TAXATION LAWS AMENDMENT (FILM INCENTIVES) BILL 2002

2002

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Taxation Laws Amendment (Film Incentives) Bill 2002

No. , 2002

(Treasury)

A Bill for an Act to amend the law relating to taxation, and for related purposes

A Bill for an Act to amend the law relating to taxation, and for related purposes

1 Short title

This Act may be cited as the Taxation Laws Amendment (Film Incentives) Act 2002.

2 Commencement

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Film tax offset

(2A) The ^*tax offset available under Division 376 is subject to the refundable tax offset rules.

Division 376—Films generally (tax offset for Australian production expenditure)

Subdivision 376-A—Guide to Division 376

This Division gives a film production company a refundable tax offset for certain Australian production expenditure the company incurs on the film but only if that expenditure exceeds a certain amount.

376-2 Structure of this Division

(1) Subdivision 376-B tells you who can get the tax offset for a film and what conditions must be met to get the offset. It also tells you how to work out the amount of the offset.

(c) the making of rules by the Arts Minister (including rules for the establishment of the Film Certification Advisory Board); and

Subdivision 376-B—Tax offset for Australian expenditure in making a film

376-5 Film production company entitled to refundable tax offset

(1) A company is entitled to a ^*tax offset for an income year in respect of a ^*film if:

(b) the ^*Arts Minister has issued a certificate to the company for the film under section 376-15; and

(ii) is not an Australian resident but does have a ^*permanent establishment in Australia and does have an ^*ABN;

when the company lodges the income tax return and when the tax offset is due to be credited to the company.

Note: The tax offset is subject to the refundable tax offset rules in Division 67 (see subsection 67-25(2A)).

(a) the company or someone else claims a deduction in relation to a unit of industrial property that relates to copyright in the ^*film under Division 10B of Part III of the Income Tax Assessment Act 1936; or

(b) a provisional or final certificate for the film has been issued at any time under Division 10BA of Part III of the Income Tax Assessment Act 1936 (whether or not the certificate is still in force).

376-10 Amount of the tax offset

The amount of the ^*tax offset is 12.5% of the total of the company’s ^*qualifying Australian production expenditure on the ^*film (worked out using Subdivision 376-C).

376-15 Minister may issue certificate for a film

(1) The ^*Arts Minister may issue a certificate to a company that a ^*film satisfies the requirements of this Subdivision if the Minister is satisfied that:

(ii) is not an Australian resident but does have a ^*permanent establishment in Australia and does have an ^*ABN; and

(b) the film has been ^*completed and was completed on or after 4 September 2001; and

(ii) exhibition to the public by way of television broadcasting (including broadcasting by way of the delivery of a television program by a broadcasting service within the meaning of the Broadcasting Services Act 1992); or

(iii) distribution to the public as a video recording (whether on video tapes, digital video disks or otherwise); and

(iii) a film for exhibition as a discussion program, a quiz program, a panel program, a variety program or a program of a like nature; or

(v) a film forming part of a drama program series that is, or is intended to be, of a continuing nature; or

(f) the total of the company’s ^*qualifying Australian production expenditure on the film (worked out using Subdivision 376-C) is at least $15 million; and

(g) if the total of the company’s qualifying Australian production expenditure on the film is less than $50 million:

(i) the total of the company’s qualifying Australian production expenditure on the film is at least 70% of the total of all the company’s ^*production expenditure on the film; and

(ii) the company either carried out, or made the arrangements for the carrying out of, all the activities that were necessary for the ^*making of the film; and

(iii) the company is the only company that satisfies subparagraph (ii) in relation to the film; and

(h) if the total of the company’s qualifying Australian production expenditure on the film is at least $50 million:

(i) the company either carried out, or made the arrangements for the carrying out of, all the activities in Australia that were necessary for the making of the film; and

(ii) the company is the only company that satisfies subparagraph (i) in relation to the film.

Note: Subparagraphs (g)(ii) and (h)(i)—the operation of these subparagraphs is affected by paragraph 376-70(1)(d) (which deals with the situation in which one company takes over the making of a film from another company).

(2) A ^*film is completed when it is first in a state where it could reasonably be regarded as ready to be distributed, broadcast or exhibited to the general public.

Note: This means that the making of a film includes post-production and editing as well as the shooting of the film.

376-20 Company may nominate one person whose remuneration is to be disregarded

(1) In its application for the certificate under section 376-15, the company may nominate one person as a person to whom this section applies.

(2) If the company nominates a person under subsection (1), disregard the following for the purposes of this Division:

(a) the remuneration and other benefits provided to the person for the person’s services in relation to the ^*making of the ^*film;

(b) travel and other costs associated with the services the person provides in relation to the making of the film.

Note: This means that the person’s remuneration and benefits, and associated costs, are disregarded both in working out the total of the company’s qualifying Australian production expenditure on the film and in working out the company’s total production expenditure on the film.

Subdivision 376-C—Production expenditure and qualifying Australian production expenditure

376-30 Production expenditure—special qualifying Australian production expenditure

376-55 Qualifying Australian production expenditure—treatment of services embodied in goods

Production expenditure

376-25 Production expenditure—general test

(1) A company’s production expenditure on a ^*film is expenditure that the company incurs to the extent to which it:

(2) The making of a ^*film means the doing of the things necessary for the production of the first copy of the film.

(c) any other activities undertaken to bring the film up to the state where it could reasonably be regarded as ready to be distributed, broadcast or exhibited to the general public.

(5) Without limiting subsection (1), a company’s production expenditure on a ^*film:

(a) may be expenditure that is incurred in the income year for which the ^*tax offset is sought or in an earlier income year; and

Paragraph (c) has effect subject to item 10 in the table in section 376-35 (which deals with capital allowances).

(b) deductions in relation to the asset are available under Division 40 (which deals with capital allowances);

the production expenditure of the company on the film includes an amount equal to the decline in the value of the asset to the extent to which that decline is reasonably attributable to the use of the asset in the making of the film. The decline in value of the asset is to be worked out using Division 40.

Note: Under item 10 of the table in section 376-35, expenditure that sets or increases the cost of the asset does not count as production expenditure.

376-30 Production expenditure—special qualifying Australian production expenditure

Expenditure of a company is also production expenditure of the company on a ^*film if it is ^*qualifying Australian production expenditure of the company on the film under section 376-45.

Note: This means that the special qualifying Australian production expenditure is taken into account both in working out the total amount of the company’s qualifying Australian production expenditure and in working out the total amount of all the company’s production expenditure on the film. The total amount of all production expenditure is relevant to the test in paragraph 376-15(1)(g).

376-35 Production expenditure—specific exclusions

Despite sections 376-25 and 376-30, the following expenditure of a company is not production expenditure of the company on a ^*film:

Expenditure that does not count as production expenditure on a film
Item	This kind of expenditure by the company is not production expenditure...	except to the extent to which the expenditure is...
1	Financing expenditure expenditure incurred by way of, or in relation to, the financing of the ^*film (including returns payable on amounts invested in the film and expenditure in relation to raising and servicing finance for the film)
2	Development expenditure ^development expenditure on the ^film	^*qualifying Australian production expenditure under item 1 in the table in subsection 376-45(1)
3	Copyright acquisition expenditure expenditure incurred in acquiring copyright, or a licence in relation to copyright, in a pre-existing work for use in the ^*film	^*qualifying Australian production expenditure under item 2 in the table in subsection 376-45(1)
4	General business overheads expenditure incurred to meet the general business overheads of the company that: (a) are not incurred in, or in relation to, the ^making of the ^film; and (b) are not reasonably attributable to: (i) the use of equipment or other facilities for; or (ii) activities undertaken in; the making of the film	^*qualifying Australian production expenditure under item 3 in the table in subsection 376-45(1)
5	Publicity and promotion expenditure expenditure incurred in publicising or otherwise promoting the ^*film (including press expenses, still photography, videotapes, public relations and other similar expenses)	^*qualifying Australian production expenditure under item 4 in the table in subsection 376-45(1)
6	Deferments amounts that are payable only out of the receipts, earnings or profits from the ^*film
7	Profit participation amounts that: (a) depend on the receipts, earnings or profits from the ^*film; or (b) are otherwise dependent on the commercial performance of the film
8	Residuals amounts payable in satisfaction of the residual rights of a person who is a member of the cast	paid out by the company before the ^film is ^completed
9	Advances amounts paid by way of advance on a payment to which item 6, 7 or 8 applies to the extent to which it may become repayable by the person to whom it is paid
10	Acquisition of depreciating asset expenditure to the extent to which it sets, or increases, the ^cost of a ^depreciating asset This item has effect subject to subsection 376-25(6).	^*qualifying Australian production expenditure under item 2 in the table in subsection 376-45(1)
11	Regulations expenditure specified in regulations

Qualifying Australian production expenditure

376-40 Qualifying Australian production expenditure—general test

A company’s qualifying Australian production expenditure on a ^*film is the company’s ^*production expenditure on the film to the extent to which it is incurred for, or is reasonably attributable to:

(a) goods and services provided in Australia; or

(b) the use of land located in Australia; or

376-45 Qualifying Australian production expenditure—specific inclusions

(1) The following expenditure of a company is also qualifying Australian production expenditure of the company on a ^*film:

Special Australian expenditure
Item	Type of expenditure
1	Australian development expenditure ^development expenditure on the ^film to the extent to which it is incurred for, or is reasonably attributable to: (a) goods and services provided in Australia; or (b) the use of land located in Australia; or (c) the use of goods that are located in Australia at the time they are used in the ^*making of the film [see subsection (2)]
2	Expenditure incurred in acquiring Australian copyright expenditure incurred to acquire copyright, or a licence in relation to copyright, in a pre-existing work for use in the ^film if the copyright is held by a qualified person (within the meaning of section 32 of the Copyright Act 1968*)
3	Australian business overheads general business overheads of the company that: (a) are not incurred in or in relation to the ^making of the ^film; and (b) are not reasonably attributable to: (i) the use of equipment or other facilities for; or (ii) activities undertaken in; the making of the film; to the extent to which they: (c) are incurred for, or are reasonably attributable to: (i) goods and services provided in Australia; or (ii) the use of land located in Australia; or (iii) the use of goods that are located in Australia at the time they are used in the making of the film; and (d) represent a reasonable apportionment of those overheads between the making of the film and the other activities undertaken by the company This item has effect subject to subsection (3).
4	Expenditure incurred in producing Australian copyrighted promotional material expenditure incurred in producing material for use in publicising or otherwise promoting the ^film if the copyright in the material is held by a qualified person (within the meaning of section 32 of the Copyright Act 1968*)
5	Travel to Australia expenditure of the company in relation to a person’s travel to Australia to undertake activities in Australia in relation to the ^making of the ^film if the remuneration paid to the person for those activities is ^*qualifying Australian production expenditure of the company
6	Regulations expenditure prescribed by the regulations

(2) Legal costs will be covered by item 1 in the table in subsection (1) only if they relate to:

(a) writers’ contracts; or

(b) chain of title and other copyright issues.

(3) General business overheads of the company are covered by item 3 in the table in subsection (1) only to the extent to which they do not exceed the lesser of:

(a) 2% of the total of all the company’s ^*production expenditure on the ^*film; or

(b) $500,000.

376-50 Qualifying Australian production expenditure—specific exclusions

Despite sections 376-40 and 376-45, the following expenditure of a company is not qualifying Australian production expenditure of a company on a ^*film:

(a) expenditure that is incurred at a time when:

(i) the company is not an Australian resident; and

(ii) the company does not have both a ^*permanent establishment in Australia and an ^*ABN;

(b) expenditure in relation to:

(i) remuneration and other benefits provided to a person for the person’s services in relation to the ^*making of the film; or

(ii) travel and other costs associated with the services a person provides in relation to the making of the film;

if the person:

(iii) is not a member of the cast; and

(iv) enters Australia to work on the film for less than 2 consecutive calendar weeks;

376-55 Qualifying Australian production expenditure—treatment of services embodied in goods

If:

(a) a company incurs expenditure for the provision of what is essentially a service; and

(b) the results of the service are provided to the company by being embodied in goods that are delivered to the company; and

the service is not provided to the company in Australia merely because the goods are delivered to the company in Australia.

Note: Paragraph (b)—a document, for example, might set out legal or other professional advice or a computer disk might contain a program that has been made or data that has been compiled.

Expenditure generally

376-60 Expenditure to be worked out in Australian dollars

(1) Expenditure that is incurred in foreign currencies is to be converted into Australian dollars for the purposes of quantifying both:

(a) the total of all of a company’s ^*production expenditure on a ^*film; and

(b) the total of the company’s ^*qualifying Australian production expenditure on a film.

(2) The conversion rate to be used is the average of the exchange rates applicable from time to time during the period that:

(a) starts on the earliest day on which:

(i) principal photography takes place; or

(ii) the production of the animated image commences; and

(b) ends when the ^*film is ^*completed.

376-65 Expenditure to be worked out on an arm’s length basis

For the purposes of this Division, if any 2 or more parties to:

(a) an ^*arrangement under which a company incurs expenditure in relation to a ^*film; or

(b) any act or transaction directly or indirectly connected with expenditure that a company incurs in relation to a film;

do not deal with each other at ^*arm’s length in relation to the arrangement, or in relation to the act or transaction, the expenditure is taken to be only so much (if any) of the expenditure as would have been incurred if they had been dealing with each other at arm’s length in relation to the arrangement, or in relation to the act or transaction.

376-70 Expenditure incurred by prior production companies

(1) For the purposes of this Division, if a company (the incoming company) takes over the ^*making of a ^*film from another company (the outgoing company):

(a) expenditure incurred in relation to the film by the outgoing company is taken to have been incurred in relation to the film by the incoming company; and

(b) for the purposes of determining the extent to which that expenditure is ^*qualifying Australian production expenditure of the incoming company, the incoming company is taken:

(i) to have been an Australian resident at any time when the outgoing company was an Australian resident; and

(ii) to have had a ^*permanent establishment in Australia at any time when the outgoing company had a permanent establishment in Australian; and

(iii) to have had an ^*ABN at any time when the outgoing company had an ABN; and

(c) expenditure that the incoming company incurs in order to be able to take over the making of the film is to be disregarded for the purposes of this Division; and

(d) any activities carried out, and arrangements made, by the outgoing company in relation to the film are taken, for the purposes of subparagraphs 376-15(1)(g)(ii) and (h)(i), to have been carried out or made by the incoming company in relation to the film.

(2) For the purposes of subsection (1):

(a) expenditure incurred on the ^*film by the outgoing company includes expenditure that the outgoing company is itself taken to have incurred on the film because of the operation of subsection (1); and

(b) the outgoing company is taken:

(i) to have been an Australian resident at any time when the outgoing company is taken to have been an Australian resident because of the operation of subsection (1); and

(ii) to have had a ^*permanent establishment in Australia at any time when the outgoing company is taken to have had a permanent establishment in Australia because of the operation of subsection (1); and

(iii) to have had an ^*ABN at any time when the outgoing company is taken to have had an ABN because of the operation of subsection (1); and

(c) activities carried out by the outgoing company in relation to the film include activities that the outgoing company is taken to have carried out in relation to the film because of the operation of subsection (1); and

(d) arrangements made by the outgoing company for the carrying out of activities in relation to the film include arrangements that the outgoing company is taken to have made because of the operation of subsection (1).

Note: If Company A starts out making a film and then Company B takes over the making of the film, Company B is taken to have incurred the expenditure that Company A incurred on the film. If Company C subsequently takes over the making of the film from Company B, Company C is taken to have incurred the expenditure that Company B incurred on the film (including the expenditure of Company A that is attributed to Company B).

Subdivision 376-D—Certificates for films

Table of sections

376-75 Production company may apply for certificate

376-80 Refusal to issue certificate

376-85 Issue of certificate

376-90 Revocation of certificate

376-95 Notice of decision

376-100 Review of decisions by the Administrative Appeals Tribunal

376-105 Minister may make rules

376-75 Production company may apply for certificate

(1) Once a ^*film is ^*completed, a company may apply to the ^*Arts Minister for the issue of a certificate to the company for the film under section 376-15.

(2) The application must be made in accordance with the rules determined by the ^*Arts Minister under section 376-105 so far as they relate to the requirements for applications.

376-80 Refusal to issue certificate

If the ^*Arts Minister decides not to issue a certificate for a ^*film, the Minister must give the applicant written notice of the decision (including reasons for the decision).

376-85 Issue of certificate

(1) A certificate issued to a company under section 376-15 must:

(a) be in writing; and

(b) specify the company’s ^*ABN.

(2) The ^*Arts Minister must give the Commissioner notice of the issue of a certificate for a ^*film within 30 days after issuing the certificate.

(3) The notice under subsection (2) must specify:

(a) the company’s name; and

(b) the company’s address; and

The notice must be accompanied by a copy of the certificate.

376-90 Revocation of certificate

(1) The ^*Arts Minister may revoke a certificate issued to a company for a ^*film under section 376-15 if the Minister is satisfied that the issue of the certificate was obtained by fraud or serious misrepresentation.

(2) If the ^*Arts Minister revokes a certificate under subsection (1), the Minister must give the company to whom the certificate was issued written notice of the revocation (including reasons for the decision to revoke the certificate).

(3) If a certificate is revoked under subsection (1), it is taken, for the purposes of this Division, never to have been issued.

Note: This means that if an assessment of a company’s income tax is issued on the basis that the company is entitled to a tax offset for a film and the certificate for the film is then revoked, the assessment will be amended to take account of the fact that the company was never entitled to the tax offset.

(4) Subsection (3) does not apply for the purposes of:

(a) the operation of this section or section 376-95; or

(b) a review by a court or the ^*AAT of the decision to revoke the certificate.

376-95 Notice of decision

(1) This section applies to a notice of a decision given under section 376-80 or 376-90.

(2) The notice of the decision is to include the statements set out in subsections (3) and (4).

(3) There must be a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the ^*AAT, by (or on behalf of) any entity whose interests are affected by the decision, for review of the decision.

(4) There must also be a statement to the effect that a request may be made under section 28 of that Act by (or on behalf of) such an entity for a statement:

(a) setting out the findings on material questions of fact; and

(b) referring to the evidence or other material on which those findings were based; and

except where subsection 28(4) of that Act applies.

(5) If the ^*Arts Minister fails to comply with subsection (3) or (4), that failure does not affect the validity of his or her decision.

376-100 Review of decisions by the Administrative Appeals Tribunal

Applications may be made to the ^*AAT for review of:

(a) a decision made by the ^*Arts Minister to refuse an application for a certificate under section 376-15; or

(b) a decision made by the Arts Minister under section 376-90 to revoke a certificate.

376-105 Minister may make rules

Rules establishing the Film Certification Advisory Board

(1) The ^*Arts Minister may make rules:

(a) establishing a Film Certification Advisory Board to:

(i) consider applications under section 376-75 and advise the Minister on whether to issue certificates under section 376-15; and

(ii) perform such other functions in relation to the operation of this Division as are specified in the rules; and

(b) specifying the membership of the Board and the terms and conditions of appointment to the Board; and

Rules providing for provisional certificates

(2) The ^*Arts Minister may make rules providing for the issue of provisional certificates.

Rules about applications

(3) The ^*Arts Minister may make rules specifying how applications for certificates (including provisional certificates) are to be made, including:

(a) the form in which applications are to be made; and

(b) the information to be provided in applications; and

(d) procedures for providing, at the Minister’s request, additional information in support of an application.

(4) Rules under paragraph (3)(c) can include rules requiring reports by auditors or independent line producers.

(5) The rules must be in writing.

(6) Rules made under subsection (1), (2) or (3) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

[The next Division is Division 385.]

3 Subsection 995-1(1)

Insert:

completed, in relation to a ^*film, has the meaning given by subsection 376-15(2).

4 Subsection 995-1(1)

Insert:

development expenditure for a ^*film means expenditure to the extent to which it is incurred in meeting the development costs for the film and includes expenditure to the extent to which it is incurred on any of the following:

(a) location surveys and other activities undertaken to assess locations for possible use in the film;

(b) storyboarding for the film;

(d) research for the film;

(e) casting actors for the film;

(f) developing a budget for the film;

(g) developing a shooting schedule for the film.

5 Subsection 995-1(1)

Insert:

feature film includes animated feature film.

6 Subsection 995-1(1)

Insert:

film means an aggregate of images, or of images and sounds, embodied in any material.

7 Subsection 995-1(1)

Insert:

make, in relation to a ^*film, has the meaning given by subsections 376-25(2), (3) and (4).

8 Subsection 995-1(1)

Insert:

production expenditure has the meaning given by sections 376-25 to 376-35.

9 Subsection 995-1(1)

Insert:

qualifying Australian production expenditure has the meaning given by sections 376-40 to 376-55.

Income Tax Assessment Act 1936

10 Subsection 124L(1A)

Omit “if the unit relates to a copyright in an Australian film”, substitute:

if:

(a) the unit relates to a copyright in an Australian film; and

(b) a claim is not made for a tax offset in respect of the film under Division 376 of the Income Tax Assessment Act 1997 (whether in that year of income or another year of income).

11 After paragraph 124ZAC(3)(b)

Insert:

and (c) a claim has not been made for a tax offset in respect of the film under Division 376 of the Income Tax Assessment Act 1997;

12 Application

The amendments made by this Schedule apply to expenditure incurred at any time (whether before or after the commencement of this Schedule).

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