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ATO Interpretative Decision

ATO ID 2005/39 (Withdrawn)

Income Tax
Capital Gains Tax: cost base - Finnish gift tax

Attention This ATO ID is withdrawn. Guidance on the issue contained in this ATO ID can be found in What is the cost base? (QC 17161).
Attention This document has changed over time. View its history.
FOI status: may be released
Status of this decision: Decision withdrawn 24 March 2017.

CautionCAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.


Issue

Can a taxpayer, who acquired shares by way of a gift from another individual, include the payment of Finnish gift tax in the cost base and reduced cost base of those shares under Division 110 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Decision

Yes. Finnish gift tax paid by the taxpayer can be included in the second element of the cost base and reduced cost base of the shares under subsection 110-25(3) and 110-55(2) of the ITAA 1997 because it is an incidental cost the taxpayer incurred in respect of acquiring the shares.

Facts

The taxpayer, a resident of Australia, acquired shares in a Finnish company after 20 September 1985 by way of a gift from a Finnish resident.

Shortly after the gift was made, the Finnish National Board of Taxes raised an assessment against the taxpayer for gift tax. The taxpayer paid the amount of Finnish gift tax assessed to them.

The taxpayer sold the shares in the Finnish company in the 2004-05 income year.

The taxpayer wishes to include the amount of gift tax paid in the cost base and reduced cost base of their shares.

Reasons for Decision

A taxpayer will make a capital gain if the capital proceeds received on the sale of a share exceeds its cost base. They will make a capital loss if the capital proceeds are less than the share's reduced cost base (subsection 104-10(4) of the ITAA 1997).

The cost base and reduced cost base of an asset each consist of five elements (sections 110-25 and 110-55 of the ITAA 1997). The elements of the reduced cost base of a CGT asset are the same as those for cost base except for the third element (subsection 110-55(2) of the ITAA 1997).

The first element of cost base and reduced cost base is the total of the money paid, or required to be paid, and the market value of the property given, or required to be given, in respect of the acquisition of the asset (subsection 110-25(2) of the ITAA 1997).

As noted by Mason J in State Government Insurance Office (Queensland) v. Rees (1979) 144 CLR 549, the meaning to be attached to the words 'in respect of' must reflect the context in which they are used.

In the context of subsection 110-25(2) of the ITAA 1997, regard must be had to the presence of other elements of cost base. In particular, the specific inclusion of incidental costs of acquisition in the second element of cost base indicates that 'incidentals' would not ordinarily be included in the first element of cost base.

Accordingly, the Finnish gift tax does not form part of the first element of the cost base or reduced cost base of the taxpayer's shares.

The second element of cost base and reduced cost base is the incidental costs that the taxpayer incurs in acquiring a CGT asset or which relate to a CGT event that happens in relation to the CGT asset (subsection 110-25(3) of the ITAA 1997).

Section 110-35 of the ITAA 1997 sets out the five types of incidental costs. These incidental costs include stamp duty or other similar duty: subsection 110-35(4) of the ITAA 1997.

Stamp duty is defined in Butterworths Australian Legal Dictionary as 'a tax imposed by all Australian States on documents or transactions that affect or record the transfer of the ownership of assets (for example, conveyances of real property, shares and business assets) or the creation of rights in respect of assets (for example, the granting of a lease)'.

As Finnish gift tax is a tax imposed on the transfer of property it is an incidental cost within the meaning of the term in subsection 110-35(4) of the ITAA 1997.

Incidental costs can only be included in the second element of the cost base and reduced cost base of an asset if they are incurred by the owner of the asset to acquire the asset or if they relate to a CGT event that later happens to the asset (subsection 110-25(3) of the ITAA 1997).

The gift tax was incurred in this case as a consequence of the taxpayer acquiring the shares. Accordingly, the taxpayer can include the gift tax paid in the second element of the cost base and reduced cost base of their shares.

Note: This note has been added to explain the legislative changes made to certain capital gains provisions, as a result of Act No 32 of 2006, which received Royal Assent on 6 April 2006.
For CGT events happening on or after 1 July 2005, section 110-35 of the ITAA 1997 has been amended to increase the range of incidental costs incurred to acquire or dispose of a CGT asset.
However, these changes do not affect the decision in this interpretative decision.

[HISTORY: This ID has been amended to explain the legislative changes made to certain elements of the CGT cost base, where the relevant CGT event happens on or after 1 July 2005.]

Date of decision: 25 January 2005

Year of income:Year ended 30 June 2005

Legislative references:
Income Tax Assessment Act 1997
   subsection 104-10(4)
   Division 110
   section 110-25
   subsection 110-25(2)
   subsection 110-25(3)
   section 110-35
   subsection 110-35(4)
   section 110-55
   subsection 110-55(2)

Case references:
State Government Insurance Office (Queensland) v. Rees
   (1979) 144 CLR 549

Related ATO Interpretative Decisions
ATO ID 2003/1048
ATO ID 2005/40

Keywords
Capital gains
Capital gains tax
CGT assets
CGT cost base
CGT event A1-disposal of a CGT asset
CGT reduced cost base

Siebel/TDMS reference number: 4390286; 1-AWX0G7K

Business line: Small Business/Individual Taxpayers

Date of publication: 11 February 2005

ISSN: 1445-2782

ATO ID 2005/39 (Withdrawn) history   Top  
   Date   Version 
   25 January 2005   Original statement   
 You are here ®  24 March 2017   Withdrawn   


 


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