Issue
Where a change in majority underlying ownership occurs for the purposes of subsection 149-30(1) of the Income Tax Assessment Act 1997 (ITAA 1997) because of the death of a spouse, is a CGT asset acquired by a company prior to 20 September 1985 taken to have been acquired after that date?
Decision
No. Where shares are transferred to a person upon the death of another person, that person is taken to have acquired the CGT asset at the time the company acquired the CGT asset.
Facts
The taxpayer acquired 'B' Class shares in a private company before 20 September 1985 (pre-CGT). The taxpayer acquired all the 'A' Class shares in the company from their spouse's estate in 1996. There have been no other changes in shareholding of the company after 19 September 1985 (post-CGT).
The company's only asset is a commercial property (the property) which was purchased pre-CGT. Buildings were constructed on the property post-CGT. These improvements are separate assets for CGT purposes and are taken, for capital gains tax purposes, to have been acquired post-CGT.
Reasons for Decision
A CGT asset is a pre-CGT asset if the conditions in section 149-10 of the ITAA 1997 are met.
From the facts provided, the conditions in paragraphs 149-10(a) and (b) of the ITAA 1997 have been satisfied. Whether the condition in paragraph 149-10(c) of the ITAA 1997 has been satisfied is dependent on whether the asset stopped being a pre-CGT asset of the company because of Division 149 of the ITAA 1997.
An asset stops being a pre-CGT asset when majority underlying interests in the asset are not held by the same ultimate owners who held those interests in the asset immediately before 20 September 1985 (see section 149-15 and subsection 149-30(1) of the ITAA 1997).
Where shares are transferred to a person upon the death of another person, that person is taken to have held the same interests as those held by the former owner (see Item 2 of subsection 149-30(3) of the ITAA 1997). The new owner is taken to have an underlying interest in the asset equal to the sum of their original interest and the lesser of the acquired interest or the former owner's interest at any time when the former owner had a percentage of the underlying interests in the asset (see subsection 149-30(4) of the ITAA 1997).