Section 180: when an arrangement is deemed to lack commercial substance

When an arrangement is deemed to lack commercial substance

An arrangement is deemed to lack commercial substance if:

• the substance or effect of the arrangement as a whole is inconsistent with, or differs significantly from, the form of its individual steps or a part; or
• it involves or includes round trip financing, an accommodating party, or elements that offset or cancel each other, or a transaction conducted through one or more persons that disguises the value, location, source, ownership or control of funds involved; or
• it involves locating an asset, a transaction, or a party's place of residence without any substantial commercial purpose other than obtaining a tax benefit (but for Chapter XI) for a party; or
• it does not have a significant effect on the business risks or net cash flows of any party, apart from the effect attributable to the tax benefit that would otherwise be obtained.

What counts as round trip financing

Round trip financing includes any arrangement in which, through a series of transactions, funds are transferred among the parties and those transactions have no substantial commercial purpose other than obtaining the tax benefit (but for Chapter XI). This applies irrespective of whether the funds can be traced to any specific transfer or receipt, the timing or sequence of transfers, or the means, manner or mode through which the funds are transferred or received.

Factors that are relevant but not sufficient on their own

The following may be relevant, but are not sufficient by themselves, to determine whether an arrangement lacks commercial substance:

• the period or time for which the arrangement (including its operations) exists;
• the fact that taxes have been paid, directly or indirectly, under the arrangement;
• the fact that an exit route (including transfer of any activity, business or operations) is provided by the arrangement.

Frequently asked questions