Disclaimer
This edited version has been archived due to the length of time since original publication.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.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your written advice

Authorisation Number: 1013025497200

Date of advice: 27 May 2016

Ruling

Subject: Share Trading - Am I in Business?

Question

Were you carrying on a business of share trading during the income year ended 30 June 2015?

Answer

Yes

This ruling applies for the following periods:

1 July 2014 to 30 June 2015.

The scheme commences on:

1 July 2014

Relevant facts and circumstances

The taxpayer commenced buying and selling shares in 200X.

During the ten months up until the end of April 201X the taxpayer made a number of share transactions.

The taxpayer had close to 100 transactions, with a total value of purchases and sales of close to $X million each. The average value of individual purchases and sales was close to $XX0,000.

Shares were generally held for less than a week.

The taxpayer funded their purchases with a percentage of their own money and a percentage of borrowed funds.

The taxpayer traded mainly in iron ore mining stocks, as these tend to follow the iron ore prices. The taxpayer also traded in a handful of other listed companies not related to iron ore.

The taxpayer's trading strategy was to take advantage of short term movements in iron ore prices.

The taxpayer bought when the iron ore market had dropped for three days and sold when it had risen for two.

The taxpayer had a stop-loss position of selling all stocks after 2-3 weeks.

The taxpayer earned no dividend income

The taxpayer had an undergraduate degree, a post graduate qualification and a post graduate degree.

The taxpayer used an online trading account and kept records of their trades.

The taxpayer stated they spent approximately 30 hours a week on share trading and 37 hours a week on other income producing activity.

The taxpayer has reported prior year income from share trading as capital gains, but as they were all short term trades no CGT discounts were applied.

The taxpayer expects to make a loss for the current year.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 6-5

Income Tax Assessment Act 1997 Section 8-1

Income Tax Assessment Act 1997 Section 70-10

Reasons for decision

Carrying on a business as a share trader

There are two possible scenarios as to how gains and losses from share trading activities can be treated for income tax purposes. These scenarios and their consequences are as follows:

1. Business Income

2. Investment Income

To determine which of these treatments applies to your situation it is necessary to make a determination of whether or not your share trading activities amount to the carrying on of a business.

Whether or not a person is carrying on a business is a question of fact. The determination of whether or not a business is being carried on is generally a process of weighing up all the relevant indicators within the context of your own situation. No one indicator determines whether or not a business is being carried on.

Taxation Ruling TR 97/11 income Tax: am I carrying on a business of primary production (TR 97/11) lists the following indicators as relevant in determining if a business is being carried on:

In your case;

The weighing up of all the relevant indicators within the context of your own situation would indicate that you were carrying on a business of share trading for the relevant period. Consequently, your income is assessable as ordinary income under section 6-5 of the ITAA 1997, while your losses are deductable under section 8-1 of the ITAA 1997.


Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).