CGT event B1 happens to real estate if you enter into an agreement where the new owner is entitled to possession of the land or the receipt of rents and profits before becoming entitled to a transfer or conveyance of the land.
Where this happens under a contract, it is known as a ‘terms contract’ and the new owner usually completes the purchase by paying the balance of the purchase price and receiving the instrument of transfer and title deeds.
It may also happen where an agreement is made with a relative or other party to use and enjoy the property for a specified period, after which title to the property passes to them. It will not happen where, under an arrangement, title to a property may pass at an unspecified time in the future.
CGT event B1 happens when use and enjoyment of the land is first obtained by the new owner. Use and enjoyment of the land from a practical point of view takes place at the time the new owner gets possession of the land or the date the new owner becomes entitled to the receipt of rents and profits.
If the agreement falls through before completion and title to the land does not pass to the new owner, you may be entitled to amend your assessment for the year in which CGT event B1 happened.
CGT event C1 happens if an asset is lost or destroyed. This event may happen if, for example, a building on your land is destroyed by fire. Your capital proceeds for CGT event C1 happening include any insurance proceeds you may receive for the loss or destruction. The market value substitution rule for capital proceeds that generally applies if you receive no capital proceeds does not apply if CGT event C1 happens.
The market value substitution rule for capital proceeds (see Definitions) applies if:
- the amount of capital proceeds you receive is more or less than the market value of the right
- you and the person you granted the right to were not dealing with each other at arm’s length in connection with the event.
The amount of your capital gain or capital loss from CGT event D2 is the difference between what you receive for granting the right and any expenditure you incurred on it. The CGT discount does not apply to CGT event D2.
Example 55: Granting of an option
You were approached by Colleen, who was interested in buying your land. On 30 June 2018, you granted her an option to purchase your land within 12 months for $200,000. Colleen pays you $10,000 for the grant of the option. You incur legal fees of $500. You made a capital gain in the 2017–18 income year of $9,500.End of example
Exercise of an option
If the option you granted is later exercised, you ignore any capital gain or capital loss you made from the grant, renewal or extension. You may have to amend your income tax assessment for an earlier income year.
Similarly, any capital gain or capital loss that the grantee would otherwise make from the exercise of the option is disregarded.
The effect of the exercise of an option depends on whether the option was a ‘call option’ or a ‘put option’. A call option is one that binds the grantor to dispose of an asset. A put option binds the grantor to acquire an asset.
Example 56: Granting of an option (continued)
On 1 February 2019, Colleen exercised the option you granted her. You disregard the capital gain that you made in 2017–18 income year and you request an amendment of your income tax assessment to exclude that amount. The $10,000 you received for the grant of the option is considered to be part of the capital proceeds for the sale of your property in the 2018–19 income year. Your capital gain or capital loss from the property is the difference between its cost base or reduced cost base and $210,000.End of example
CGT event D4 happens if you enter into a conservation covenant after 15 June 2000 over land that you own and if you receive capital proceeds for entering into the covenant.
From 1 July 2002, CGT event D4 also happens if you receive no capital proceeds for entering into the covenant and you can claim a tax deduction for entering into the covenant. One of the conditions for a tax deduction is that the covenant is entered into with a deductible gift recipient or an Australian Government agency (that is, the Commonwealth, a state, a territory or one of their authorities).
A ‘conservation covenant’ is a covenant that:
- restricts or prohibits certain activities on the land that could degrade the environmental value of the land
- is permanent and binding on current and future land owners (by way of registration on the title to the land where possible)
- is approved by the Environment Minister (including those entered into under a program approved by that Minister).
If CGT event D4 happens, you calculate your capital gain by comparing your capital proceeds from entering into the covenant with the portion of the cost base of the land that is attributable to the covenant.
Similarly, you calculate your capital loss by comparing your capital proceeds from entering into the covenant with the portion of the reduced cost base of the land that is attributable to the covenant.
The market value substitution rule for capital proceeds that generally applies if you receive no consideration for a CGT event does not apply if CGT event D4 happens. Instead, the capital proceeds are equal to the amount you can claim as a tax deduction for entering into the covenant.
Calculate the relevant portion of the cost base and reduced cost base attributable to the covenant using this formula:
A × (B ÷ C)
A is cost base (reduced cost base)
B is capital proceeds from entering into the covenant over land
C is those capital proceeds plus the market value of the land just after you enter into the covenant
As the conservation covenant will affect the value of the entire land you must use the cost base of the entire land in calculating the cost base apportioned to the covenant. This is the case even if the covenant specifically states within its terms that the restrictions as to use only apply to part of the land.
CGT event D4 will not happen if you receive no capital proceeds and the conditions for a tax deduction for entering into the covenant are not satisfied. In this case, CGT event D1 will apply.
CGT events involving leases
There are a number of CGT events that may apply to the lease of land.
CGT event F1 happens if you grant a lease to a person or entity or if you extend or renew a lease that you had previously granted. In the case of a long-term lease (one that may be expected to continue for at least 50 years), you can choose to treat the grant (renewal or extension) of the lease as a part disposal of the underlying leased property.
Example 57: Receiving an amount for granting a lease
Elisabeth operates a profitable footwear retailing business, and wishes to lease some shop space in a prestigious location in the Sydney CBD. However, the demand for shop space in the locality is great, and competition between prospective tenants is fierce. In order to ensure that she secures the lease of the particular shop space that she wants, Elisabeth pays John (the owner of the shop space) a premium of $6,000 in consideration for the grant of that particular lease.
She enters into the lease on 6 September 2008, and John incurs stamp duty of $300 and solicitor’s fees of $500 on the grant of the lease.
John makes a capital gain of $5,200 from CGT event F1:
less incidental costs: (that is, stamp duty of $300 and solicitors fees of $500)
For Elisabeth, this transaction results in CGT event C2 when the lease expires.End of example
The amount of your capital gain or capital loss from CGT event F1 is the difference between any premium you got for granting the lease and the expenditure you incurred in granting it. The CGT discount does not apply to CGT event F1. The market value substitution rule for capital proceeds that generally applies if you receive no consideration for a CGT event does not apply if CGT event F1 happens.
CGT event F2 You can choose for CGT event F2 to apply (rather than CGT event F1) when you grant, renew or extend a long-term lease. It can apply if you are the owner of the underlying land or if you grant a sub-lease.
Your capital proceeds if CGT event F2 happens are the greatest of:
- the market value of the freehold or head lease (at the time you grant, renew or extend the lease)
- the market value if you had not granted, renewed or extended the lease
- any premium from the grant, renewal or extension.
There are special cost base rules that apply if you choose for CGT event F2 to apply.
For any later CGT event that happens to the land or the lessor’s lease of it, its cost base and reduced cost base (including the cost base and reduced cost base of any building, part of a building, structure or improvement that is treated as a separate CGT asset) excludes:
- any expenditure incurred before CGT event F2 happens
- the cost of any depreciating asset for which the lessor has deducted or can deduct an amount for its decline in value.
The fourth element of the property’s cost base and reduced cost base includes any payment by the lessor to the lessee to vary or waive a term of the lease or for the forfeiture or surrender of the lease, reduced by the amount of any input tax credit to which the lessor is entitled for the variation or waiver.
CGT event F3 happens if you make a payment to a lessee to vary a lease. You can only make a capital loss from this CGT event. Your capital loss is equal to the expenditure you incurred to change the lease.
CGT event F4 happens if you (as lessee) receive a payment from the lessor for agreeing to vary or waive a term of the lease.
You cannot make a capital loss from this CGT event. You will only make a capital gain from CGT event F4 if the amount of the payment you received exceeds the cost base of your lease at the time when the term is varied. In other cases, you will be required to adjust the cost base of your lease.
The market value substitution rule for capital proceeds that applies if you do not receive market value for a CGT event does not apply if CGT event F4 happens.
Example 58: Payment to lessee for change in lease
Sam is the lessor of a commercial property. His tenant, Peter, currently holds a three-year lease over the property, which has another 26 months to run. A business associate of Sam’s wishes to lease the property from Sam for a 10-year period, beginning in six months’ time, for twice the rent that Peter is currently paying. Sam approaches Peter with an offer of $5,000 cash for Peter to agree to vary the terms of the lease so that the lease will expire in six months’ time. Peter agrees to vary the terms on 10 August 2018.
Sam will make a capital loss of $5,000 from CGT event F3 happening:
less incidental costs and expenditure incurred:
Capital gain or loss
For Peter, this transaction results in CGT event F4 happening. The cost base of Peter’s lease at the time of the variation was $500. He makes a capital gain of $4,500 ($5,000 − $500).End of example
You disregard any capital loss you make from the expiry, forfeiture, surrender or assignment of a lease (except one granted for 99 years or more) if you did not use it solely or mainly for the purpose of producing assessable income, for example, if you used it for private purposes.
CGT event F5 happens if you, as lessor, receive a payment for changing a lease.
The amount of your capital gain or capital loss from CGT event F5 is the difference between what you receive for changing the lease and any expenditure you incurred on it. The CGT discount does not apply to CGT event F5.