ATO Interpretative Decision
ATO ID 2002/542
Income Tax
Employee Share Scheme - Late section 139E Election request - not within a reasonable timeFOI 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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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.
Issue
Will the Commissioner exercise his discretion under subsection 139E(2) of the Income Tax Assessment Act 1936 (ITAA 1936) to allow the taxpayer to make a late election where a taxpayer only became aware of section 139E of the ITAA 1936 some time after the lodgement of the taxpayer's tax return?
Decision
No. The Commissioner will not exercise his discretion under subsection 139E(2) of the ITAA 1936 to accept the taxpayer's late election, where a taxpayer only became aware of section 139E of the ITAA 1936 some time after the lodgement of the taxpayer's tax return.
Facts
The taxpayer was granted rights to acquire shares from their employer (an overseas company) through an employee share scheme. The rights were qualifying rights under section 139CD of the ITAA 1936 and were issued at a discount.
The taxpayer did not make an election under subsection 139E(1) of the ITAA 1936 to include the discount on the qualifying rights in assessable income of the year the qualifying rights were acquired.
Twelve months after lodging their income tax return, the taxpayer requested that the Commissioner exercise his discretion and accept a late election as that was when the taxpayer was made aware that an election could have been made for the rights. The taxpayer's grounds for extension were:
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- when the rights were granted, the information provided by the employer only outlined its overseas country's tax treatment of the rights,
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- whilst the employer documentation suggests that, as an international employee, the taxpayer seek tax advice in the country of residence, this was not sought by the taxpayer. The taxpayer assumed the Australian tax treatment would be the same as the overseas country's tax treatment,
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- the taxpayer's tax agent was not familiar with the Employee Share Scheme provisions outlined in Division 13A of the ITAA 1936, and
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- the taxpayer believes that if information on Australia's taxation treatment of the rights had been provided by their overseas employer, the taxpayer would have made an election under section 139E of the ITAA 1936 for the income year that the rights were granted.
Reasons for Decision
A taxpayer who acquires qualifying rights may make an election to include the discount in assessable income in the year of acquisition (subsections 139B(2) and 139E(1) of the ITAA 1936). A written election must be made before the taxpayer lodges the return of income for that year, or within such further time as the Commissioner allows (subsection 139E(2) of the ITAA 1936).
The taxpayer did not make an election to include the discount in assessable income in the year of acquisition. The taxpayer requested that the Commissioner's discretion be exercised to accept a late election.
When considering whether to exercise the discretion contained in subsection 139E (2) of the ITAA 1936, the Commissioner considers the following factors:
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- the circumstances which led to the taxpayer not making the election prior to the lodgement of their income tax return for the relevant income year;
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- the taxpayer's explanation of the time delay between the date of lodgement of the income tax return and the date of the late election; and
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- whether it would be fair and equitable in the circumstances for the Commissioner's discretion to be exercised.
When the rights were granted, international employees were provided with information that indicated that they seek advice on the taxation treatment for the rights in their country of residence.
The taxpayer's explanation of the time delay between the date of lodgement of the income tax return and the date of the late election was that the taxpayer was unaware of the Australian taxation treatment of the rights. The taxpayer did not seek Australian taxation advice as suggested in the material provided by the employer, but rather assumed that the tax treatment would be the same as in the overseas country.
Based on the taxpayer's explanation for the 12 month time delay between lodgement of the return and the request for the late election, the Commissioner does not consider the explanation warrants an extension of time to make a late election.
The discount given on the qualifying rights, calculated under either subsections 139CC(3) or 139CC(4) of the ITAA 1936, needs to be included in the taxpayer's assessable income in the income year in which the cessation time occurs (subsection 139B(3) of the ITAA 1936).
Date of decision: 28 March 2002
Legislative References:
Income Tax Assessment Act 1936
Division 13A
subsection 139B(2)
subsection 139B(3)
subsection 139CC(3)
subsection 139CC(4)
section 139 CD
subsection 139E(1)
subsection 139E(2)
ATO ID 2001/402 ATO ID 2001/607
Keywords
Employee share schemes & options
Commissioner's discretion
Date reviewed: 5 May 2014
ISSN: 1445-2782