Definition and taxation of deferred purchase agreements

The Australian Taxation Office recently issued two draft determinations, TD 2008/4 and TD 2008/5, for public comment, dealing with the proposed tax treatment of deferred purchase agreement (DPA) warrants, and proposing that a DPA warrant is not a "security" within the meaning of the Income Tax Assessment Act 1936 (Cth). According to the preliminary view of the Commissioner of Taxation, the tax treatment of a DPA warrant would ordinarily give rise to a capital gain or loss; however, the Commissioner also describes circumstances where the gain arising from a DPA warrant could be treated as assessable income. This article examines the two determinations and analyses the tax treatment of DPA warrants in light of the Commissioner's preliminary determinations and relevant tax principles.