Describe about the Australian Tax Law for Calculating the Capital Gain.
The profit or loss, generated from sale of any capital assets, is taxable under Capital Gain Taxation rules[1]. The capital gain or loss is calculated by deducting the cost base of the assets and other expenses, incurred for retaining the ownership of the asset and for selling the asset, from the sales amount received. As per the Australian Taxation Rules, generally if the owner of the asset, holds the asset for less than 12 months, then the total amount of profit will be regarded as taxable. On the other hand, if the asset is owned for more than 12 months, then the assessee can enjoy 50% exemption on the capital gain. However, if the asset is acquired before 21st September, 1999, then the cost base of the asset is calculated under indexetation method and the assessee cannot claim for 50% exemption. Moreover, if the asset is acquired before 20th September,1985, then the asset is treated as pre-CGT asset and no capital gain or capital loss, generated from such asset, is taken into consideration for taxation purpose. The capital loss is not adjusted with other taxable incomes of the assessee. It is carried forward to the next year and adjusted only with the capital gains.
However, the above discussion is based on general rules. There are many exceptions of these acts, through which, assessee can claim exemptions against his/her capital gain or loss.
Jonathan, an Australian resident, has sold few assets in the financial year 2015-16. The report is prepared to discuss the consequences and determine the taxable capital gain or loss, generated from the sale of such assets.
The section 108-5 of the Incoe Tax Assement Act defines CGT asset as any kind of property or a equitabke or leagal right that is not a property. Thefore according the act the land and building is cobsidered as capital asset. The transactions or events that results in Capital loss or Capital gain is referred to as Caital gain tax events in the act. The CGT events is classified into various categories in the given case land and building is sold so it falls under the category of disposal of Assets which is a CGT event A1. The common law provides that anything which is attached to the land is part of the land but the law for the purpose of Capital gain tax (CGT) provides that there is an exception to this rule. This exception to the common rule is set out in subdividion 108-D of the Income Tax Assesment Act 1997. The section 108-55 of the Income Tax Assesment Act 1997 particularly provides the circumstances in which is to be treated as a separate asset from the land. It states that if any building or structure is constructed on or after 20th September 1985 on a land that isacquired before 20th September 1985 then in such cases the building or structure will be treated as a sparate assest than the land.
In the given case Jonathan had inherited a block of land on 1st May,1983 from his grandmother. In the year 1996, he had build a house on that vacant land. On 1st November,2015, he sold the house at $11,00,000. The selling of a house is a CGT A1 event under the category of disposal of asset. The land on which the house was contructed was acquired before 20th September 1985 therefore it is a pre CGT event. According to the section 108-55 (2) of the Income Tax Assesment Act 1997 the land and the building therefore should be treated as a separate asset.
The section 104-20 of the Income Tax Assesment Act states that when an asset is destroyed or lost then it is considered as a CGT C1 event. In the given there was a fire on 23rd July of 2015 that destroyed the garden shed of Jonathans house. Therefore it is a CGT C1 event as per section 108-5 of the Icome Tax assesmwnt Act 1997.
As per the market value, the land worth $600,000 at the time of the sale. The land was acquired by Jonathan before 20th September,1985. Before building the house there, he had not made any capital improvement on that land. Therefore, the land should be treated as pre-CGT asset and not be considered for capital gain or loss[2].
Jonathan had incurred $4000 as legal fees to retain the ownership of the land. He had incurred advertisement expenses and stamp duty charges for selling both the properties jointly. Therefore, proportionate amounts of both the expenses and the full amount of legal fees should be accounted for the land also[3].As the sale of the land is exempted from the total assessable income of Jonathan, the expenses, incurred in account for the land is also not included in the deductible expenses for taxation purpose.
The section 100-45 of the Income tax Assesment Act 1997 provides the procedure for calculating capital gain or loss for most of the CGT events. The process provided in the section firstly required to ascertain the capital proceed from the CGT event. Then it is required to work out the cost base for the CGT asset. After that the cost basee should be deducted from the proceeds of the CGT event. Then if the proceed is in ecess of the cost base then it is a capital gain or eitherwise it is a capital loss. There are three methods of calculating capital gain they are discount method, indexation method and other methods. In the discount method the individual, partnership and trusts are allowed to rduce its capital gain by 50%. The companies are not allowed to avail this deduction. In the indexation method it is allowed to increase the base cost of the asset by applying consumer price index upto September 1999. The indexation method can be applied only if the asset is acquired before 11:45 am of 21st September 1999. Further it is aso required that the assets should be held for for more than 12 months. The other method is applicable to the assets held for less than 12 month and the method is also simple the cost of the asset is subtracted from the capitl procceds. The tax payer can choose any of the method for calculating capital gain after the date of purchasing the asset and the number of years it is held. For example if an asset is sold which is held for less than 12 months then only the other method can be used. If the asset is held for more than 12 months and the asset is purchased before 11:45 a.m of the 21st September 1999 then both the method can be used for calculating the capital gain. If the asset is purchased after the 21st September 1999 11:45 a.m and the asset is held for more than 12 months then only the discounting method can be used for calculating the capital gain.
In the given case the building is made by Jonathan ten years ago on 2006. The building was owned by him for more than 2 years. The building ws constructed after 1999 therefore only discounting method can be used for working out capital gain. On the other hand, being an individual tax payee, Jonathan can also consider the original cost of the house,i.e.,$300,000 as the cost base and use the discount method for calculating the capital gain or loss from the asset. The sales consideration of the building should be ($110000-$600000) $500000 as the total sales amount is based on both the land and building. For computing the capital gain or loss on the sale of building, the pexpenses, incurredfor advertisement and stamp duties should be added with the cost base proportionately and the interest on loan for building and the balance of the mortgage should be added fully with the base.
However, Jonathan ha been using the building as his permanent residence for the last ten years. According to the Australian taxation rules, the sale of such permanent residential property of the taxpayer should be exempted from the capital gain or loss calculation. Therefore, Jonathan will not have to pay capital gain tax on the amount received from the sale of the building.
As per section 108-10(2) of the income Tax Assesment Act 1997 the defination of collectibles includes artwork, jewellery,coin, manuscript or book, a reare folio, a firstday cover postage stamp. It is also provided in the section 108-10(1) of the Income Tax ssesment Act 1997 that while computing the capital gain or loss of the income year the capital loss arising from collectible can only be used against capital gain from collectibles. The section 108-10(4) also provides that if the loss from collectible remains uapplied for the income year then it can be used to set off against the capital gain of collectible for the next income year. According to the above sections the valuable paintings are considered as collectables. The Australian taxation rules also provides that collectables items, acquired for $500 or less or valued $500 or less at the time of acquisition are exmpted from capital gain taxation.
Jonathan had acquired the painting on 1999 for $800000 and retained the ownership for more than 2 years. Therefore, the painting should be considered as an CGT asset and profit or loss, generated from the sale of the painting must be considered as capital gain or loss for taxation purpose.
The section 108-20(2) of the Income Tax Assesment Act 1997 defines personal asset as those CGT assets that is primarily used for personal use or enjoyment, it includes right or option and also includes debt arising from the CGT event. The section 108-20(1) of the Income Tax Assesment Act 1997 provides that while calculating capital gain or loss for the income year any capital loss that is made from personal use asset is disregarded. As per section 108-20(2) the motor car is therefore personal asset. It is also provided that the sale of personal motor car, which can carry less than one tone loadings and less than nine passengers, should be exempted from CGT calculation.
The car owned by Jonathan falls under the above category. It has been owned by Jonathan for more than 2 years and used for his personal amusement and purpose only. Therefore, it will be not treated as CGT asset and the profit or loss from the sale of the car should be exempted from taxation[4].
The section 108-5 of the Income Tax Assesment Act provides that capital assets include any kind of property and also legal or equitable right that is not property. Therfore in accordance with the definition of this section shares are also CGT assets. It ois also provided that shares are treated as CGT assets, if it do not belongs to any pool development fund, and sale of shares should be included in the capital gain or loss of the taxpayee.
Jonathan had equity and preference shares in a limited company. Therefore, the sale of transferring ownership of shares should be considered for CGT calculation.
Jonathan had acquired the ordinary shares on 2005. In the current taxation year, he had transferred the shares to his daughter at nil consideration. As per the taxation rules, in the case of transfer of ownership to close relatives at nil consideration or at lower value, the sale consideration for taxation purpose should be determined at the market value of the asset instead of the actual amount of consideration.
The common shares have a market value of $5.50 each. Therefore, Jonathan has to pay CGT on the transfer of shares, based on the market valuation of 200 shares, i.e., $5500. The legal fees for the transfer should be included in the cost base for determining the net capital gain or loss. Jonathan can claim 50% exemption on the capital gain, as he owned the shares for more than 2 years.
For the redemption of the preference shares to the company, Jonathan also has to payt CGT on the transfer of such shares. In this case, the sales consideration will be the redemption value of the preference shares and 50% exemption on the capital gain will be allowed due to retaining the shares for more than 2 years by the taxpayee.
On the basis of the above discussion, the capital gain or loss, arising from the disposal of assets, of Jonathan for the financial year 2015-16, is calculated below:
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Taxpayee: Mr.Jonathan |
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Calculation for Taxable Capital Gain |
||
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For the Taxation Year 2015-16 |
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Particulars |
|
Amount |
|
Capital Gain or Loss from Sale of Land |
|
Exempted |
|
Capital Gain or Loss from Sale of Building |
|
Exempted |
|
Capital Gain or Loss from Sale of Car |
Exempted |
|
|
Capital Gain or Loss from Sale of Painting: |
||
|
Sale Proceeds of Painting |
750000 |
|
|
Less : Cost Base of the Painting |
800000 |
|
|
Capital Loss on Paintings |
A |
-50000 |
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Capital Gain or Loss from Redemption of Preference Shares: |
||
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Sale Proceeds of Preference Shares |
500 |
|
|
Less : Cost Base of the Shares |
400 |
|
|
Less : 50% Exemption |
50 |
|
|
Taxable Capital Gain on Preference Shares |
B |
50 |
|
Capital Gain or Loss from Transfer of Ordinary Shares: |
||
|
Market value of the shares |
5500 |
|
|
Less : Cost Base of the Shares |
1200 |
|
|
Less: Legal Fees |
190 |
|
|
4110 |
||
|
Less : 50% Exemption |
2055 |
|
|
Taxable Capital Gain on Preference Shares |
C |
2055 |
|
NET TAXABLE CAPITAL GAIN |
B+C |
2105 |
Conclusion:-
As per the above table, Jonathan has to pay tax on the Capital gain, amounted to $2105. The capital loss on the paintings has not been set off against the capital gains from shares, as the loss from collectables can only be adjusted with the capital gain from other collectables. Therefore, the capital loss of $50000 from sale of the paintings will be carried forward to the following year and may get adjusted, if Jonathan can earn any capital gain from sale of other collectable items.
Ato.gov.au. (2016). Exemptions | Australian Taxation Office. [online] Available at: https://www.ato.gov.au/General/Capital-gains-tax/CGT-exemptions,-rollovers-and-concessions/Exemptions/#collectables [Accessed 27 Aug. 2016].
Ato.gov.au. (2016). Selling your home | Australian Taxation Office. [online] Available at: https://www.ato.gov.au/General/capital-gains-tax/your-home-and-other-real-estate/selling-your-home/ [Accessed 27 Aug. 2016].
Ato.gov.au. (2016). The indexation method of calculating your capital gain | Australian Taxation Office. [online] Available at: https://www.ato.gov.au/General/Capital-gains-tax/In-detail/Calculating-a-capital-gain-or-loss/The-indexation-method-of-calculating-your-capital-gain/ [Accessed 27 Aug. 2016].
Ato.gov.au. (2016). Transferring real estate to family or friends | Australian Taxation Office. [online] Available at: https://www.ato.gov.au/General/Capital-gains-tax/In-detail/Real-estate/Transferring-real-estate-to-family-or-friends/?page=3 [Accessed 27 Aug. 2016].
Ato.gov.au. (2016). Working out your net capital gain or loss | Australian Taxation Office. [online] Available at: https://www.ato.gov.au/General/capital-gains-tax/working-out-your-capital-gain-or-loss/working-out-your-net-capital-gain-or-loss/ [Accessed 27 Aug. 2016].
[1] Income Tax ASSESSMENT Act 1997 sub-s 102-5 (1).
[2] Income Tax ASSESSMENT Act 1997 sub-S 109 – 5 (2)
[3]Australian Income Tax Legislation, 2016 (CCH Australia, 2016).
[4][4] Income Tax ASSESSMENT Act 1997 sub-S 118 – 5
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