ATO ID 2003/505: CGT small business retirement exemption: sale proceeds credited to a superannuation fund - Part IVA
Date of decision: 21 May 2003
Year of income: Year ended 30 June 2003
Business line: Private Groups and High Wealth Individuals

Issue
Is an arrangement, where a taxpayer disposes of a property to a superannuation fund and directs that the sale proceeds be credited to the taxpayer's members account with that fund, a 'scheme' to which Part IVA of the Income Tax Assessment Act 1936 (ITAA 1936) applies?

Decision
No. The arrangement is not a 'scheme' to which Part IVA of the ITAA 1936 applies.

Facts
The taxpayer purchased a commercial property in 1987. A company, of which the taxpayer is the sole shareholder and director, operates a business from the property. The taxpayer leased the property to the company under a formal lease. During the year ended 30 June 2003, the taxpayer disposed of the property under a contract for sale for its market value to a superannuation fund and made a capital gain. The applicable stamp duty was duly paid. The taxpayer and the taxpayer's spouse are the only members of the fund. The parties agreed that the proceeds of the sale be credited to the taxpayer's members account in the fund and treated as an undeducted contribution. The main reason for transferring the asset to the superannuation fund was for asset protection. The taxpayer chose to disregard the capital gain under the small business retirement exemption in subsection 152-305(1) of the Income Tax Assessment Act 1997 (ITAA 1997).

Reasons for decision
Summary: Part IVA of the ITAA 1936 contains general anti-avoidance provisions designed to prevent the avoidance of tax. Part IVA of the ITAA 1936 applies where a scheme or any part of the scheme has been entered into or carried out in a particular way to obtain a tax benefit in connection with the scheme, having regard to the factors set out in subsection 177D(2) of the ITAA 1936. The arrangement in this case is a bona fide disposal of an asset (land) by the taxpayer to a superannuation fund in which the taxpayer and their spouse are the only members. As a result, the taxpayer made a capital gain and sought to choose the small business retirement exemption in subsection 152-305(1) of the ITAA 1997. For CGT events that occur in the 2006/07 and later income years, the retirement exemption is available where a capital gain is made on the disposal of an active asset and the conditions in section 152-305 of the ITAA 1997 are satisfied. In this case, the taxpayer has directed that the sale proceeds be credited to his account in the superannuation fund and a taxpayer is taken to have received money or other property if it has been applied for their benefit or as they direct (subsection 103-10(1) of the ITAA 1997). The taxpayer is therefore able to choose the retirement exemption if the other conditions are satisfied. In these circumstances, it is considered that there is no basis for concluding that the taxpayer entered into a scheme for the purpose of obtaining a tax benefit. The taxpayer disposed of the asset to the superannuation fund for reasons of asset protection. It was also more efficient to direct the proceeds into the superannuation fund rather than have funds change hands as it reduced bank fees and handling. Accordingly, the arrangement is not a scheme to which Part IVA of the ITAA 1936 applies. Note: Taxpayers who are contemplating disposing of an asset to an SMSF of which they are a member, should consider whether the tax and regulatory issues noted in TA 2015/1 have application.

Legislative references: Income Tax Assessment Act 1936 Part IVA paragraph 177D(2)
Related public rulings and determinations: Taxation Determination TD 95/4
Subject references: Capital gains tax CGT capital proceeds CGT capital proceeds modification market value substitution rule CGT small business relief Part IVA Small business retirement exemption