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Decision Impact Statement

The Taxpayer and Commissioner of Taxation

Venue: Administrative Appeals Tribunal
Venue Reference No: 2010/4609
Judge Name: SM McCabe
Judgment date: 25 July 2011
Appeals on foot: No.
Decision Outcome: Partly Adverse

Administrative Treatment (Implication on current Public Rulings and Determinations)

Relevant Rulings/Determinations:

Subject References:
Employee Share Schemes

Précis

This case concerned whether discounts arising from the acquisition of shares under an employee share scheme are assessable income and not subject to the capital gains tax provisions.

Brief Summary of Facts

The applicant, an employee of a multi-national corporation, exercised options as part of the company's employee share scheme to acquire 11,000 shares at a price below market value.

The Commissioner assessed the discount, being the difference between the market price of the share and the strike price of the option, as assessable income of the applicant in accordance with Division 13A of the Income Tax Assessment Act 1936. An administrative penalty was imposed at the rate of 25% for lack of reasonable care.

Issues decided by the Tribunal

The Tribunal found the amount of the discount was assessable as income under Division 13A of the Income Tax Assessment Act 1936 , and a capital loss or gain did not arise. In the circumstances, the discount would be included in the income year in which the cessation time occurred, being the date the shares were acquired. The Tribunal accepted that for the purposes of ascertaining the market value of the share, exchange rate data from the company's website could be used, and that the foreign currency calculation required by the legislation need only occur once the weighted average share price had been determined. The Tribunal allowed a recalculation of the discount to permit the use of the most favourable exchange rates.

The administrative penalty had been correctly imposed as the applicant was experienced in financial matters as a result of his occupation and experience, and ought to have obtained advice given the amount of money involved.

ATO view of Decision

The ATO considers that the case was decided on its facts. The decision confirms a discount arising from shares acquired under employee share schemes is to be included as assessable income of the taxpayer, and the methodology to be applied in ascertaining the value of the discount.

Administrative Treatment

Implications for ATO precedential documents (Public Rulings & Determinations etc)

None

Implications for Law Administration Practice Statements

None

Your comments

We invite you to advise us if you feel this decision has consequences we have not identified, or if a precedential decision such as a Public Ruling or an ATO ID requires reconsideration or amendment. Please forward your comments to the contact officer by the due date.

Date Issued:	22 December 2011
Due Date:	16 February 2012
Contact officer:	Peter Chochula
Email address:	peter.chochula@ato.gov.au
Telephone:	(02) 9374 2607
Facsimile:	(02) 9374 8628
Address:	52 Goulburn St, Sydney, NSW, 2000

Legislative References:
Income Tax Assessment Act 1936
Division 13A