Edited version of your written advice

Authorisation Number: 1012707281843

Ruling

Subject: Capital gains tax

Question 1

Will the proceeds from the sale of the property under the terms of the contract be assessable as ordinary income pursuant to section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

No.

Question 2

Will the anticipated gain made from the sale of the property under the terms of the contract be considered a capital gains tax (CGT) event pursuant to Part 3-1 of the ITAA 1997?

Answer

Yes.

Question 3

If the sale of the property is assessable as a capital gain, can the entire capital gain be disregarded under section 118-110 and 118-120 of the ITAA 1997?

Answer

No, only a portion of the capital gain can be disregarded.

Question 4

When your interest in lot 11 is sold, can the subsequent capital gain be disregarded?

Answer

Yes.

This ruling applies for the following period

Year ending 30 June 2015

Year ending 30 June 2016

The scheme commences on

1 July 2014

Relevant facts and circumstances

Individual A first acquired a rural property prior to September 1985.

Individual A and Individual B were married some years ago.

After their marriage, Individual A continued to hold the property in her/his own name.

After 20 September 1985, Individual A transferred an interest in the property to Individual B.

The executed Memorandum of Transfer described the transfer as from Individual A (as Transferor) to Individual A and Individual B as joint tenants.

The property is on a single title and is more than 2 hectares in size. The property is zoned rural.

The improvements on the property included a dwelling which Individual A and Individual B occupied as their main residence. The property is not used for any other purposes.

Individual A and Individual B have been approached by a developer to purchase the land.

The purchaser intends to acquire the adjacent land to the property from other vendors.

The purchaser will enter into a contract to purchase the property from Individual A and Individual B separately.

You will purchase an interest in lot A from the developer.

The new lot A will be less than 2 hectares. It will include the whole of the existing dwelling.

Lot A will continue to be used as Individual A and Individual B's main residence.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 paragraph 104-10(5)(a)

Income Tax Assessment Act 1997 section 109-5

Income Tax Assessment Act 1997 section 118-110

Income Tax Assessment Act 1997 section 118-120

Reasons for decision

Question 1 & 2

We need to determine whether the proceeds from the sale of the land:

• are assessable ordinary income under section 6-5 of the ITAA 1997 as you were carrying on a business of property development

• are assessable ordinary income under section 6-5 of the ITAA 1997 as you conducted an isolated commercial transaction with a view to a profit, or

• are a realisation of a capital asset and assessable under the CGT provisions of the ITAA 1997.

Carrying on a business of property development

Based on the information provided, we consider that any proceeds received from the sale of the subdivided land would not be derived in the course of carrying on a business.

Profits from an isolated transaction

Profits arising from an isolated business or commercial transactions will be ordinary income if the taxpayer's purpose or intention in entering into the transaction is to make a profit, even though the transaction may not be part of the ordinary activities of the taxpayer's business (FC of T v. Myer Emporium Ltd 1987 163 CLR 199; 87 ATC 4363; 18 ATR 693) (Myer Emporium). 

Taxation Ruling TR 92/3 considers the principles outlined in the Myer Emporium case and provides guidance in determining whether profits from isolated transactions are assessable under section 6-5 of the ITAA 1997 as ordinary income.

If a taxpayer makes a profit from a transaction or operation, that profit is income if the transaction or operation is not in the course of the taxpayers business but:

• the intention or purpose of the taxpayer in entering into the profit-making transaction or operation was to make a profit or gain, and

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

Whether an isolated transaction is business or commercial in character will depend on the circumstances of each case.  Where a taxpayer's activities have become a separate business operation or commercial transaction, the profits on the sale of subdivided land can be assessed as ordinary income within section 6-5 of the ITAA 1997. TR 92/3 lists the following factors to be considered:

a) the nature of the entity undertaking the operation or transaction 

b) the nature and scale of other activities undertaken by the taxpayer

c) the amount of money involved in the operation or transaction and the magnitude of the profit sought or obtained

d) the nature, scale and complexity of the operation or transaction

e) the manner in which the operation or transaction was entered into or carried out

f) the nature of any connection between the relevant taxpayer and any other party to the operation or transaction

g) if the transaction involves the acquisition and disposal of property, the nature of that property, and

h) the timing of the transaction or the various steps in the transaction.

Miscellaneous Taxation Ruling MT 2006/1 provides a list of specific factors relevant to isolated transactions and sales of real property. If several of the factors are present, it may be an indication that a business or an adventure or concern in the nature of trade is being carried on. These factors are as follows:

• there is a change of purpose for which the land is held;

• additional land is acquired to be added to the original parcel of land;

• the parcel of land is brought into account as a business asset;

• there is a coherent plan for the subdivision of the land;

• there is a business organisation - for example a manager, office and letterhead;

• borrowed funds financed the acquisition or subdivision;

• interest on money borrowed to defray subdivisional costs was claimed as a business expense;

• there is a level of development of the land beyond that necessary to secure council approval for the subdivision; and

• buildings have been erected on the land.

No single factor is determinative; rather it will be a combination of factors that will lead to a conclusion as to the character of the activities.

Application to your circumstances

Having regards to your circumstances and the factors outlined above, we do not consider that the proceeds from the sale of the land will be assessable under section 6-5 of the ITAA 1997. We accept that the disposal of the land will be a mere realisation of a capital asset.

Question 3

Under section 118-110 of the ITAA 1997, a capital gain (or loss) you make from a CGT event that happens in relation to a CGT asset that is a dwelling or your ownership in it is disregarded if:

• you are an individual; and

• the dwelling was your main residence throughout your ownership period; and

• the interest did not pass to you as a beneficiary in, and you did not acquire it as a trustee of, the estate of a deceased person.

Subsection 118-120(1) of the ITAA 1997 applies to a dwellings adjacent land (if the same CGT event happens to that land or your ownership interest in it) as if it were a dwelling.

Land adjacent to a dwelling is its adjacent land to the extent that the land was used primarily for private or domestic purposes in association with the dwelling.

The maximum area of adjacent land covered by the exemption for the CGT event is 2 hectares, less the area of land immediately under the dwelling.

Application to your circumstances

In this case, the property was your main residence for the entire ownership period. However, the total size of the land is more than 2 hectares. Therefore, you are only entitled to a partial main residence exemption.

Question 4

You intend to acquire an interest in lot A from the developer. This property is less than 2 hectares and will be used as your main residence. When you dispose of the property, a CGT event will occur. If the property continues to be used as your main residence, you will be entitled to disregard any capital gain made from the sale of the property under the main residence exemption.