ATO Interpretative Decision
ATO ID 2002/366 (Withdrawn)
Income Tax
Income Tax: Capital gains tax: transferring CGT assets from a company to an individualFOI status: may be released
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This ATO ID is withdrawn because it is a restatement of the law and does not contain an interpretative decision.This document incorporates revisions made since original publication.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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Is a roll-over available to a company under the Income Tax Assessment Act 1997 (ITAA 1997) when assets owned by it are disposed of to the sole shareholder of the company?
Decision
No. There is no provision in the ITAA 1997 that provides any roll-over relief for any capital gain that arises when a company transfers assets to the sole shareholder of the company.
Facts
The company was incorporated after 20 September 1985 with only one shareholder.
The shareholder had transferred a number of CGT assets to the company.
The company and the shareholder are residents for income tax purposes.
The company is now considering passing some of the assets back to the shareholder.
Reasons for Decision
There is no provision in the ITAA 1997 that allows the taxpayer to obtain rollover relief in the situation where the taxpayer is a company and is disposing of its assets to an individual shareholder. The fact that the individual is the sole shareholder of the company is of no significance.
The transfer of a CGT asset by the company to the individual shareholder will be a disposal of that CGT asset. That is, CGT event A1 under section 104-10 of the ITAA 1997 occurs at the time of transfer. The exception set out in paragraph 104-10(5)(a) of the ITAA 1997 will not apply as the CGT asset was acquired by the company on or after 20 September 1985.
In respect of each asset that the company transfers to the individual shareholder, the company will make a capital gain if the capital proceeds from the disposal are more than the cost base of the asset, or alternatively, will make a capital loss if the capital proceeds are less than the asset's reduced cost base (subsection 104-10(4) of the ITAA 1997).
It should be noted that the market value substitution rules in subsection 116-10(2) of the ITAA 1997 may apply in relation to the transfer where no capital proceeds are received or they are not equal to the market value of the asset as the parties would not be considered to be dealing at arm's length.
Date of decision: 26 February 2002Year of income: Year ending 30 June 2002
Legislative References:
Income Tax Assessment Act 1997
section 104-10
subsection 104-10(4)
paragraph 104-10(5)(a)
subsection 116-10(2)
Keywords
Capital gains tax
Capital gains
CGT assets
CGT events
CGT event A1 - disposal of a CGT asset
CGT roll-over relief
ISSN: 1445-2782
| Date: | Version: | |
| 26 February 2002 | Original statement | |
| You are here | 5 March 2010 | Archived |
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