This Case Decision Summary illustrates the approach taken by the Commissioner of Taxation in applying Part IVA to a real fact situation. The facts have been simplified to focus on key practical issues.
To properly apply Part IVA, the law must be applied to all the relevant facts. In particular, an eight step test must be applied to determine whether, on the facts, a particular scheme objectively has the dominant purpose of obtaining a tax benefit not intended by the law. Where the scheme simply takes advantage of the intended operation of a structural feature of the law, Part IVA will not apply because the required dominant purpose will not exist.
In applying the dominant purpose test, regard must be had to the manner in which the scheme is carried out; that is, whether the scheme bears the stamp of tax avoidance. The Full Federal Court in Bellinz Pty Limited v Federal Commissioner of Taxation 98 ATC 4634 at 4647; 39 ATR 198 at 212 has noted the difficulty in applying Part IVA prior to the scheme being carried out, because the execution of the scheme may in fact be different to that originally proposed. Even where the scheme has been carried out, the Court has noted that a difficulty in coming to a view on the application of Part IVA is to ensure that all relevant facts are considered, including those concerning the manner in which the scheme is carried out.
This Case Decision Summary has been withdrawn.
ATO Case Decision
Case Decision Number:
CDS10321
Subject:
Does Part IVA (Income Tax Assessment Act 1936 (ITAA 1936)) apply to the actions of an investor who has derived capital gains during the year and wishes to realise several unrealised losses in the investor’s portfolio:
1) by selling the shares on the market, at a true market value?
2) by selling the shares to a company owned by the investor at a true market value (rather than rolling-over under Subdivision 122-A (Income Tax Assessment Act 1997))?
Decision:
1) No.
2) No.
Facts
The investor realises the losses to eliminate tax on the capital gains derived during the year. The unrealised losses have existed for several years. But for the gains, the investor would have retained the loss assets.
Reasons for Decision:
1) The dominant purpose of selling the shares is to secure their arm's length value. The commercial result and the tax result are the same. The investor sold the shares for an appropriate price.
2) Although the shares are sold to a related entity, provided they are sold at true market value, Part IVA (ITAA 1936) does not apply to the mere choice of selling them at that time.
Legislative References:
Income Tax Assessment Act 1936 Part IVA, paragraph 177D(b)
Income Tax Assessment Act 1997 Subdivision 122-A
Keywords:
Capital gains
Capital gains tax
Capital losses
CGT rollover relief
Disposal of shares
Part IVA
Shares
Tax avoidance
Tax planning
Tax planning, avoidance & evasion
FOI Number:
I2000321