Issue
Where CGT event C2 happens to a convertible note that is converted, can it also be taken that it 'ceases to exist' for the purposes of paragraph 170-275(1)(a) of the Income Tax Assessment Act 1997 (ITAA 1997)?
Decision
Yes. Where CGT event C2 happens to a convertible note that is converted, it 'ceases to exist' for the purposes of paragraph 170-275(1)(a) of the ITAA 1997.
Facts
An 'originating company' (as defined in paragraph 170-255(1)(a) of the ITAA 1997) disposed of a convertible note to another entity.
The disposal of the relevant CGT asset resulted in section 170-255 of the ITAA 1997 applying. As a consequence, a capital loss that would have been made by the originating company was disregarded under section 170-270 of the ITAA 1997.
Subsequently, the convertible note was converted, resulting in CGT event C2 happening under section 104-25 of the ITAA 1997.
Reasons for Decision
Where a capital loss has been disregarded under section 170-270 of the ITAA 1997 the originating company is taken to have made an equivalent capital loss where a 'new event' happens under section 170-275 of the ITAA 1997.
Paragraph 170-275(1)(a) of the ITAA 1997 provides that a 'new event' happens where the 'relevant CGT asset' acquired by the other entity 'ceases to exist'.
The term 'ceases to exist' is not defined in the ITAA 1997 and must be interpreted having regard to the ordinary meaning of that term in the context of Subdivision 170-D of the ITAA 1997.
Where a convertible note is converted such that CGT event C2 of the ITAA 1997 happens, it 'ceases to exist' for the purposes of paragraph 170-275(1)(a) of the ITAA 1997.
Note also that the term 'ceases to exist' in paragraph 170-280(3)(a) of the ITAA 1997 is to be interpreted consistently with the interpretation used in applying paragraph 170-275(1)(a) of the ITAA 1997.