Draft Taxation Determination

TD 1999/D93

Income tax: capital gains: is a court an entity for the purposes of CGT event D1 (about creating contractual or other legal or equitable rights in you) in sections 104-35 and section 109-5 of the Income Tax Assessment Act 1997?

• Please note that the PDF version is the authorised version of this draft ruling.
  This document has been finalised by TD 1999/81.

FOI status:

Not previously released in draft form

Preamble

1. No.

2. The term 'entity' is defined in section 960-100 of the Income Tax Assessment Act 1997 to mean an individual, a body corporate, a body politic, a partnership, any other unincorporated association or body of persons or a trust.

3. A court is not a body corporate, a body politic, or an individual (see Kizon v. Palmer (1997) 142 ALR 488 at 505). So, a court is not an 'entity' as that term is used in section 104-35 (CGT event D1) and the acquisition rules in section 109-5.

Note

4. The importance of this issue is for the application of the general acquisition rules in Division 109 in Part 3-1. If a court were an entity it could create rights in another entity and that entity would acquire the rights in accordance with subsection 109-5(2) and event number D1.

Your comments

5. We invite you to comment on this Draft Taxation Determination. We are allowing 4 weeks for comments before we finalise the Determination. If you want your comments considered, please provide them to us within this period.

Commissioner of Taxation
25 August 1999

References

ATO references:
NO 99/11446-1
BO CGT disposal summit 1999; CPL99/76

Subject References:
asset
CGT asset
acquisition
capital gains
CGT event D1
court
creation of rights
entity

Legislative References:
ITAA 1997 104-35
ITAA 1997 109-5
ITAA 1997 109-5(2)
ITAA 1997 960-100

Case References:
Kizon v. Palmer
(1997) 142 ALR 488