post-26 February 1992 project has the meaning given by section 21.

print media installation means a productive facility, or a part of a productive facility, that is wholly or principally for use by the operator of the facility in or in connection with the operator's capacity as a participant in the print media industry.

production, in relation to goods, includes extraction, processing or treatment.

productive facility has the meaning given by section 8.

prospective deduction test has the meaning given by section 22.

registration means registration of plant expenditure under Part 3.

$50 million threshold test has the meaning given by section 18.

services has the same meaning as in section 317 of the Tax Act.

substantial commitment to the completion of a project has the meaning given by section 20.

Tax Act means the Income Tax Assessment Act 1936.

trustee has the same meaning as in section 6 of the Tax Act, and includes an entity that is taken to be a trustee because of section 268 of the Tax Act

vehicle means any means of conveyance which runs on wheels, but does not include a vehicle used on a railway or tramway

vertical integration test has the meaning given by section 10.

For the purposes of this Chapter, an entity carries out a project in Australia if, and only if, the entity:

(a)

establishes a new productive facility in Australia; or

(b)

establishes 2 or more new productive facilities in Australia where:

(i)

the facilities pass the discrete project test; or

(ii)

the facilities pass the vertical integration test; or

(c)

expands, improves or upgrades an existing productive facility in Australia where the expansion, improvement or upgrade is carried out:

(i)

to improve substantially the productivity or capacity of the facility; or

(ii)

to minimise the effect of the operation of the facility on the environment; or

(d)

expands, improves or upgrades 2 or more existing productive facilities in Australia where:

(i)

the expansions, improvements or upgrades are carried out:

(A) to improve substantially the productivity or capacity of the facilities; or
(B) to minimise the effect of the operation of the facilities on the environment; and

(ii)

either:

(A) the facilities pass the discrete project test; or
(B) the facilities pass the vertical integration test.

For the purposes of the application of this Chapter to an entity, a facility is a productive facility if, and only if:

(a)

it is wholly or principally for use by the operator of the facility in carrying out one or more steps in:

(i)

the production or distribution, or both, of the same goods or related goods; or

(ii)

the provision of the same services or related services; and

(b)

either:

(i)

the entity operates, or is to operate, the facility; or

(ii)

both:

(A) the entity is a leasing company; and
(B) the facility is leased, or for lease, by the entity to another entity who operates, or is to operate, the facility.

For the purposes of this Chapter, 2 or more productive facilities pass the discrete project test if:

(a)

either:

(i)

the facilities are located on the same premises; or

(ii)

the facilities are located on contiguous premises; and

(b)

each facility is wholly or principally for use by the operator of the facility in carrying out the same step, or the same series of steps, in:

(i)

the production or distribution, or both, of the same goods or related goods; or

(ii)

the provision of the same services or related services.

For the purposes of this Chapter, 2 or more productive facilities pass the vertical integration test if each facility is wholly or principally for use by the operator of the facility in carrying out a different step, or a series of different steps, in:

(a)

the vertically integrated production or distribution, or both, of the same goods or related goods; or

(b)

the vertically integrated provision of the same services or related services.

If:

(a)

one or more activities carried out by an entity do not consist of the establishment by the entity of a new productive facility in Australia; and

(b)

the activities are related directly or indirectly to a productive facility in Australia; and

(c)

the DAA is satisfied that, because of special circumstances, it would be unreasonable not to treat the whole or a part of the activities as the establishment by the entity of a new productive facility in Australia;

the DAA may give the entity a written direction that this Chapter has, and is taken to have had effect, as if the whole, or the part, as the case may be, of those activities were the establishment by the entity of a new productive facility in Australia.

For the purposes of this Chapter, an Australian space object is taken to be in Australia.

(1)

For the purposes of this Chapter, if, assuming that the parties to a joint venture were partners in a partnership, the partnership would be taken to carry out a project in Australia, the project is taken to be a joint venture project.

(2)

For the purposes of this Chapter, the part of a joint venture project carried out by an entity who is a party to the joint venture is taken to be a project carried out by the entity in Australia.

Example:

(3) Subsection (2) has effect in spite of section 7.

[Election to treat aggregate of joint venture projects as joint venture project scheme]

(1)

For the purposes of this Chapter, the parties to a joint venture may elect that the aggregate of 2 or more specified joint venture projects carried out by the parties to the joint venture is to be treated as a joint venture project scheme.

Example:

[Productive facilities must pass the vertical integration test]

(2)

The election has no effect unless, assuming that the productive facilities included in the scheme were operated by the same entity, the productive facilities would be taken to pass the vertical integration test.

[Form of election]

(3)

The election:

(a)

is to be given to the DAA; and

(b)

must be in writing in the approved form.

[Election is irrevocable]

(4)

The election is irrevocable, but this subsection does not prevent the DAA from granting an application under Part 5 for a variation of a scheme.

[Election to treat aggregate of individual projects as company group project scheme]

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(1)

For the purposes of this Chapter, 2 or more companies who are members of a company group may elect that the aggregate of 2 or more specified projects carried out individually by the companies is to be treated as a company group project scheme.

Example:

[Productive facilities must pass the vertical integration test]

(2)

The election has no effect unless, assuming that the productive facilities included in the scheme were operated by the same company, the productive facilities would be taken to pass the vertical integration test.

[Membership of company group]

(3)

For the purposes of this Chapter, 2 or more companies are members of a company group if, and only if, each of the companies is a group company in relation to each of the other companies.

[Form of election]

(4)

The election:

(a)

is to be given to the DAA; and

(b)

must be in writing in the approved form.

[Election is irrevocable]

(5)

The election is irrevocable, but this subsection does not prevent the DAA from:

(a)

granting an application under Part 5 for a variation of a scheme; or

(b)

granting an application under Division 1 of Part 6 for transfer of the benefits of a registration or certificate relating to a project which forms part of a scheme.

[Election to treat aggregate of projects as individual project scheme]

(1)

For the purposes of this Chapter, an entity may elect that the aggregate of 2 or more specified projects carried out by the entity is to be treated as an individual project scheme.

Example:

[Productive facilities must pass the vertical integration test]

(2)

The election has no effect unless the productive facilities included in the scheme pass the vertical integration test.

[Form of election]

(3)

The election:

(a)

is to be given to the DAA; and

(b)

must be in writing in the approved form.

[Election is irrevocable]

(4)

The election is irrevocable, but this subsection does not prevent the DAA from:

(a)

granting an application under Part 5 for a variation of a scheme; or

(b)

granting an application under Division 1 of Part 6 for transfer of the benefits of a registration or certificate relating to a project which forms part of a scheme.

For the purposes of this Chapter, if:

(a)

expenditure is incurred, or proposed to be incurred, in:

(i)

establishing a new productive facility; or

(ii)

expanding, improving or upgrading an existing productive facility; and

(b)

either:

(i)

the whole of the productive facility; or

(ii)

a part of the productive facility;

is an ineligible print media installation or is wholly or principally for use by the operator of the facility:

(iii)

as office accommodation; or

(iv)

as residential accommodation for persons other than tourists or travellers; or

(v)

in or in connection with the operator's capacity as a participant in any of the following industries:

(A) the financial services industry;
(B) the business services industry;
(D) the electronic media industry;
(E) the retail industry;
(F) the wholesale industry; or

(vi)

in or in connection with the operator's capacity as a participant in an industry, or an activity, which benefits from a substantial level of industry assistance (other than the motor vehicle industry or a motor vehicle industry activity);

then:

(c)

if subparagraph (b)(i) applies—the whole of the expenditure fails the basic eligibility test; or

(d)

if subparagraph (b)(ii) applies—so much of the expenditure as is attributable to that part of the productive facility fails the basic eligibility test.

(1)

For the purposes of this Chapter, an industry or activity is taken to benefit from a substantial level of industry assistance if, and only if, the DAA is satisfied that the lower of:

(a)

the nominal rate of industry assistance from all levels of government; or

(b)

the effective rate of industry assistance from all levels of government;

is more than 10%.

(2)

For the purposes of this section, a rate is to be worked out:

(a)

using the method used by the Productivity Commission; and

(b)

on the assumption that levels of industry assistance are equal to the levels that the government concerned proposes to apply on 1 July 1996.

For the purposes of this Chapter, expenditure incurred, or proposed to be incurred, by an entity in carrying out a project passes the competitiveness test if the DAA is satisfied that:

(a)

in any case:

(i)

the labour relations aspects of the carrying out of the project substantially reflect world best practice; and

(ii)

the labour relations aspects of the operation of the productive facility or facilities concerned substantially reflect world best practice; and

(iii)

the prices of significant inputs (other than labour and capital inputs) for use in the operation of the productive facility or facilities concerned are economic and efficient; and

(b)

if the project is part of a joint venture project:

(i)

the labour relations aspects of the carrying out of the joint venture project substantially reflect world best practice; and

(ii)

the labour relations aspects of the operation of the productive facility or facilities to which the joint venture project relates substantially reflect world best practice; and

(iii)

the prices of significant inputs (other than labour and capital inputs) for use in the operation of the productive facility or facilities to which the joint venture project relates are economic and efficient; and

(ba)

if the project is part of a joint venture project scheme:

(i)

the labour relations aspects of the carrying out of each other joint venture project to which the scheme relates substantially reflect world best practice; and

(ii)

the labour relations aspects of the operation of each other productive facility or facilities to which the scheme relates substantially reflect world best practice; and

(iii)

the prices of significant inputs (other than labour and capital inputs) for use in the operation of each other productive facility or facilities to which the scheme relates are economic and efficient; and

(c)

if the project is part of a company group project scheme:

(i)

the labour relations aspects of the carrying out of each other project to which the scheme relates substantially reflect world best practice; and

(ii)

the labour relations aspects of the operation of each other productive facility or facilities to which the scheme relates substantially reflect world best practice; and

(iii)

the prices of significant inputs (other than labour and capital inputs) for use in the operation of each other productive facility or facilities to which the scheme relates are economic and efficient; and

(d)

if the project is part of an individual project scheme:

(i)

the labour relations aspects of the carrying out of each other project to which the scheme relates substantially reflect world best practice; and

(ii)

the labour relations aspects of the operation of each other productive facility or facilities to which the scheme relates substantially reflect world best practice; and

(iii)

the prices of significant inputs (other than labour and capital inputs) for use in the operation of each other productive facility or facilities to which the scheme relates are economic and efficient.

For the purposes of this Chapter, expenditure incurred, or proposed to be incurred, by an entity in carrying out a project passes the $50 million threshold test if:

(a)

if the project is part of a joint venture project but not part of a joint venture project scheme—the sum of:

(i)

the gross capital expenditure incurred by the entity in respect of carrying out that part of the project; and

(ii)

the gross capital expenditure incurred by each other party to the joint venture in respect of carrying out each other part of the joint venture project;

is $50 million or more; or

(aa)

if the project is both part of a joint venture project and part of a joint venture project scheme—the sum of:

(i)

the gross capital expenditure incurred by the entity in respect of carrying out that part of the project; and

(ii)

the gross capital expenditure incurred by the entity and by each other party to the joint venture in respect of carrying out each other part or parts of the joint venture project scheme;

is $50 million or more; or

(b)

if the project is part of a company group project scheme—the sum of:

(i)

the gross capital expenditure incurred by the entity in respect of carrying out the project; and

(ii)

the gross capital expenditure incurred by each other group company in respect of carrying out the other project or projects to which the scheme relates;

is $50 million or more; or

(ba)

if the project is part of an individual project scheme—the sum of:

(i)

the gross capital expenditure incurred by the entity in respect of carrying out the project; and

(ii)

the gross capital expenditure incurred by the entity in respect of carrying out the other project or projects to which the scheme relates;

is $50 million or more; or

(c)

in any other case—the gross capital expenditure incurred by the entity in respect of carrying out the project is $50 million or more.

[Gross capital expenditure]

(1)

Subject to this section, for the purposes of this Chapter, the gross capital expenditure incurred by an entity in respect of carrying out a project is the sum of:

(a)

in any case—the total expenditure of a capital nature incurred by the entity in respect of carrying out the project; and

(b)

if:

(i)

the entity has incurred other expenditure of a capital nature which is related directly or indirectly to the carrying out of the project; and

(ii)

the DAA is satisfied that, because of special circumstances, it would be unreasonable not to treat the whole or a part of that other expenditure as gross capital expenditure incurred by the entity in respect of carrying out the project;

the whole, or the part, as the case may be, of that other expenditure.

[Leased plant—lessor's capital expenditure attributed to lessee]

(1A)

If:

(a)

an entity incurs plant expenditure in carrying out a project; and

(b)

the expenditure is incurred in respect of the lease of a new unit of plant under a long-term lease agreement where the lessor is a leasing company;

the expenditure of a capital nature incurred by the lessor in respect of the acquisition or construction by the lessor of the unit of plant is taken, for the purposes of subsection (1), to be expenditure of a capital nature incurred by the entity in respect of carrying out the project.

[Other leased property—lessor's capital expenditure attributed to lessee]

(1B)

If:

(a)

an entity incurs expenditure as a lessee in respect of the lease of property (other than plant) under a long-term lease agreement where the lessor is a leasing company; and

(b)

assuming that the expenditure had been incurred by the entity in respect of the acquisition of the property instead of in respect of the lease of the property, the expenditure would have been expenditure of a capital nature incurred by the entity in respect of carrying out a project;

the expenditure of a capital nature incurred by the lessor in respect of the acquisition or construction by the lessor of the property is taken, for the purposes of subsection (1), to be expenditure of a capital nature incurred by the entity in respect of carrying out the project.

[Expenditure does not count if it fails the basic eligibility test]

(2)

Subsection (1) does not apply to expenditure to the extent to which the expenditure fails the basic eligibility test. Subsections (1A) and (1B) do not apply to expenditure incurred by the lessor to the extent to which the expenditure would have failed the basic eligibility test if it had been incurred by the entity in carrying out the project.

[Recouped expenditure does not count]

(3)

Subsection (1) does not apply to expenditure if the entity is recouped, or becomes entitled to be recouped, in respect of the expenditure. Subsections

(1A)

and (1B) do not apply to expenditure if the lessor is recouped, or becomes entitled to be recouped, in respect of the expenditure.

[Dissection of recoupment]

(4)

If an entity receives, or becomes entitled to receive, an amount that constitutes to an unspecified extent a recoupment of expenditure, the DAA may, for the purposes of subsection (3), determine the extent to which that amount constitutes a recoupment of that expenditure.

[Non-arm's length transactions]

(5)

If the DAA is satisfied that:

(a)

an entity has incurred expenditure in connection with a transaction where the parties to the transaction are not dealing with each other at arm's length in relation to the transaction; and

(b)

the amount of the expenditure is greater or less than is reasonable;

the amount of the expenditure is taken, for the purposes of this section, to be the amount that would have been reasonable if the parties were dealing with each other at arm's length.

In determining whether a substantial commitment to the completion of a project has occurred, or is reasonably likely to occur, before a particular date, the DAA must have regard to:

(a)

in any case:

(i)

the physical work that has been undertaken in carrying out the project before that date; and

(ii)

the nature of the contracts that have been entered into before that date in relation to the project; and

(iii)

in the case of a project consisting of the expansion, improvement or upgrading of a productive facility or facilities—the physical progress made before that date in relation to the installation of new plant for use in the expanded, improved or upgraded facility or facilities; and

(iv)

such other matters as the DAA considers relevant; and

(b)

if the project is part of a joint venture project:

(i)

the physical work that has been undertaken in carrying out the joint venture project before that date; and

(ii)

the nature of the contracts that have been entered into before that date in relation to the joint venture project; and

(iii)

in the case of a joint venture project consisting of the expansion, improvement or upgrading of a productive facility or facilities—the physical progress made before that date in relation to the installation of new plant for use in the expanded, improved or upgraded facility or facilities; and

(iv)

such other matters as the DAA considers relevant; and

(ba)

if the project is part of a joint venture project scheme:

(i)

the physical work that has been undertaken in carrying out each other joint venture project to which the scheme relates before that date; and

(ii)

the nature of the contracts that have been entered into before that date in relation to each other joint venture project to which the scheme relates; and

(iii)

in the case of a scheme which involves the expansion, improvement or upgrading of a productive facility or facilities—the physical progress made before that date in relation to the installation of new plant for use in the expanded, improved or upgraded facilities; and

(iv)

such other matters as the DAA considers relevant; and

(c)

if the project is part of a company group project scheme:

(i)

the physical work that has been undertaken in carrying out each other project to which the scheme relates before that date; and

(ii)

the nature of the contracts that have been entered into before that date in relation to each other project to which the scheme relates; and

(iii)

in the case of a scheme which involves the expansion, improvement or upgrading of a productive facility or facilities—the physical progress made before that date in relation to the installation of new plant for use in the expanded, improved or upgraded facilities; and

(iv)

such other matters as the DAA considers relevant; and

(d)

if the project is part of an individual project scheme:

(i)

the physical work that has been undertaken in carrying out each other project to which the scheme relates before that date; and

(ii)

the nature of the contracts that have been entered into before that date in relation to each other project to which the scheme relates; and

(iii)

in the case of a scheme which involves the expansion, improvement or upgrading of a productive facility or facilities—the physical progress made before that date in relation to the installation of new plant for use in the expanded, improved or upgraded facilities; and

(iv)

such other matters as the DAA considers relevant.

For the purposes of the application of this Chapter to expenditure incurred, or proposed to be incurred, in carrying out a project, the project is taken to be a post-26 February 1992 project unless:

(a)

in any case:

(i)

in a case where the construction of a building or structure, or the construction of an alteration, improvement or extension to a building or structure, formed, or is to form, part of the project—any such construction commenced before 27 February 1992; or

(ii)

in all cases—a contract for the acquisition of any new plant which formed, or is to form, part of the project was entered into before 27 February 1992; and

(b)

if the project is part of a joint venture project:

(i)

in a case where the construction of a building or structure, or the construction of an alteration, improvement or extension to a building or structure, formed, or is to form, part of the joint venture project—any such construction commenced before 27 February 1992; or

(ii)

in any case—a contract for the acquisition of any new plant which formed, or is to form, part of the joint venture project was entered into before 27 February 1992; and

(ba)

if the project is part of a joint venture project scheme:

(i)

in a case where the construction of a building or structure, or the construction of an alteration, improvement or extension to a building or structure, formed, or is to form, part of another joint venture project to which the scheme relates—any such construction commenced before 27 February 1992; or

(ii)

in any case—a contract for the acquisition of any new plant which formed, or is to form, part of another joint venture project to which the scheme relates was entered into before 27 February 1992; and

(c)

if the project is part of a company group project scheme:

(i)

in a case where the construction of a building or structure, or the construction of an alteration, improvement or extension to a building or structure, formed, or is to form, part of another project to which the scheme relates—any such construction commenced before 27 February 1992; or

(ii)

in any case—a contract for the acquisition of any new plant which formed, or is to form, part of another project to which the scheme relates was entered into before 27 February 1992; and

(d)

if the project is part of an individual project scheme:

(i)

in a case where the construction of a building or structure, or the construction of an alteration, improvement or extension to a building or structure, formed, or is to form, part of another project to which the scheme relates—any such construction commenced before 27 February 1992; or

(ii)

in any case—a contract for the acquisition of any new plant which formed, or is to form, part of another project to which the scheme relates was entered into before 27 February 1992.

For the purposes of the application of this Chapter to expenditure incurred, or proposed to be incurred, by an entity in carrying out a project, the expenditure passes the prospective deduction test if the DAA is satisfied that, assuming that:

(a)

the entity were to incur the expenditure and complete the carrying out of the project; and

(b)

the DAA were to issue a certificate in the name of the entity in relation to the expenditure; and

(c)

sections 82AC and 82AD of the Income Tax Assessment Act 1936 and section 26-55 of the Income Tax Assessment Act 1997 had not been enacted;

it is reasonably arguable that:

(d)

to the extent that the expenditure is incurred in respect of the acquisition or construction of a new unit of plant—a deduction will be allowable to the entity under section 82AB of the Income Tax Assessment Act 1936 in respect of the expenditure; and

(e)

to the extent that the expenditure is incurred in respect of the lease of a new unit of plant under a long-term lease agreement where the lessor is a leasing company—a deduction will be allowable to the leasing company under section 82AB of the Income Tax Assessment Act 1936 in respect of the expenditure of a capital nature incurred by the leasing company in respect of the acquisition or construction by the leasing company of the unit of plant.

In applying the prospective deduction test, the DAA may make such assumptions as appear to the DAA to be reasonable about:

(a)

the exercise by the Commissioner of Taxation of any power conferred by:

(i)

Part IVA of the Tax Act (which deals with tax avoidance schemes); and

(ii)

any other provision of the Tax Act; and

(b)

the attainment by the Commissioner of Taxation of any state of mind relevant to the application of any provision of the Tax Act.

[Documents to which this section applies]

(1)

This section applies to the following documents:

(a)

an application made by an entity under this Chapter;

(b)

a registration;

(c)

a certificate.

[Specification of project]

(2)

The specification of a project in a document must be sufficiently detailed so as to enable the project, and the constituent elements of the project, to be clearly identified.

[Specification of plant expenditure]

(3)

The specification of plant expenditure in a document:

(a)

must be made by reference to a description of the nature, use, proposed use or other attributes of the unit or units of plant concerned (whether that description relates to individual units of plant or to units of plant included in a particular class of units of plant); and

(b)

must not be made by reference to a dollar amount.

[Example of specification of plant expenditure]

(4)

The following is an example of the specification of plant expenditure in a case involving a project consisting of the establishment of a combined office block/hotel where:

(a)

some units of plant (such as hotel furniture and fittings) are exclusively for use in the hotel; and

(b)

other units of plant (such as central air-conditioning plant) are for use in connection with both the office accommodation and the hotel.

Example:

Specification of plant expenditure covered by paragraph (a)

"Expenditure proposed to be incurred in respect of the acquisition of the new units of plant described in Part A of the Schedule to this [document], where the expenditure is proposed to be incurred in carrying out the [specified] project".

Plant expenditure covered by paragraph (b)

"So much of the expenditure proposed to be incurred in respect of the acquisition of the new units of plant described in Part B of the Schedule to this [document] as is attributable to the [specified hotel part], where the expenditure is proposed to be incurred in carrying out the [specified] project".

For the purposes of this Chapter, expenditure incurred in respect of the acquisition or construction of a particular unit of plant is incurred in carrying out a project if, and only if, it is incurred wholly or principally in carrying out the project.

[Section applies to lease expenditure]

(1)

This section applies if an entity incurs, or proposes to incur, plant expenditure in respect of the lease of a new unit of plant under a long-term lease agreement where the lessor is a leasing company.

[When expenditure incurred in carrying out a project]

(2)

For the purposes of this Chapter, in testing whether the expenditure is incurred, or proposed to be incurred, in carrying out a project, it is to be assumed that the entity had incurred, or proposed to incur, the expenditure in respect of the acquisition of the unit of plant instead of in respect of the lease of the unit of plant.

[Periodic lease payments deemed to be incurred when earliest payment incurred]

(3)

For the purposes of this Chapter, if, apart from this subsection, the expenditure is incurred on a periodic basis, all of the expenditure is taken to have been incurred at the earliest time at which any of the expenditure was incurred.

(1)

For the purposes of this Chapter, a proposal to incur plant expenditure in carrying out a project counts even if the entity concerned has not decided whether to acquire, construct or lease the unit or units of plant.

(2)

The expression "as the case may be" may be used in a document under this Act to denote such a state of indecision. For example, "expenditure proposed to be incurred in respect of the acquisition, construction or lease, as the case may be, of the new units of plant described in Part A of the Schedule to this [document]".

An entity may apply to the DAA for registration of the whole or a specified part of plant expenditure incurred, or proposed to be incurred, by the entity in carrying out a project in Australia.

(1)

Subject to subsection (2), an application is to be given to the DAA before 1 January 1993.

(2)

If either of the following paragraphs applies to an application for registration of expenditure:

(a)

the expenditure passes the basic eligibility test only because the motor vehicle industry and motor vehicle industry activities are excluded from subparagraph 15(b)(vi);

(b)

the expenditure is attributable to an eligible print media installation;

the application is to be given to the DAA before whichever is the later of:

(c)

the 29th day after the day on which the Development Allowance Authority Amendment Act 1993 received the Royal Assent; or

(d)

1 October 1993.

(1)

The application must be in writing in the approved form.

(2)

The application must contain such information about the expenditure and the project as is required by the form to be given.

(4)

The application must be accompanied by a report.

(5)

The report must be in writing in the approved form.

(6)

The report is to be about:

(a)

the expenditure and the project; and

(b)

if the project is part of a joint venture project—the joint venture project; and

(ba)

if the project is part of a joint venture project scheme—the scheme; and

(c)

if the project is part of a company group project scheme—the scheme; and

(ca)

if the project is part of an individual project scheme—the scheme; and

(d)

such other matters as are specified in the form.

(6A)

The application and accompanying report must be signed by the applicant if the applicant is a natural person. If the applicant is not a natural person, they must be signed on behalf of the applicant by whichever of the following natural persons is applicable:

(a)

if the applicant is an incorporated body that has a board of directors (however described)—the chairperson (however described) of the board;

(b)

in any other case—the natural person designated by the form as the signatory.

(7)

Information relating to the likelihood of the expenditure passing the competitiveness test is taken to be relevant to the application.

(8)

All of the applications relating to a joint venture project must be set out in the same document.

(8A)

All of the applications relating to a joint venture project scheme must be set out in the same document.

(9)

All of the applications relating to a company group project scheme must be set out in the same document.

(10)

All of the applications relating to an individual project scheme must be set out in the same document.

If the DAA gives a request to the applicant under Part 7 that is relevant to the application, the DAA may refuse to consider the application unless the applicant complies with the request.

(1)

After considering the application, the DAA must decide to:

(a)

grant the application; or

(b)

refuse the application.

(2)

The DAA must give written notice of the decision to the applicant.

(3)

A notice of a refusal must set out reasons for the refusal.

The DAA must grant an application for registration of plant expenditure incurred, or proposed to be incurred, by the applicant in carrying out a project in Australia if the DAA is satisfied that:

(a)

in the case of plant expenditure which the applicant claims to have incurred in carrying out the project—the plant expenditure has been incurred by the applicant in carrying out the project; and

(b)

in the case of plant expenditure which the applicant claims to propose to incur in carrying out the project—the proposal is genuine; and

(c)

the project is a post-26 February 1992 project; and

(d)

no part of the plant expenditure fails the basic eligibility test; and

(e)

either:

(i)

a substantial commitment to the completion of the project has occurred before 1 January 1993; or

(ii)

it is reasonably likely that a substantial commitment to the completion of the project will occur before 1 July 1996; and

(f)

either:

(i)

the plant expenditure has passed the $50 million threshold test; or

(ii)

it is reasonably likely that the plant expenditure will pass the $50 million threshold test; and

(g)

either:

(i)

the applicant has completed the carrying out of the project; or

(ii)

having regard to:

(A) the financial capacity of the applicant; and
(B) such other matters as the DAA considers relevant;

it is reasonably likely that the applicant will complete the carrying out of the project; and

(h)

if the project is part of a joint venture project—either:

(i)

the parties to the joint venture have completed the carrying out of the joint venture project; or

(ii)

having regard to:

(A) the financial capacity of the parties to the joint venture; and
(B) such other matters as the DAA considers relevant;

it is reasonably likely that the parties to the joint venture will complete the carrying out of the joint venture project; and

(ha)

if the project is part of a joint venture project scheme—either:

(i)

the parties to the joint venture have completed the carrying out of each other joint venture project or joint venture projects to which the scheme relates; or

(ii)

having regard to:

(A) the financial capacity of the parties to the joint venture; and
(B) such other matters as the DAA considers relevant;

it is reasonably likely that the parties to the joint venture will complete the carrying out of the other joint venture project or joint venture projects to which the scheme relates; and

(i)

if the project is part of a company group project scheme—either:

(i)

the other member or members of the company group have completed the carrying out of the other project or projects to which the scheme relates; or

(ii)

having regard to:

(A) the financial capacity of the other member or members of the company group; and
(B) such other matters as the DAA considers relevant;

it is reasonably likely that the other member or members of the company group will complete the carrying out of the other project or projects to which the scheme relates; and

(ia)

if the project is part of an individual project scheme—either:

(i)

the applicant has completed the carrying out of the other project or projects to which the scheme relates; or

(ii)

having regard to:

(A) the financial capacity of the applicant; and
(B) such other matters as the DAA considers relevant;

it is reasonably likely that the applicant will complete the carrying out of the other project or projects to which the scheme relates; and

(j)

the plant expenditure has passed the prospective deduction test.

If an application for registration is granted, the registration must:

(a)

be in writing in the approved form; and

(b)

be in the name of the applicant; and

(c)

specify the project to which the registration relates; and

(d)

specify the plant expenditure to which the registration relates; and

(e)

if the project is part of a joint venture project—specify the joint venture project to which the registration relates; and

(ea)

if the project is part of a joint venture project scheme—specify the scheme to which the registration relates; and

(f)

if the project is part of a company group project scheme—specify the scheme to which the registration relates; and

(g)

if the project is part of an individual project scheme—specify the scheme to which the registration relates.

A registration of plant expenditure in the name of an entity:

(a)

comes into force on the day on which the application for registration is granted; and

(b)

if the entity's application for a certificate relating to the expenditure is granted—ceases to be in force on the day on which that application is granted.

[Notice specifying conditions of registration]

(1)

If the DAA registers plant expenditure in the name of an entity, the DAA may give the entity a written notice specifying conditions to which the registration is subject.

[Kinds of conditions]

(2)

Without limiting the kinds of conditions to which a registration may be subject, a registration may be subject to conditions requiring the entity in whose name the registration is held:

(a)

to notify the DAA in writing of:

(i)

the occurrence of such events; and

(ii)

such changes in the entity's circumstances;

as are specified in the condition; and

(b)

to give to the DAA, before 1 July 1995, certified copies of such relevant authorisations, approvals, licences or permits issued under a law of the Commonwealth, a State or a Territory as are specified in the condition.

[Further conditions; revocation or variation of conditions]

(3)

The DAA may, by written notice given to an entity in whose name plant expenditure is registered:

(a)

impose one or more further conditions to which the registration is subject; or

(b)

revoke or vary a condition:

(i)

imposed under paragraph (a); or

(ii)

specified under subsection (1).

[Contravention of condition not an offence]

(4)

It is not an offence to contravene a condition to which a registration is subject.

(1)

If plant expenditure is registered in the name of an entity, the entity may apply to the DAA for a pre-qualifying certificate in relation to the expenditure.

(2)

An entity is not entitled to apply for a pre-qualifying certificate unless the following conditions to which the registration was subject have been satisfied:

(a)

a condition of a kind mentioned in paragraph 34(2)(b) (which deals with lodgment of final documentation);

(b)

any other condition, to the extent to which the obligations imposed by the condition arose before the time the application was made.

An application is to be given to the DAA before 1 August 1996.

(1)

The application must be in writing in the approved form.

(2)

The application must contain such information about the expenditure and the project as is required by the form to be given.

(3)

The application must be accompanied by a report.

(4)

The report must be in writing in the approved form.

(5)

The report is to be about:

(a)

the expenditure and the project; and

(b)

if the project is part of a joint venture project—the joint venture project; and

(ba)

if the project is part of a joint venture project scheme—the scheme; and

(c)

if the project is part of a company group project scheme—the scheme; and

(ca)

if the project is part of an individual project scheme—the scheme; and

(d)

such other matters as are specified in the form.

(5A)

The application and accompanying report must be signed by the applicant if the applicant is a natural person. If the applicant is not a natural person, they must be signed on behalf of the applicant by whichever of the following natural persons is applicable:

(a)

if the applicant is an incorporated body that has a board of directors (however described)—the chairperson (however described) of the board;

(b)

in any other case—the natural person designated by the form as the signatory.

(6)

All of the applications relating to a joint venture project must be set out in the same document.

(6A)

All of the applications relating to a joint venture project scheme must be set out in the same document.

(7)

All of the applications relating to a company group project scheme must be set out in the same document.

(8)

All of the applications relating to an individual project scheme must be set out in the same document.

If the DAA gives a request to the applicant under Part 7 that is relevant to the application, the DAA may refuse to consider the application unless the applicant complies with the request.

(1)

After considering the application, the DAA must decide to:

(a)

grant the application; or

(b)

refuse the application.

(2)

The DAA must give written notice of the decision to the applicant.

(3)

A notice of a refusal of an application must set out reasons for the refusal.

The DAA must grant the application if the DAA is satisfied that:

(a)

no part of the expenditure fails the basic eligibility test; and

(b)

a substantial commitment to the completion of the project has occurred before 1 July 1996; and

(c)

if:

(i)

no substantial commitment to the completion of the project has occurred before 1 January 1993; or

(ii)

the expenditure:

(A) passes the basic eligibility test only because the motor vehicle industry and motor vehicle industry activities are excluded from subparagraph 15(b)(vi); or
(B) is attributable to an eligible print media installation;

it is reasonably likely that the expenditure will pass the competitiveness test; and

(d)

either:

(i)

the expenditure has passed the $50 million threshold test; or

(ii)

it is reasonably likely that the expenditure will pass the $50 million threshold test.

If an application for a certificate is granted, the certificate must:

(a)

be in writing in the approved form; and

(b)

be in the name of the applicant; and

(c)

specify the project to which the certificate relates; and

(d)

specify the plant expenditure to which the certificate relates; and

(e)

if the project is part of a joint venture project—specify the joint venture project to which the certificate relates; and

(ea)

if the project is part of a joint venture project scheme—specify the scheme to which the certificate relates; and

(f)

if the project is part of a company group project scheme—specify the scheme to which the certificate relates; and

(g)

if the project is part of an individual project scheme—specify the scheme to which the certificate relates.

[Variation of registration]

(1)

An entity in whose name plant expenditure is registered may apply to the DAA for a variation of any or all of the following:

(a)

the expenditure;

(b)

the project to which the registration relates;

(c)

if the project is part of a joint venture project—the joint venture project to which the registration relates;

(ca)

if the project is part of a joint venture project scheme—the scheme to which the registration relates;

(d)

if the project is part of a company group project scheme—the scheme to which the registration relates;

(e)

if the project is part of an individual project scheme—the scheme to which the registration relates.

[Variation of certificate]

(2)

An entity who holds a certificate in relation to plant expenditure may apply to the DAA for a variation of any or all of the following:

(a)

the expenditure;

(b)

the project to which the certificate relates;

(c)

if the project is part of a joint venture project—the joint venture project to which the certificate relates;

(ca)

if the project is part of a joint venture project scheme—the scheme to which the certificate relates;

(d)

if the project is part of a company group project scheme—the scheme to which the certificate relates;

(e)

if the project is part of an individual project scheme—the scheme to which the certificate relates.

[Joint ventures]

(3)

An entity is not entitled to make an application for a variation of a joint venture project, or a joint venture project scheme, to which a registration or certificate relates unless each other party to the joint venture makes a corresponding application.

[Company group project schemes]

(4)

A company is not entitled to make an application for a variation of a company group project scheme to which a registration or certificate relates unless each of the other members of the company group involved in the scheme make a corresponding application.

(1)

The application must be in writing in the approved form.

(2)

The application must contain such information as is required by the form to be given.

(3)

The application must be accompanied by a report.

(4)

The report must be in writing in the approved form.

(5)

The report is to be about:

(a)

the expenditure and the project; and

(b)

if the project is part of a joint venture project—the joint venture project; and

(ba)

if the project is part of a joint venture project scheme—the scheme; and

(c)

if the project is part of a company group project scheme—the scheme; and

(ca)

if the project is part of an individual project scheme—the scheme; and

(d)

such other matters as are specified in the form.

(6)

The application and accompanying report must be signed by the applicant if the applicant is a natural person. If the applicant is not a natural person, they must be signed on behalf of the applicant by whichever of the following natural persons is applicable:

(a)

if the applicant is an incorporated body that has a board of directors (however described)—the chairperson (however described) of the board;

(b)

in any other case—the natural person designated by the form as the signatory.

If the DAA gives a request to the applicant under Part 7 that is relevant to the application, the DAA may refuse to consider the application unless the applicant complies with the request.

(1)

After considering the application, the DAA must decide to:

(a)

grant the application; or

(b)

refuse the application.

(2)

The DAA must give written notice of the decision to the applicant.

(3)

A notice of a refusal of an application must set out reasons for the refusal.

[Variation of expenditure]

(1)

The DAA must not grant an application for variation of expenditure unless the DAA is satisfied that:

(a)

in any case—the entity has incurred, or proposes to incur, the varied expenditure in carrying out the same, or substantially the same, project as was specified in the original registration or certificate, as the case may be; and

(b)

if the entity's project is part of a joint venture project—the varied expenditure relates to the same, or substantially the same, joint venture project as was specified in the original registration or certificate, as the case may be; and

(ba)

if the entity's project is part of a joint venture project scheme—the varied expenditure relates to the same, or substantially the same, joint venture project scheme as was specified in the original registration or certificate, as the case may be; and

(c)

if the entity's project is part of a company group project scheme—the varied expenditure relates to the same, or substantially the same, company group project scheme as was specified in the original registration or certificate, as the case may be; and

(d)

if the entity's project is part of an individual project scheme—the varied expenditure relates to the same, or substantially the same, individual project scheme as was specified in the original registration or certificate, as the case may be.

[Variation of project]

(2)

The DAA must not grant an application for variation of a project unless the DAA is satisfied that:

(a)

in any case—the varied project is the same, or substantially the same, project as was specified in the original registration or certificate, as the case may be; and

(b)

if the entity's project is part of a joint venture project—the varied project relates to the same, or substantially the same, joint venture project as was specified in the original registration or certificate, as the case may be; and

(ba)

if the entity's project is part of a joint venture project scheme—the varied project relates to the same, or substantially the same, joint venture project scheme as was specified in the original registration or certificate, as the case may be; and

(c)

if the entity's project is part of a company group project scheme—the varied project relates to the same, or substantially the same, company group project scheme as was specified in the original registration or certificate, as the case may be; and

(d)

if the entity's project is part of an individual project scheme—the varied project relates to the same, or substantially the same, individual project scheme as was specified in the original registration or certificate, as the case may be.

[Variation of joint venture project]

(3)

The DAA must not grant an application for variation of a joint venture project unless the DAA is satisfied that the varied joint venture project is the same, or substantially the same, as the joint venture project specified in the original registration or certificate, as the case may be.

[Variation of joint venture project scheme]

(3A)

The DAA must not grant an application for variation of a joint venture project scheme unless the DAA is satisfied that the varied joint venture project scheme is the same, or substantially the same, as the joint venture project scheme specified in the original registration or certificate, as the case may be.

[Variation of company group project scheme]

(4)

The DAA must not grant an application for variation of a company group project scheme unless the DAA is satisfied that the varied company group project scheme is the same, or substantially the same, as the company group project scheme specified in the original registration or certificate, as the case may be.

[Variation of an individual project scheme]

(5)

The DAA must not grant an application for variation of an individual project scheme unless the DAA is satisfied that the varied individual project scheme is the same, or substantially the same, as the individual project scheme specified in the original registration or certificate, as the case may be.

If the DAA grants the application, the variation has effect in relation to expenditure incurred by the applicant on or after:

(a)

the date of the variation; or

(b)

if the applicant requests—such earlier date as the DAA specifies.

(1)

If:

(a)

the DAA grants the application; and

(b)

the variation involves a change to the nature of the project, joint venture project, joint venture project scheme, company group project scheme or individual project scheme specified in the original registration or certificate, as the case may be;

the DAA must vary the specification of the project, joint venture project, joint venture project scheme, company group project scheme or individual project scheme accordingly.

(2)

The variation has effect in relation to expenditure incurred by the applicant on or after:

(a)

the date of the variation; or

(b)

if the applicant requests—such earlier date as the DAA specifies.

If:

(a)

either of the following applies to an entity (the transferor):

(i)

plant expenditure is registered in the name of the entity;

(ii)

the entity holds a certificate in relation to plant expenditure; and

(b)

the transferor has ceased, or proposes to cease, to carry out the project concerned; and

(c)

another entity (the transferee) has taken over, or proposes to take over, the completion of the project (with or without modification); and

(d)

either:

(i)

the transferee has incurred, or proposes to incur, plant expenditure in carrying out the completion of the project (with or without modification); or

(ii)

both:

(A) the transferee has incurred, or proposes to incur, expenditure in acquiring from the transferor a unit of plant that was new in the hands of the transferor; and
(B) the acquisition has taken place, or will take place, in the course of the transferee's takeover, or proposed takeover, of the completion of the project (with or without modification); and

(e)

the takeover, or proposed takeover, is not covered by Division 2 (which deals with re-constituted joint ventures); and

(f)

the takeover, or proposed takeover, is not covered by Division 3 (which deals with re-constituted partnerships); and

(g)

if the project was or is part of a company group project scheme:

(i)

both the transferor and the transferee are members of the company group to which the scheme relates; or

(ii)

both:

(A) the transferee has taken over, or proposes to take over, the completion of each of the projects to which the scheme relates; and
(B) applications under this section are made by the transferee and by each of the group companies to which the scheme relates; and

(h)

if the project was or is part of an individual project scheme—both:

(i)

the transferee has taken over, or proposes to take over, the completion of each of the projects to which the scheme relates; and

(ii)

applications under this section are made by the transferee and the transferor in relation to each of the projects to which the scheme relates;

the transferor and the transferee may jointly apply to the DAA for a transfer of the benefits of the registration or certificate, as the case may be.

(1)

The application must be in writing in the approved form.

(2)

The application must contain such information as is required by the form to be given.

(3)

The application must be accompanied by a report.

(4)

The report must be in writing in the approved form.

(5)

The application and accompanying report must be signed by the applicant if the applicant is a natural person. If the applicant is not a natural person, they must be signed on behalf of the applicant by whichever of the following natural persons is applicable:

(a)

if the applicant is an incorporated body that has a board of directors (however described)—the chairperson (however described) of the board;

(b)

in any other case—the natural person designated by the form as the signatory.

If the DAA gives a request to an applicant under Part 7 that is relevant to the application, the DAA may refuse to consider the application unless the applicant complies with the request.

(1)

After considering the application, the DAA must decide to:

(a)

grant the application; or

(b)

refuse the application.

(2)

The DAA must give written notice of the decision to the applicants.

(3)

A notice of a refusal must set out reasons for the refusal.

The DAA must not grant the application unless the DAA is satisfied that:

(a)

the transferor has ceased, or genuinely proposes to cease, to carry out the project; and

(b)

the transferee has taken over, or genuinely proposes to take over, the completion of the project (with or without modification); and

(c)

in the case of plant expenditure which the transferee claims to have incurred in carrying out the completion of the project (with or without modification)—the plant expenditure has been incurred by the transferee in carrying out the project; and

(d)

in the case of plant expenditure which the transferee claims to propose to incur in carrying out completion of the project (with or without modification)—the proposal is genuine; and

(e)

the transferee has taken over, or is proposing to take over, the completion of the project (with or without modification) for genuine commercial reasons; and

(f)

if the completion of the project has been, or is to be, taken over by the transferee with modifications:

(i)

in any case—the modified project does not amount to a substantially different project from the transferor's original project; and

(ii)

if the transferor's original project was part of a joint venture project—the modified project is not part of a joint venture project that is substantially different from the original joint venture project; and

(iia)

if the transferor's original project was part of a joint venture project scheme—the modified project is not part of a joint venture project scheme that is substantially different from the original joint venture project scheme; and

(iii)

if the transferor's original project was part of a company group project scheme—the modified project is not part of a company group project scheme that is substantially different from the original company group project scheme; and

(iv)

if the transferor's original project was part of an individual project scheme—the modified project is not part of an individual project scheme that is substantially different from the original individual project scheme; and

(g)

having regard to:

(i)

the financial capacity of the transferee; and

(ii)

such other matters as the DAA considers relevant;

it is reasonably likely that the transferee will complete the carrying out of the project (with or without modification); and

(h)

the expenditure incurred, or proposed to be incurred, by the transferee in carrying out the completion of the project (with or without modification) has passed the prospective deduction test.

If the DAA grants an application for transfer of the benefits of registration:

(a)

the DAA must cancel the transferor's registration; and

(b)

this Act has effect, in relation to an application made by the transferee for registration of, or for a certificate in relation to, the whole or a part of the plant expenditure incurred, or proposed to be incurred, by the transferee in carrying out the completion of the project concerned (with or without modification), as if:

(i)

section 27 (which deals with the timing of applications for registration) had not been enacted; and

(ii)

the $50 million threshold test were modified so that so much of:

(A) the gross capital expenditure incurred by the transferor in respect of carrying out the project; and
(B) if there have been one or more prior successive transferors—the gross capital expenditure incurred by the prior successive transferors in respect of carrying out the project;

as the DAA considers reasonable were treated as if it were gross capital expenditure incurred by the transferee in carrying out the project.

If the DAA grants an application for transfer of the benefits of a certificate, the DAA must:

(a)

terminate the transferor's certificate, with effect in relation to expenditure incurred by the transferor after:

(i)

the date on which the DAA grants the application for transfer; or

(ii)

if the transferor requests—such earlier date as the DAA specifies; and

(b)

grant the transferee a pre-qualifying certificate in relation to the whole or a specified part of the plant expenditure incurred, or proposed to be incurred, by the transferee in carrying out completion of the project concerned (with or without modification).

If the DAA grants a certificate under this Part, the certificate must:

(a)

be in writing in the approved form; and

(b)

be in the name of the transferee; and

(c)

specify the project to which the certificate relates; and

(d)

specify the plant expenditure to which the certificate relates; and

(e)

if the project is part of a joint venture project—specify the joint venture project to which the certificate relates; and

(ea)

if the project is part of a joint venture project scheme—specify the scheme to which the certificate relates; and

(f)

if the project is part of a company group project scheme—specify the scheme to which the certificate relates; and

(g)

if the project is part of an individual project scheme—specify the scheme to which the certificate relates.

If:

(a)

the transferee has acquired from the transferor, or proposes to acquire from the transferor, a unit of plant that was new in the hands of the transferor; and

(b)

the acquisition has taken place, or will take place, in the course of the transferee's takeover, or proposed takeover, of the completion of the project (with or without modification); and

(c)

the DAA considers that it would be reasonable to treat the unit of plant as new in the hands of the transferee;

the DAA may:

(d)

make a decision on the application on the assumption that the unit of plant was new in the hands of the transferee when the plant was or is so acquired by the transferee; and

(e)

give the transferor and the transferee a written direction that, if the DAA grants the application for transfer of the benefits of the registration or the certificate, this Act and Subdivision B of Division 3 of Part III of the Tax Act are taken to have, and to have had, effect as if the unit of plant:

(i)

were new in the hands of the transferee when the plant was or is so acquired by the transferee; and

(ii)

were not new in the hands of the transferor at any time.

If:

(a)

either:

(i)

plant expenditure is registered in the name of an entity; or

(ii)

an entity holds a certificate in relation to plant expenditure; and

(b)

the project concerned is part of a joint venture project; and

(c)

there is a change in the composition of the parties to the joint venture;

then:

(d)

in the case of a registration—the registration is cancelled; and

(e)

in the case of a certificate—the certificate is terminated with effect in relation to expenditure incurred by the entity after the date of the change.

If:

(a)

either of the following applies to an entity (old party):

(i)

a registration of plant expenditure in the name of the entity was cancelled under section 58;

(ii)

a certificate held by the entity in relation to plant expenditure was terminated under section 58; and

(b)

the cancellation or termination was the result of a change in the composition of the parties to a joint venture (old joint venture) who carried on the various parts of a joint venture project (old joint venture project); and

(c)

the following conditions are satisfied in relation to an entity (new party) (who may be the same entity as the old party):

(i)

the new party is a party to a joint venture (new joint venture);

(ii)

at least one of the parties to the old joint venture is a party to the new joint venture; and

(iii)

the parties to the new joint venture have carried out, or are proposing to carry out, a project (new joint venture project) which consists of the takeover, or proposed takeover, of the completion of the old joint venture project (with or without modification); and

(iv)

the new party has carried out, or proposes to carry out, a project (new party's project) which consists of a part of the new joint venture project; and

(d)

either:

(i)

the new party has incurred, or proposes to incur, plant expenditure in carrying out the new party's project; or

(ii)

both:

(A) the new party has incurred, or proposes to incur, expenditure in acquiring from an old party a unit of property that was new in the hands of the old party; and
(B) the acquisition has taken place, or will take place, in the course of carrying out the new party's project; and

(e)

if the old joint venture project was part of a joint venture project scheme—the new joint venture project is part of a joint venture project scheme;

the new party may apply to the DAA for a transfer of the benefits of the registration or certificate, as the case may be.

(1)

The application must be in writing in the approved form.

(2)

The application must contain such information as is required by the form to be given.

(3)

The application must be accompanied by a report.

(4)

The report must be in writing in the approved form.

(5)

The report is to be about such matters as are specified in the form.

(5A)

The application and accompanying report must be signed by the applicant if the applicant is a natural person. If the applicant is not a natural person, they must be signed on behalf of the applicant by whichever of the following natural persons is applicable:

(a)

if the applicant is an incorporated body that has a board of directors (however described)—the chairperson (however described) of the board;

(b)

in any other case—the natural person designated by the form as the signatory.

(6)

All of the applications relating to a new joint venture project must be set out in the same document.

If the DAA gives a request to the applicant under Part 7 that is relevant to the application, the DAA may refuse to consider the application unless the applicant complies with the request.

(1)

After considering the application, the DAA must decide to:

(a)

grant the application; or

(b)

refuse the application.

(2)

The DAA must give written notice of the decision to the applicant.

(3)

A notice of a refusal must set out reasons for the refusal.

The DAA must not grant the application unless the DAA is satisfied that:

(a)

in the case of plant expenditure which the new party claims to have incurred in carrying out the new party's project—the plant expenditure has been incurred by the new party in carrying out the project; and

(b)

in the case of plant expenditure which the new party claims to propose to incur in carrying out the new party's project—the proposal is genuine; and

(c)

the parties to the new joint venture have taken over, or are proposing to take over, the completion of the old joint venture project (with or without modification) for genuine commercial reasons; and

(d)

if the completion of the old joint venture project has been, or is to be, taken over by the parties to the new joint venture with modifications—the modified joint venture project does not amount to a substantially different project from the old joint venture project; and

(da)

if the old joint venture project was part of a joint venture project scheme—the new joint venture project is not part of a joint venture project scheme that is substantially different from the original joint venture project scheme; and

(e)

having regard to:

(i)

the financial capacity of the new party; and

(ii)

such other matters as the DAA considers relevant;

it is reasonably likely that the new party will complete the carrying out of the new party's project; and

(f)

having regard to:

(i)

the financial capacity of each other party to the new joint venture; and

(ii)

such other matters as the DAA considers relevant;

it is reasonably likely that the parties to the new joint venture will complete the carrying out of the new joint venture project; and

(g)

the expenditure incurred, or proposed to be incurred, by the new party in carrying out the new party's project has passed the prospective deduction test.

If the DAA grants an application for transfer of the benefits of registration, this Act has effect, in relation to an application made by the new party for registration of, or for a certificate in relation to, the whole or a part of the plant expenditure incurred, or proposed to be incurred, by the new party in carrying out the new party's project as if:

(a)

section 27 (which deals with the timing of applications for registration) had not been enacted; and

(b)

the $50 million threshold test were modified so that so much of:

(i)

the gross capital expenditure incurred by the parties to the old joint venture in respect of carrying out the old joint venture project; and

(ii)

if there have been one or more prior successive old joint ventures—the gross capital expenditure incurred by the parties to the prior successive old joint ventures in respect of carrying out the old joint venture projects;

as the DAA considers reasonable were treated as if it were gross capital expenditure incurred by the parties to the new joint venture project in carrying out the new joint venture project.

If the DAA grants an application for transfer of the benefits of a certificate, the DAA must grant the new party a pre-qualifying certificate in relation to the whole or a specified part of the plant expenditure incurred, or proposed to be incurred, by the new party in carrying out the new party's project.

If the DAA grants a certificate under this Part, the certificate must:

(a)

be in writing in the approved form; and

(b)

be in the name of the applicant; and

(c)

specify the project to which the certificate relates; and

(d)

specify the plant expenditure to which the certificate relates; and

(e)

specify the new joint venture project to which the certificate relates; and

(f)

if the project is part of a joint venture project scheme—specify the scheme to which the certificate relates.

If:

(a)

the new party has acquired from an old party, or proposes to acquire from an old party, a unit of plant that was new in the hands of the old party; and

(b)

the acquisition has taken place, or will take place, in the course of carrying out the new party's project; and

(c)

the DAA considers that it would be reasonable to treat the plant as new in the hands of the new party;

the DAA may:

(d)

make a decision on the application on the assumption that the unit of plant was new in the hands of the new party when the plant was or is so acquired by the new party; and

(e)

give the new party and the old party a written direction that, if the DAA grants the application for transfer of the benefits of the registration or the certificate, this Act and Subdivision B of Division 3 of Part III of the Tax Act are taken to have, and to have had, effect as if the unit of plant:

(i)

were new in the hands of the new party when the plant was or is so acquired by the new party; and

(ii)

were not new in the hands of the old party at any time.

If:

(a)

either:

(i)

plant expenditure is registered in the name of a partnership; or

(ii)

a partnership holds a certificate in relation to plant expenditure; and

(b)

there is a change in the constitution of the partnership;

then:

(c)

in the case of a registration—the registration is cancelled; and

(d)

in the case of a certificate—the certificate is terminated with effect in relation to expenditure incurred by the partnership after the date of the change.

If:

(a)

either of the following applies to a partnership (old partnership);

(i)

a registration of plant expenditure in the name of the old partnership is cancelled under section 68;

(ii)

a certificate held by the old partnership in relation to plant expenditure is terminated under section 68; and

(b)

the following conditions are satisfied in relation to another partnership (new partnership):

(i)

the new partnership has taken over, or proposes to take over, the completion of the project concerned (with or without modification);

(ii)

at least one partner of the old partnership is a partner of the new partnership; and

(c)

either:

(i)

the new partnership has incurred, or proposes to incur, plant expenditure in carrying out the completion of the project (with or without modification); or

(ii)

both:

(A) the new partnership has incurred, or proposes to incur, expenditure in acquiring from the old partnership a unit of plant that was new in the hands of the old partnership; and
(B) the acquisition has taken place, or will take place, in the course of the new partnership's takeover, or proposed takeover, of the completion of the project (with or without modification); and

(d)

if the old partnership's project was part of an individual project scheme—the new partnership's project is part of an individual project scheme;

the new partnership may apply to the DAA for a transfer of the benefits of the registration or certificate, as the case may be.

(1)

The application must be in writing in the approved form.

(2)

The application must contain such information as is required by the form to be given.

(3)

The application must be accompanied by a report.

(4)

The report must be in writing in the approved form.

(5)

The report is to be about such matters as are specified in the form.

(6)

The application and accompanying report must be signed by the applicant if the applicant is a natural person. If the applicant is not a natural person, they must be signed on behalf of the applicant by whichever of the following natural persons is applicable:

(a)

if the applicant is an incorporated body that has a board of directors (however described)—the chairperson (however described) of the board;

(b)

in any other case—the natural person designated by the form as the signatory.

If the DAA gives a request to the applicant under Part 7 that is relevant to the application, the DAA may refuse to consider the application unless the applicant complies with the request.

(1)

After considering the application, the DAA must decide to:

(a)

grant the application; or

(b)

refuse the application.

(2)

The DAA must give written notice of the decision to the applicant.

(3)

A notice of a refusal must set out reasons for the refusal.

The DAA must not grant the application unless the DAA is satisfied that:

(a)

in the case of plant expenditure which the applicant claims to have incurred in carrying out the completion of the project (with or without modification)—the plant expenditure has been incurred by the applicant in carrying out the project; and

(b)

in the case of plant expenditure which the applicant claims to propose to incur in carrying out completion of the project (with or without modification)—the proposal is genuine; and

(c)

the applicant has taken over, or is proposing to take over, the completion of the project (with or without modification) for genuine commercial reasons; and

(d)

if the completion of the project has been, or is to be, taken over by the applicant with modifications—the modified project does not amount to a substantially different project from the old partnership's original project; and

(da)

if the old partnership's project was part of an individual project scheme—the new partnership's project is not part of an individual project scheme that is substantially different from the old partnership's original individual project scheme; and

(e)

having regard to:

(i)

the financial capacity of the transferee; and

(ii)

such other matters as the DAA considers relevant;

it is reasonably likely that the applicant will complete the carrying out of the project (with or without modification); and

(f)

the expenditure incurred, or proposed to be incurred, by the applicant in carrying out the completion of the project (with or without modification) has passed the prospective deduction test.

If the DAA grants an application for transfer of the benefits of registration, this Act has effect, in relation to an application made by the new partnership for registration of, or for a certificate in relation to, the whole or a part of the plant expenditure incurred, or proposed to be incurred, by the new partnership in carrying out the completion of the project concerned (with or without modification), as if:

(a)

section 27 (which deals with the timing of applications for registration) had not been enacted; and

(b)

the $50 million threshold test were modified so that so much of:

(i)

the gross capital expenditure incurred by the old partnership in respect of carrying out the project; and

(ii)

if there have been one or more prior successive old partnerships—the gross capital expenditure incurred by the prior successive old partnerships in respect of carrying out the project;

as the DAA considers reasonable were treated as if it were gross capital expenditure incurred by the new partnership in carrying out the project.

If the DAA grants an application for transfer of the benefits of a certificate, the DAA must grant the new partnership a

pre-qualifying certificate in relation to the whole or a specified part of the plant expenditure incurred, or proposed to be incurred, by the new partnership in carrying out the completion of the project concerned (with or without modification).

If the DAA grants a certificate under this Part, the certificate must:

(a)

be in writing in the approved form; and

(b)

be in the name of the applicant; and

(c)

specify the project to which the certificate relates; and

(d)

specify the plant expenditure to which the certificate relates; and

(e)

if the project is part of an individual project scheme—specify the scheme to which the certificate relates.

If:

(a)

the new partnership has acquired from the old partnership, or proposes to acquire from the old partnership, a unit of plant that was new in the hands of the old partnership; and

(b)

the acquisition has taken place, or will take place, in the course of the new partnership's takeover, or proposed takeover, of the completion of the project (with or without modification); and

(c)

the DAA considers that it would be reasonable to treat the unit of plant as new in the hands of the new partnership;

the DAA may:

(d)

make a decision on the application on the assumption that the unit of plant was new in the hands of the new partnership when the plant was or is so acquired by the new partnership; and

(e)

give the old partnership and the new partnership a written direction that, if the DAA grants the application for transfer of the benefits of the registration or the certificate, this Act and Subdivision B of Division 3 of Part III of the Tax Act are taken to have, and to have had, effect as if the unit of plant:

(i)

were new in the hands of the new partnership when the plant was or is so acquired by the new partnership; and

(ii)

were not new in the hands of the old partnership at any time.

This Part applies to an entity if:

(a)

plant expenditure is registered in the name of the entity or the entity has applied for such registration; or

(b)

the entity holds a certificate or the entity has applied for a certificate; or

(c)

the entity has applied for a variation of the expenditure, project, joint venture project, joint venture project scheme, company group project scheme or individual project scheme to which a registration or certificate held by the entity relates; or

(d)

the entity has applied (whether jointly or otherwise) for a transfer of the benefits of a registration or certificate.

(1)

For the purposes of this Act, the DAA may, by written notice given to an entity, request the entity:

(a)

to give information to the DAA within the time and in the manner specified in the notice; or

(b)

to produce documents to the DAA within the time and in the manner specified in the notice; or

(c)

to give certified copies of documents to the DAA within the time and in the manner specified in the notice.

(2)

It is not an offence to contravene the notice.

(1)

The DAA or an officer of the Department authorised in writing by the DAA may inspect, take extracts from, and make copies of, any document or copy produced or given to the DAA under section 79.

(2)

The DAA may retain a certified copy of a document given in accordance with a request covered by paragraph 79(1)(c).

(3)

The DAA may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, a document produced under paragraph 79(1)(b).

(4)

The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the DAA to be a true copy.

(5)

The certified copy must be received in all courts and tribunals as evidence as if it were the original.

(6)

Until a certified copy is supplied, the DAA must, at such times and places as the DAA thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.

If an entity fails to comply with a request made by the DAA under Part 7, the DAA may, by written notice given to the entity:

(a)

cancel any registration of plant expenditure in the name of the entity; or

(b)

terminate a certificate held by the entity, with effect in relation to expenditure incurred by the entity after the date of termination.

[False or misleading statements—Part 7 request not involved]

(1)

If an entity, in connection with the operation of this Act (other than Part 7):

(a)

makes a statement, either orally or in writing, to the DAA or to an officer of the Department that is false or misleading in a material particular; or

(b)

omits from a statement made, either orally or in writing, to the DAA or to an officer of the Department any matter or thing without which the statement is misleading in a material particular; or

(c)

gives or produces a document or copy to the DAA or to an officer of the Department that contains information that is false or misleading in a material particular;

the DAA may, by written notice given to the entity, cancel:

(d)

any registration of plant expenditure in the name of the entity; or

(e)

a certificate held by the entity (even if the certificate has been terminated).

[False or misleading information given under Part 7]

(2)

If an entity, in compliance with a notice under Part 7, gives information that is false or misleading in a material particular, the DAA may, by written notice given to the entity, cancel:

(a)

any registration of plant expenditure in the name of the entity; or

(b)

a certificate held by the entity (even if the certificate has been terminated).

[False or misleading documents given under Part 7]

(3)

If an entity, in compliance with a notice under Part 7, produces a document, or gives a copy of a document, that, to the knowledge of the entity, is false or misleading in a material particular, the DAA may, by written notice given to the entity, cancel:

(a)

any registration of plant expenditure in the name of the entity; or

(b)

a certificate held by the entity (even if the certificate has been terminated).

[Subsection (3) does not apply if document accompanied by explanation]

(4)

Subsection (3) does not apply to an entity who produces a document, or gives a copy of a document, that, to the knowledge of the entity, is false or misleading in a material particular if the document or copy is accompanied by a written statement:

(a)

stating that the document or copy is, to the knowledge of the entity, false or misleading in a material particular; and

(b)

setting out, or referring to, the material particular in which the document or copy is, to the knowledge of the entity, false or misleading.

[Imputed knowledge of bodies corporate and partnerships etc.]

(5)

For the purposes of subsections (3) and (4):

(a)

a body corporate is taken to know anything known by any of its directors or employees; and

(b)

a partnership is taken to know anything known by:

(i)

if any of the partners are natural persons—any such partner; and

(ii)

if any of the partners are bodies corporate—any of the directors or employees of any such partner; and

(c)

a natural person is taken to know anything known by an employee of the natural person.

If:

(a)

plant expenditure is registered in the name of an entity; and

(b)

the entity contravenes any of the conditions to which the registration is subject;

the DAA may, by written notice given to the entity, cancel the registration.

(1)

An entity may request the DAA to cancel any registration of plant expenditure in the name of the entity.

(2)

The DAA must comply with the request.

(1)

An entity may request the DAA to terminate a certificate held by the entity, with effect in relation to expenditure incurred by the entity after the date of termination.

(2)

The DAA must comply with the request.

For the purposes of the Tax Act, if:

(a)

an entity holds a certificate relating to plant expenditure incurred, or proposed to be incurred, by the entity in carrying out a project in Australia; and

(b)

the plant expenditure is incurred by the entity in carrying out the project; and

(c)

if the project is part of a joint venture project specified in the certificate—the plant expenditure is incurred in carrying out that part of the joint venture project; and

(d)

if the project is part of a company group project scheme specified in the certificate—the entity is a member of the company group concerned at the time the plant expenditure is incurred;

then:

(e)

to the extent that the plant expenditure is incurred in respect of the acquisition or construction of a unit of plant—the plant expenditure is taken to have pre-qualified under this Act; and

(f)

to the extent that the plant expenditure is incurred in respect of the lease of a unit of plant under a long-term lease agreement where the lessor is a leasing company—the expenditure of a capital nature incurred by the lessor in respect of the acquisition or construction by the lessor of the unit of plant is taken to have pre-qualified under this Act.

For the purposes of this Part, if a certificate is cancelled, the certificate is taken never to have been granted.

For the purposes of this Part, if a certificate held by an entity is terminated with effect in relation to expenditure incurred by the entity after a particular date:

(a)

the certificate remains in force; and

(b)

the certificate continues to apply in relation to expenditure incurred by the entity on or before that date.

For the purposes of this Part, if a certificate held by an entity is varied with effect in relation to expenditure incurred by the entity after a particular date, the variation does not apply in relation to expenditure incurred by the entity on or before that date.

For the purposes of this Part, if a decision relating to a certificate is revoked or set aside, the decision is taken never to have been made.

The DAA must advise the Commissioner of Taxation in writing of particulars of all things done under this Act which are relevant to the operation of Subdivision B of Division 3 of Part III of the Tax Act.

Section 170 of the Tax Act does not prevent the amendment of an assessment at any time for the purpose of giving effect to this Act.

If the DAA considers that any action or inaction of a person or body is likely to have the effect of preventing the DAA from:

(a)

registering plant expenditure in the name of an entity; or

(b)

granting a certificate in the name of an entity;

the DAA may, with the consent of the entity, notify the person or body accordingly.

The object of this Chapter and the infrastructure borrowings provisions of the Income Tax Assessment Act 1936 is to provide tax incentives for genuine private sector investment in publicly accessible infrastructure facilities and related facilities. However, the incentives have been terminated for new cases by the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997.

The following is a simplified outline of the scheme of this Chapter:

(a)

a person may apply to the Development Allowance Authority (the DAA) for the issue of a certificate in relation to a proposed borrowing that the person considers to be an infrastructure borrowing;

Note: As a result of amendments made by the Taxation Laws Amendment (Infrastructure Borrowings) Act 1997, no new applications can be made.

(b)

the DAA will issue the certificate if it is satisfied that the borrowing is an infrastructure borrowing and that certain other criteria are met;

(c)

it is a condition of the issue of the certificate that the holder must use the money borrowed in the way proposed in the person's application and must comply with certain other requirements;

(d)

if the certificate holder wishes to transfer to another person all of its interests and liabilities in relation to the borrowing or any facilities acquired or constructed with the money borrowed and certain criteria are met, the DAA must agree to transfer the certificate;

(e)

the DAA may cancel the certificate if the conditions applying to it are contravened, or if the holder fails to comply with certain other requirements of the Chapter. In such a case, the holder will be liable to pay an amount that recoups some or all of the tax benefits of the certificate.

[Typical example—borrowing to finance a tollway]

(1)

This section sets out an example of how this Chapter works in a typical case involving a borrowing to construct a tollway.

[Step 1—proposal]

(2)

By December 1994, a non-exempt public company has developed a proposal to construct a tollway in Australia that it intends to operate for at least 25 years after it becomes income-producing. The estimated cost of the tollway is $600 million, of which the company intends to borrow $400 million by a public bond issue at 8% per annum over 10 years. The company intends to build the tollway in 2 stages:

* stage 1, commencing in November 1995 and continuing until November 1998, involving the major earthworks

* stage 2, commencing in February 1999 and ending at the end of 2001, involving construction of bridges, road pavement, stabilisation of embankments and construction of related facilities for toll collection and other staff.

[Step 2—application to DAA]

(3)

In January 1995, the company applies to the DAA for the issue of a certificate in relation to the borrowing. The application sets out details of the proposed borrowing and expenditure and other relevant matters.

[Step 3—action by DAA]

(4)

The DAA considers the application and determines that the criteria in the Chapter for the issue of a certificate are met. (The criteria relate to such things as the nature of the borrower and the facility, and the proposed public use and charging regime.)

[Step 4—issue of certificate]

(5)

In March 1995, the applicant gives the DAA an undertaking that it will comply with its obligations if the certificate is issued, and the DAA issues the certificate.

[Step 5—the bond issue]

(6)

The bond issue takes place in May 1995. Interest paid to bond holders is exempt from income tax or rebatable. The interest is not an allowable deduction for the company.

[Completion and operation of tollway]

(7)

The borrowing, construction and use of the tollway all go ahead as planned.

[List of terms]

(1)

In this Chapter: