ATO Interpretative Decision

ATO ID 2003/48 (Withdrawn)

Capital Gains Tax

Capital Gains Tax: CGT discount-non complying superannuation fund
FOI status: may be released

This ATOID is withdrawn as it is a simple restatement of the law and does not contain an interpretative decision.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.

CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

What is the relevant discount percentage under section 115-100 of the Income Tax Assessment Act 1997 (ITAA 1997) that applies to a discount capital gain made by a superannuation fund that is not a complying superannuation fund?

Decision

The discount percentage relevant to a discount capital gain made by a superannuation fund that is a trust and is not a complying superannuation fund is 50% under subparagraph 115-100(a)(ii) of the ITAA 1997.

Facts

During the income year, a non-complying superannuation fund that was constituted as a trust made a capital gain on the sale of shares it acquired after 21 September 1999. The fund had owned the shares for more than 12 months at the time it disposed of them.

Reasons for Decision

Most superannuation funds are constituted as trusts. They have a trustee, a trust deed, trust property which is made up of the fund's investments and members who are beneficiaries.

Subparagraph 115-100(a)(ii) of the ITAA 1997 provides that the discount percentage for a discount capital gain made by a trust other than a trust that is a complying superannuation entity is 50%. The discount percentage for a gain made by a complying superannuation entity is 33 1/3% as provided for in subparagraph 115-100(b)(i) of the ITAA 1997.

'Complying superannuation entity' is defined in subsection 995-1(1) of the ITAA 1997 to mean:

a): a complying superannuation fund,
b): a complying approved deposit fund, or
c): a pooled superannuation trust.

'Complying superannuation fund' is defined in subsection 995-1(1) of the ITAA 1997 to mean a complying superannuation fund within the meaning of section 45 of the Superannuation Industry (Supervision) Act 1993.

As no separate discount percentage has been specified in section 115-100 of the ITAA 1997 for superannuation funds that are not complying superannuation funds, it is considered that the relevant discount percentage for these entities is 50% under subparagraph 115-100(a)(ii) of the ITAA 1997, being the discount percentage that applies for a trust.

Date of decision: 16 November 2002

Year of income: Year ended 30 June 2002

Legislative References:
Income Tax Assessment Act 1997
   section 115-100
   subparagraph 115-100(a)(ii)
   subparagraph 115-100(b)(i)
   subsection 995-1(1)

Keywords
Capital gains
Capital gains tax
CGT 33 1/3% complying superannuation fund discount
CGT discount
Non complying superannuation funds
Trusts

Business Line: Losses & CGT Centre of Expertise

Date of publication: 8 March 2003

ISSN: 1445-2782

history

	Date:	Version:
	16 November 2002	Original statement
You are here	12 March 2010	Archived

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