shares
6CSource of royalty income derived by a nonresident
6CASource of natural resource income derived by a nonresident
6FDual resident investment company
6HRecognised small credit unions, recognised medium credit unions and recognised large credit unions
7AApplication of Act in relation to certain Territories
7BApplication of the Criminal Code
PartII—Administration
8Commissioner
14Annual report
16Officers to observe secrecy
16AProvisions relating to the Fitzgerald inquiry
PartIII—Liability to taxation
Division1—General
18Accounting period
18AAccounting periods for VCLPs, AFOFs and VCMPs
21Where consideration not in cash
21ANoncash business benefits
23AAIncome of persons connected with certain projects of United States Government
23ABIncome of certain persons serving with an armed force under the control of the United Nations
23ACExemption of pay and allowances of members of Defence Force serving in operational areas
23ADExemption of pay and allowances of Defence Force members performing certain overseas duty
23AFExemption of certain income derived in respect of approved overseas projects
23AGExemption of income earned in overseas employment
23AHForeign branch income of Australian companies not assessable
23AIAmounts paid out of attributed income not assessable
23AJCertain nonportfolio dividends from foreign countries not assessable
23AKAmounts paid out of attributed foreign investment fund income not assessable
23ERedemption of Special Bonds redeemable at a premium
23GExemption of interest received by credit unions
23GAInterest on judgment debt relating to personal injury
23JSale of securities purchased at a discount
23KSubstitution of certain securities
23LCertain benefits in the nature of income not assessable
Division1AB—Certain State/Territory bodies exempt from income tax
Subdivision A—Exemption for certain State/Territory bodies
24AKKey principle
24ALDiagram—guide to work out if body is exempt under this Division
24AMCertain STBs exempt from tax
24ANCertain STBs not exempt from tax under this Division
24AOFirst way in which a body can be an STB
24APSecond way in which a body can be an STB
24AQThird way in which a body can be an STB
24ARFourth way in which a body can be an STB
24ASFifth way in which a body can be an STB
24ATWhat do excluded STB, government entity and Territory mean?
24AUGovernor, Minister and Department Head taken to be a government entity
24AVRegulations prescribing excluded STBs
Subdivision B—Body ceasing to be an STB
24AWBody ceasing to be an STB
24AXSpecial provisions relating to capital gains and losses
24AYLosses from STB years not carried forward
24AYAEffect of unfunded superannuation liabilities
24AZMeaning of period and prescribed excluded STB
Division1A—Provisions relating to certain External Territories
24BInterpretation
24CTerritory resident
24DTerritory company
24ETerritory trusts
24FExemption from tax of certain income derived from sources outside Australia
24GExemption from tax of certain income derived from sources in a prescribed Territory
24HWhen income to be taken to be applied for benefit of a person
24JSource of dividends
24KSource of income from employment
24LSource of interest or royalty
24MCertain income deemed not to be derived from sources in a prescribed Territory or outside Australia
24PTransitional capital gains tax provisions for certain Cocos (Keeling) Islands assets
Division2—Income
Subdivision A—Assessable income generally
25AAssessable income to include certain profits
26AACShares and rights acquired under schemes for the acquisition of shares by employees
26AADThe effect of 100% takeovers and restructures on the operation of section26AAC
26ABAssessable income—premium for lease
26AFAssessable income to include value of benefits received from or in connection with former paragraph 23(ja) funds or former section23FB funds
26AFAAssessable income to include value of certain benefits received from or in connection with former section23F funds
26AGCertain film proceeds included in assessable income
26AHBonuses and other amounts received in respect of certain shortterm life assurance policies
26AJInvestmentrelated lottery winnings to be included in assessable income
26AAssessable income to include repayment of tax paid abroad in respect of dividends
26BBAssessability of gain on disposal or redemption of traditional securities
26BCSecurities lending arrangements
26CDisposal of certain securities
26DAssessable income of taxpayer to include foreign tax in certain circumstances
26EIncome from RSAs
27Interest on loans raised in Australia by governments outside Australia
Subdivision AA—Nonsuperannuation annuities etc.
27HAssessable income to include annuities and superannuation pensions
Subdivision B—Trading stock
36AAAAlternative election in case of disposal, death or compulsory destruction of live stock
Subdivision D—Dividends
43ASubdivision has effect subject to provisions of Division216 of the Income Tax Assessment Act 1997
43BApplication of Subdivision to nonshare dividends
44Dividends
45Streaming of bonus shares and unfranked dividends
45AStreaming of dividends and capital benefits
45BSchemes to provide certain benefits
45BAEffect of determinations under section45B for demerger benefits
45CEffect of determinations under sections45A and 45B for capital benefits
45DDeterminations under sections45A, 45B and 45C
46ARebate on dividends paid as part of dividend stripping operation
46BRebate not allowable in certain circumstances
46EDividends paid out of profits arising from the revaluation of certain assets
46FADeduction for dividends onpaid to nonresident owner
46FBUnfranked nonportfolio dividend account
46GRebate not allowable for dividends debited against certain accounts
46HMeaning of disqualifying account and nondisqualifying account
46IMeaning of notional disqualifying account
46JExcluded transfers
46KDebit for deemed dividends
46LApportionment of debits for dividends paid on the same day
46MSplitting of frankable dividends
47Distributions by liquidator
47ADistribution benefits—CFCs
Division3—Deductions
Subdivision A—General
51AAADeductions not allowable in certain circumstances
51ADDeductions not allowable in respect of property used under certain leveraged arrangements
51AEAMeal entertainment—election under section37AA of Fringe Benefits Tax Assessment Act 1986 to use 50/50 split method
51AEBMeal entertainment—election under section37CA of Fringe Benefits Tax Assessment Act 1986 to use the 12 week register method
51AECEntertainment facility—election under section152B of Fringe Benefits Tax Assessment Act 1986 to use 50/50 split method
51AFCar expenses incurred by employee
51AGANo deduction to employee for certain car parking expenses
51AHDeductions not allowable where expenses incurred by employee are reimbursed
51AJDeductions not allowable for private component of contributions for fringe benefits etc.
51AKAgreements for the provision of nondeductible noncash business benefits
52Loss on property acquired for profitmaking
52ACertain amounts disregarded in ascertaining taxable income
63Bad debts
63DBad debts etc. of moneylenders not allowable deductions where attributable to listed country or unlisted country branches
63EDebt/equity swaps
63FLimit on deductions where debt write offs and debt/equity swaps occur
63GBad debts etc. of trust not allowable in certain circumstances
65Payments to associated persons and relatives
70BDeduction for loss on disposal or redemption of traditional securities
73AExpenditure on scientific research
73AASection73A rollover relief in the case of certain CGT rollovers
73BCertain expenditure on research and development activities
73BAAEffect of consolidation
73BABHead company treated as registered
73BABAHistory for purposes of eligibility for tax offset: joining entity
73BACExpenditure history for purposes of sections73P to 73Z: joining entity
73BACAHistory for purposes of eligibility for tax offset: leaving entity
73BADExpenditure for purposes of sections73P to 73Z history: leaving entity
73BAERecoupment where entity leaves group
73BAFPreventing double deductions
73BAGBalancing adjustments for certain assets of consolidated groups
73BADeduction for certain assets etc. used for the purpose of carrying on research and development activities
73BBMeaning of section73BA depreciating asset
73BCMeaning of notional Division40 deduction
73BDTreatment of certain expenditure for the purposes of section73BC etc.
73BETreatment of certain partnership expenditure for the purposes of section73BC etc.
73BFBalancing adjustments: section73BA depreciating assets
73BGEffective life calculation under Division40 of Income Tax Assessment Act 1997 to take into account use for purpose of carrying on research and development activities
73BHDeduction for plant etc. used for purpose of carrying on research and development activities
73BIMeaning of section73BH plant
73BJMeaning of notional Division42 deduction
73BKTreatment of certain expenditure for the purposes of section73BJ etc.
73BLTreatment of certain partnership expenditure for the purposes of section73BJ etc.
73BMBalancing adjustments: section73BH plant
73BNEffective life calculation under Division42 of Income Tax Assessment Act 1997 to take into account use for purpose of carrying on research and development activities
73CRecouped expenditure on research and development activities
73CAGuaranteed returns to investors
73CBExpenditure incurred to taxexempt bodies
73ESection73B rollover relief on disposal of unit of plant to another member of same whollyowned group
73EASection73BF rollover relief on disposal of asset to another member of whollyowned group
73EBSection73BM rollover relief on disposal of plant to another member of whollyowned group
73GSection73B rollover relief on disposal of item of intellectual property to another member of same whollyowned group
73HInterpretation
73ITax offset instead of deduction under section73B, 73BA, 73BH or 73Y
73JEligibility for tax offset
73KMeaning of R&D group turnover
73LGrouped taxpayers
73MMeaning of affiliate
73PInterpretation
73QEligibility to claim additional deduction
73RGroup members
73SCalculating the amounts relevant to the additional deduction
73TAdjustment amounts
73URunning averages
73VAdjustment balance
73WPremium amount
73XApportionment between group members
73YAdditional deduction
73ZAntiavoidance
78ACertain gifts not to be allowable deductions
Income Tax Assessment Act 1936 1
Liability to taxation Part III
Deductions Division 3
Section 78A
An Act to consolidate and amend the law relating to the imposition assessment and collection of a tax upon incomes
PartI—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Income Tax Assessment Act 1936.
6 Interpretation
(1AA)So far as a provision of the Income Tax Assessment Act 1936 gives an expression a particular meaning, the provision does not also have effect for the purposes of the Income Tax Assessment Act 1997 (the 1997 Act), or for the purposes of Schedule1 to the Taxation Administration Act 1953, except as provided in the 1997 Act or in that Schedule.
(1)In this Act, unless the contrary intention appears:
100% subsidiary has the same meaning as in the Income Tax Assessment Act 1997.
accrued leave transfer payment has the meaning given by section6G.
AFOF means an Australian venture capital fund of funds within the meaning of subsection 118410(3) of the Income Tax Assessment Act 1997.
agent includes:
(a)every person who in Australia, for or on behalf of any person out of Australia holds or has the control, receipt or disposal of any money belonging to that person; and
(b)every person declared by the Commissioner to be an agent or the sole agent of any person for any of the purposes of this Act.
allowable deduction means a deduction allowable under this Act.
amount paidup on a share means the amount (if any), including any premium, paid on that share.
amount unpaid on a share means the amount (if any) unpaid on that share.
apportionable deductions has the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
approved form has the meaning given by section38850 in Schedule1 to the Taxation Administration Act 1953.
assessable income has the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
assessment means:
(a)the ascertainment of the amount of taxable income (or that there is no taxable income) and of the tax payable on that taxable income (or that no tax is payable); or
Note 1:A taxpayer does not have a taxable income if the taxpayer’s deductions equal or exceed the taxpayer’s assessable income: see subsection 415(1) of the Income Tax Assessment Act 1997.
Note 2:A taxpayer may have no tax payable on an amount of taxable income if that income is below the taxfree threshold or if the taxpayer’s tax offsets reduce the taxpayer’s basic income tax liability to nil.
(b)for a taxpayer being the trustee of a unit trust that is a corporate unit trust within the meaning of section102J—the ascertainment of the net income of the trust as defined by section102D (or that there is no net income) and of the tax payable on that net income (or that no tax is payable); or
(c)for a taxpayer being the trustee of a unit trust that is a public trading trust within the meaning of section102R—the ascertainment of the net income of the trust as defined by section102M (or that there is no net income) and of the tax payable on that net income (or that no tax is payable); or
(d)for any other taxpayer that is the trustee of a trust estate but excluding a taxpayer that is the trustee of a complying superannuation fund, a noncomplying superannuation fund, a complying approved deposit fund, a noncomplying approved deposit fund or a pooled superannuation trust—the ascertainment of so much of the net income of the trust estate as is net income in respect of which the trustee is liable to pay tax (or that there is no net income in respect of which the trustee is so liable) and of the tax payable on that net income (or that no tax is payable); or
(e)the ascertainment of the amount of interest payable under section102AAM (about distributions from nonresident trust estates); or
(f)the ascertainment of an amount of additional tax under section128TE; or
(g)the ascertainment of an amount of tax under section159GZZZZH; or
(h)the ascertainment of the amount of income tax payable on the noTFN contributions income as defined by section295610 of the Income Tax Assessment Act 1997 (or that no tax is payable).
Australian superannuation fund has the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
bank or banker includes, but is not limited to, a body corporate that is an ADI (authorised deposittaking institution) for the purposes of the Banking Act 1959.
base interest rate has the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
business has the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
capital gain has the same meaning as in the Income Tax Assessment Act 1997.
capital loss has the same meaning as in the Income Tax Assessment Act 1997.
capital proceeds has the same meaning as in the Income Tax Assessment Act 1997.
CGT asset has the same meaning as in the Income Tax Assessment Act 1997.
CGT event has the same meaning as in the Income Tax Assessment Act 1997.
child has the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
Commissioner means the Commissioner of Taxation.
Commonwealth education or training paymenthas the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
Commonwealth securities means bonds, debentures, stock or other securities issued under an Act, but does not include:
(a)securities (not being securities to which paragraph(b) applies) issued in respect of a loan raised outside Australia unless there is in force a declaration by the Treasurer, published in the Gazette, that those securities shall be Commonwealth securities for the purposes of this Act; or
(b)securities issued after 12April 1976 by a bank.
company has the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
complying approved deposit fund has the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
complying superannuation fund has the meaning given by subsection 9951(1) of the Income Tax Assessment Act 1997.
consolidated group has the same meaning as in the Income Tax Assessment Act 1997.
constituent document, in relation to a company, means the memorandum and articles of association of the company, or any rules or other document constituting the company or governing its activities.
corporate tax entity has the same meaning as in the Income Tax Assessment Act 1997.
corporate tax rate has the same meaning as in the Income Tax Assessment Act 1997.
cost base of a CGT asset has the same meaning as in the Income Tax Assessment Act 1997.
creditable acquisition has the meaning given by section1951 of the GST Act.
debenture, in relation to a company, includes debenture stock, bonds, notes and any other securities of the company, whether constituting a charge on the assets of the company or not.
debt interest has the same meaning as in the Income Tax Assessment Act 1997.
demerged entity has the meaning given by section12570 of the Income Tax Assessment Act 1997.
demerger has the meaning given by section12570 of the Income Tax Assessment Act 1997.
demerger allocation means:
(a)the total market value of the allocation represented by the ownership interests issued by the demerged entity in itself under a demerger to the owners of ownership interests in the head entity of the demerger group; or
(b)the total market value of the allocation represented by the ownership interests disposed of by a member of a demerger group under a demerger to the owners of ownership interests in the head entity; or
(c)the total of both of those market values.
demerger dividend means that part of a demerger allocation that is assessable as a dividend under subsection 44(1) or that would be so assessable apart from subsections 44(3) and (4).
demerger group has the meaning given by section12565 of the Income Tax Assessment Act 1997.
demerger subsidiary has the meaning given by section12565 of the Income Tax Assessment Act 1997.
demerging entity has the meaning given by section12570 of the Income Tax Assessment Act 1997.
depreciating asset has the same meaning as in the Income Tax Assessment Act 1997.
Deputy Commissioner means a Deputy Commissioner of Taxation.
distribution, when used in a franking context, has the same meaning as in the Income Tax Assessment Act 1997.
dividend includes:
(a)any distribution made by a company to any of its shareholders, whether in money or other property; and
(b)any amount credited by a company to any of its shareholders as shareholders;
but does not include:
(d)moneys paid or credited by a company to a shareholder or any other property distributed by a company to shareholders (not being moneys or other property to which this paragraph, by reason of subsection(4), does not apply or moneys paid or credited, or property distributed for the redemption or cancellation of a redeemable preference share), where the amount of the moneys paid or credited, or the amount of the value of the property, is debited against an amount standing to the credit of the share capital account of the company; or
(e)moneys paid or credited, or property distributed, by a company for the redemption or cancellation of a redeemable preference share if:
(i)the company gives the holder of the share a notice when it redeems or cancels the share; and
(ii)the notice specifies the amount paidup on the share immediately before the cancellation or redemption; and
(iii)the amount is debited to the company’s share capital account;
except to the extent that the amount of those moneys or the value of that property, as the case may be, is greater than the amount specified in the notice as the amount paidup on the share; or
(f)a reversionary bonus on a life assurance policy.
dual resident investment company has the meaning given by section6F.
employment termination payment has the same meaning as in the Income Tax Assessment Act 1997.
equity holder has the same meaning as in the Income Tax Assessment Act 1997.