Treasury has released exposure draft legislation and a consultation paper proposing changes to the regulatory framework for certain employee share schemes. The changes are intended to make it easier for businesses to create employee share schemes and seek to implement the Government’s 2021-22 Budget proposals. It should be noted that there are no changes to any income tax related legislation in the draft, ie the legislation would only amend the Corporations Act (“the Act“). The result is that the measures are only of interest to those who are involved in setting up or running employee share schemes.
The changes include the following:
- making the availability of regulatory relief contingent on offers including certain terms – including terms limiting the size of purchases and provision of disclosure documents;
- changing the limit on the size of purchases to a monetary cap where an employee can outlay $30,000 per year (which can be accrued for unexercised options over a 5-year period, up to a maximum of $150,000) plus 70% of dividends and 70% of cash bonuses, for an unlisted company ESS offer;
- removing the limit on the size of purchases where the terms are such that an employee cannot pay for their interests unless there a liquidity event, and the sale or listing price is higher than what the employee will pay;
- limiting loans to employees who are not existing shareholders;
- extending regulatory relief in respect of issues to certain discretionary trusts, consistent with existing relief in respect of offers to senior managers;
- extending regulatory relief in respect of free offers to independent contractors; and
- including ASIC exemption and modification powers, and regulation making powers.
The provisions will commence 3 months after date of assent to the amending legislation.
COMMENTS are due by 4 February 2022
[Treasury website: Consultation landing page, paper, draft legislation, draft EM; LTN 1, 5/1/22]
[Tax Month – January 2022 – Previous 2021] 9.1.22