ATO Interpretative Decision
ATO ID 2003/240
Income Tax
Deferred capital loss or deduction: option granted by a company to acquire shares in it endsFOI status: may be released
Status of this decision: Decision Current
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Does Subdivision 170-D of the Income Tax Assessment Act 1997 (ITAA 1997) apply to disregard a capital loss a company made because CGT event C3 (section 104-30) of ITAA 1997 happened in respect of an option granted by the company?
Decision
No. Paragraph 170-255(1)(c) of the ITAA 1997 provides that Subdivision 170-D of the ITAA 1997 only applies to disregard a capital loss where a deferral event involves the happening of CGT event A1, B1, D1, D2, D3 or F1, not CGT event C3.
Facts
The originating company granted an option to another entity to acquire shares in the originating company.
Upon the ending of the option, section 104-30 of the ITAA 1997 provided that CGT event C3 happened to the originating company, resulting in the originating company making a capital loss.
Reasons for Decision
Subsection 170-255(1) of the ITAA 1997 provides that Subdivision 170-D of the ITAA 1997 will apply if, among other things:
- (a)
- an event (the deferral event ) happens involving a company (the originating company ) and another entity; and
- (b)
- one or more of the following apply:
- (i)
- the deferral event is a *CGT event that would have resulted in the originating company making a *capital loss (except a capital loss that would be disregarded under a provision of this Act other than this Subdivision);
- (ii)
- ...;
- (iii)
- ...; and
- (c)
- if subparagraph (b)(i) applies -- the CGT event is one of the following:
- (i)
- CGT events A1 and B1 (a disposal case );
- (ii)
- CGT events D1, D2, D3 and F1 (a creation case ).
- * denotes a term defined in section 995-1 of the ITAA 1997
For Subdivision 170-D of the ITAA 1997 to apply, paragraphs 170-255(1)(a) to (e) of the ITAA 1997 must be met.
The granting of the option by the originating company was a deferral event for the purposes of paragraph 170-255(1)(a) of the ITAA 1997.
The deferral event was a CGT event that would have resulted in the originating company making a capital loss for the purposes of subparagraph 170-255(1)(b)(i) of the ITAA 1997.
As the deferral event only involved CGT event C3, the condition in paragraph 170-255(1)(c) of the ITAA 1997 is not satisfied.
As not all of paragraphs 170-255(1)(a) to (e) of the ITAA 1997 apply, then section 170-270 of Subdivision 170-D of the ITAA 1997 does not apply to disregard the capital loss made by the originating company.
Date of decision: 24 February 2003Year of income: Year ended 30 June 2003
Legislative References:
Income Tax Assessment Act 1997
section 104-30
Subdivision 170-D
section 170-255
paragraph 170-255(1)(a)
paragraph 170-255(1)(b)
subparagraph 170-255(1)(b)(i)
paragraph 170-255(1)(c)
paragraph 170-255(1)(d)
paragraph 170-255(1)(e)
section 170-270
Keywords
Capital losses
Deferral event
Deferred capital losses
Deferred capital losses and deductions
Disregarded capital loss
Net capital losses
New event
Originating company
Relevant CGT asset
ISSN: 1445-2782