While most SMSF practitioners have been working their way through the CGT relief for clients, there remains a few questions around what assets are eligible for the CGT relief, said BDO superannuation partner Mark Wilkinson at a Tax Institute conference last week.
“One of the requirements under the legislation is that the asset must be held from the pre-commencement period all the way through to the date that it’s unsegregated if it’s a segregated asset, or to 30 June if it’s dealt with on a proportional basis. This raises the issue of what happens where there’s a change in the nature of an asset,” Mr Wilkinson said.
“There are a couple of examples of this, including property settlements, options being exercised or a corporate restructure taking place [with shares].”
Also speaking at the Tax Institute conference, ATO acting assistant commissioner Tara McLachlan explained that the most important principles to look at with this are what the asset is and whether it was held during required period.
“If we look at property settlements first, if a fund exchanges a contract on the property in October but it settles in December, this wouldn’t be eligible for CGT relief.
“It’s all about legal ownership, so when you enter into the contract the asset that you have is contractual rights, it’s not until settlement that you actually acquire the property so that is the time from when it will be held.”
With a corporate restructure, this is going to depend on the facts of the particular case, Ms McLachlan said.
“If the restructure left the share entitlement unchanged, and it was merely the conditions associated with the shares so it changed from a Class A to a Class B, then potentially the CGT relief could apply,” the acting assistant commissioner said.
“However, if it was a change from one distinct type of share to a different type of share, then obviously it’s not the same kind of asset, so you wouldn’t get CGT relief.”
It is also clear, she said, that an option is different from a share.
“So, what you held one day was the option, you then acquire a different asset being the share, so in that case, our view is that CGT relief does not apply,” Ms McLachlan said.
Tell me I am reading this incorrectly. Why would the ATO person refer to an asset, sold before June 2017, in an article about CGT relief and cost base reset? Of course it isn’t eligible because it isn’t there anymore! Surely the ATO can do better? Or are we accountants so dumb that this has to be pointed out to us?
If CGT Relief is about CGT assets, why wouldn’t the date of contract be the tax date? The settlement date is not the tax date in any other CGT calculation, so why has it shifted for CGT Relief purposes?
(CGT rules seem to focus in on the paper trail that is associated rather than the ‘ legal ownership’, so this a surprising comment.)