Tax Advice

Respondents are required to provide advice received from a specialist taxation adviser that includes, inter alia, advice on:

•  the proposed acquisition and financing structure from a taxation perspective (including relevant contractual arrangements) which details the tax outcomes and risk profile of the structure;

•  the proposed corporate structure, including details of the intention to form a tax consolidated group and the application of Division 6C of the ITAA 1997 (as relevant);

•  the application of the tax exempt leasing provisions of Division 250;

•  [the tax treatment of any State Contribution;]

•  tax treatment, including the timing of assessable revenue to Project Co and other relevant Project vehicles from any sources of revenue;

•  tax treatment, including the timing of allowable deductions to Project Co and other relevant Project vehicles in respect of major categories of outgoings;

•  the availability of capital allowances and capital works deductions to specific Project vehicles as part of the Project acquisition structure;

•  the treatment of lifecycle expenditure/capital works;

•  the treatment of upfront fees, including bid costs, advisers' fees, borrowing costs and fees to equity participants;

•  the application of the taxation of financial arrangement rules contained in Division 230 of the ITAA 1997 regarding when returns on financial instruments or certain gains and losses are recognised for tax purposes (that is, accruals basis, realisation basis, other elective basis) and the availability of or intention to make any relevant elections;

•  if the advice concludes that Division 230 is not applicable to a material financial instrument or gain/loss, it should also include an analysis of how the alternative conclusion (i.e. the application of Division 230) would affect Respondents' Proposals;

•  the deductibility of interest; in particular, the treatment of interest during the Development Phase of the Project [(including with respect to each tranche/Stage if relevant)] and the application of thin capitalisation and withholding tax rules;  [Guidance note: Delete reference if the Development Phase does not provide for distinct tranches or stages.]

•  analysis of the application of the debt equity provisions in Division 974 of the ITAA 1997 to 'capital' provided by the Respondent;

•  the appropriateness of any assumptions made from an Australian income tax perspective with regard to the utilisation of any tax losses (including timing);

•  assumptions and analysis regarding end of Term arrangements;

•  analysis of the treatment of termination payments (if applicable);

•  known Australian business income taxation reform measures by the Federal Government and their potential impact on the tax position of entities in the future;

•  consideration of the general anti-avoidance provisions in the Australian income tax law (Part IVA of the ITAA 1997);

•  the GST implications of the acquisition and financing structure and advice supporting the assumptions adopted in the Financial Model, highlighting any material or unusual GST implications relating to the Project;

•  the GST implications of the transactions relating to the Project, including the impact on the recoverability of GST in respect of Project Co and any other entity involved in the Proposal. The advice should highlight any material or unusual GST implications arising from any transactions or arrangements under the Project;

•  the stamp duty implications of the transactions or arrangements relating to the Project. The advice should cover any material stamp duty implications, including any rulings to be obtained from an Australian revenue office;

•  to the extent that the above conclusions may change as a result of a sell down of interests, and to the extent that the sell down is foreseeable, a summary of the impact that the sell down may have on the tax structure; and

•  any other material tax assumptions.