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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

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Edited version of private advice

Authorisation Number: 1012651180226

Ruling

Subject: Capital gains tax

Questions

1. Will the property transfer from you to your relative trigger a capital gains tax (CGT) event?

2. If a CGT event is triggered, will you be eligible for the CGT small business concessions?

This ruling applies for the following period(s)

Year ending 30 June 2014

Year ending 30 June 2015

The scheme commences on

1 July 2013

Relevant facts and circumstances

A parcel of land was transferred to you from individual A.

The land is the subject of a deed between you and individual A which states that individual A wishes to transfer all rights, title and interest in the property to individual B, with the land to be held on trust for individual B by you.

The deed allows you to use the land in your business during your life time.

The deed requires you to transfer the land to individual B at his/her written request.

Individual B has now requested the land be transferred to him/her.

You have been using the land in your business and your turnover is less than $2 million.

Relevant legislative provisions

Income Tax Assessment Act 1997 - Section 106-50

Reasons for decision

Draft Taxation Ruling TR 2004/D25 sets out the Commissioner's views as to the circumstances in which a beneficiary of a trust is considered to be absolutely entitled to a trust asset for CGT purposes. It provides that the core principle underpinning the concept of absolute entitlement is the ability of a beneficiary, who has a vested and indefeasible interest in an entire trust asset, to call for the asset to be transferred to them or to be transferred at their direction.

A beneficiary of a trust who is absolutely entitled to a CGT asset of the trust as against the trustee is treated as the owner of the asset for CGT purposes (rather than the trustee). A direction by the settlor of the trust that the beneficiary's enjoyment of an asset be delayed is not an effective impediment.

TR 2004/D25 goes on to state, at paragraphs 141 to 144:

Because individual B is taken to be the owner of the property that you hold as trustee for CGT purposes (section 106-50 of the Income Tax Assessment Act 1997), there will be no change of ownership when it is transferred to him/her.

Accordingly, no CGT event will happen when the land is transferred to individual B.


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