SECTION
9
TAXATION
IMPLICATIONS
westfield marion, adelaide
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Westfield Retail Trust Offer of Stapled Units
Section CONTENTS: TAXATION IMPLICATIONS
9.1
9.2
Australian taxation implications.................................................................................................................142
New Zealand taxation implications...........................................................................................................145
Westfield Retail Trust Offer of Stapled Units
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SECTION 9: TAXATION IMPLICATIONS
9 Taxation implications
This section addresses the Australian and New Zealand income tax and goods and services tax implications of purchasing Stapled Units
pursuant to the Offer as well as the holding and disposing of such securities.
The Australian and New Zealand tax implications of acquiring (and then holding and disposing of) Stapled Units under the Capital
Distribution are described in the Explanatory Memorandum that has been provided to all Westfield Group Securityholders.
This section deals only with the taxation implications relevant to Stapled Unitholders who hold their Stapled Units on capital account. This
section does not apply to Stapled Unitholders who are banks, insurance companies and taxpayers carrying on a business of trading in
shares or other securities.
The information in this section is general in nature and based on the law in force in Australia and New Zealand at the time of issue of this
PDS. The precise taxation implications will depend upon each Stapled Unitholder’s specific circumstances. Accordingly, all persons should
seek their own independent taxation advice before reaching conclusions as to the possible taxation consequences of acquiring, holding or
disposing of Stapled Units under the Offer. Non-residents of Australia and New Zealand should consider their domestic tax consequences
of the Offer. Neither Westfield Retail Trust, nor any of its officers, nor its taxation or other advisers, accepts any liability or responsibility in
respect of any statement concerning the taxation implications of acquiring, holding or disposing of Stapled Units.
9.1 Australian taxation implications
(a)Class ruling
Westfield Group has applied to the ATO for a class ruling to confirm the income tax consequences of the Capital Distribution and some
aspects of the Westfield Securityholder Offer for Westfield Group Securityholders on the Westfield Securityholder Offer Record Date.
Based on the draft class ruling that Westfield Group has received, it expects to receive a final class ruling that confirms the taxation
consequences of the Westfield Securityholder Offer for Westfield Group Securityholders described in section 9.1(b) below.
As mentioned above, the taxation consequences of the Capital Distribution (including the details of the class ruling relevant to it) are
described in the Explanatory Memorandum.
(b) The Westfield Securityholder Offer
The entitlement to acquire Stapled Units under the Westfield Securityholder Offer will be granted to Westfield Group Securityholders prior
to their becoming holders of Westfield Retail Trust 1 units and Westfield Retail Trust 2 units. Accordingly, section 59–40 of the Income Tax
Assessment Act 1997 will not apply to treat the market value of the entitlements as non-assessable, non-exempt income.
However, the ATO is expected to confirm that no amount is required to be included in your assessable income as a result of the grant of
entitlements.
If you accept the Westfield Securityholder Offer, you should not make a capital gain or otherwise derive assessable income from the
acceptance. The income tax consequences of acquiring, holding and disposing of Stapled Units are dealt with below in sections 9.1(c)
(Australian residents) and 9.1(d) (non-residents).
If you do not accept the Westfield Securityholder Offer, your entitlement will lapse without you receiving any disposal proceeds. There
should be no income tax consequences arising from the lapsing of your entitlement.
(c) Income tax – Australian resident Stapled Unitholders
(i) Acquisition of Stapled Units under the Offer
Each Westfield Retail Trust 1 unit and Westfield Retail Trust 2 unit comprising a Stapled Unit cannot be traded separately. However, each
of the above securities constitutes a separate asset for capital gains tax (CGT) purposes. Accordingly, where a Stapled Unit is acquired,
it will need to be treated for CGT purposes as the acquisition of a Westfield Retail Trust 1 unit and a Westfield Retail Trust 2 unit.
Your cost base in each of the individual securities comprising the Stapled Unit will include so much of the total Offer Price you paid
to acquire the Stapled Units (plus certain non-deductible incidental costs you incur to acquire them) that is reasonably attributable to
that security. You will need to allocate the cost base of the individual securities comprising each Stapled Unit on a reasonable basis.
In accordance with the ATO’s general practice, one permissible method of apportionment is on the basis of the relative net asset
values of Westfield Retail Trust 1 and Westfield Retail Trust 2.
Relevant information regarding the net asset values of Westfield Retail Trust 1 and Westfield Retail Trust 2 will be made available to
you on the Westfield Retail Trust website: www.westfieldretailoffer.com.
If you also acquired Stapled Units under the Capital Distribution, your cost base for those securities will be as described in the
Explanatory Memorandum.
(ii) Distributions from Westfield Retail Trust 1
You will be required to include your share of the net income of Westfield Retail Trust 1 (as advised by RE1) in your assessable income
for tax purposes. Westfield Retail Trust will provide Stapled Unitholders with annual taxation statements. The taxation statements will
be mailed to you in July, along with a tax guide to assist in the completion of your tax return.
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Westfield Retail Trust Offer of Stapled Units
It is expected that Westfield Retail Trust will have a 31 December year end for Australian income tax purposes. Thus, if you have
a tax year end of 30 June, your assessable income for a particular income year will include the taxable income component of the
distributions made by Westfield Retail Trust 1 to you in the preceding February and August.
Income distributed by Westfield Retail Trust 1 will generally retain the character it had when it was derived by the Trust. Distributions
from Westfield Retail Trust 1 may include various components, the tax treatment of which may differ.
To the extent that a distribution from Westfield Retail Trust 1 includes foreign income (such as income from New Zealand assets),
you may be entitled to receive a foreign income tax offset equal to the lesser of the Australian tax otherwise payable by you on that
income or the quantum of foreign tax imposed. The foreign income tax offset component of a distribution is required to be included
in your assessable income. However, if Australian tax is payable by you on the foreign income component of your taxable income
or other foreign income not related to the Westfield Retail Trust 1 units, the foreign income tax offset may be applied against that
Australian tax liability. Offsets that are not utilised in the income year in which they are derived will not be able to be carried forward.
If a net capital gain is included in the taxable income of Westfield Retail Trust 1 (for example, on disposal of a Shopping Centre
Interest or other asset), you will be regarded as having derived a capital gain equal to your proportionate share of that net capital gain.
However, where discount capital gains treatment has been applied in calculating the net capital gain at the Westfield Retail Trust 1
level, you will be required to gross-up the amount of the capital gain included in your assessable income. You can then apply any
available capital losses from other sources to offset the capital gain and then apply your CGT discount factor, if applicable.
To the extent that Westfield Retail Trust 1 makes any non-assessable distributions to you (typically referred to as “tax deferred”
distributions), such distributions will give rise to a CGT event E4. In these circumstances, you will make a capital gain if the total value
of the non-assessable payment(s) made by the trustee during the income year in respect of your Westfield Retail Trust 1 unit exceeds
your cost base in the Westfield Retail Trust 1 unit. Where this happens, the cost base and reduced cost base of the unit are reduced
to nil. Where the sum of the non-assessable payments is not more than the cost base of the unit, the cost base and reduced cost
base of the unit would be reduced by the amount of the non-assessable payment.
(iii) Distributions from Westfield Retail Trust 2
For tax purposes, Westfield Retail Trust 2 will be taxed like a company under Division 6C of the Income Tax Assessment Act 1936
and its distributions (other than certain capital distributions) to unitholders will be taxed as dividends and may be franked.
Your assessable income will include the amount of the distributions by Westfield Retail Trust 2, as well as the amount of franking
credits, if any, attached to the distributions. You will generally be entitled to a tax offset (rebate) corresponding to the amount of the
franking credits.
Generally, to be eligible for the franking credit and tax offset, you must have held your Westfield Retail Trust 2 units “at risk” for at least
45 days (not including the date of acquisition or the date of disposal). This rule should not apply to you if you are an individual whose
tax offset entitlement (on all shares and interests in shares held) does not exceed $5,000 for the income year in which the franked
dividend is paid. If you enter into put or call options (or other derivatives) in relation to Stapled Units, this may affect whether the units
are sufficiently held “at risk” for the purposes of the franking rules, and specific advice should be sought.
Where you are an individual, a complying superannuation entity or a registered charity (in certain circumstances), you will generally be
entitled to a tax refund to the extent that the franking credits attached to your distributions from Westfield Retail Trust 2 for an income
year exceed your tax liability for the income year.
Where you are a company, any franked distributions that you receive from Westfield Retail Trust 2 will generally give rise to a franking
credit in your franking account.
(iv) Disposal of Stapled Units
As outlined above, each individual security comprising a Stapled Unit is a separate CGT asset. As such, the disposal of a Stapled Unit
will constitute a disposal for CGT purposes in respect of each individual security comprising that Stapled Unit. Accordingly, the capital
proceeds referable to the disposal of each individual security will need to be determined by apportioning the total capital proceeds
received in respect of the disposal of the Stapled Unit on a reasonable basis.
You will, upon disposal of a Stapled Unit make a capital gain in relation to a particular security if the portion of the capital proceeds
reasonably attributed to the Westfield Retail Trust 1 unit or Westfield Retail Trust 2 unit (as applicable) exceeds the cost base of the
unit. You will, upon disposal of a Stapled Unit make a capital loss if the portion of the capital proceeds reasonably attributed to the
Westfield Retail Trust 1 unit or Westfield Retail Trust 2 unit (as applicable) is less than the reduced cost base of the unit.
Generally, a capital loss arising in respect of one security can offset a capital gain arising in respect of another, subject to specific loss
rules for Stapled Unitholders who are companies or trusts.
Stapled Unitholders who are individuals, trustees or complying superannuation entities and who have held a Stapled Unit for 12
months or more at the time of sale should be entitled to apply the applicable CGT discount factor to reduce any capital gain (after
offsetting capital losses) made on the sale of the Stapled Unit. If you are an individual or trustee applying the CGT discount, your
taxable capital gain (after offsetting any current year capital losses or carry forward net capital losses from previous years) will be
reduced by one-half (or one-third if you are a complying superannuation entity).
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SECTION 9: TAXATION IMPLICATIONS
(d) Income tax – non-resident Stapled Unitholders
The information in this section dealing with non-residents of Australia does not apply to non-residents who:
––
hold their Stapled Units through a permanent establishment in Australia; or
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hold their Stapled Units via an interposed Australian entity(s).
(i) Westfield Retail Trust 1 Distributions
It is expected that Westfield Retail Trust 1 will be a managed investment trust (MIT) for tax purposes. RE1 will be liable to deduct
withholding tax on your behalf in respect of the fund payment component of a distribution payable to you. This withholding tax does
not always represent the final tax liability in respect of such distributions and in some circumstances you may have additional tax filing
and tax payment obligations.
In respect of Westfield Retail Trust 1, the fund payment component of a distribution is likely to include amounts representing:
–Australian source income, such as rental income from Australian Properties; and
–capital gains in respect of taxable Australian property, grossed up for any CGT discount that has been applied at the Westfield
Retail Trust 1 level (i.e. withholding tax is imposed on the gross capital gain). Taxable Australian property includes real property
situated in Australia.
The fund payment component will not include amounts attributable to trust income comprising:
–interest, royalties or dividends (however, distributions attributable to such trust income may be subject to withholding tax –
see below);
–capital gains in respect of CGT assets that are not taxable Australian property; and
–tax deferred distributions.
The withholding rate depends on whether you are a resident of a country with which Australia has determined to be an “exchange of
information country”. If you are not a resident of such a country, the withholding rate will be 30%. If you are a resident of such a country
the rate of withholding will be 15% for the distribution in respect of the income year ended 31 December 2010 and 7.5%, thereafter.
In respect of the interest, dividend and royalty components of distributions, RE1 will also be required to deduct withholding tax from
any amounts distributed to you.
For distributions from Westfield Retail Trust 1 attributable to:
–interest income of Westfield Retail Trust 1, the withholding tax rate is 10%;
–unfranked dividends received by Westfield Retail Trust 1, the withholding tax rate is generally 30%. However, for residents of
countries with which Australia has entered into a tax treaty, the rate of withholding on such distributions is generally reduced
to 15%;
–franked distributions received by Westfield Retail Trust 1, no withholding tax will apply; and
–royalty income of Westfield Retail Trust 1, the withholding tax rate is generally 30%. However, for residents of countries
with which Australia has entered into a tax treaty, the rate of withholding on such distributions is generally reduced to 10%
(or in some cases 5%).
The interest, dividend and royalty withholding taxes represent a final tax liability for non-resident Stapled Unitholders for these
amounts (i.e. there is no further tax on an assessment basis in respect of these amounts).
(ii) Westfield Retail Trust 2 distributions
Franked distributions from Westfield Retail Trust 2 will be exempt from withholding tax. Unfranked distributions will be subject to
dividend withholding tax. The withholding tax rate is generally 30%. However, for dividends paid to residents of countries with which
Australia has entered into a tax treaty, the rate of withholding is generally reduced to 15%.
(iii) Disposal of Stapled Units
Upon disposal of your Stapled Units:
(A)no CGT liability will arise in relation to the disposal of the Westfield Retail Trust 1 component of your Stapled Unit unless you
(and your associates) either:
–
–prior to the time of disposal, held 10% or more of the issued capital in Westfield Retail Trust 1 throughout a 12 month period
that began no earlier than 24 months before the time of the disposal and ended no later than that time; and
at the time of the disposal, hold 10% or more of the issued capital in Westfield Retail Trust 1; or
(B)no CGT liability will arise in relation to the disposal of the Westfield Retail Trust 2 component of your Stapled Unit if, as expected,
the underlying value of Westfield Retail Trust 2 is not principally derived from Australian real property either at the time of disposal
or throughout a 12 month period that began no earlier than 24 months before the time of the disposal and ended no later than
that time. If the underlying value of Westfield Retail Trust 2 is principally derived from Australian real property, your tax treatment in
respect of Westfield Retail Trust 2 will be the same as that for Westfield Retail Trust 1 outlined in (A) above.
(e)GST
There is no Australian goods and services tax payable in respect of the acquisition or disposal of Stapled Units.
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Westfield Retail Trust Offer of Stapled Units
9.2 New Zealand taxation implications
This section applies only to New Zealand tax resident Stapled Unitholders (NZ Holders).
(a) The Westfield Securityholder Offer
The entitlement to acquire Stapled Units under the Westfield Securityholder Offer will be granted to Westfield Group Securityholders prior
to their becoming holders of Westfield Retail Trust 1 Units and Westfield Retail Trust 2 Units.
If you accept the Westfield Securityholder Offer, you should not derive assessable income from the acceptance. The income tax
consequences of acquiring, holding and disposing of Stapled Units are dealt with in section 9.2(b) below.
If you do not accept the Westfield Securityholder Offer, your entitlements will lapse without your receiving any disposal proceeds.
There should be no income tax consequences arising from the lapsing of your entitlements.
(b) New Zealand income tax implications of acquiring, holding and disposing of Stapled Units pursuant to the Offer
Your New Zealand tax treatment will depend on whether the foreign investment fund (FIF) rules apply to you.
New Zealand’s FIF rules govern the taxation of offshore portfolio equity investment and may apply to NZ Holders in relation to their Stapled
Units. The method which is generally used for calculating income under the FIF rules is the “fair dividend rate” method.
(i) If the FIF rules apply
If the FIF rules apply to a NZ Holder (Non-De Minimis Holder), under the fair dividend rate method you will be subject to
New Zealand tax at your applicable tax rate on 5% of the opening market value (i.e. as at the start of your income year, which for
most NZ Holders will be 1 April) of all your investments in non-New Zealand companies and unit trusts (taxed as a pool), subject to
the exceptions listed below. Dividends from those investments and any gains on sale or redemption will not separately be subject to
New Zealand tax (except where the “quick sale” rules apply – see below). You may be entitled to a credit against your FIF income for
any Australian withholding tax deducted from distributions, depending on your personal circumstances. If the Stapled Units are not
held by you on the first day of your income year, they are not included in the pool for calculating income under this method.
“Quick sale” rules apply when Stapled Units are acquired and sold within the same income year. The quick sale rules result in
Non‑De Minimis Holders being taxed on the lesser of (i) disposal proceeds and distributions less the cost of Stapled Units acquired
and sold; and (ii) 5% of the cost of the Stapled Units acquired and sold. The cost of Stapled Units is determined on an average cost
basis for all such Stapled Units acquired in the income year.
You may be able to use a method other than the fair dividend rate method, depending on your circumstances. For example,
individuals and certain qualifying trusts whose non-New Zealand equity investments return less than 5% of their opening market value
in an income year are entitled to use the “comparative value” method. This taxes the lower return (being the total of all realised and
unrealised gains) rather than the deemed 5% of opening market value. The “cost” method may also be available.
(ii) If the FIF rules do not apply
The FIF rules do not apply to:
–individuals (not family trusts or companies) whose aggregate holdings in foreign companies and unit trusts (other than interests
which qualify for the Australian Listed Exemption or the RWT Proxy Exemption – see below) at all times during the income year
cost less than NZ$50,000 (NZ$50,000 Exemption);
–investments in Australian tax resident companies that are listed on the ASX, are included in an approved index such as the
All Ordinaries, and maintain a franking account (Australian Listed Exemption). This exemption will not apply to the Stapled Units
(due to their stapled nature), but may be relevant in determining if the NZ$50,000 Exemption applies to you.
–investments in certain Australian unit trusts where specific withholding tax arrangements have been put in place (RWT Proxy
Exemption). This exemption will not apply to the Stapled Units because it is not intended that an “RWT proxy” be appointed as
required by this exemption, but may be relevant in determining if the NZ$50,000 Exemption applies to you.
If the NZ$50,000 Exemption applies to a NZ Holder (De Minimis Holder), you will not be subject to the FIF regime described above
and will be liable to New Zealand tax generally only on distributions received in respect of the Stapled Units (subject to any tax in
respect of sale proceeds – see below). The distributions will constitute income subject to tax at your applicable rate, with a credit for
any Australian withholding tax deducted from the distributions being available depending on your personal circumstances. No credit is
available in New Zealand for any Australian franking credits attached to the distributions.
If a De Minimis Holder disposes of their Stapled Units, the proceeds should not constitute assessable income for New Zealand
income tax purposes unless the De Minimis Holder:
–acquired the Stapled Units for the dominant purpose or intention of sale;
–carries on a business that comprises dealing in stapled securities (however, as noted above, these New Zealand taxation
comments do not apply to such Stapled Unitholders); or
–derives the sale proceeds from the carrying on or carrying out of any undertaking or scheme entered into or devised for the
purpose of making a profit.
(c)GST
There is no New Zealand goods and services tax payable in respect of the acquisition or disposal of Stapled Units.
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