Advice under development – capital gains tax issues
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Our public advice and guidance program continues to have a focus on COVID-19 related issues, including:
- consideration of tax and super issues arising from the impacts of COVID-19 on the community, and
- providing practical guidance on the tax and super aspects of the Government’s economic response.
However, we have returned to our ongoing program of work and are updating the status of issues listed on the Program.
If you are concerned about the delay in the delivery of particular pieces of public advice and guidance, email us at publicguidance@ato.gov.au
[3802] Trust capital gains
Title
Final Taxation Determination
Income tax: is the source concept in Division 6 of Part III of the Income Tax Assessment Act 1936 relevant in determining whether a non-resident beneficiary of a resident trust (or trustee for them) is assessed on an amount of trust capital gain arising under Subdivision 115–C of the Income Tax Assessment Act 1997?
Registered
September 2016
Purpose
The final Determination will set out the Commissioner's view on the taxation treatment of capital gains for a non-resident beneficiary or trustee of a resident trust.
Expected completion
To be advised
Comments
Draft TD 2019/D7 published on 30 August 2019. Comments period closed on 27 September 2019. Completion of the final Determination is on hold pending the outcome of Federal Court litigation.
Contact
Karen Rooke, Tax Counsel Network
Phone: (02) 9374 1059
Karen.Rooke@ato.gov.au
[3803] Capital gain from a non-resident beneficiary of a non-fixed trust
Title
Final Taxation Determination
Income tax: does Subdivision 855–A (or subsection 768–915(1)) of the Income Tax Assessment Act 1997 disregard a capital gain that a foreign resident (or temporary resident) beneficiary of a resident non-fixed trust makes because of subsection 115-215(3)?
Registered
September 2016
Purpose
The final Determination will set out the Commissioner's view on the taxation treatment of capital gains from non-taxable Australian property assets of a non-fixed trust.
Expected completion
To be advised
Comments
Draft TD 2019/D6 published on 30 August 2019. Comments period closed 27 September 2019. Completion of the final Determination is on hold pending the outcome of Federal Court litigation.
Contact
Karen Rooke, Tax Counsel Network
Phone: (02) 9374 1059
Karen.Rooke@ato.gov.au
[3953] Back-to-back CGT rollovers
Title
Back-to-back CGT rollovers
Registered
November 2018
Purpose
We are considering the form and content of this guidance. Paragraph 2, 3 and 55, and Examples 3 and 4 of Taxation Determination TD 2020/6 Income tax: what is a 'restructuring' for the purposes of subsection 125-70(1) of the Income Tax Assessment Act 1997? discuss aspects of sequential transactions.
Expected completion
To be advised
Contact
Adam Pritchard, Public Groups and International
Phone: (02) 9374 2775
Adam.Pritchard@ato.gov.au
[3964] Appointment of capital – CGT events E5 or E7
Title
Draft Taxation Determination
Does CGT event E5 or E7 happen if the trustee of a discretionary trust appoints an amount of capital to a beneficiary (eg by special resolution) and later makes a capital distribution in Australian currency in satisfaction of the appointed interest?
Registered
February 2019
Purpose
The draft Determination will set out the Commissioner’s preliminary view on the CGT consequences of:
- appointing an amount of capital to a beneficiary
- the subsequent distribution of Australian currency to the beneficiary in satisfaction of the capital interest.
Expected completion
To be advised
Comments
The release of this and related Determinations (items 3965 and 3966) has been delayed due to higher priority work.
Contact
Justin Dearness, Tax Counsel Network
Phone: (07) 3213 5745
Justin.Dearness@ato.gov.au
[3965] Australian currency denominated asset – CGT events E5 to E7
Title
Draft Taxation Determination
Can an asset with a face value in Australian currency (including an Australian currency banknote or coin) be a CGT asset for CGT events E5 to E7?
Registered
February 2019
Purpose
The draft Determination will set out the Commissioner's view on whether assets with a face value in Australian currency (including Australian currency itself) can be CGT assets for CGT events E5 to E7.
Expected completion
To be advised
Comments
The release of this and related Determinations (items 3964 and 3966) has been delayed due to higher priority work.
Contact
Justin Dearness, Tax Counsel Network
Phone: (07) 3213 5745
Justin.Dearness@ato.gov.au
[3966] Unit trust – CGT events E5 to E8
Title
Draft Taxation Determination
What is the meaning of the term ‘unit trust’ in CGT events E5 to E8, and what are the interaction implications for other CGT events, in particular CGT events E4 and C2?
Registered
February 2019
Purpose
The draft Determination will set out the Commissioner’s proposed view on:
- what is a ‘unit trust’ for CGT events E5 to E8
- its implications for other CGT events.
Expected completion
To be advised
Comments
The release of this and related Determinations (items 3964 and 3965 has been delayed due to higher priority work.
Contact
Justin Dearness, Tax Counsel Network
Phone: (07) 3213 5745
Justin.Dearness@ato.gov.au
[3968] Small business concessions – active asset test
Title
Final Taxation Determination
Income tax: can a company that carries on a business in a general sense as described in TR 2019/1 but whose only activity is renting out an investment property claim the CGT small business concessions in relation to that investment property?
Registered
March 2019
Purpose
The final Determination will provide advice that a company that carries on a business in a general sense, but whose only activity is renting out an investment property cannot claim the CGT small business concessions.
Expected completion
Early 2021
Comments
Draft TD 2019/D4 published on 5 April 2019. Comments period closed on 10 May 2019.
Contact
Renee George, Individuals and Intermediaries
Phone: (07) 4753 7974
Renee.George@ato.gov.au
[3973] The first element of cost base and other deductible expenditure
Title
Final Taxation Determination
Income tax: where a liability is assumed on acquisition of a CGT asset, is the assumed liability excluded from the cost base of the asset if expenditure on discharge of the liability is deductible?
Registered
May 2019
Purpose
The final Determination will provide the Commissioner’s view on the treatment of liabilities assumed upon acquisition of a CGT asset and whether on discharge of these liabilities, subsection 110-45(2) of the Income Tax Assessment 1997 will apply such that they do not form part of the cost base.
Expected completion
To be advised
Comments
Draft TD 2019/D11 published on 30 October 2019. We are in the process of reviewing comments provided, including a submission that was revised in November 2020. The ATO is currently exploring this issue from both a purchaser and vendor perspective and its interaction with the broader tax legislation.
Contact
Matt Miller, Tax Counsel Network
Phone: (07) 3213 6658
Matthew.Miller@ato.gov.au
We are developing advice and guidance on the following capital gains tax issues.