Income tax: consolidation: exit tax cost setting rules: how is the terminating value of an asset that is treated as if it were a CGT asset under subsection 705-30(5) of the Income Tax Assessment Act 1997 worked out for the purposes of subsection 711-25(1) of that Act?

For the purposes of subsection 711-25(1) of the Income Tax Assessment Act 1997 (ITAA 1997), the terminating value of an asset (an 'other asset') that is treated as if it were a CGT asset under subsection 705-30(5) of the ITAA 1997 is worked out having regard to the application of Parts 3-1 and 3-3 of the ITAA 1997 (CGT rules) and any other income tax provisions that adjust the cost base or reduced cost base of the asset. [1]

For the purposes of subsection 711-25(1), the terminating value of an 'other asset' is equal to an amount that would be its cost base or reduced cost base just before the leaving time if it were a CGT asset.

Therefore, the terminating value is calculated according to the cost base rules for CGT assets in Subdivision 110-A. Where subsection 711-20(2) applies and a reduced cost base is to be calculated, the rules in Subdivision 110-B apply. Provisions that adjust the outcome of these provisions such as those in Division 112 also apply. Hence, the terminating value of such assets will reflect any adjustments to their cost base or reduced cost base as required by these CGT rules and other relevant income tax provisions. For assets that have a tax cost set under subsection 701-10(4) these adjustments are made from the time they commenced to be held by the head company. Otherwise, the adjustments are made from the date of acquisition of the assets.

Sub X is leaving the consolidated group a month after the group's financial year end with a business loan which was drawn down during consolidation and which was used to finance Sub X's operations. The head company incurred borrowing expenses in relation to the loan in the month before Sub X leaves the group. The amount of borrowing expenses incurred total $2,000.

Under section 25-25, the borrowing expenses will be deductible over a period of 5 years, which is the term of the loan.

As Sub X is taking the loan liability with it, it is also taking the future income tax benefit assets (FITBA) which comprises the entitlement to future deductions for the borrowing expenses.

In working out the TCSA for each membership interest in the leaving entity held by the group under section 711-15, the old group's ACA needs to be worked out in accordance with the table in subsection 711-20(1).

Step 1 of the consolidated group's ACA for the leaving entity is worked out under section 711-25, which requires the addition of all of the head company's terminating values of all the assets that the head company held at the leaving time. The FITBA is categorised as an 'other asset' under subsection 705-30(5). As such, the terminating value is equal to the asset's cost base just before the leaving time as though it were a CGT asset. Therefore, Subdivision 110-A, the cost base rules for CGT assets, applies.

Section 110-25 provides the five elements of an asset's cost base. Specifically, the first element in subsection 110-25(1) is the total of money paid or required to be paid in respect of acquiring the asset. This requires consideration as to whether the expenditure (that is, the borrowing expenses) is in respect of acquiring the FITBA. Consistent with the ATO view in TD 93/1, the borrowing expenses are not in respect of acquiring an asset but rather, are in respect of obtaining the loan or other finance. In addition, the expenditure will not be included in the second or third elements of the cost base under subsections 110-25(3) and (4). There is, therefore, no terminating value for the FITBA and consequently the step 1 amount is nil.

However, as the FITBA consists of an entitlement to a future deduction, the value of the deductions inherited by the leaving entity, Sub X, will be reflected in step 2 of the table at subsection 711-20(1).

Step 2 of the ACA under section 711-35 is worked out by identifying 'owned deductions' and 'acquired deductions' of the head company. As the entitlement to the borrowing expenses deductions arose in the head company during consolidation, the deductions are owned deductions. Applying the formula in subsection 711-35(1), the sum of the deductions will be added to comprise the step 2 amount. In this example, the step 2 amount will be $2,000 less any amount deducted by the head company.

Subsidiary Y, a business services company, leaves a consolidated group. One of its business assets is a client list consisting of the contact details of 150 business clients of the company. The client list had been acquired from a company outside the group at a cost of $5,000 while subsidiary Y was a member of the group. No other money has been spent in respect of this asset nor can any amounts be deducted in respect of the asset subsequently.

The client list is not an asset of the type referred to in subsections 705-30(1), (2), (3) or (4). However it is an asset within the terms of 705-30(5) and has a terminating value of $5,000 for the purposes of step 1 in the table at subsection 711-20(1).

This Determination applies to years commencing both before and after its date of issue. However, it does not apply to taxpayers to the extent that it conflicts with the terms of settlement of a dispute agreed to before the date of the Determination.

Where a subsidiary leaves a consolidated group, the tax cost setting amount (TCSA) for membership interests in that leaving entity is worked out under Division 711. The TCSA for each membership interest in the leaving entity that the members of the consolidated group held is worked out under section 711-15.

Paragraph 711-15(1)(a) provides that the consolidated group's ACA for the leaving entity is worked out in accordance with section 711-20. In working out the consolidated group's ACA (referred to in the provisions as the 'old group's' ACA) there is a series of steps under section 711-20 which need to be followed.

Step 1 of the old group's ACA for the leaving entity is worked out under section 711-25. Subsection 711-25(1) provides that the step 1 amount is worked out by: ...adding up the head company's terminating values of all the assets that the head company holds at the leaving time because the leaving entity is taken by subsection 701-1(1) (the single entity rule) to be part of the head company.

The meaning to be given to terminating value of an asset held by a head company is addressed in section 711-30. Specifically, subsection 711-30(2) provides that the terminating value of an asset at the leaving time is worked out in a corresponding way to the terminating value calculation under section 705-30 for an asset that the joining entity holds at the joining time. That is, the approach in section 705-30, used to establish the terminating values of a joining entity's assets at the joining time, is adapted so that it may be applied to establish the terminating values of all assets of the leaving entity at the leaving time.

Section 705-30 deals with trading stock, qualifying securities, depreciating assets, other CGT assets, and 'other' assets. Trading stock, qualifying securities and depreciating assets subject to Division 40, mentioned in subsections 705-30(1), (2) and (3) respectively, are CGT assets and subsection 705-30(4) applies to CGT assets not covered by the preceding subsections. Subsection 705-30(5) deals with 'other assets' not dealt with in subsections 705-30(1) to (4). In essence, these 'other assets' referred to are assets that are not CGT assets.

Accordingly, if the asset of the leaving entity is not a CGT asset as referred to in subsections 705-30(1) to (4) respectively, then subsection 705-30(5) operates to require that the leaving entity's terminating value for any other asset that it holds is the amount that would be the asset's cost base just before the leaving time if it were an asset covered by subsection 705-30(4).

The 'other assets' referred to in subsection 705-30(5) which are required to be treated as if they were CGT assets are assets that would be regarded as commercial or business assets of the leaving entity as discussed in Taxation Ruling TR 2004/13. They are not recognised as assets under the CGT rules. These would include some knowledge or information assets and FITBAs. While most FITBAs that could be regarded as commercial or business assets cannot leave a consolidated group, some, such as those which are based on attribution surpluses, transport infrastructure offsets and deductions for borrowing expenses, can be relevant assets of the leaving entity at the leaving time.

There are several pathways by which 'other assets' can be brought into a consolidated group: a) they may be brought into a consolidated group by the head company; b) they may be acquired by the head company (during consolidation); c) they may be assets of a chosen transitional entity (CTE) under section 701-5 of the Income Tax (Transitional Provisions) Act 1997 ; d) they may be brought into the consolidated group by a joining entity as an excluded asset under subsection 705-35(2); or e) they may be brought into a consolidated group by a joining entity and (unlike assets referred to in pathways a) to d)) have a tax cost set under subsection 701-10(4). The following paragraphs discuss the basis on which 'other assets' may have a cost base or reduced cost base under subsection 705-30(5) in the different circumstances that arise in a consolidated group.

The definition of the term 'cost base' in subsection 705-30(5) is found at subsection 995-1(1) and is worked out in accordance with Subdivision 110-A. Subsection 711-20(2) extends the reference to the term 'cost base' to include the reduced cost base worked out under Subdivision 110-B: If it is necessary to work out whether the head company makes a capital loss for a CGT event that happens at or after the leaving time in relation to any of the membership interests, the old group's allocable cost amount for the leaving entity is instead worked out as if the head company's terminating value for any asset covered by subsection 705-30(4) (as if it applies for the purposes of section 711-30) were instead equal to the asset's reduced cost base just before the leaving time. Accordingly, the cost base or reduced cost base of an asset of a leaving entity will be calculated according to Subdivision 110-A or 110-B and other relevant provisions including those in Division 112. Hence its terminating value will reflect any changes to its cost base or reduced cost base under the CGT rules.

The approach taken for working out the cost base or reduced cost base (terminating value) of CGT assets under subsection 705-30(4) is dealt with more specifically in Taxation Determination TD 2006/19.

Section 110-25 sets out the five elements that comprise the cost base of a CGT asset. Subsection 110-25(2) provides that the first element is the total of: (a) the money you paid, or are required to pay, in respect of acquiring it; and (b) the market value of any other property you gave, or are required to give, in respect of acquiring it (worked out as at the time of the acquisition). This is the same as the first element of the reduced cost base (subsection 110-55(2)).

For the purposes of working out the step 1 amount for a leaving entity under section 711-25, it is necessary therefore to consider whether the money paid or required to be paid is in respect of acquiring the 'other asset' that the leaving entity takes with it when leaving the consolidated group in order to determine whether there is a first element cost under subsection 110-25(2). However, these considerations are unnecessary for 'other assets' that have their tax cost set under subsection 701-10(4) at the joining time (that is, assets referred to in pathway e) of paragraph 22 of this Ruling). The method of working out the terminating value of these assets is discussed at paragraphs 34 to 38 of this Ruling.

In determining whether money paid or required to be paid is in respect of the 'other asset' in question, consideration is required as to whether there is a direct and substantial link between the money paid or required to be paid and the acquisition of the asset. Paragraph 101 of Taxation Ruling TR 95/35 provides a list of matters to consider in determining whether there is such a direct and substantial link.

In the case of an FITBA in respect of expenditure incurred in borrowing money, the expenditure will not be in relation to the acquisition of an FITBA but, rather, would be in respect of obtaining the loan finance. Taxation Determination TD 93/1 concluded that borrowing expenses are attributable to the act of obtaining finance rather than being 'in respect of acquiring' the asset that is acquired with the borrowed funds. As such, the expenditure does not fall under the first, second or third elements of the cost base of the asset acquired with the funds. Similarly, it cannot be said that the expenditure forms part of the first, second or third elements of a cost base of the FITBA. Obtaining a future tax deduction is merely an incidental outcome of making the expenditure.

Accordingly, money paid or required to be paid in circumstances that give rise to an FITBA could only be regarded as paid or required to be paid 'in respect of' acquiring an income tax law benefit in situations where sufficient connection can be established between the making of the payment and acquisition of the FITBA. It must also be established that the asset can leave the group with the leaving entity. It is expected that such circumstances would rarely if ever exist. This means that an FITBA that is brought into the group by pathways a), b), c) and d) referred to in paragraph 22 of this Ruling would rarely, if ever, have a terminating value for the purposes of step 1 in the table in subsection 711-20(1).

The value of the deductions to which certain FITBAs relate may contribute to the old group's ACA for the leaving entity under step 2 in the table in subsection 711-20(1). However, deductions for expenditure that forms part of or reduces the cost of an asset of the leaving entity, or to which section 110-40 applies [2] , are excluded from the step 2 amount (see paragraphs 711-35(2)(a) and (b)).

The value of the attribution surpluses or future income tax credits or offsets to which certain FITBAs relate will not contribute to the old group's ACA for the leaving entity under step 2 because they are not deductions to which the leaving entity becomes entitled as a result of the leaving entity ceasing to be a subsidiary member of the old group as provided in subsection 711-35(2). FITBAs referrable to these tax attributes may contribute to the ACA for the leaving entity under step 1 if it can be shown that they would have a cost base or reduced cost base at the leaving time if they were CGT assets. Again, it is expected that such circumstances would rarely, if ever,exist.

The cost of an excluded asset that is brought into a group (referred to as pathway d) in paragraph 22 of this Ruling) is not set at the joining time. The entry history rule in section 701-5 applies with an effect that any money expended by a subsidiary member in respect of such an asset would be treated as having been expended by the head company. However, as with an FITBA asset coming into the group by pathways a), b) and c) set out in paragraph 22, such expenditure would not be likely to be treated as being in respect of the excluded asset.

As for assets referred in pathway d) in paragraph 22 of this Ruling, amounts paid or payable prior to the joining time in respect of assets referred to in pathways a) and c) in paragraph 22 are relevant to working out the cost base or reduced cost base of those assets. In respect of pathway c) assets, this history is inherited by the head company under the entry history rule in section 701-5.

For 'other assets' where the tax cost is set under subsection 701-10(4), and hence would not be excluded assets under subsection 705-35(2), (referred to in pathway e) in paragraph 22 of this Ruling), subsection 701-55(6) provides: If any provision of this Act that is not mentioned above [that is, provisions in respect of depreciating assets, trading stock, qualifying securities and the capital gains tax provisions] is to apply in relation to the asset, the expression means that the provision applies as if the asset's cost at that time were equal to its tax cost setting amount.

Because subsection 705-30(5) requires the terminating value of 'other assets' to be worked out as if they were the assets referred to in subsection 705-30(4), that is, CGT assets not addressed in preceding provisions of the section, the terminating value in these circumstances is the cost base or reduced cost base worked out the same way as for the assets referred to in subsection 701-55(5) as adjusted by the CGT rules and any other income tax provisions that adjust the cost base or reduced cost base. Refer to Taxation Determination TD 2006/19 for a more detailed discussion of the application of these rules in this situation.

Where the 'other asset' has had its tax cost set in circumstances referred to in paragraph 34 of this Ruling, the asset will have a terminating value worked out in accordance with subsection 705-30(5) equal to its cost base or reduced cost base just before the leaving time. This will be the asset's terminating value for the purposes of working out the step 1 amount under section 711-25.

An amount that is included under step 1 of the consolidated group's ACA for the leaving entity cannot also be included under another step, such as step 2 which is about increasing the ACA by the value of deductions inherited by the leaving entity. The converse is also true with amounts included under step 2 being excluded from step 1. It follows that the value of future deductions that contribute to the step 2 amount cannot be reflected in the terminating value of FITBAs under step 1 of the ACA.

Other assets that are not CGT assets, such as knowledge and information assets, can come into a consolidated group along any of the pathways taken by FITBAs referred to in paragraph 22 of this Ruling except that they cannot be excluded assets. Where such assets have a tax cost set under subsection 701-10(4) their cost base or reduced cost base at that time would be their TCSA as if they were CGT assets. Consequently, this would be their terminating value at that time. Money paid or required to be paid in respect of such assets by a head company after the joining time would form part of the asset's cost base or reduced cost base to the extent that would be the case for assets identified under subsection 705-30(4). Similarly, adjustments are made to the cost base or reduced cost base on the same basis as for CGT assets. Therefore, the terminating value of these assets at the leaving time will consist of the cost set at the joining time as well as any adjustments made to the cost base or reduced cost base of the asset until the leaving time.