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This edited version has been archived due to the length of time since original publication.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: 1051393600884

Date of advice: 3 July 2018

Ruling

Subject: Income tax: capital gains tax implications of proposed capital contribution

Issue 1

Capital gains tax (CGT) – CGT event D1

Question 1

Would the contribution of further capital to the Partnership by Partner 1 cause CGT event D1 to occur to the Partner 2?

Answer

No

This ruling applies for the following period

Year ended 30 June 2019

The scheme commences on

The date on which the proposed capital is contributed by Partner 1 to the Partnership

Relevant facts and circumstances

Partner 1 and Partner 2 are partners in a partnership.

Partner 2 owns land acquired post 19 September 1985.

Under the terms of the Partnership Agreement, the corporate trustee of a trust makes the land and buildings available to the Partnership for the purposes of the business and the company makes a capital contribution.

The business carried on by the partners in partnership is redevelopment of the land and buildings for commercial purposes.

The Partnership Agreement was varied twice with the company making additional capital contributions with a corresponding increase in its share of the net profits and losses made by the partnership on each occasion.

Partner 1 has made additional capital contributions to fund significant alterations to the land and buildings for commercial purposes.

Partner 1 will contribute the proposed capital, but its share of the net profits and losses made by the partnership will remain unchanged.

Summary

The proposed scheme will not give rise to CGT Event D1.

Detailed reasoning

CGT event D1 will happen if you create a contractual right or other legal or equitable right in another entity (provided no exclusions apply).

In this case funding has occurred from Partner 1, a partner within the partnership.

The Partnership will use these funds will be used to pay for the various works and other expenses still required for the project. Partner 2 will not draw down on these funds and the portion of profit will not be impacted. This is a fundamental element which determines whether a right has been created.

The proposed transaction does not create a right to profit sharing. It follows that as there is no change to Partner 1’s profit sharing proportion, Partner 2 will not create a contractual right to a share of income in favour of Partner 1. Therefore CGT event D1 does not arise from the proposed transaction.