ATO ID 2009/148: CGT: non-resident becomes resident - assets in respect of which choice was made to treat as having the necessary connection with Australia
Date of decision: 24 November 2009
Year of income: Year ended 30 June 2007
Business line: Public Groups and International

Issue
Is the acquisition date of CGT assets, in respect of which a choice was made under subsection 104-165(2) of the Income Tax Assessment Act 1997 (ITAA 1997) when the taxpayer became a non-resident of Australia, determined under Subdivision 109-A of the ITAA 1997 if the taxpayer returns to Australia and becomes a resident again?

Decision
Yes. The acquisition date of the CGT assets is determined under Subdivision 109-A of the ITAA 1997 and not section 855-45 of the ITAA 1997.

Facts
Prior to 12 December 2006, the taxpayer ceased to be a resident of Australia for taxation purposes. At the time of becoming a non-resident, the taxpayer owned a number of assets in respect of which a choice was made under subsection 104-165(2) of the ITAA 1997 to treat the assets as having the necessary connection with Australia. In January 2009, the taxpayer returned to Australia to become a permanent resident again. The taxpayer still owns the assets.

Reasons for decision
Summary: As a general rule, you acquire a CGT asset when you become its owner (subsection 109-5(1) of the ITAA 1997). More specific rules are set out in subsection 109-5(2) of the ITAA 1997 for CGT assets acquired as a result of a CGT event happening or in section 109-10 of the ITAA 1997 when assets are acquired without a CGT event happening. If a non-resident individual becomes an Australian resident, a special acquisition rule applies in respect of certain CGT assets owned by the individual just before becoming a resident (section 855-45 of the ITAA 1997). The special acquisition rule is that the taxpayer is treated as having acquired the asset at the time of becoming a resident (subsection 855-45(3) of the ITAA 1997). However, the rule in section 855-45 of the ITAA 1997 does not apply to assets that are taxable Australian property or assets that were acquired before 20 September 1985 (subsection 855-40(1) of the ITAA 1997). Section 104-165 of the Income Tax (Transitional Provisions) Act 1997 has the effect that an asset in respect of which a choice was made under subsection 104-165(2) of the ITAA 1997 to treat it as having the necessary connection with Australia is taken to be taxable Australian property for the purposes of section 855-45 of the ITAA 1997. When the taxpayer became a non-resident of Australia, a choice was made under subsections 104-165(2) of the ITAA 1997 in respect of a number of assets held at that time. As a result of that choice, those assets are taken to be taxable Australian property. Therefore, the acquisition rule in section 855-45 of the ITAA 1997 will not apply to them. This means that the acquisition date of the assets for which the choice was made under subsection 104-165(2) of the ITAA 1997 will be determined under the rules in Subdivision 109-A of the ITAA 1997.

Legislative references: Income Tax Assessment Act 1997 subsection 104-165(2) subsection 104-165(3) Subdivision 109-A section 109-5 subsection 109-5(1) subsection 109-5(2) section 855-45 subsection 855-45(1)
Subject references: Acquisition of CGT asset Capital gains tax CGT assets CGT cost base Capital Gains Tax CoE CGT asset with the necessary connection with Australia