ATO Interpretative Decision
ATO ID 2011/26
Income Tax
Capital gains tax: assignment of renewable energy certificatesFOI status: may be released
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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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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.
Issue
Are there any consequences under Part 3-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for the prospective owner of a small generation unit or a solar water heater, if they use their right to create a renewable energy certificate (REC) to acquire the unit or heater?
Decision
No, there are no consequences under Part 3-1 of the ITAA 1997 in these circumstances for the prospective owner of the generation unit or solar water heater.
Facts
You have contracted to have a solar power generation unit installed.
The unit is an eligible small generation unit for the purposes of the Renewable Energy (Electricity) Act 2000 (Cth) (the REE Act)
Following your purchase and installation of the generation unit a statutory right arises under the REE Act entitling you as the owner of the generation unit to create RECs.
However, as provided for under the REE Act, you have entered into an agreement with the installer of the unit, who is an agent for the purposes of the REE Act, assigning your right to create RECs to the installer in return for a financial benefit. The financial benefit you receive under the agreement with the installer is a reduction in the amount of money you will pay for the purchase and installation of the generation unit. The reduction reflects the value of the right to create RECs that you assigned to the installer.
Reasons for Decision
The right to create RECs is a CGT asset. The right arises under the REE Act (Taxation Determination TD 1999/77).
CGT event A1 happens if a change in ownership occurs from you to another entity, whether because of some act or event or by operation of law (subsection 104-10(2) of the ITAA 1997).
The transfer of the right, viewed separately from the acquisition of the generation unit, might be taken to cause CGT event A1 to happen.
However in this case, where as part of the process of acquiring the small generation unit you assign your rights to the installer, it is considered that the reality of the matter is that you are acquiring a generation unit and the assignment of the right to create a REC merely facilitates that acquisition.
Accordingly, where there is an assignment of the right to create a REC, and a reduction in the amount of money required to be paid for the small generation unit (the underlying asset), the CGT provisions of the ITAA 1997 will apply only to the acquisition of the underlying asset and not to the right that merely facilitates the acquisition.
Year of income: Year ended 30 June 2011
Legislative References:
Income Tax Assessment Act 1997
subsection 104-10(2)
Related Public Rulings (including Determinations)
Taxation Determination TD 1999/77
ATO ID 2003/775
ATO ID 2003/790
Keywords
Capital gains
Capital gains tax
CGT events
CGT event A1 -disposal of a CGT asset
ISSN: 1445-2782
| Date: | Version: | |
| You are here | 16 March 2011 | Original statement |
| 16 January 2015 | Updated statement |