Edited version of private advice

Authorisation Number: 1052403063710

Date of advice: 29 May 2025

Ruling

Subject: Capital v revenue

Question 1

Are the gains taxable to Head Company A from the sale of the land by a subsidiary member of the tax consolidated group assessable solely through the CGT provisions in Parts 3-1 and 3-3 of the ITAA 1997?

Answer 1

No.

Question 2

Can the proceeds of sale (excluding proceeds from the sale of the Parcel D units) be apportioned at the rate of X% to revenue and Y% to capital?

Answer 2

Yes.

Question 3

Can Head Company A treat a portion of the market value of the land (excluding the Parcel D units) that Subsidiary Company B, or another member of the tax consolidated group, already held in XXXX as a cost when calculating any net profit that's assessable under section 6-5?

Answer 3

Yes.

Question 4

If any part of the proceeds on the sale of the land is assessable to Head Company A under a revenue provision, is that part assessable in the 20XX income year?

Answer 4

Yes.

This ruling applies for the following period:

1 July 20XX to 30 June 20XX

This private ruling is based on the facts and circumstances set out below. If your facts and circumstances are different from those set out below, this private ruling has no effect and you cannot rely on idt. The fact sheet has more information about relying on your private ruling.

1.            Head Company A is an Australian resident company, acting in its own right, and not as the trustee of a trust.

2.            Head Company A is the head entity of an income tax consolidated group.

3.            Subsidiary Company B is an Australian resident company, acting in its own right, and not as the trustee of a trust.

4.            Subsidiary Company B is a subsidiary member of Head Company A's income tax consolidated group and has been since it was incorporated.

5.            At all times, identified individuals have been the directors of Subsidiary Company B, and the owners and directors of Head Company A.

6.            The land consists of certain properties, each of which consists of a number of units. These were described in Table 1which has been redacted for privacy reasons.

Table 1: redacted for privacy reasons

7.            Subsidiary Company B bought from related entities, both within and outside Head Company A's income tax consolidated group. Table 2 had details but it has been redacted for privacy reasons).

Table 2: redacted for privacy reasons

8.            The sellers had held the units for many years.

9.            Subsidiary Company C was also a subsidiary of Head Company A's income tax consolidated group throughout the period from when it acquired the relevant properties until it transferred them to Subsidiary Company B.

10.         Head Company A's Group consolidated all the land in Subsidiary Company B with the purpose of developing the land.

11.         Head Company A's Group decided to develop the land in the XXXX income year.

12.         The development plans involved two portions with different purposes. There was to be an XXX portion and XXX portion. The exact proportions depended on the planning for the development. Head Company A's Group intended that Subsidiary Company B would retain the XXX portion indefinitely. However, the Head Company A's Group intended to sell the XXX portion if the project went ahead.

13.         Parcel D wasn't included in any development proposals. Head Company A's Group had no plans for the Parcel D XXX other than to buy nearby XXX if and when they were placed on the market. (This didn't happen.)

14.         Once Head Company A's Group decided to develop the land (apart from Parcel D) it pursued an approach in line with one it had taken for other developments.

15.         Head Company A's Group prepared a development application for land (apart from Parcel D). The application was for a multi-storey building including XXX and XXX. Head Company A's Group designed and prepared the scheme to maximise the use of the site and the value of its land ownership.

16.         The relevant council approved the application a couple of years later.

17.         Council didn't issue stamped plans with the approval as it required amendments to the drawings to comply with new conditions.

18.         Following approval, Head Company A's Group decided to place its development plans on hold. The primary reasons for placing the development plans on hold were escalating construction costs and saleability in the XXX market. Head Company A's Group was also concerned about the long-term valuation for the XXX in view of the construction costs. Head Company A's Group decided to put the development on hold indefinitely, or until there was tangible improvement, predominantly in the construction market, and also in the retail sales rates of XXX should the development proceed.

19.         Despite placing the development on hold, Head Company A's Group still intended to undertake the development at some future date, depending on the market.

20.         Head Company A's Group didn't carry out any development activities or do anything to the land between purchase and sale, other than a) preparing and submitting the development application, and b) incurring expenses to maintain the XXX XX XX condition.

21.         In the 20XX income year, a real estate agent approached Subsidiary Company B, acting on behalf of a potential acquirer. The approach was unsolicited, and Head Company A's Group had never met the agent before. The potential acquirer made an offer at a price that exceeded both Head Company A's Group's expectations and perception of the value of the land at that time.

22.         Head Company A's Group didn't take any steps to seek a potential buyer or prepare the property for sale.

23.         Up until the real estate agent's approach, Head Company A's Group hadn't considered any other options for the land beyond the proposed development. For example, it hadn't considered selling the land in an undeveloped or partly developed state.

24.         In the 20XX income year, Subsidiary Company B contracted to sell the land. The land was sold together but by way of X contracts. It sold Parcel D under XX contract and the remaining properties under another contract.

25.         The parties completed the contracts in the 20XX income year.

26.         The contracts were free of GST being input taxed supplies of residential property.

27.         Head Company A has proposed the following apportionment if the Commissioner rules that the XX portion of the transaction is assessed on revenue account. Head Company A suggests that the profit on sale of the land tagged for development (meaning all properties aside from Parcel D) should be apportioned this way:

•                     the XX component (revenue): X%

•                     the XX component (capital): Y%.

28.         Head Company A came up with this apportionment based on the gross floor area of the proposed development. It says gross floor area includes the usable area of a building based on the relevant council definitions. Head Company A split the total floor area on the plan submitted to the relevant council between the XX and XX portions.

29.         Head Company A submitted that it also considered X other apportionment methods, but rejected both. It considered forecasted revenue-based analysis. It also considered a forecasted cost split analysis (using a construction cost breakdown to determine the build price per square metre of the gross floor area, and then dividing it between the XXX and XXX portions). However, Head Company A rejected both methods because they involved subjective judgments.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 6-25

Income Tax Assessment Act 1997 section 70-90

Income Tax Assessment Act 1997 section 102-5

Income Tax Assessment Act 1997 section 104-10

Income Tax Assessment Act 1997 section 112-30

Income Tax Assessment Act 1997 section 116-40

Income Tax Assessment Act 1997 section 118-20

Income Tax Assessment Act 1997 section 701-5

Reasons for decision

In these reasons:

•                     all legislative references are to the Income Tax Assessment Act 1997 (ITAA 1997)

•                     'revenue provisions' means section 6-5 or section 70-90.

Question 1

Are the gains taxable to Head Company A from the sale of the land by a subsidiary member of the tax consolidated group assessable solely through the CGT provisions in Parts 3-1 and 3-3 of the ITAA 1997?

Answer

No.

Summary

30.         A portion of Head Company A's proceeds on the sale of the land properly attributable to its proposal to develop and sell XXX will be assessable under revenue provisions. It will be assessed either under section 6-5 as a net profit from an isolated profit-making transaction, or as a disposal of trading stock outside the ordinary course of business under section 70-90. We don't need to determine which provision applies for the purposes of answering this question.

31.         Any capital gain assessable under the CGT provisions will be reduced to the extent that an amount attributable to the XXX proposal is also assessed under a revenue provision.

32.         Head Company A will be assessed because the consolidation rules treat Subsidiary Company B as part of Head Company A for tax purposes.

Sales of land can be assessed as ordinary income (as a profit on isolated profit-making transactions) or under the trading stock provisions (as a disposal of trading stock either in or outside the ordinary course of business).

33.         Section 6-5 includes ordinary income in your assessable income.

34.         TR 92/3[1] gives the ATO view on whether profits on isolated transactions are ordinary income. TR 92/3 at paragraph [6] says profits from isolated transactions are generally income when two elements are present.

•                     First, the taxpayer's intention or purpose in entering into the transaction was to make a profit or gain.

•                     Second, the transaction was entered into and the profit made, in the course of carrying on a business or in carrying out a business operation or commercial transaction.

35.         We'll paraphrase some propositions from TR 92/3 about determining the taxpayer's purpose.

•                     Purpose is determined objectively from the facts and circumstances. [7]

•                     The profit-making purpose doesn't need to be dominant - just significant. [8]

•                     Generally (for property) the taxpayer should have the profit-making purpose when acquiring the property. [9]

•                     However, this isn't always the case, such as where the taxpayer later decides to commit the land to a business or profit-making undertaking with the characteristics of a business operation or commercial transaction, even where the taxpayer didn't have the purpose when acquiring the asset. [41, 42]

•                     It isn't necessary that the profit is eventually obtained by a means specifically contemplated when the taxpayer enters the transaction. Rather, it's enough to either:

                             I.                enter the transaction with the purpose of making a profit in the most advantageous way, and realise the profit by any means implementing that initial purpose, or

                            II.                enter the transaction with a purpose of making a profit by one particular means, but actually obtain the profit by a different means). [14]

36.         TR 92/3 at paragraph 13 lists considerations relevant to determining whether an isolated transaction amounts to a business operation or commercial transaction. They include the nature of the entity, scale of other activities, amount of money involved, magnitude of profit sought, manner carried out, nature of any connection between the parties, the nature of property involved, and timing of the transaction.

37.         TR 97/11[2] gives guidance about whether an activity is carrying on a business. Very broadly:

•                     relevant indicators include whether the activity is a significant commercial activity, purpose and intention to make a profit, whether the activity is profitable, repetition and regularity, whether the activity is conducted in a businesslike manner, size and scale, and the taxpayer's knowledge and skill

•                     each case turns on its facts, but the question is generally determined by weighing all the relevant indicators

•                     no single indicator is decisive, and the weighting may vary from case to case

•                     the indicators must be considered in combination and as a whole.

38.         For a business taxpayer, gross earnings from the sale of trading stock are usually assessable as ordinary income under section 6-5: see section 70-5.

39.         For a taxpayer in the business of holding land for resale, where a business of dealing in land has commenced, land is treated as trading stock: see TD 92/124.[3]

40.         Section 70-90 says if you dispose of an item of your trading stock outside the ordinary course of a business that you are carrying on, and of which the item is an asset, your assessable income includes the market value of the item on the disposal day.

Net capital gains from CGT events are included in assessable income, but capital gains are reduced to the extent they have already been assessed by another provision.

41.         The CGT rules calculate gains and losses from CGT events and include any net capital gain in your assessable income. We'll briefly summarise a few relevant rules.

•                     CGT event A1 happens when you dispose of a CGT asset, and you dispose of a CGT asset if there's a change of beneficial ownership in the asset from you to another entity. You have a capital gain from CGT event A1 if your capital proceeds from the event are more than the asset's cost base (see section 104-10).

•                     CGT assets include any kind of property, and 'land and buildings' is an example of a CGT asset (see section 108-5).

•                     Section 102-5 has a method statement for working out a net capital gain for the income year, and includes the amount in your assessable income.

•                     Section 118-20 reduces capital gains from CGT events if, because of the event, another provision includes an amount in your assessable income.

42.         Section 6-25 says that were amounts are assessed under more than one provision, the amount is only included in your assessable income once for an income year, and won't be included again for any other income year.

CGT event A1 happened on sale, but the anti-overlap rule will apply if part of any gain is also assessed as ordinary income.

43.         CGT event A1 happened on sale. When Subsidiary Company B sold the properties, it disposed of CGT assets to another entity, triggering CGT event A1.

44.         For income tax purposes, Subsidiary Company B is treated as being part of Head Company A, so the CGT consequences apply to Head Company A: see paragraphs 52 to 54.

45.         However, Head Company A's capital gain from the sale will be reduced under section 118-20 to the extent that any part of the gain is assessed under another provision.

Head Company A will be assessed on a portion of the transaction attributable to the proposal to develop the XXX under either section 6-5 or section 70-90.

46.         We think the XXX component of the transaction is a profit-making transaction or scheme in the sense of TR 92/3 for the following reasons:

•                     Head Company A's Group had a profit-making intention, in respect of the XXX portion, from the time it decided to build XXXs for sale in XXXX.

•                     That proposal had a business or commercial character. The plan was for an income tax consolidated group to construct X XXX for sale. That development would have had a substantial scale and involve a substantial sum of money and potentially significant profit. It meets many of the indicia of a business (see TR 97/11 at paragraph 18) or a commercial transaction (see TR 92/3 at paragraph 13).

•                     Head Company A (including through Subsidiary Company B and Subsidiary Company C) would have committed any land it already held in XXXX to the commercial operation, even if it didn't have the relevant purpose on acquisition: see TR 92/3 at paragraphs 41 to 42.

•                     Any land Subsidiary Company B acquired from parties outside the group after XXXX would be treated as having been ventured into the commercial transaction on acquisition to the extent it related to the XXX component.

•                     Head Company A made a profit in the course of carrying out a business operation or commercial transaction, consistent with its profit-making purpose. Following TR 92/3 at paragraph 14, it doesn't matter that it entered the transaction with a purpose of profiting through one means (selling completed XXXs) but obtained the profit through a different means (selling the land with the existing XXX units).

•                     Therefore, we think both elements of the test set out in TR 92/3 at paragraph 6 are satisfied for the portion of the land set aside for the XXXs.

47.         It follows that if Head Company A wasn't carrying on business, or was carrying on business but didn't hold a portion of the land as trading stock, the net profit on sale attributable to the XXXs is assessable as ordinary income under section 6-5.

48.         However, if Head Company A was carrying on business and the land had become trading stock, Head Company A would be assessed under section 70-90. The sale was outside the ordinary course of Head Company A's business, because it was a sale of land before development had finished, rather than a sale of the completed XXXs it was planning to sell. The market value of the land would be included in its assessable income on the disposal date.

49.         In either event, Head Company A would be assessed on the XXX component of the transaction under one of these revenue provisions.

The anti-overlap rules will apply to reduce the capital gain to the extent that amounts are assessable under revenue provisions.

50.         The same approach doesn't apply to the remainder of the land.

•                     Head Company A's Group intended to develop part of the land as a XXX and to hold it indefinitely (by operating the XXX).

•                     It also had no plan to develop the Parcel D land and had no plans for it, other than buying adjacent XXXs if they were placed on the market.

•                     Therefore, Head Company A's Group hadn't committed these portions of the land to a business of developing land for sale or a commercial transaction, so the net profit on sale wouldn't be assessed under the principles in TR 92/3.

•                     The same portions of the land couldn't have become trading stock for the same reasons, so section 70-90 wouldn't be relevant.

51.         Therefore, the sale is partly assessed under revenue provisions and partly assessed under the CGT provisions. CGT event A1 happened on the sale. An amount will be assessed under either section 6-5 or section 70-90. In either case, section 118-20 will apply to reduce the capital gain to the extent amounts have been assessed under another provision. We don't need to determine which provision applies. In either case, the anti-overlap rules will apply so that the transaction isn't taxed wholly under the CGT provisions, and the answer to Question 1 will be 'no'.

Under the consolidation rules, Head Company A will be assessed on any gains made by its subsidiaries as if it made them itself.

52.         Section 701-1 is about the single entity rule for income tax consolidated groups.

•                     Subsection 701-1(1) says if an entity is a subsidiary member of a consolidated group for any period, it and other subsidiary members are taken to be parts of the head company of the group, rather than separate entities, during that period, for the purposes covered by subsections (2) and (3).

•                     Purposes covered by subsection (2) includes working out the head company's income tax liability or loss.

53.         For the purposes of calculating Head Company A's assessable amount on sale, Head Company A's subsidiaries will be treated as part of Head Company A. Head Company A is the head company of an income tax consolidated group, and Subsidiary Company B and Subsidiary Company C are subsidiary members of the same group, and were for all relevant times in this ruling. The single entity rule will apply so that both subsidiaries are part of Head Company A for tax purposes.

54.         It follows that Head Company A will be assessed on disposals made by Subsidiary Company B.

Conclusion: Head Company A won't be wholly assessed under the CGT provisions.

55.         We have concluded that the XXX portion of the transaction will be assessed under a revenue provision and the anti-overlap provisions will prevent the sale being wholly assessable under the CGT provisions, so the answer to Question 1 is no.

56.         Any relevant amounts will be assessed to Head Company A because the consolidation rules treat Subsidiary Company B as part of Head Company A for income tax purposes.

Question 2

Can the proceeds of sale be apportioned at the rate of X% to revenue and Y% to capital?

Answer

Yes

Summary

57.         Head Company A's proposed apportionment between revenue and capital is reasonable and appropriate to this situation.

Explanation

No tax provisions or ATO guidance directly address apportioning gains between income and capital, but we think the concept of a fair and reasonable basis for apportionment applies here.

58.         Here, only part of the transaction is assessable under revenue provisions, and the remainder will be dealt with under the capital gains rules.

59.         There are no provisions that explicitly deal with how proceeds and costs should be allocated where the entire gain is a CGT event, but part of the transaction has been reduced under section 118-20.

60.         However, the ATO has published guidance that addresses apportionment in the context of deductions. This guidance says expenses must be apportioned between income producing or taxable purposes and other purposes on a 'fair and reasonable basis', with what is fair and reasonable depending on your facts and circumstances. See TR 2024/3[4] at paragraphs 81-83, TR 2023/3[5] at paragraph 38, and TR 2020/1[6] at paragraph 38. The ATO extends this apportionment treatment to deductions under section 40-880: see TR 2011/6[7] at paragraphs 24 and 25.

61.         The CGT rules include provisions relevant to apportionment.

•                     Subsection 116-40(1) says that if you receive a payment in connection with a transaction that relates to more than one CGT event, the capital proceeds from each event are so much of the payment as is reasonably attributable to that event.

•                     Subsection 116-40(2) says if you receive a payment in connection with a transaction that relates to one CGT event and something else, the capital proceeds from the event are so much of the payment as is reasonably attributable to the event.

•                     Subsection 112-30(1) says if you acquire a CGT asset because of a transaction and only part of your expenditure under the transaction relates to the acquisition, the first element of your cost base is that part that's reasonably attributable to the acquisition.

•                     Subsection 112-30(1A) says if you incur expenditure, and only part of it relates to another element of the cost base or reduced cost base of a CGT asset, that element includes that part of the expenditure that's reasonably attributable to that element.

62.         If apportionment is necessary for a) for working out allowable deductions, and b) capital gains, we think that the concept of a reasonable apportionment can also apply when allocating gains to revenue (excluded from the capital gain under the anti-overlap rules) where a transaction is only partly assessable under revenue provisions.

63.         We accept that Head Company A's proposed apportionment (based on usable floor area of the proposed plans submitted to council) is reasonable and appropriate for this situation.

Question 3

Can Head Company A treat a portion of the market value of the land (detailed at Table 1 but excluding the Parcel D units) that Subsidiary Company B, or another member of the tax consolidated group, already held in XXXX as a cost when calculating any net profit that's assessable under section 6-5?

Answer

Yes

Summary

64.         When calculating any net profit assessable under section 6-5, the market value (when ventured into the profit-making scheme) of that portion of the land attributable to the proposed development of XXX is treated as a cost.

For the purpose of answering this question, we've assumed that the land won't be treated as trading stock.

65.         We concluded in Question 1 that the part of the proceeds of the land sale attributable to Subsidiary Company B's proposal to develop and sell XXX will be assessed under revenue provisions.

66.         This question assumes that the land won't be trading stock, and any net gain would instead be assessed as ordinary income under section 6-5 under the principles in TR 92/3.

67.         If part of the land was ever held as trading stock, different provisions could apply to include amounts as assessable income or allow deductions.[8]

The market value of land ventured into a development can be allowed as a cost when calculating the net profit on sale.

68.         An example in TD 97/1[9] indicates the ATO view on determining the cost of land ventured into a development business. A taxpayer acquired property as a capital asset, but later ventured it into a business of developing and subdividing land. In calculating the net profit on sale, the TD says the taxpayer should take into account an appropriate proportion of the market value of the land when it was ventured into the business. The market value should take into account its potential for subdivision and the probability of obtaining the relevant consents.

69.         We think the same approach applies when determining an assessable net profit from an isolated profit-making scheme that wasn't characterised as a business.

70.         Since Head Company A ventured any land it held into the development project at XXXX, it follows that Head Company A can treat the market value of the properties it held at that time as a starting cost when determining any net profit assessable as ordinary income.

71.         Note that the consolidation rules would treat subsidiaries within Head Company A's income tax consolidated group as parts of Head Company A for tax purposes: see paragraphs 52 to 54.

Question 4

If any part of the proceeds on sale is assessable to Head Company A under a revenue provision, is that part assessable in the 2025 income year?

Answer

Yes

Summary

72.         Following ATO guidance, any ordinary income from the sale of real property is derived on settlement.

73.         If a portion of the land was trading stock, any amount assessed under section 70-90 would also be assessed on the disposal date.

74.         Since the contract was settled and title passed in the 2025 income year, any amount assessed under revenue provisions will be assessed in that year.

Explanation

Following ATO guidance, we think profits from property transactions assessed as ordinary income are assessable at settlement, rather than when the contract was entered into.

75.         We concluded in Question 1 that the portion of the transaction attributable to the XXXs will be assessed under revenue provisions.

76.         ATO guidance suggests you usually derive income from the sale of real property on settlement. TR 97/9,[10] at paragraph 89, cited a case (Gasparin) as holding that income from the sale of land wasn't derived until settlement had taken place. The ruling reasoned that until settlement, the seller hasn't performed all the actions needed to become entitled to receive the payment. Therefore, the seller doesn't earn the income until settlement.

77.         ATO guidance also extends this reasoning to profits from isolated transactions. ATO ID 2004/407[11] was about a sale of residential property by a non-business investor. The ATO concluded that (on the facts of the scenario) the profit on sale was assessable under section 6-5 as an isolated profit-making transaction following TR 92/3. ATO ID 2004/407 applied the comments in TR 97/9 at paragraph 89. It concluded that the income from the sale of property wouldn't be derived under section 6-5 until the contract had been completed and settlement had occurred.

78.         It follows that any gain assessed as ordinary income will be assessed in the 2025 income year. Following TR 97/9 and ATO ID 2004/407, net profits assessable under section 6-5 are derived on settlement, not on entering the contract. While Head Company A entered the contract in the 2024 income year, completion (settlement) was in the 2025 income year. It follows that the net profit attributable to the portion of the property set aside for the sale of XXX will be assessable in the 2025 income year.

79.         The same would apply if the trading stock provisions applied to the disposal instead of section 6-5. If the XXX portion of the transaction was instead assessed under section 70-90, then the relevant amount would be included in assessable income on the day of the disposal. The disposal date would be when title passed (i.e. on settlement/completion in the 2025 income year), rather than the date the contract signed (in the 2024 income year).

80.         The capital gain component will be assessable in the 2024 income year. Section 102-5 includes any net capital gain for an income year in your assessable income. CGT event A1 happens at the time you enter into the disposal contract (if there is one): see subsection 104-10(3). Since Head Company A entered the sale contract in the 2024 income year, the CGT event and any capital gain would also be in that year. Nothing in the CGT rules or section 6-10 turns on derivation, so it doesn't matter that the relevant income might not have been 'derived' for ordinary income purposes until a later income year.

81.         The anti-overlap rules in sections 6-25 and 118-20 apply to stop amounts assessed under revenue provisions from being assessed again as part of a capital gain, even if the CGT rules would have applied in an earlier income year.

82.         Note that the consolidation rules would treat subsidiaries within Head Company A's income tax consolidated group as parts of Head Company A for tax purposes: see paragraphs 52 to 54.

[1] Taxation Ruling TR 92/3 Income tax: whether profits on isolated transactions are income.

[2] Taxation Ruling TR 97/11 Income tax: am I carrying on a business of primary production?

[3] Taxation Determination TD 92/124 Income tax: property development: in what circumstances is land treated as 'trading stock'?

[4] Taxation Ruling TR 2024/3 Income tax: deductibility of self-education expenses incurred by an individual.

[5] Taxation Ruling TR 2023/3 Income tax: expenses associated with holding vacant land.

[6] Taxation Ruling TR 2020/1 Income tax: employees: deductions for work expenses under section 8-1 of the Income Tax Assessment Act 1997.

[7] Taxation Ruling TR 2011/6 Income tax: business related capital expenditure - section 40-880 of the Income Tax Assessment Act 1997 core issues.

[8] Beyond specific provisions in Division 70, section 6-5, and section 8-1, there may also be a capital gain from CGT event K4 (section 104-220) if the taxpayer made a market value election under section 70-30.

[9] Taxation Determination TD 97/1 Income tax: property development: if land, originally acquired as a capital asset, is later ventured into a business of development, subdivision, and sale, how is the market value of the land calculated at the time it is ventured into the business?

[10] Taxation Ruling TR 97/9 Income tax: sale of wool.

[11] ATO Interpretative Decision ATO ID 2004/407 Income Tax Assessable income: residential properties instalment sales contracts - investor not carrying on a business.

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