Taxation Determination

TD 93/36

Income tax: capital gains: what are the capital gains tax consequences where a legal personal representative (LPR) purchases an asset to satisfy a general legacy?

  • Please note that the PDF version is the authorised consolidated version of this ruling and amending notices.
    This document has changed over time. View its history.

FOI status:

may be releasedFOI number: I 1214325

This Determination, to the extent that it is capable of being a 'public ruling' in terms of Part IVAAA of the Taxation Administration Act 1953, is a public ruling for the purposes of that Part. Taxation Ruling TR 92/1 explains when a Determination is a public ruling and how it is binding on the Commissioner. Unless otherwise stated, this Determination applies to years commencing both before and after its date of issue. However, this Determination does not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of the Determination (see paragraphs 21 and 22 of Taxation Ruling TR 92/20).

[ Note: This is a consolidated version of this document. Refer to the Tax Office Legal Database (http://law.ato.gov.au) to check its currency and to view the details of all changes.]

1. A person may provide in his or her will that property of a general description be left to a specified beneficiary. If the deceased did not own an asset of that description at the time of death, the LPR (after paying the debts and other expenses of the estate) may purchase an asset to satisfy that general legacy.

2. The beneficiary for whom the asset is acquired by the LPR is absolutely entitled to that asset as against the LPR. Accordingly, the acts of the LPR are taken to be the acts of the beneficiary (section 106-50 of the Income Tax Assessment Act 1997 (ITAA 1997)).[F1]. The beneficiary is taken to have acquired the asset at the time it was acquired by the LPR. Costs incurred by the LPR which can be included in the cost base of the asset are included in the cost base to the beneficiary of the asset.

3. No CGT event happens when legal ownership of the asset is transferred from the LPR to the beneficiary because section 106-50 effectively treats the beneficiary as having transferred the asset to themselves. That is, section 106-50 treats the transfer to the beneficiary as an act done by the beneficiary'.

Example:

Jane's will leaves a general legacy of 1,000 shares in XYZ Ltd to Bill. As Jane does not own any shares in XYZ Ltd at the time of her death, her executor purchases the shares on 23 April 2008 for $2,500.
Bill is deemed to acquire the shares on 23 April 2008 for an acquisition consideration of $2,500.

Commissioner of Taxation
11/03/93

Footnotes

[1]
All subsequent legislative references are to the ITAA 1997 unless indicated otherwise.

Previously issued as Draft TD 93/D5

References

ATO references:
NO 92/1427-5 (CGTDET38)

ISSN 1038 - 8982

Subject References:
CGT assets
CGT cost base
CGT deceased estates
CGT events
legal personal representative
trust beneficiaries

Legislative References:
ITAA 1997 106-50

TD 93/36 history
  Date: Version: Change:
  11 March 1993 Original ruling  
  29 November 2006 Original ruling + note Repeal provision note
You are here 21 April 2010 Consolidated ruling Addendum

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