How NALI provisions and CGT provisions interact – draft ATO determination provides important guidance (TD 2023/D1)

A full version of TD 2023/D1 is available here.

In this article, we summarise our understanding of TD 2023/D1 and provide detailed calculations of how we understand TD 2023/D1 would apply in practice.

Background: uncertainty

At the risk of oversimplifying the NALI provisions, they can be – at a very high level – summarised as follows:

An amount of ordinary income or statutory income is NALI if it is greater than what it would have been if parties had been dealing on an arm’s length basis.

Although the above is an oversimplification, one part of it is actually verbatim from the legislation, namely, “[a]n amount of ordinary income or statutory income is [NALI] if…”

This is interesting when it comes to the CGT regime. Naturally, a ‘capital gain’, by itself, is neither ordinary income nor statutory income. However, a ‘net capital gain’ is statutory income pursuant to the method statement in s 102-5(1) and s 6-10.

Of course, under the method statement in s 102-5, ‘net capital gain’ is broadly calculated by (again, at a very high level and in a simplified way):

• Adding up all capital gains for that financial year
• Then subtracting capital losses (present year and then any prior year losses carried forward)
• Reducing by the discount percentage each amount of a discount capital gain remaining

The remaining amount is then the net capital gain. Accordingly, consider a very simple example.

An SMSF has:

• A $1 capital gain due to dealings not conducted on an arm’s length basis
• A $1 million capital gain due to dealings conducted on an arm’s length basis

Assume for simplicity there are no losses and neither of the gains are eligible for the discount percentage (e.g., the relevant acquisitions and disposals occurred within 12 months of each other).

Accordingly, applying the method statement in s 102‑5, the net capital gain would be $1,000,001 (i.e., $1 ‘non-arm’s length capital gain’ + $1 million ‘arm’s length capital gain’).

In a very strict view, the amount of statutory income could be seen as being the entire net capital gain (i.e., $1,000,001). Thus – because of a $1 ‘non-arm’s length capital gain’ – the other $1 million constitutes NALI. Naturally, NALI less relevant deductions is broadly taxed at 45 per cent. Assume there are no relevant deductions.

Therefore, the $1 of ‘non-arm’s length capital gain’ could cause a CGT-related income tax liability of $450,000.45 (i.e., $1,000,001 x 45 per cent). Again, though, this is in a very strict view.

This is not a practical, nor fair, outcome. To its credit, the ATO in TD 2023/D1 consider but end up rejecting this strict view. See paragraphs 57–60 of TD 2023/D1.

The ATO’s view

The ATO, in TD 2023/D1 instead choose the following more practical and sensible approach:

The phrase ‘an amount’ can, as a matter of ordinary usage, apply to an amount which is part of a larger amount

Summary of TD 2023/D1

Accordingly, we understand that in TD 2023/D1 the ATO essentially state that NALI is the lesser of the:

• ‘Non-arm’s length capital gain’ (no reduction for discount percentage, capital losses, etc)
• Net capital gain

Accordingly, in the prior example, under TD 2023/D1, instead of resulting in a $450,000.45 CGT-related income tax liability, there would be a CGT-related income tax liability of $150,000.45 (i.e., $1 x 45 per cent + $1 million x 15 per cent).

The ATO provides three examples.

We have adapted these three examples into the first three scenarios in the accompanying spreadsheet/table. We have also added certain facts. (In example 1, in TD 2023/D1, the ATO state that there is a ‘$500,000 arm’s length capital gain’, but we have added that the capital proceeds were $800,000 and the cost base was $300,000.)

We feel that tax practitioners who wish to gain a very strong understanding of the ATO’s approach in TD 2023/D1 simply need to:

• Remember our summary of TD 2023/D1 above
• Work through the calculations in the spreadsheet

Warning: a ‘non-arm’s length capital gain’ can still taint an ‘arm’s length capital gain’, even under TD 2023/D1.

To illustrate, we have added in the accompanying spreadsheet/table a scenario 4. Scenario 4 is based on scenario 3 but without the arm’s length capital gain. That is, scenario 4 just has a ‘non-arm’s length capital gain’. As shown in the accompanying spreadsheet/table, the resulting income tax liability is $1.47 million.

The difference between scenario 4 and scenario 3 is simply that scenario 3 has an ‘arm’s length capital gain’ of $1 million, which is a discount capital gain.

Everyone knows that such a $1 million discount capital gain in an SMSF should typically cause a tax liability of $100,000 (i.e., $1 million x 15 per cent x (2/3)).

However, applying our summary of TD 2023/D1, the difference between income tax payable in scenario 4 ($1.47 million) and in scenario 3 ($1.77 million) is not $100,000.

Rather, the difference is $300,000 (i.e., $1.77 million – $1.47 million). Accordingly, in a practical sense, because of the presence of a ‘non-arm’s length capital gain’, the ‘arm’s length capital gain’ is still tainted … it just is not fully tainted.

A final warning – this is still only draft

We stress that the draft determination is just that: a draft! Accordingly, heed must be paid to the ATO’s reminder at the start of TD 2023/1:

This publication is a draft for public comment. It represents the Commissioner’s preliminary view on how a relevant provision could apply. If this draft Determination applies to you and you rely on it reasonably and in good faith, you will not have to pay any interest or penalties in respect of the matters covered, if this draft Determination turns out to be incorrect and you underpay your tax as a result. However, you may still have to pay the correct amount of tax.

Related information

For related information and articles:

• NALI advice
• Draft legislation issues on proposed NALE changes

This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional. The above does not constitute financial product advice. Financial product advice can only be obtained from a licenced financial adviser under the Corporations Act 2001 (Cth).

Note: DBA Lawyers presents monthly online SMSF training. For more details or to register, visit www.dbanetwork.com.au or call 03 9092 9400.

For more information regarding how DBA Lawyers can assist in your SMSF practice, visit www.dbalawyers.com.au.

By Bryce Figot (This email address is being protected from spambots. You need JavaScript enabled to view it.) special counsel and Daniel Butler (This email address is being protected from spambots. You need JavaScript enabled to view it.) director, DBA Lawyers