ATO Interpretative Decision
ATO ID 2002/642 (Withdrawn)
Income Tax
Deductions and expenses: share tradingFOI status: may be released
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ATO ID 2002/642 contains an incorrect application of the legislation and is therefore withdrawn. The 'Issue' and 'Decision' in this ATO ID contain inaccurate statements of the law, as the carrying on of a business is not a requirement of section 25-40 of the Income Tax Assessment Act 1997. For this reason, ATO ID 2002/642 is withdrawn.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Can the taxpayer claim an income tax deduction for a loss from speculative share trading under section 25-40 of the Income Tax Assessment Act 1997 (ITAA1997) where the activity is not carried on as a business?
Decision
No. A loss from speculative share trading activity that is not carried on as a business is not an allowable deduction under section 25-40 of the ITAA1997.
Facts
The taxpayer purchased speculative shares with the intention of making a profit on resale of the shares.
The shares are in the mining sector and are not dividend paying. The shares were not purchased with the intention of long term holding for capital appreciation or to derive assessable income as dividends or bonus share issues.
The taxpayer made a net loss from buying and selling the speculative shares.
The taxpayer does not believe the share activities constitute carrying on a business.
The taxpayer believes that each individual speculative share transaction is an isolated profit making plan or undertaking.
Reasons for Decision
Generally, section 25-40 of the ITAA1997 allows a deduction for a loss arising from the carrying out of a profit-making undertaking if any profit from that undertaking would be included in the taxpayer's assessable income by section 15-15 of the ITAA1997.
However, there is an important exception to this rule. In accordance with subsection 25-40(2) of the ITAA1997, a loss from a profit-making undertaking is not an allowable deduction if the loss arises in respect of the sale of property acquired on or after 20 September 1985. The term property encompasses not only physical assets but also intangible things such as shares and securities.
As the shares constitute property acquired after 20 September 1985, the loss on the sale of the shares is not an allowable deduction. Rather, the loss from the sale of the shares is dealt with under the capital gains tax provisions.
Date of decision: 2 May 2002Year of income: Year ended 30 June 2001
Legislative References:
Income Tax Assessment Act 1997
section 25-40
subsection 25-40(2)
Keywords
Hobby vs business
Profit making purpose
Deductions & expenses
Shares
ISSN: 1445-2782
| Date: | Version: | |
| 2 May 2002 | Original statement | |
| You are here | 12 September 2002 | Archived |