ATO Interpretative Decision
ATO ID 2010/114
Income TaxCapital gains tax: disposal or creation of assets by partners to a wholly-owned company
FOI status: may be released
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Where the partners in a partnership dispose of their interests in a CGT asset of the partnership to a company, and receive shares in the company as consideration for their disposal, is the requirement in subsection 122-135(1) of the Income Tax Assessment Act 1997 (ITAA 1997) satisfied if the partners are not issued with shares in the company until completion of the disposal contract.
Yes. The requirement in subsection 122-135(1) of the ITAA 1997 is satisfied because the partners are taken to have owned the shares in the company from the time they enter into the disposal contract.
Two partners in a partnership are the only shareholders of a company. The partners entered into a contract to dispose of all the assets of a business carried on by the partnership to the company. Under the disposal contract, the company undertakes to issue shares to the partners as consideration for their disposal. Shares will be issued to the partners upon completion of the disposal contract in two months time.
Reasons for Decision
Section 122-125 of the ITAA 1997 provides that all of the partners in a partnership can choose to obtain a roll-over if one of the specified CGT trigger event happens involving the partners and a company in the circumstances set out in sections 122-130 to 122-140 of the ITAA 1997.
Subsection 122-135(1) of the ITAA 1997 requires that the partners must own all the shares in the company just after the time of the trigger event. The time of the relevant trigger event here, that is, CGT event A1, is when the partners enter into the contract for the disposal (subsection 104-10(3) of the ITAA 1997).
Under subsection 109-5(2) of the ITAA 1997, the partners are taken to have acquired the shares in the company when the disposal contract is entered into. For the purposes of section 122-135 of the ITAA 1997, the partners are taken to own the shares in the company from the time they acquired the shares, that is, from the time when they enter into the contract.
Accordingly, the requirement in subsection 122-135(1) of the ITAA 1997 is satisfied because the partners own all the shares in the company just after the time of the trigger event.Date of decision: 30 April 2010
Year of income: Year ended 30 June 2010
Capital gains tax
CGT roll-over relief
Disposal of assets
Date reviewed: 21 July 2017