Private ruling: Capital gains tax - Real property
Published: February 2012
Ruling period: Year ended 30 June 2011
Date scheme commenced: 1 July 2010

Ruling: Q1: Did you make a capital gain from the transfer of legal title to your son? | A1: Yes.


Relevant legislative provisions: Income Tax Assessment Act 1997 Section 108-5 | Income Tax Assessment Act 1997 Subsection 104-10(1) | Income Tax Assessment Act 1997 Subsection 104-10(2)

Reasons for decision: Summary: A capital gain may arise when a capital gains tax (CGT) event happens to a CGT asset. Section 108-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that a CGT asset is any kind of property, or a legal or equitable right that is not property. Under section 104-10 of the ITAA 1997 the disposal of a CGT property asset causes a CGT event A1 to occur. You dispose of an asset when a change of ownership occurs from you to another entity. In your case, when title to the property was transferred to your child, being your share as recorded on the title, this transfer has triggered CGT event AI and as such you will be liable for any CGT liabilities that follow. Whilst we acknowledge and appreciate your particular circumstances, the Commissioner has no discretion to vary your legal interest in the property due to your particular circumstances.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet. | Relevant facts: You and your spouse purchased a property after 20 September 1985 | The property was purchased for your child. | A mortgage was obtained to facilitate the purchase of the property | You were required by the incoming mortgagee, to be included as borrowers/ mortgagors. | You were subsequently included on the title to the property as tenants in common with your spouse and child in equal shares. This was an error by the solicitor engaged by you to undertake the purchase. | The correct ownership interest should have been in different proportions to this | You and your spouse's interests in the property were transferred to your child after 20 September 1985. | You have made a capital gain as a result of this transfer. | You have provided documents which form part of, and should be read in conjunction with this private ruling: | · Statutory declaration signed by you and your spouse | The following information has been obtained from these documents: | · The property was only able to be purchased with a mortgage and with the names of you and your spouse being included as borrowers/ mortgagors. | · The transfer of your interest in the property to your child has been completed. | · The property was held as tenants in common in equal shares between you, your husband and your child.