07. Capital Gains Tax

Capital gains tax (CGT) is a tax on the realisation of an asset acquired after 19 September 1985. Capital gains apply when the realisation of the asset is not in the ordinary course of the taxpayer’s business. For example: the sale of a parcel of land by a property developer would be in the ordinary course of business and would be taxed under normal rates applicable to the taxpayer. The same sale by an individual not in the business of property development may be subject to capital gains tax.

Has a Capital Gain or Loss Occurred?

Deciding whether a CGT event has taken place is a five-step process:

• Does the act or transaction involve a CGT event?
• Does the CGT event involve a CGT asset?
• Does an exemption or concession apply to the CGT event?
• Does a roll-over provision apply?
• Does a capital gain or loss arise from the CGT event?

CGT events can be sub-categorised into the following main categories:

• Event A1 Disposal of a CGT Asset;
• Event B1 Use and enjoyment of an asset before title passes;
• Events C Circumstances when a CGT asset ends;
• Events D Creation of a CGT asset;
• Events E Trusts;
• Events F Leases;
• Events G Shares;
• Events H Special Capital Receipts;
• Events I Australian Residency Ends;
• Events J Roll-over reversals;
• Events K Other CGT Events;
• Events L Consolidated & MEC Groups.

Determining which CGT category (and sub category) a given event relates to is a complex and very important matter. Each CGT event has different specifications on the timing, calculation, and possible exemptions and concessions available.

CGT Assets

The definition of a CGT asset is very broad and includes any type of property and legal or equitable rights.

Some examples are:

• Shares in a company;
• Land and buildings;
• Options;
• Interest in a partnership;
• Goodwill;
• Patents and trademarks.

Types of CGT Assets

CGT assets are divided into three categories: collectables; personal use assets; and other assets.

Collectables

Are mainly kept for personal use or enjoyment, and are defined as:

• Artwork, jewellery, antiques, coins & medallions;
• A rare folio, manuscript or book;
• A postage stamp or first day cover.

Any capital gain or loss is ignored if the collectable was acquired for less than $500 (ex. GST). A capital gain from a collectable asset is assessable income; however, capital losses from a collectable can only be offset against capital gains from a collectable.

Personal Use Assets

A personal use asset is an asset other than a collectable that is used for personal use or enjoyment. Assets acquired for under $10,000 (ex. GST) are ignored. If the asset was acquired for more than $10,000 then capital gains are assessable, however capital losses are ignored.

Other Assets

For assets that are not collectables or personal use assets, the normal CGT rules apply.

Separate CGT Assets

Adjacent Land

Where land is acquired adjacent to pre-CGT land or where post-CGT land and pre-CGT land are combined into one title, they will be treated as separate assets for CGT purposes.

Buildings

If you construct a building on pre-CGT land, that building will be deemed to be a separate CGT asset. A building will also be treated as a separate CGT asset when built on post-CGT land where special building allowances have been claimed for tax purposes.

Improvements

An improvement to a pre-CGT asset will also be treated as a separate asset for CGT purposes where the improvement exceeds the threshold limit for that year and is greater than 5 per cent of the sale price of the improved asset.

The threshold figures for each year are:

1985-86 $50,000

1986-87 $53,950

1987-88 $58,859

1988-89 $63,450

1989-90 $68,018

1990-91 $73,459

1991-92 $78,160

1992-93 $80,036

1993-94 $80,756

1994-95 $82,290

1995-96 $84,347

1996-97 $88,227

1997-98 $89,992

1998-99 $89,992

1999-00 $91,072

2000-01 $92,802

2001-02 $97,721

2002-03 $101,239

2003-04$104,377

2004-05 $106,882

2005-06 $109,447

2006-07 $112,512

2007-08$116,337

2008-09$119,594

2009-10 $124,258

2010-11$126,619

2011-12$130,418

2012-13 $134,200

2013-14 $136,884

2014-15 $140,443

2015-16 $143,392

2016-17 $145,401

2017-18 $147,582

2018-19$150,386

Exemptions from CGT

Only assets acquired on or after 20 September 1985 are subject to CGT. Assets acquired prior to that are not subject to the CGT provisions.

Below is a list of some of the items that are exempt from CGT:

• A car, motorcycle or similar vehicle that is designed to carry less than one tonne or fewer than nine passengers;
• A decoration that is awarded for valour or brave conduct, unless purchased by the taxpayer;
• A collectable item acquired for less than $500;
• A personal use item acquired for less than $10,000;
• A CGT asset used solely to produce exempt income not subject to withholding tax;
• Gambling winnings or prizes;
• An individual’s main residence;
• Compensation for personal injuries or libel, slander and defamation. Insurance proceeds for personal accident claims are also exempt.

Business Vehicles

Although as listed above vehicles are exempt from CGT, it is worth remembering that if the vehicle has been used for business purposes there will be a difference in the written down book value at the time of sale and the sale price received. Often the written down value is less than the amount received at trade in and the subsequent profit on sale is assessable.

Main Residence Exemption

As noted above, generally an individual’s main residence is exempt from CGT. There are a number of facets of this exemption that justify further review.

A full exemption is not available where the residence was only a main residence for part of the ownership period and where the premises were used for the purposes of producing assessable income.

Where an individual owns more than one residence a choice must be made as to which residence is the main residence for CGT purposes. This choice must be made when the taxpayer’s income tax return is prepared for the year in which the CGT event occurred.

Where a taxpayer has a main residence and purchases another residence which is to become a main residence, the taxpayer has up to six months where both may be claimed as their main residence. The exemption only applies where the property was not used for income producing purposes and it was your main residence at least three months in the preceding 12-month period.

Make sure you are eligible for the concession before claiming it.There have been a number of cases where the taxpayer lost out and suffered amended assessments with penalties. These cases have involved taxpayers buying property and not initially moving into it.

Absence From Main Residence

Where a taxpayer initially occupies a residence then vacates it and uses it to produce assessable income the main residence exemption can continue to be claimed for a period of up to six years. The taxpayer is eligible for another six-year period each time the residence becomes and ceases to be their main residence.

Where a taxpayer vacates their main residence and does not use it to produce assessable income, the main residence exemption will apply indefinitely.

These concessions do not enable the taxpayer to nominate another residence to be their main residence at the same time.

Different Main Residences

Where spouses have a different main residence, a choice must be made as to which residence will be claimed as their main residence. If they nominated different addresses and they owned both properties 50/50 share, then 50 per cent of each residence would be entitled to the main residence exemption.

COMPULSORY ACQUISITIONS

The main residence exemption applies to a replacement dwelling acquired due to the original dwelling being destroyed or compulsorily acquired while the property was the only main residence pursuant to the temporary absence provision.

FOREIGN AND TEMPORARY TAX RESIDENTS

Foreign and temporary tax residents will no longer have access to the CGT main residence exemption from 9 May 2017. Existing properties held prior to this date will be grandfathered until 30 June 2019.

This could impact Australians intending to sell an Australian main residence when living overseas.

Previously withholding tax of 10% applied to foreign tax residents with real property sales proceeds of over $2 million. Because of announcements in the 2017 budget, the threshold has been reduced to $750,000, and the withholding rate increased to 12.5%

Small Businesses Concessions

The Government announced in the 2017 Budget that it would be amending the small business CGT concessions to ensure they can only be accessed in relation to assets used in a small business or ownership interests in a small business.

The concessions assist owners of small businesses by providing relief from CGT on assets related to their business, as well as contribute to their retirement savings through the sale of a business. However, some taxpayers can access these concessions for assets which are unrelated to their small business, for instance through arranging their affairs so that their ownership interests in larger businesses do not count towards the tests for determining eligibility for the concessions.

The small business CGT concessions will continue to be available to small business taxpayers with aggregated turnover of less than $2 million or business assets less than $6 million. These measures apply from 1 July 2017.

To assist small businesses, a number of concessions are available for CGT purposes.

The main criteria for eligibility:

• A capital gain would have resulted from a CGT event regarding an asset owned by the entity;
• Just prior to the CGT event the net assets of the business and its related entities did not exceed $6 million;
• The CGT asset must be an active asset;
• There must be a “significant individual” with the right to at least 20% of the distributions of income from the entity or having 20% of the voting power.

The concept of an active asset is very important. An active asset is an asset that is used by the taxpayer in carrying on the business (e.g. plant, goodwill). The asset must be active at the time of disposal or sold within 12 months after the cessation of the use of that asset in the business. The asset must also be an active asset for the lesser of half of the period of ownership, or 7.5 years.

The four available small business concessions are:

15-year exemption;

50% active asset reduction

Retirement concession;

Roll-over.

15-Year Exemption

A small business can disregard a capital gain rising from a CGT event in relation to a CGT asset that it has owned for periods totalling 15 years or more, provided:

• If the entity is an individual, the individual is over the age of 55 and permanently retires or is incapacitated;
• If the entity is a trust or company, the significant individual permanently retires or is incapacitated;
• The asset was an active asset at the time of the disposal;
• The active asset was active for at least half the period of ownership or 7.5 years.

Where the 15-year exemption applies, none of the other small business concessions can apply.

50% ACTIVE ASSET REDUCTION

A 50 per cent active asset exemption is available to active assets of a small business with net assets up to $6 million. This 50 per cent exemption is applied to the net capital gain after having made adjustments for any capital losses.

Retirement Concession

A full CGT exemption may be able to be claimed by a taxpayer up to a lifetime maximum of $500,000 where those proceeds are used for retirement. If the significant individual is over 55, the gain can be disregarded. If the significant individual is under 55, then the capital proceeds must be rolled into a complying superannuation fund until their preservation age.

The CGT exempt amount becomes an Employment Termination Payment ( ETP) and if deposited into a superannuation fund will not be treated as taxable contributions and will not be subject to tax on withdrawal in retirement.

The capital proceeds must be received by the superannuation fund within the period beginning one year prior and ending two years after the sale.

Roll-over Relief – Small Business

The capital gain made on the disposal of a small business can be rolled over into a new business provided the new active assets are acquired within the period commencing one year before or two years after the CGT event occurred.

Using More Than One Concession

One of the most important aspects of the concessional treatment of CGT for small businesses is that multiple concessions can be used to obtain the optimal outcome for the taxpayer.

An individual operating a small business could be eligible for:

1.The 50% CGT discount for individuals;

2.The 50% active asset exemption on the balance of the capital gain;

3.The remaining 25% of the gain could be rolled over into replacement assets, or it could be applied to the $500,000 CGT retirement exemption.

Common Errors when applying the CGT Concessions

The ATO has outlined some common errors occurring when taxpayers apply the small business CGT concessions and has offered tips to help avoid those errors.

Satisfy the maximum net asset value test

Just prior to the CGT event, the total net value of the taxpayer’s CGT assets cannot exceed $6 million.

This includes the net value of the CGT assets of any entity that is ‘connected with’ the taxpayer, is an ‘affiliate’ of the taxpayer, or who is connected with the taxpayer’s affiliates.

Determine the market value of a business or asset

Where the market value is required, accepted valuation principles should be applied.

Use the contract date, not settlement date

The CGT event occurs at the time the contact is entered into, not at the settlement date.For disposals of assets, the time of the CGT event is when the disposal contract is signed.

Where contract and settlement dates cross over financial years, the capital gain or loss should be declared in the financial year in which the contract was signed.

Record Keeping for Small Business CGT Concessions

The ATO also stressed that taxpayers should keep good records to help them determine if they are eligible to claim the small business CGT concessions, including evidence of:

• Carrying on a business, including calculations of turnover (to determine eligibility for the ‘small business entity’ (SBE) test);
• The market value of relevant assets just before the CGT event (to demonstrate eligibility for the $6 million maximum net asset value test);
• How capital losses have been calculated and carried forward to later years; and
• Relevant trust deeds, trust minutes, company constitution and any other relevant documents.

Other Roll-over Relief

Roll-over relief allows a taxpayer to preserve pre-CGT status of some assets or defer CGT payable on assets in certain circumstances.

The main areas of roll-over relief are:

• Roll-over to a company;
• Replacement asset roll-overs;

• Same asset roll-overs;
• Small business disposal.

Roll-over to a company

Roll-over relief is available when a CGT asset is transferred into a wholly owned company and the consideration is non-redeemable shares are that of a comparable value of the net assets transferred. After the event the transferor must own all the shares in the company.

For example: The GPR Partnership has two partners, Steve and Jane – each with a 50 per cent share in the partnership. The partnership (excluding trading stock) has net assets of $20,000 and the partners wish to roll the assets into a company and continue trading in the corporate entity GPR Pty Ltd. For roll-over relief to be available, Steve and Jane should each be issued with 10,000 $1 shares each in the company.

Replacement Asset Roll-overs

Roll-over relief is generally available in the following circumstances:

• Involuntary disposal (and subsequent replacement) of a CGT asset. For example: if the asset was lost or destroyed or became part of a compulsory acquisition by the Government;
• Renewal or extension of a statutory licence or Crown lease;
• Exchange of shares, rights or options;
• Strata title conversions;
• Replacement of a mining or prospecting licence after its expiry or surrender;
• Scrip-for-scrip roll-over where an interest in an entity is replaced by shares or an interest in the acquiring entity. The acquiring entity must hold 80% of the voting rights in the original (target) entity.

Same Asset Roll-overs

Roll-over relief is available for the following same asset roll-overs:

• A CGT asset is transferred to a spouse because of a court order after a marriage break down;
• A CGT asset is transferred to a spouse under a binding financial agreement;
• A CGT asset is transferred between companies with 100% common ownership at the time of the CGT event.

Under similar conditions this has been extended to apply to assets transferred from 1 March 2009, to a former partner in a de facto relationship, including same sex relationships.

Disposal of Small Business Roll-over Relief

This is discussed previously, under “Small Business Concessions”.

Effect of Roll-over

Where roll-over relief is available to the taxpayer, any capital gain that would have resulted from the transfer is disregarded and the CGT asset retains its original cost base.

Once the asset is sold to a third party the taxpayer’s capital gain would be based on the difference between the selling price and the original cost base of that asset. If the original asset had been purchased pre-CGT, then no assessable gain would arise.

Calculating a Capital Gain or Loss

Once it has been determined that a CGT event has occurred, and it is not exempt, a capital gain or loss can be calculated for most events by:

• Calculating the capital proceeds from the CGT event;
• Calculating the cost base of the CGT asset;
• Taking the cost from the proceeds, giving a capital gain or loss.

Cost Base

An asset’s cost base is made up of the following:

• The purchase price of the asset;
• Costs incurred in acquiring that asset, for example: stamp duty and legal fees;
• Capital expenditure incurred to increase the assets value, for example extensions to a building;
• Non-capital costs of ownership of the CGT asset where the asset was acquired after 20 August 1991 and no deduction has been made for these costs. These costs include: interest on funds borrowed to acquire the asset or make capital improvements, costs of maintaining the asset, insurance, rates and land tax. An example of this asset would be a holiday home that had been used exclusively for private use;
• Capital expenditure incurred to establish, preserve or defend title to the asset or a right over the asset.

If an asset was acquired before 21 September 1999, two methods of calculating are available: the discount method and the indexation method.

Discount Method

If you are a resident, individual, trust or complying superannuation fund you are eligible for a 50 per cent (33 1/3% for superannuation funds) discount on the capital gain.

For assets held longer than 12 months, this discount is not available to companies.

CGT assets acquired post 21 September 1999 can only use the discount method for calculating the capital gain.

Until 8 May 2012, non-residents were also entitled to claim 50% discount, but this entitlement was removed in the 2012 budget and gains accrued after 8 May 2012 are not allowed the discount.

Indexation Method

The cost base of the asset is indexed for inflation up to 30 September 1999. The difference between the indexed cost base and the consideration received is the capital gain. Indexation cannot be used to create a capital loss or increase a capital loss.

Importantly neither the discount method nor indexation method are available unless the asset is held for more than 12 months.

CGT Indexation Factors

The CGT indexation factors aim to account for the impact of inflation over the period of holding the CGT asset. These rates can only be used for assets that were purchased prior to 21 September 1999.

This method is of importance for companies holding assets acquired prior to this date as the 50 per cent discount method is not available to them.

CGT INDEX NUMBERS

Index Numbers for Capital Gains Tax

YearMarchJuneSeptDec

1985 N/A N/A 71.3 72.7

1986 74.4 75.6 77.6 79.8

1987 81.4 82.6 84.0 85.5

1988 87.0 88.5 90.2 92.0

1989 92.9 95.2 97.4 99.2

1990100.9102.5103.3106.0

1991105.8106.0106.6107.6

1992107.6107.3107.4107.9

1993108.9109.3109.8110.0

1994110.4111.2111.9112.8

1995114.7116.2117.6118.5

1996119.0119.8120.1120.3

1997120.5120.2119.7120.0

1998120.3121.0121.3121.9

1999121.8122.3123.4N/A

The cost base and indexed cost base is worked out as follows:

As the item was acquired before 21 September 1999, Fred has alternative methods of calculating his taxable capital gain.

He can use the Indexation Method which is frozen at 30 September 1999.

This is calculated as follows:

Selling price $300,000

Less indexed cost base $258,850

Taxable capital gain $ 41,150

Alternatively, he may use the actual cost base and claim the 50 per cent discount available to individuals.

This is calculated as follows:

Selling price $300,000

Less actual cost base $255,000

Capital gain $ 45,000

Less 50% discount $ 22,500

Taxable capital gain $ 22,500

In this circumstance Fred would be far better off using the discount method for calculating his capital gain on sale.

APPLYING THE CGT SMALL BUSINESS CONCESSIONS

A review of case law reveals a number that centre on these concessions and particularly the $6 million net asset threshold issue.

In these cases, some “creative accounting” has come to grief with some assets omitted and some contingent (but not actual) liabilities included by Accountants.

See: White and Anor v FC of T 2012 FCA109

Bell v FC of T 2012

Be very clear that the ATO is likely to investigate eligibility due to the amount of revenue involved and when claiming the concession, exercise caution and good sense.

Capital Losses

Capital losses can be offset against capital gains in the current or future years. Capital losses that relate to a collectable are quarantined and can only be offset against capital gains on collectables, as previously discussed.

When offsetting a capital loss against a capital gain it is important to remember that the loss reduces the gain before any discount is applied.

For Example: James makes a capital gain of $20,000 on the sale of a parcel of shares he has held for many years. He has capital losses from prior years carried forward of $5,000. As he has held the shares for more than 12 months, James is entitled to the 50 per cent discount, but only after the capital losses have been applied. So, the taxable gain would be $20,000- $5,000 = $15,000 less 50% discount of $7,500 (50% of $15,000) = a gain of $7,500. James would pay tax on the discounted gain of $7,500 at his marginal rate.

Note: When offsetting capital losses against capital gains consider the Taxpayer Alert 2008/7 regarding “wash sales”.

Record Keeping

Taxpayers are required to keep records relating to their capital assets for five years after the last CGT event for that asset (usually the sale of the asset). This is particularly important as some CGT assets are held for long periods by taxpayers before they consider a sale. Over time without detailed records it becomes easy to forget about items that may substantially contribute to the cost base of an asset and therefore reduce future capital gains tax. For example: improvements made to the asset, such as an investment property.

Deceased Estates

When a person dies generally a capital gain or loss involving a CGT asset is disregarded. Exceptions to this are when the asset passes onto a beneficiary that:

• Is a tax exempt entity;
• Is the trustee of a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust;
• Is a non-resident and the asset does not have the necessary connection with Australia.

If the asset is a pre-CGT asset, then there will be no CGT paid on death by the beneficiary; however, the beneficiary will be deemed to have acquired the asset on the date of death for market value. This value will be used as the cost base for any future capital gains or losses.

Where the asset was acquired post 20 September 1985 by the deceased, the beneficiary is deemed to have acquired that asset on the date of death at the same cost base of the deceased. This cost is eligible for indexation frozen at 30 September 1999.

A capital gain or loss on the principal place of residence of the deceased is ignored so long as:

• The property is passed onto the taxpayer in their capacity as beneficiary or trustee of the estate; and
• The taxpayer’s ownership ceases within two years of the deceased passing.

Legal structure change without CGT liability

From 1 July 2015, small business owners are also able to change the legal structure of their business without incurring a CGT liability. This will reduce some of the complexity of starting a new business and provide business owners with more flexibility to determine how they grow.

CAPITAL GAINS CHECKLIST

In the event you answer YES to any of the following questions keep records including details of acquisitions, disposals, deferred capital amounts, additions, improvements and other expenditure.

For main residence acquired after 19.09.1985
Has it been used to produce income? (e.g. carried on a business from it or rented part or all of it?Is it on land exceeding two hectares (5 acres)?or Have you or your spouse had another main residence for a period exceeding six months since acquisition of your current main residence? Do you own any shares in a company or units in a unit trust that you acquired after 19.09.1985?	Y/NY/N Y/N Y/N
Do you own any other land or property you acquired after 19.09.1985?(e.g. rental property, holiday home, offices)	Y/N
Have you made any improvements after 19.09.1985……?-to buildings or parts of buildings that are treated as separate assets under the act -to land acquired prior to 20.09.1985, including: demolishing and then erecting a new building, constructing a building, acquiring adjacent land, other improvements where the cost exceeded the indexed threshold Other post 19.09.1985 improvements to property acquired prior to 20.09.1985, where the cost of the improvement exceeded the indexed threshold.	Y/N Y/N Y/N
Since 19.09.1985, have you acquired any motor vehicles designed to carry more than eight passengers or loads exceeding one tonne?	Y/N
Have you acquired, or acquired an interest in, any of the following collectables after 19.09.1985 for more than $500:-jewellery, a coin or medallion, an antique -a rare folio, manuscript or book -a postage stamp or first day cover -a painting, sculpture, drawing, engraving, photograph, reproduction or similar work of art -an interest debt, or right or option in respect of any of the above?	Y/N
Have you acquired any rights, options or other assets (but see assets specifically excluded) since 19.09.1985?	Y/N
Have you received a capital amount after 19.09.1985 including….?-a forfeited deposit (other than one payable on exchange of contracts) -a restrictive convenant or compensation payment -a payment for giving up amateur status	Y/N
Have you received a capital distribution or a distribution that includes a non-assessable payment from a trust?	Y/N
Have you received an asset from a deceased estate?	Y/N
Have you acquired any assets as a result of a marriage breakdown?	Y/N
Have you acquired any business assets?	Y/N
Have you acquired any assets used primarily for personal use and enjoyment that you acquired for more than $10,000?	Y/N

CGT WITHHOLDING REGIME

New CGT withholding provisions commenced on 1 July 2016 and we urge caution because the scope of the provisions appears much wider than suggested by the government and the ATO.

It should be noted:

The measures do not just apply to sale transactions

Any event that is an actual or deemed ‘acquisition’ under Division 109 of the 1997 Tax Act may trigger a withholding obligation.For example, if a person dies, the transfer of title of land to their executors may be caught by the withholding provisions and the executors will either have to obtain a clearance or variation certificate or be liable for withholding tax.

The ATO position is that the measures only apply to changes of legal ownership of assets

It is questionable whether the ATO position on this issue is consistent with the legislation.If it is correct, transactions that involve a change in beneficial ownership without a transfer of title will not trigger any withholding obligation (e.g. a declaration of trust).

A transfer of title of real property from a retiring trustee to a new trustee could require the outgoing trustee to obtain a clearance certificate.

If a property holds land as trustee and a clearance certificate is required, the ATO have advised that the application for the clearance certificate must be in the name of the trustee – not the trust

This could mean confusion and possible delays in getting clearance certificates in these cases because of the propensity for parties and regulators to confuse the ABN/TFN identifiers for a trustee as opposed to the trust estate.

In cases where a company only acts as trustee, it may never have lodged a tax return so the ATO will have no history to assess the residency credentials of the applicant.

A withholding obligation will arise even when there are no CGT consequences because of a mandatory rollover (e.g. a matrimonial rollover).

The $750,000 ‘safe harbour’ threshold does not apply to transactions involving options, shares or units.

Trustee of discretionary trust will often need to answer ‘yes’ to question 3 in section D of the clearance certificate application

This question asks if the applicant holds the land ‘on behalf of other entities that include a foreign resident.’

Because the eligible beneficiaries of most discretionary trusts include a wide range of relatives and connected entities, it will be common to find that some of those eligible beneficiaries are foreign residents (at least for tax purposes).

The ATO view is that the obligation to make a withholding payment will arise on the date of completion of a sale transaction but they will allow a period of grace.

Normally lawyers will cross these issues when drafting contracts – however some transactions occur without legal advice and all participants should be aware of these changes.