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Taxation Determination

TD 93/179

Income tax: capital gains: if a liquidator's written declaration was made before 11 November 1991, does the Commissioner have a discretion to accept the statement as valid under section 160WA?

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FOI status:

may be releasedFOI number: I 1216109

This Determination, to the extent that it is capable of being a 'public ruling' in terms of Part IVAAA of the Taxation Administration Act 1953 , is a public ruling for the purposes of that Part. Taxation Ruling TR 92/1 explains when a Determination is a public ruling and how it is binding on the Commissioner. Unless otherwise stated, this Determination applies to years commencing both before and after its date of issue. However, this Determination does not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of the Determination (see paragraphs 21 and 22 of Taxation Ruling TR 92/20).

1. No. Statements made by a liquidator before 11 November 1991 would not be valid in terms of section 160WA. The Commissioner has no discretion to accept such statements as valid declarations in these circumstances. However, there is nothing in section 160WA that would preclude a liquidator making, on or after 11 November 1991, a (valid) written declaration in terms of this section, even though the liquidator may have made a (invalid) written declaration prior to that date.

2. Subsection 160WA(1) of the Income Tax Assessment Act 1936 deems a disposal and re-acquisition of shares for no consideration if a liquidator makes a written declaration on or after 11 November 1991 . The declaration must state that the liquidator has reasonable grounds to believe that there is no likelihood that the shareholders (or shareholders of a particular class of shares) will receive any distribution in the course of winding-up a company.

3. The question of how shareholders may be notified of a liquidator's written declaration and in what format that declaration should be made has been dealt with in TD 92/101 and TD 92/102.

Commissioner of Taxation
9/9/93

Previously issued as Draft TD 93/D178

References

ATO references:
NO ADVG BRIS CBD (CGTDET78)

ISSN 1038 - 8982

Related Rulings/Determinations:

TD 92/101
TD 92/102

Subject References:
Commissioner's discretion
liquidator's written declaration
winding-up of a company

Legislative References:
ITAA 160WA
ITAA 160W(1)

TD 93/179 history
  Date: Version: Change:
  9 September 1993 Original ruling  
You are here 29 November 2006 Original ruling + note Repeal provision note
  10 January 2007 Withdrawn  

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