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Could a shareholder of a company make a capital gain or a capital loss if a trust obtains a rollover under Subdivision 124-N of the Income Tax Assessment Act 1997 (ITAA 1997) and CGT event J4, section 104-195 of the ITAA 1997, later happens to the shareholder because the trust did not cease to exist within the required six month period?

Yes. The shareholder of the company that has acquired the CGT assets under the rollover could make a capital gain or a capital loss resulting from CGT event J4, section 104-195 of the ITAA 1997, if the shares in the company were acquired in exchange for a unit or an interest in the trust under the trust restructure.

A fixed trust disposed of all of its CGT assets to a company and ceased to exist. The trust and the company both chose to obtain rollover under Subdivision 124-N of the ITAA 1997. Under the restructure the unit holder surrendered their units and acquired shares from the company. The trust took more than six months to transfer all the assets. There were no circumstances beyond the trustee's control which caused the transfer of the trust's CGT assets to take more than six months.

CGT event J4 happens where: there is a rollover under Subdivision 124-N of the ITAA 1997 for a shareholder receiving a share in a company in exchange for a unit or interest in a trust under a trust restructure (paragraph 104-195(2)(a) of the ITAA 1997); the trust fails to cease to exist within 6 months after the first asset is disposed of to the company or as soon as practicable after the end of that 6 month period (paragraph 104-195(2)(b) of the ITAA 1997); and the shareholder owns the share when the failure happens (paragraph 104-195(2)(c) of the ITAA 1997).

As a result of the CGT event happening, the benefits of the rollover are negated and a capital gain or a capital loss may be made by the shareholder for each of the shares referred to in paragraph 104-195(2)(c) of the ITAA 1997.

[Note: CGT event J4 may also happen to the company in which the shareholder owns shares.]