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Authorisation Number: 1012428373480

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Ruling

Subject: Capital gains tax

Question

Is the amount received as a share of the profits of the partnership for the relevant financial year a receipt of income?

Answer:

Yes.

Question

Is the receipt of the lump sum payment made by the Partnership to you under a Partner Retirement Deed, considered a receipt of capital which will be assessed under the capital gains tax (CGT) provisions of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer:

Yes.

Question

Are you eligible to disregard the capital gain made on the surrender of your partnership interest?

Answer:

Yes

This ruling applies for the following period

Year ended 30 June 2012

The scheme commenced on

1 July 2011

Relevant facts

You became a partner of a large professional firm prior to 20 September 1985.

The Partnership does not recognise goodwill, and therefore there was no consideration paid on entering the Partnership.

On entering the Partnership, you acquired an interest in the Partnership, including assets of the Partnership which belong to the partners and involving the sharing of losses and liabilities between the partners.

The administration, management entitlements and obligations of the partners are governed by the Partnership Agreement.

You entered into a retirement agreement (Partner Retirement Deed) to retire from the Partnership.

In consideration for the disposal of your interest in the Partnership a lump sum consideration was paid, which included a retirement allowance payment.

The pertinent clauses of the Partnership Agreement are:

· Clause X - which establishes that on entering the Partnership the partner acquires an interest in the Partnership;

· Clause X - which covers the detail related to the disposal of the Partnership interest upon retirement, including calculation of retirement entitlement and, an agreement providing that the Partnership does not recognise goodwill and that goodwill will have no monetary value. It also details that the Partnership and retiring partner release each other from all claims on account of the Partnership.

· Clause X - which imposes certain restrictions (with respect to future activities) on the former partner including; not soliciting or accepting business from clients of the Partnership, not using the Partnership's logo or service mark, or, not conducting a similar business or activity for a certain period of time.

The pertinent clauses of the Retirement Deed include;

· Clause X - which clarifies that the taxpayer will cease to be a partner on and from the retirement date

· Clause X - which acknowledges certain restrictions on the retiring partner under the Partnership Agreement post retirement

· Clause X - which emphasises the continuing obligations that the retiring partner agrees to under the Partnership Agreement

· Clause X - which provides that the retiring partner relinquishes any claims they may have against the Partnership.

You state that you satisfy the maximum net asset value test for the purposes of the small business CGT relief.

You are over 55 years of age.

Relevant legislative provisions

Income Tax Assessment Act 1936 - Section 92

Income Tax Assessment Act 1997 - Section 104-25

Income Tax Assessment Act 1997 - Section 104-35

Income Tax Assessment Act 1997 - Section 108-5

Income Tax Assessment Act 1997 - Section 152-10

Income Tax Assessment Act 1997 - Section 152-15

Income Tax Assessment Act 1997 - Section 152-35

Income Tax Assessment Act 1997 - Section 152-40

Income Tax Assessment Act 1997 - Section 152-105

Income Tax Assessment Act 1997 - Section 328-125

Income Tax Assessment Act 1997 - Section 328-130

Reasons for decision

Share of Partnership profits

Section 92 of the Income Tax Assessment Act 1936 provides that the assessable income of a partner in a partnership shall include so much of the individual interest of the partner in the net income of the partnership of the year of income.

In your case, you received an amount attributable to your share of the Partnership profits for the relevant year of income. This amount will be included in your assessable income for the relevant financial year.

Surrender of your partnership interest

The nature of a receipt, for the purposes of the Income Tax Assessment Act 1997 (ITAA 1997), is determined from the point of view of the recipient rather than that of the payer. Therefore, despite how your payment is described in the Partnership accounts or on your retirement statement, it is the nature of the receipt in your hands which determines how it is assessed.

The lump sum payment was not a distribution of the net income of the partnership, but a distribution of your share of the equity of the Partnership. Therefore, the receipt by you of the lump sum under the retirement agreement is not assessable as ordinary income and instead is considered a receipt of capital and will be assessable under the capital gains tax provisions.

Your retirement from the Partnership meant that you gave up your interest in the Partnership, and in any assets of the Partnership. Paragraph 108-5(2)(d) of the ITAA 1997 provides that a partner's interest in a partnership is a CGT asset. It is a chose in action.

Taxation Ruling IT 2540 examines the capital gains tax (CGT) implications of a disposal of a partnership interest. Though it is expressed in terms of the former CGT provisions (of the Income Tax Assessment Act 1936) the discussion is still relevant for the purposes of the ITAA 1997. At paragraphs 13 and 14 it states:

For large partnerships, which can have memberships numbering in the hundreds (for example, some major legal and accountancy partnerships) the situation is potentially complex. In some cases, the potential problems are overcome because the ownership of the assets used by the partnership is vested in a service company or trust. In other cases, it will generally be accepted, provided the evidence reasonably supports the conclusion that the partners are dealing with each other at arm's length. Any consideration paid or received on the acquisition or disposal of an interest in the partnership will be used for Part IIIA (CGT) purposes in determining the cost base or disposal proceeds of the interests in the partnership assets that the partnership interest represents. This will mean that if, for example, the partnership arrangement is such that no amount is payable for the acquisition or disposal of goodwill, it will be accepted for the purposes of Part IIIA (CGT) that the value of the goodwill is nil. This treatment will also apply to partners of smaller partnerships who deal with each other at arm's length, where those dealings take place in an ordinary commercial context.

In the case of large professional partnerships, where the partners' dealings with each other are at arm's length, it will only be where consideration is paid by a partner on entering the partnership or where a partner receives a payment on leaving the partnership that Part IIIA (CGT) will have any practical effect. Where consideration is neither paid by a person on entering the partnership, nor received on retirement from the partnership, the partner will not realise a capital gain or incur a capital loss on the disposal of particular assets. However, as noted above, the admission or retirement of a partner may affect the proportionate ownership of the partnership assets by the individual partners and therefore may affect the extent of a continuing partner's interest in the partnership. This would be relevant in the event of a subsequent disposal of the partnership assets for consideration, or where consideration is paid to a partner on retirement from the partnership.

Section 104-25 of the ITAA 1997 states that CGT event C2 happens if your ownership of an intangible CGT asset ends by the asset:

(a) being redeemed or cancelled; or

(b) being released, discharged or satisfied; or

(c) expiring; or

(d) being abandoned, surrendered or forfeited; or

(e) if the asset is an option - being excised; or

(f) if the asset is a convertible interest - being converted

The time of the event is:

(a) when you enter into the contract that results in the asset ending; or

(b) if there is no contract - when the asset ends.

An interest in a partnership is considered an intangible asset.

The capital gain the taxpayer makes from CGT event C2 is equal to the difference between the proceeds received from the event happening and the cost base of the asset (subsection 104-25(3) of the ITAA 1997).

In your case, you did not pay anything on being admitted to the Partnership and there was no goodwill associated with the Partnership. Nonetheless, your interest in the Partnership was a CGT asset. As a result of leaving the Partnership your interest in the Partnership has ended.

CGT event C2 happened. The event happened when the agreement between the parties that resulted in the resignation was made (paragraph 104-25(2)(a) of the ITAA 1997). You made a capital gain equal to the difference between the payment you received from the Partnership and the cost base of your interest in the Partnership. Although you did not pay any consideration to acquire your interest, your cost base can include other costs you incurred to acquire the interest or costs that relate to the resignation occurring.

Restrictive covenant

The Partner Retirement Deed entered into contains a restrictive covenant in which it stipulates that you will, among other things;

· not solicit or accept business from clients of the Partnership,

· not use the Partnership's logo or service mark

· not conduct a similar business or activity for a certain period of time.

The Commissioner's definition of a restrictive covenant in subparagraph 6(a) of Taxation Ruling TR 95/3 is 'an agreement between two or more parties to refrain from doing some act or thing'. Examples of restrictive covenants are provided in paragraph 35 of TR 95/3 and include:

· a covenant by an employee to an employer in which the employee promises to refrain from doing some act (e.g. not to disclose special processes, trade connections and trade secrets of the employer);

· a restrictive (negative) covenant preventing an employee from competing in another business or opening a new business;

· a restriction on competition, enforced by an agreement separate from an employment agreement, which comes into effect after employment ceases;

· a contract of employment stipulating exclusive service by the employee during its term

A right created under a restrictive covenant is a CGT asset. Such a right constitutes a CGT asset as defined in section 108-5 of the ITAA 1997, and is either a proprietary right (paragraph 108-5(1)(a) of the ITAA 1997) or a legal or equitable, non-proprietary right (paragraph 108-5(1)(b) of the ITAA 1997). The creation of such a right in favour of the partnership is a CGT event D1 under subsection 104-35(1) of the ITAA 1997.

In your case, the agreement contains exclusive dealing and restraint clauses. These clauses satisfy the definition of a restrictive covenant and CGT event D1 will happen at the time the contract is entered into.

However, as it is considered that you were dealing at arm's length in entering into the agreement and, no proceeds were specifically allocated to a restrictive covenant, we will treat the granting of the covenant as being ancillary to the surrender of your partnership interest.

We therefore accept that no part of the capital proceeds is attributable to the restrictive covenant CGT event D1. The total of the capital proceeds is for the surrender of your partnership interest and is attributable to CGT event C2.

Pre-CGT asset

Subsection 104-10(5) of the ITAA 1997 contains an exception, where any capital gain or capital loss made is disregarded if the asset was acquired before 20 September 1985.

In your case, you acquired your interest in the Partnership prior to 20 September 1985; therefore, any capital gain or capital loss you make on the disposal will be disregarded for CGT purposes.

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