Private ruling: Employee share scheme
Date of advice: 19 April 2023
Published: 5 June 2023
Ruling period: 1 July 20YY to 30 June 20YY | 1 July 20YY to 30 June 20YY | 1 July 20YY to 30 June 20YY
Date scheme commenced: 1 July 20YY

Ruling: Q1: Will any capital gain or loss made from the disposal of your shares in a company granted under a qualifying 'Start Up' Employee Share Scheme be disregarded when you are a non resident of Australia at the time of disposal? | A1: Yes , the shares you received were not taxable Australian property and you are a non-resident therefore any capital gain is disregarded under section 855-10 of the Income Tax Assessment Act 1997 .

Relevant facts and circumstances: You are a citizen of a foreign country. You entered Australia on a temporary resident visa. You departed Australia permanently in 20YY to return to your home country. You have not returned to Australia since and reside in the foreign country permanently. You are not a tax resident of Australia since your departure. Your former spouse was employed in Australia by a Company. They participated in the Company's Employee Option Plan and were granted share options in the Company. The Company advised them in the offer letter that the share options granted to you would qualify for the 'Start-Up' Employee Share Scheme concessions in section 83A-33 of the Income Tax Assessment Act 1997 (ITAA 1997). Your divorce was formalised in 20YY. As part of the financial settlement, it was agreed that you would receive shares issued under the Employee Start-Up Plan. In 20YY the Start-Up shares were transferred into your name. You intend to sell these shares as a non-resident of Australia. The shares acquired from your ex-spouse are not direct or indirect Australian real property interests.

Relevant legislative provisions: Income Tax Assessment Act 1997 subdivision 83A-B | Income Tax Assessment Act 1997 section 104-160 | Income Tax Assessment Act 1997 section 126-5 | Income Tax Assessment Act 1997 subsection 134-1(4) | Income Tax Assessment Act 1997 section 768-915 | Income Tax Assessment Act 1997 section 855-10 | Income Tax Assessment Act 1997 section 995-1(1)