A Guide to the Law of Securitisation in Australia - Clayton Utz

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Sections 128AA, 128AC and 128AD contain specific deemingprovisions which can have the effect of requiring certain amountsin connection with discounted securities, offshore hire purchasearrangements and bills of exchange being treated as interest.Definition of debentureA “debenture” in relation to a company is defined in section 6(1)to include “debentures stock, bonds, notes and any othersecurities of the company, whether constituting a charge on theassets of the company or not”. Section 128F(9) specificallyprovides that a debenture includes a promissory note and a bill ofexchange.Definition of companyThe exemption in section 128F(1) only applies to a company. Thisis given an extended meaning in section 128F(9) and includes acompany in the capacity of a trustee of a resident trust estate if:“(a) the trust is not established by a will, or instrument of trust,for public charitable purpose; and(b) the only person who is capable (whether by the exercise of apower of appointment or otherwise) of benefiting under thetrust is a company other than a company in the capacity oftrustee.”The extended definition permits a securitisation trust (provided itsatisfies the requirements of paragraphs (a) and (b) above) toqualify for the exemption from IWT.In circumstances where the section 128F(1) definition of acompany is not satisfied, the issuer should have regard to thenew section 128FA which extends the operation of the section128F exemption to interest payments made by eligible unit trusts.The section 128FA exemption broadly replicates the debentureissue conditions in section 128F (most importantly, the publicoffer test discussed in Part 5.3.3 below).For exemption purposes, an eligible unit trust is be a public unittrust or a unit trust in which all of the issued units are held bytwo or more “eligible unit holders” (i.e. public unit trusts,complying superannuation funds with 50 or more members, PSTs,complying ADFs, life companies, public companies or other unittrusts which satisfy this requirement).5.3.3 The public offer testsThere are six public offer tests. An issuer must satisfy one of thepublic offer tests in order to qualify for the section 128Fexemption from IWT.Section 128F(3) sets out five of the public offer tests. It providesthat an issue of a debenture satisfies the public offer test if theissue results from the debenture being offered for issue:“(a) to at least 10 persons, each of whom:(i) was carrying on a business of providing finance, orinvesting or dealing in securities, in the course ofoperating in financial markets; and(ii) was not known, or suspected by the company to be anassociate (see subsection (9)) of any of the other personscovered by this paragraph; or(b) to at least 100 persons whom it was reasonable for thecompany to have regarded as either:(i) having acquired debentures in the past; or(ii) being likely to be interested in acquiring debentures; or(c) as a result of being accepted for listing on a stock exchange,where the company had previously entered into anagreement with a dealer, manager or underwriter, in relationto the placement of debentures, requiring the company toseek such listing; or(d) as a result of negotiations being initiated publicly inelectronic form, or in another form, that was used byfinancial markets for dealing in debentures; or(e) to a dealer, manager or underwriter, in relation to theplacement of debentures who, under an agreement with thecompany, offered the debentures for sale within 30 days in away covered by any of paragraphs (a) – (d).”Section 128F(4) also provides that the issue of a debenture by acompany satisfies the public offer test if the debenture is aglobal bond.Section 128F(10) provides that a debenture is a “global bond” if:“(a) it describes itself as a global bond or a global note;(b) it is issued to a clearing house (see subsection (9)) or to aperson as trustee or agent for, or otherwise on behalf of, oneor more clearing houses; [for this purpose a clearing house isdefined as a person who operates a facility that is used byfinancial markets for investing in or dealing in securities(section 128F(9))]; and(c) in connection with the issue, the clearing house or houses:(i) confer rights in relation to the debenture on otherpersons; and(ii) record the existence of the rights;33
(d) before the issue:(i) the company; or(ii) a dealer, manager or underwriter, in relation to theplacement of debentures, on behalf of the company,announces that, as a result of the issue, such rights willbe able to be created(e) the announcement is made in a way or ways covered by anyof paragraphs (3)(a) to (e) by reading a reference in thosesections to “debenture” as if it were a reference to such aright, and a reference to the “company”, as if it included areference to the dealer, manager or underwriter); and(f) under the terms of the debenture, interests in the debentureare able to be surrendered, whether or not in particularcircumstances, in exchange for other debentures issued bythe company that are not themselves global bonds.”5.3.4 Certain issues of debentures will always fail the publicoffer testSection 128F(5) provides that a company issuing a debenture willfail the public offer test if, at the time of the issue, it knew, orhad reasonable grounds to suspect, that the debenture or aninterest in the debenture, was being, or would later be, acquired(either directly or indirectly) by an associate of the company,other than in the capacity of a dealer, manager or underwriter inrelation to the placement of the debenture.Section 128F(9) gives “associate” the same meaning as in thecontrolled foreign companies provisions in section 318 of Part Xof the 1936 Tax Act (with some minor modifications relating topartners in partnerships). For example, pursuant to section318(2) companies are associated with each other if one of them(or its directors) “is accustomed or might reasonably be expectedto act in accordance with the directions, instructions or wishes ofthe other; or one company is in a position to cast, or control thecasting of, at least 50% of the votes in the other”.Even in circumstance where the debenture is acquired directly orindirectly by an associate, the public offer test will only be failedunder subsection 128F(5) if:• the associate is a non-resident and the debenture or interestwas not being, or would not be, acquired by the associate incarrying on a business in Australia at or through a permanentestablishment of the associate in Australia; or• the associate is a resident of Australia and the debenture orinterest was being, or would be, acquired by the associate incarrying on a business in a country outside Australia at orthrough a permanent establishment of the associate in thatcountry.Notwithstanding the above, subsection 128F(6) will still operateto disqualify the operation of section 128F if:• the interest on the debentures is paid to an associate of thecompany in respect of a debenture acquired broadly incarrying on business outside Australia; and• the payment is not received in the capacity of a custodian andfunds manager.This subsection applies even where the primary issue of thedebentures satisfies the other general requirements to section128F (eg. the associate test in subsection 128F(5)).5.3.5 The non-resident borrowing subsidiary exemptionAn exemption for wholly-owned non-resident special purposefinance subsidiaries, which issue debentures outside Australiaand on-lend the proceeds to a parent company in Australia, isprovided in section 128F(8).The exemption will generally apply if:“(a) the parent company beneficially owns all of the issuedshares in the capital of a company that is not a resident ofAustralia;(b) the subsidiary’s only business is raising finance for thepurposes of the parent company;(c) the subsidiary raises finance in a country specified in theregulations (but not Australia) by issuing a debenture in thatcountry; and(d) when the debenture is issued, the subsidiary is treated as aresident of that country for the purposes of the tax laws ofthat country.”The subsidiary must raise finance in a listed country. At thisstage, the United States of America is the only listed country.5.3.6 Anti-avoidance provisionsThe general anti-avoidance provisions in Part IVA of the 1936 TaxAct may be applied to schemes to avoid withholding tax. Theresult is that the Commissioner can make a determination thatIWT has not been paid in relation to the payment of interest by aresident and that a non-resident tax payer has received a tax34
Page 6: 12.7.3 Euroentitlements............
Page 9 and 10: 1 General overview of the nature of
Page 12: An interest in a managed investment
Page 15 and 16: 142.3.4 Provision of a financial se
Page 17 and 18: 3 The disclosure and civil liabilit
Page 19 and 20: 18The statutory source for this ste
Page 21 and 22: The implication of this approach in
Page 23 and 24: Interestingly, the majority then we
Page 25 and 26: 4 Stamp duty and securitisation244.
Page 27 and 28: 264.8 Relief for mortgage-backed se
Page 29 and 30: 4.10 ConclusionStamp duty is a very
Page 31 and 32: Despite the absence of an express a
Page 33: 32share of the profits of the compa
Page 37 and 38: 365.4 Debt/equity rulesDivision 974
Page 39 and 40: Entities that make GST-free supplie
Page 41 and 42: • “ enterprise” is defined in
Page 43 and 44: 6 The Consumer Credit Code andsecur
Page 45 and 46: 7 The regulation of the participati
Page 47 and 48: inclusion within the ELE depends on
Page 49 and 50: 8 Set-off and securitisation8.1 Int
Page 51 and 52: 50However, this result and the prin
Page 53 and 54: 9 Insolvency and securitisation529.
Page 55 and 56: 54• if the trustee has not limite
Page 57 and 58: Section 588FG provides a measure of
Page 59 and 60: 10 Issues relating to debt securiti
Page 61 and 62: 60indemnity existed) and had no han
Page 63 and 64: The effect of the decision has been
Page 65 and 66: the ASX has discretion to ask the e
Page 67 and 68: • Public Trustee Members - for pr
Page 69 and 70: When Austraclear receives notificat
Page 71 and 72: have been completed in relation to
Page 73 and 74: Some CMBS transactions allow the is
Page 75 and 76: 14.3 GamingIn the past, another con
Page 77 and 78: 16 Clayton UtzOur securitisation te

A Guide to the Law of Securitisation in Australia - Clayton Utz

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