Commonwealth Consolidated Acts

INCOME TAX ASSESSMENT ACT 1936 - SECT 94D

  (1)   For the purposes of this Division, a limited partnership is a corporate limited partnership in relation to a year of income of the partnership if:

  (a)   the year of income is the 1995 - 96 year of income or a later year of income; or

  (b)   the partnership was formed on or after 19   August 1992; or

  (c)   both:

  (i)   the partnership was formed before 19   August 1992; and

  (ii)   the partnership does not pass the continuity of business test set out in section   94E; or

  (d)   all of the following apply:

  (i)   the partnership was formed before 19   August 1992;

  (ii)   a change in the composition of the partnership occurs during the period:

  (A)   beginning on 19   August 1992; and

  (B)   ending at the end of the year of income;

  (iii)   the partners do not elect, in accordance with section   94F, that the partnership is not to be treated as a corporate limited partnership in relation to the year of income.

  (2)   However, a partnership that is a VCLP, an ESVCLP, an AFOF or a venture capital management partnership cannot be a corporate limited partnership.

Note 1:   This subsection can apply without the partnership meeting the applicable registration requirements under the Venture Capital Act 2002 . It must be registered under that Act in order to be a VCLP, an ESVCLP or an AFOF, but it is possible for it to remain registered while the requirements are not met.

Note 2:   VCLPs, ESVCLPs, AFOFs and VCMPs are taxed as ordinary partnerships under Division   5.

Note 3:   If the partnership's registration as a VCLP, ESVCLP or AFOF is unconditional, some partners' share in capital gains and losses from CGT events relating to some investments may be disregarded: see Subdivision   118 - F of the Income Tax Assessment Act 1997 .

  (3)   A venture capital management partnership is a limited partnership that:

  (a)   is a general partner of one or more of the following:

  (i)   one or more VCLPs;

  (ia)   one or more ESVCLPs;

  (ii)   one or more AFOFs; and

  (b)   only carries on activities that are related to being such a general partner.

A limited partnership ceases to be a venture capital management partnership if it ceases to meet the requirements of paragraphs   (a) and (b).

Note:   In this Act, the term "venture capital management partnership" is usually abbreviated to "VCMP".

  (4)   The place of residence of a VCMP is the place at which the partnership has its central management and control.

  (5)   A limited partnership that is a foreign hybrid limited partnership in relation to a year of income because of subsection   830 - 10(1) of the Income Tax Assessment Act 1997 is not a corporate limited partnership in relation to the year of income.

Note:   As result, both the normal partnership provisions and special provisions relating to foreign hybrid limited partnerships will apply to the entity.

  (6)   If, for the purpose of applying this Act and the Income Tax Assessment Act 1997 in relation to a partner's interest in a limited partnership, the partnership is a foreign hybrid limited partnership in relation to a year of income because of subsection   830 - 10(2) of that Act, the partnership is not a corporate limited partnership in relation to the partner's interest in relation to the year of income.

Note:   As result, both the normal partnership provisions and special provisions relating to foreign hybrid limited partnerships will apply to the entity, but only in relation to the partner's interest.