Ensuring Electronic Signature Lawfulness for Employee Compliance Survey in Australia

How to eSign a document: electronic signature lawfulness for Employee Compliance Survey in Australia

[Music] this video is about an aspect of the australian employee share scheme tax rules these are in division 83-a of the 1997 tax act under the employee share scheme rules taxation can be delayed until among other things a genuine restriction on the disposal of shares or options to acquire shares no longer applies or is lifted what is a genuine restriction on the disposal of shares or rights on 12 november 2021 the ato released a draft taxation determination td 2021-d5 it asks the question when are you genuinely restricted from immediately disposing of an interest provided under an employee share scheme broadly australia's tax law has rules that bring into the assessable income of an employee the discount that is received by an employee on shares or rights to shares that are granted in respect of an employee's employment the shares or rights to shares are referred to as an ess interest the discount on the ess interests can be accessible as soon as the employee obtains the ess interest however in many employee share schemes the ability to trade in the ess interest is restricted by the employer this is used by the employer as a way to motivate and retain the employee restrictions are lifted when an employee reaches certain goals such as length of service or predefined contributions to their employer where among other things there is a restriction on the ability of the employee to be able to dispose of the ess interests the law will delay the point at which the discount is assessed however the law requires the restriction to be genuine td 2021-d5 gives the ato's views about what it considers to be a genuine restriction the draft tax determination states that there is no definition in the law of a genuine restriction the term takes its ordinary meaning the draft ruling makes these points about a genuine restriction there must be serious and enforced consequences when a breach of a scheme's disposal restriction occurs a disposal restriction is not genuine if it is open to manipulation such that it does not in a real practical sense limit the disposal a requirement to make an application to your employer or a company discretion to allow trade do not necessarily constitute genuine disposal restrictions a disposal restriction will still be considered a genuine disposal restriction if it is able to be lifted in exceptional and extraordinary circumstances for example severe financial hardship this is example three from the draft ruling close co-limited an australian resident company establishes an employee share scheme to provide ess interests to its employees under the scheme chloe a director and shareholder acquires the shares in close co-limited for nil consideration under the terms of the close co-limited employee share scheme an employee's disposal of shares is subject to the grant of permission to dispose of their shares by the scheme administrator the scheme administrator is an associate of was appointed by and may be dismissed by chloe at her discretion the administrator habitually acts in ance with chloe's wishes chloe contends she is genuinely restricted by the scheme of disposing of the shares received under the ess as chloe is in a position to control the decisions of the scheme administrator including whether she can dispose of her shares the scheme's disposal restriction is illusory it is therefore not a genuine disposal restriction please note that td 2021-d5 is a draft tax determination there may be changes in the final version [Music]