ATO ID 2003/371: Deducting Tax Loss: Saving Rule - Capital loss made by non-resident
Date of decision: 27 March 2003
Year of income: Year ended 30 June 2002
Business line: Public Groups and International

Issue
In applying subsection 165-12(7) of the Income Tax Assessment 1997 (ITAA 1997), is a capital loss made by a foreign resident in respect of the disposal of an equity interest in a loss company to be taken into account in determining the extent to which a loss company's tax loss has been 'reflected', where the disposer has no other CGT asset that is taxable Australian property?

Decision
Yes. A loss company's tax loss is reflected in the amount of capital loss that is allowed in relation to the disposal of the equity interest, and is not dependent upon the relevant capital loss being applied by the disposer.

Facts
Loss Company seeks to deduct a tax loss that it had incurred in an earlier income year. The tax loss cannot be deducted as the conditions in subsection 165-12(2), 165-12(3) and 165-12(4) of the ITAA 1997 are not satisfied because of the operation of section 165-165 of the ITAA 1997. During the relevant ownership test period Company K, a foreign resident, disposed of an indirect equity interest, as defined in subsection 995-1(1) of the ITAA 1997. The disposal resulted in CGT event A1 happening under subsection 104-10(2) of the ITAA 1997. Because of the happening of CGT event A1, Company K became entitled to a capital loss in respect of the disposal of the relevant indirect equity interest. That capital loss is not taken to be disregarded under Subdivision 170-D of the ITAA 1997 or any other provision. Company K made no other capital gains or capital losses in the disposal year of income. Company K has no other CGT that is taxable Australia property as defined in section 855-15 of the ITAA 1997, that may result in an assessable capital gain.

Reasons for decision
Summary: Subsection 165-12(7) of the ITAA 1997 provides that where a condition in subsection 165-12(2), 165-12(3) or 165-12(4)of the ITAA 1997 is not satisfied because of the operation of section 165-165 of the ITAA 1997 that the condition can be taken as being satisfied where: the company has information from which it would be reasonable to conclude that less than 50% of the *tax loss has been reflected in deductions, capital losses, or reduced assessable income, that occurred, or could occur in future, because of the happening of any *CGT event in relation to any *direct equity interests or *indirect equity interests in the company during the *ownership test period. Note: * denotes a term defined in section 995-1 of the ITAA 1997. Because the happening of CGT event A1 entitled Company K to the relevant capital loss (that is not disregarded), the capital loss is to be taken into account in determining the extent to which the tax loss incurred by Loss Company has been reflected. In applying subsection 165-12(7) of the ITAA 1997, it is irrelevant that Company K may or may not make capital gains in the future against which the relevant capital loss may be applied.

Legislative references: Income Tax Assessment Act 1997 subsection 104-10(2) subsection 165-12(2) subsection 165-12(3) subsection 165-12(4) subsection 165-12(7) paragraph 165-12(9)(b) section 165-165 Subdivision 170-D section 855-15 subsection 995-1(1)
Related ATO interpretative decisions: ATO ID 2003/370
Subject references: Losses