Log in or register
Share on LinkedInShare on LinkedIn

ARTICLE · 29 APRIL 2009

Solvency Clauses, Term Subordinated Notes, And Debt/Equity Tax Rules

Clayton Utz
Explore more from Clayton Utz

The Federal Government has released exposure draft regulations that would allow certain term subordinated notes to be treated as debt under the debt/equity tax rules, despite the presence of a solvency clause.

AustraliaCorporate/Commercial Law
Mark Friezer
Mark Friezer
Louise McCoach
Louise McCoach
Author LinkedIn connections

The Federal Government has released exposure draft regulations that would allow certain term subordinated notes to be treated as debt under the debt/equity tax rules, despite the presence of a solvency clause. While the clauses are commonly found in Lower Tier 2 term subordinated notes issued by Authorised Deposit-Taking Institutions, the regulation will apply to all issuers.

This is a long-awaited reform (one which the previous Government had announced nearly four years ago) and will bring some certainty to issuers seeking to claim deduction on the interest payable on these notes.

What Features Would The Term Subordinated Note Need To Qualify?

Under the exposure draft regulations, term cumulative subordinated notes containing a solvency clause must have certain features to be treated as debt:

We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.

Register for freeORLog in

Related Articles

Legal Intelligence Newsletters: sign up for the latest legal and regulatory news on your chosen topics

Read more about

Related Comparative Guides

See more popular content from

Video

Misrepresentation In Commercial Contracts Under Australian Law

Misrepresentation in commercial contracts can expose businesses to significant legal and financial consequences, particularly where inaccurate statements, misleading disclosures, or unrealistic forecasts induce entry into a transaction. Under Australian law, parties may pursue remedies through both common law misrepresentation claims and statutory misleading or deceptive conduct provisions under the Australian Consumer Law, with potential outcomes including rescission, damages, and compensation orders.
AustraliaCorporate/Commercial Law
Stonegate Legal
Stonegate Legal
Article

Frustration Of Contract Explained: Can You Legally Walk Away?

Frustration of contract is widely misunderstood in Australian law, with many assuming contracts automatically end when circumstances become difficult or expensive. This guide examines the strict legal test applied by Australian courts, explaining when supervening events truly discharge contractual obligations and why financial hardship, increased costs, and commercial difficulties typically fall short of the frustration threshold.
AustraliaCorporate/Commercial Law
Stonegate Legal
Stonegate Legal
Article

Force Majeure Clause Risks In Australia Explained

Force majeure clauses in Australian contracts determine whether extraordinary events can suspend, delay, or excuse contractual obligations, but relief depends entirely on precise wording and strict compliance with notice and mitigation requirements. Understanding when businesses can legally invoke force majeure versus when they risk breach of contract claims is critical for managing commercial disruption.
AustraliaCorporate/Commercial Law
Stonegate Legal
Stonegate Legal
Article

When Can You Suspend Performance Under A Contract?

You can suspend performance where your contract permits it, legislation authorises it, or dependent obligations legally justify withholding the particular performance. An unpaid invoice alone does not automatically allow you to stop work. A right to terminate for serious breach also does not automatically create a right to suspend. Unauthorised suspension may itself constitute breach or repudiation.
AustraliaCorporate/Commercial Law
Stonegate Legal
Stonegate Legal
Article

What Is The Liability Under A Contractor Agreement In Australia?

A contractor agreement determines who pays when work goes wrong. Independent contractors carry their own commercial risk, unlike employees, so the agreement allocates that risk in detail. Liability commonly arises from breach of contract, intellectual property infringement, and breaches of confidentiality. Indemnities, liability caps and insurance requirements are the three tools that allocate it. Australian law puts limits on that allocation. Consumer guarantees under the Australian Consumer Law apply automatically, and no contract can exclude them.
AustraliaCorporate/Commercial Law
LegalVision
LegalVision
Article

Dividend Payments - Key Issues For Australian Company Directors

Dividends are a common way for companies to distribute value to shareholders, but whether to declare or pay a dividend is not simply a commercial decision. Directors must ensure that any dividend complies with the Corporations Act 2001 (Cth) (Corporations Act), the company’s constitution and relevant governance requirements, while considering their duties to the company and its creditors.
AustraliaCorporate/Commercial Law
Bartier Perry Solicitors
Bartier Perry Solicitors