02 Oct 08 Does an ENCO have to be a legally enforceable obligation? - TD 2008/D14This draft Taxation Determination was released on 1 October 2008 for public comment by 31 October 2008. Its full title is "Income tax: does s 974-135(1) of the ITAA 1997 only apply to a legally enforceable obligation?"
The answer given is: "No. Under s 974-135(1) of ITAA 1997, there will be an "effectively non-contingent obligation" to take an action under a scheme if, having regard to the pricing, terms and conditions of a scheme, there is in substance or effect a non-contingent obligation to take that action. An "obligation" for the purposes of this provision does not have to be a legally enforceable obligation."
For a copy of TD 2008/D14, go here.