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Income Tax Assessment Act 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES

PART 3-1 - CAPITAL GAINS AND LOSSES: GENERAL TOPICS

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Division 115 - Discount capital gains and trusts ' net capital gains

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Subdivision 115-A - Discount capital gains

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What is a discount capital gain?

SECTION 115-30 Special rules about time of acquisition

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Entity is treated as acquiring some CGT assets early

115-30(1)

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Sections 115-25 , 115-40 , 115-45 , 115-105 , 115-110 and 115-115 (the affected sections ) apply as if an entity (the acquirer ) had acquired a *CGT asset described in an item of the table at the time mentioned in the item:

When the acquirer is treated as having acquired a CGT asset
Item	The affected sections apply as if the acquirer had acquired this CGT asset:	At this time:
1	A CGT asset the acquirer acquired in circumstances giving rise to a *same-asset roll-over	(a)	when the entity that owned the CGT asset before the roll-over *acquired it; or
			(b)	if the asset has been involved in an unbroken series of roll-overs - when the entity that owned it before the first roll-over in the series *acquired it
.
2	A CGT asset that the acquirer acquired as a replacement asset for a *replacement-asset roll-over (other than a roll-over covered by paragraph 115-34(1)(c))	(a)	when the acquirer acquired the original asset involved in the roll-over; or
			(b)	if the acquirer acquired the replacement asset for a roll-over that was the last in an unbroken series of replacement-asset roll-overs (other than roll-overs covered by paragraph 115-34(1)(c)) - when the acquirer acquired the original asset involved in the first roll-over in the series
.
3	A CGT asset the acquirer acquired as the legal personal representative of a deceased individual, except one that was a pre-CGT asset of the deceased immediately before his or her death	When the deceased *acquired the asset
.
4	A CGT asset that passed to the acquirer as the beneficiary of a deceased individual ' s estate, except one that was a *pre-CGT asset of the deceased immediately before his or her death	When the deceased *acquired the asset
.
5	A *CGT asset that:	When the deceased died
	(a)	the acquirer acquired as the legal personal representative of a deceased individual; and
	(b)	was a *pre-CGT asset of the deceased immediately before his or her death
.
6	A *CGT asset that:	When the deceased died
	(a)	*passed to the acquirer as the beneficiary of a deceased individual ' s estate; and
	(b)	was a *pre-CGT asset of the deceased immediately before his or her death
.
7	The interest (or share of an interest) the acquirer is taken under section 128-50 to have acquired in another CGT asset that the acquirer and another individual held as joint tenants immediately before he or she died	When the deceased *acquired his or her interest in the other CGT asset
.
8	(Repealed by No 133 of 2009)
.
9	A *CGT asset that:
	(a)	is a *membership interest in the receiving trust involved in a roll-over under Subdivision 126-G; and	(a)	when the acquirer *acquired the corresponding membership interest (or membership interests) in the transferring trust involved in the roll-over; or
	(b)	is held by the acquirer just after the transfer time for the roll-over	(b)	if the roll-over asset for the roll-over has been involved in an unbroken series of roll-overs under Subdivision 126-G - when the acquirer acquired the corresponding membership interest (or membership interests) in the transferring trust involved in the first roll-over in the series
.
9A	A share the acquirer acquires by exercising an *ESS interest if:	When the acquirer acquired the ESS interest
	(a)	section 83A-33 (about start ups) reduces the amount to be included in the acquirer ' s assessable income in relation to the ESS interest; and
	(b)	exercising the ESS interest causes Subdivision 130-B or Division 134 to apply

10	A CGT asset that the acquirer acquired as a received asset for a roll-over under Subdivision 310-D	(a) when the transferring entity for the roll-over acquired the corresponding original asset for the roll-over; or (b) if that original asset (or any asset corresponding to it) has been involved in an unbroken series of roll-overs - when the entity that owned the applicable asset before the first roll-over in the series acquired it
.
11	(Repealed by No 89 of 2013)

Note:

Under section 128-50 , the acquirer is taken to acquire the interest of a deceased individual in a CGT asset the acquirer and the deceased held as joint tenants immediately before the deceased ' s death (or an equal share of that interest if there are other surviving joint tenants).

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History

S 115-30(1) amended by No 89 of 2013, s 3 and Sch 1 item 16, by repealing table item 11, effective 2 July 2019. Table item 11 formerly read:

11 A * CGT asset that the acquirer * acquired as a received asset for a roll-over under Subdivision 311-D When the transferring entity for the roll-over acquired the corresponding original asset for the roll-over

S 115-30(1) amended by No 105 of 2015, s 3 and Sch 1 item 31, by inserting table item 9A, applicable in relation to ESS interests acquired on or after 1 July 2015.

S 115-30(1) amended by No 124 of 2013, s 3 and Sch 7 item 1, by substituting " , 115-45, 115-105, 115-110 and 115-115 " for " and 115-45 " , effective 29 June 2013.

S 115-30(1) amended by No 89 of 2013, s 3 and Sch 1 item 5, by inserting table item 11, applicable to income years that include 1 July 2013, and to later income years.

S 115-30(1) amended by No 56 of 2010, s 3 and Sch 6 item 141, by substituting table item 2, applicable to assessments for the income years including 21 September 1999 and for later income years, in relation to CGT events happening after 11.45 am (by legal time in the Australian Capital Territory) on that day. Table item 2 formerly read:

" 2	A CGT asset that the acquirer acquired as a replacement asset for a *replacement-asset roll-over	(a)	when the acquirer acquired the original asset involved in the roll-over; or
			(b)	if the acquirer acquired the replacement asset for a roll-over that was the last in an unbroken series of replacement-asset roll-overs - when the acquirer acquired the original asset involved in the first roll-over in the series "

S 115-30(1) amended by No 19 of 2010, s 3 and Sch 2 item 4, by inserting table item 10 at the end of the table, effective 25 March 2010. For application provisions see note under Div 310 heading.

S 115-30(1) amended by No 19 of 2010, s 3 and Sch 1 item 8, by inserting table item 9 at the end of the table, applicable to CGT events happening on or after 1 November 2008.

S 115-30(1) amended by No 133 of 2009, s 3 and Sch 1 item 35, by repealing table item 8, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and (2) of the Income Tax (Transitional Provisions) Act 1997 . Table item 8 formerly read:

8 ... A *CGT asset that is a *share or right where: (a) the share or right was *acquired under an *employee share scheme; and; (b) the share or right was acquired from an *employee share trust; and; (c) if the share is a *qualifying share or the right is a *qualifying right - the acquirer made an election under section 139E of the Income Tax Assessment Act 1936 ... When the acquirer first acquired a beneficial interest in the share or right

S 115-30(1) amended by No 101 of 2003 and substituted by No 173 of 2000.

115-30(1A)

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For the purposes of sections 115-105 , 115-110 and 115-115 , item 2 of the table in subsection (1) applies in relation to all * replacement-asset roll-overs, including those covered by paragraph 115-34(1)(c) .

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History

S 115-30(1A) inserted by No 124 of 2013, s 3 and Sch 7 item 2, effective 29 June 2013.

Former s 115-30(1A) repealed by No 133 of 2009, s 3 and Sch 1 item 36, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and (2) of the Income Tax (Transitional Provisions) Act 1997 . S 115-30(1A) formerly read:

115-30(1A)
A *share or right that, under section 139DQ of the Income Tax Assessment Act 1936 , is treated as if it were a continuation of another share, right or stapled security (as defined in Division 13A of Part III of that Act) for the purposes of that Division is treated in the same way for the purposes of item 8 of the table in subsection (1) of this section.

Former s 115-30(1A) amended by No 56 of 2007 , s 3 and Sch 3 item 17, by substituting " another share, right or stapled security (as defined in Division 13A of Part III of that Act) for the purposes of that Division " for " another share or right for the purposes of Division 13A of Part III of that Act " , effective 12 April 2007. No 56 of 2007 , s 3 and Sch 3 item 39 contains the following application provision:

(1)
The amendment applies to acquisitions of stapled securities, and of rights to acquire stapled securities, on or after 1 July 2006.

(2)
In this item:
acquisition
has the same meaning as in Division 13A of Part III of the Income Tax Assessment Act 1936 .

Former s 115-30(1A) inserted by No 147 of 2005, s 3 and Sch 5 item 13, applicable, and taken to have applied, to acquisitions of shares or rights on or after 14 December 2005.

In this item:

acquisition , of a share or right has the same meaning as in Division 13A of Part III of the Income Tax Assessment Act 1936 .

115-30(1B)
(Repealed by No 133 of 2009)

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History

S 115-30(1B) repealed by No 133 of 2009, s 3 and Sch 1 item 36, applicable in relation to the ESS interests mentioned in subsections 83A-5(1) and (2) of the Income Tax (Transitional Provisions) Act 1997 . S 115-30(1B) formerly read:

115-30(1B)
A *CGT asset that forms part of a stapled security (as defined in Division 13A of Part III of the Income Tax Assessment Act 1936 ) that is treated under section 139DQ of that Act as if it were a continuation of another *share or stapled security for the purposes of that Division, is treated for the purposes of item 8 of the table in subsection (1) of this section as if it were a continuation of each CGT asset that was, or was a part of, the other share or stapled security.
Note:

This Part applies in relation to a CGT asset that forms part of a stapled security acquired under an employee share scheme in the same way as it applies in relation to a share acquired under an employee share scheme: see section 130-97 .

S 115-30(1B) inserted by No 56 of 2007 , s 3 and Sch 3 item 18, effective 12 April 2007. No 56 of 2007 , s 3 and Sch 3 item 39 contains the following application provision:

(1)
The amendment applies to acquisitions of stapled securities, and of rights to acquire stapled securities, on or after 1 July 2006.

(2)
In this item:
acquisition
has the same meaning as in Division 13A of Part III of the Income Tax Assessment Act 1936 .

CGT event E8

115-30(2)
For the purposes of applying sections 115-25 and 115-40 in relation to *CGT event E8 and the *CGT asset consisting of a beneficiary ' s interest in trust capital, it does not matter how long the trustee owned any of the assets of the trust.