Essay: Tax Implications Of Asset Sales For An Investor And Antique Collector.

You are working as a tax consultant in Mayfield, NSW. Your client is an investor and antique collector. You have ascertained that she is not carrying on a business. Your client provides the following information of sales of various assets during the current tax year:

• Block of vacant land. On 3 June of the current tax year your client signed a  contract to sell a block of vacant land for $320,000. She acquired this land in January 2001 for $100,000 and incurred $20,000 in local council, water and sewerage rates and land taxes during her period of ownership of the land. The contract of sale stipulates that a deposit of $20,000 is payable to her when the contract of sale is signed and the balance is payable on 3 January of the next tax year, when the change of ownership will be

• Antique bed. On 12 November of the current tax year your client had an antique four-poster Louis XIV bed stolen from her house. She recently had the bed valued for insurance purposes and the market value at 31 October of the current tax year was $25,000. She purchased the bed for $3,500 on 21 July 1986. Although the furniture was in very good condition, the bed needed alterations to allow for the installation of an innerspring mattress. These alterations significantly increased the value of the bed, and cost $1,500. She paid for the alterations on 29 October 1986. On 13 November of the current tax year she lodged a claim with her insurance company seeking to recover her loss. On 16 January of the current tax year her insurance company advised her that the antique bed had not been a specified item on her insurance policy. Therefore, the maximum amount she would be paid under her household contents policy was $11,000. This amount was paid to her on 21 January of the current tax

• Your client acquired a painting by a well-known Australian artist on 2 May 1985 for $2,000. The painting had significantly risen in value due to the death of the artist. She sold the painting for $125,000 at an art auction on 3 April of the current taxyear.

• Your client has a substantial share portfolio which she has acquired over many years. She sold the following shares in the relevant year ofincome:
  • 1,000 Common Bank Ltd shares acquired in 2001 for $15 per share and sold on 4 July of the current tax year for $47 per share. She incurred $550 in brokerage fees on the sale and $750 in stamp duty costs on
  • 2,500shares in PHB Iron Ore  These shares were also acquired in 2001 for $12 per share and sold on 14 February of the current tax year for $25 per share. She incurred $1,000 in brokerage fees on the sale and $1,500 in stamp duty costs on purchase

• 1,200 shares in Young Kids Learning Ltd. These shares were acquired in 2005 for $5 per share and sold on 14 February of the current tax year for $0.50 per share. She incurred $100 in brokerage fees on the sale and $500 in stamp duty costs on
• 10,000 shares in Share Build Ltd. These shares were acquired on 5 July of the current tax year for $1 per share and sold on 22 January of the current tax year for $2.50 per share. She incurred $900 in brokerage fees on the saleand $1,100 in stamp duty costs on purchase.

• Your client also has an interest in collecting musical instruments. She plays the violin very well and has several violins in her collection, all of which she playson a regular basis. On 1 May of the current tax year she sold one of these violins for $12,000 to neighbor who is in the Queensland Symphony Orchestra. The violin cost her $5,500 when she acquired it on 1 June 1999.

Your client also has a total of $8,500 in capital losses carried forward from the previous tax year, $1,500 of which are attributable to a loss on the sale of a piece of sculpture which she sold in April of the previous year.

Based on this information, determine your client’s net capital gain or net capital loss for the year ended 30 June of the current tax year.

Rapid-Heat Pty Ltd (Rapid-Heat) is an Electric Heaters manufacturer which sells Electric Heaters directly to the public. On 1 May 2017, Rapid-Heat provided one of its employees; Jasmine, with a car as Jasmine does a lot of travelling for work purposes. However, Jasmine's usage of the car is not restricted to work only. Rapid-Heat purchased the car on that date for $33,000 (including GST).

For the period 1 May 2017 to 31 March 2018, Jasmine travelled 10,000 km in the car and incurred expenses of $550 (including GST) on minor repairs that have been reimbursed by Rapid-Heat. The car was not used for 10 days when Jasmine was interstate and the car was parked at the airport and for another five days when the car was scheduled for annual repairs.

On 1 September 2017, Rapid-Heat provided Jasmine with a loan of $500,000 at an interest rate of 4.25%. Jasmine used $450,000 of the loan to purchase a holiday home and lent the remaining $50,000 to her husband (interest free) to purchase shares in Telstra. Interest on a loan to purchase private assets is not deductible while interest on a loan to purchase income-producing assets is deductible.

During the year, Jasmine purchased an Electric Heaters manufactured by Rapid-Heat for $1,300. The Electric Heaters only cost Rapid-Heat $700 to manufacture and is sold to the general public for $2,600.

• Advise Rapid-Heat of its FBT consequences arising out of the above information, including calculation of any FBT liability, for the year ending 31 March 2018. You may assume that Rapid-Heat would be entitled to input tax credits in relation to any GST- inclusive
• How would your answer to (a) differ if Jasmine used the $50,000 to purchase the shares herself, instead of lending it to her husband?

Revenue v Capital Proceeds

The major issue is to tender advice with regards to the potential tax implications of the assets that have been disposed by the client. In regards to consulting the client on the tax treatment, the various given information need to be critically analysed in the wake of applicable legislations coupled with taxation rulings.

Revenue v Capital Proceeds

The proceeds from sale of an item could be revenue or capital based on whether the underlying good is trading stock or not. In order to determine the precise nature, it is of utmost importance that it needs to be determined if the underlying seller is engaged in a business transaction or a capital transaction (Deutsch, et.al., 2015). The proceeds from the business transaction would be revenue and hence considering ordinary income as outlined in s. 6-5 ITAA 1997 (Sadiq, et.al., 2015). On the other hand, capital transactions regarding the items would yield capital proceeds which even though non-taxable may still lead to taxes in the form of Capital Gains Tax (CGT) that is levied on the gains derived in the process.

CGT Exemption

One category of assets that get CGT exemption is known as pre-CGT assets. These refer to the asset class which were purchased at a time when the capital gains were not taxed. Hence, even though now CGT exists but for these assets whose ownership dates back to pre-CGT period, the CGT exemption continues (Nethercott, Richardson and Devos, 2016). The pre-CGT period refers to time period prior to September 20, 1985. This is a blanket exemption which is available to all the assets irrespective of their type, gains or losses, holding period, owner type.

Additionally, there are certain specific exemptions that are available on some particular asset types only. For instance, s. 118-10 ITAA 1997 outlines that the threshold value of purchase price for a collectable to be applied CGT is in excess of $ 500 (Barkoczy, 2017). The corresponding value in case of an asset of personal use is $ 10,000 as per s. 108-20(1) ITAA 1997. It is imperative to consider the same while applying CGT on these select items (Gilders, et. al., 2015).

Process of CGT computation

There are several steps to the computation of CGT on a given capital transaction as highlighted below (Woellner, 2017).

Step 1: The first step which requires capital gains to be calculated is the taking place of a CGT event. There are various kinds of CGT events with disposal of asset being one of these. The summary of these is outlined in s. 104-5 ITAA 1997 (Nethercott, Richardson and Devos, 2016). The event that is of relevance to the problem at hand is A1 which corresponds to the asset disposal. The appropriate method that this event endorses for capital gains computation is to find cost base and subtract the same from the receipts of asset sale.

CGT Exemption

Step 2: To apply the formula illustrated above, a key requirement is to highlight the cost base which is complicated that the purchase price only. This can be computed in accordance with the components associated to cost base mentioned in s. 110-25 ITAA 1997 as exhibited below  (Austlii, 2018).

It is noteworthy that every asset would not have all the above mentioned components and hence cost base computation should be carried out on the basis of the available components.

Step 3: Once the cost base of asset is computed, the capital gains or losses can be computed in line with the method highlighted in A1 event. However, these gains are not subject to CGT (Krever, 2017).  It is essential to ascertain if there are any capital losses either from the capital transactions in the given year or capital losses brought forward from previous years. These must be adjusted against the gains in accordance with s. 102-5 ITAA 1997 (Barkoczy, 2017). In this regards, a key noteworthy point is that capital losses arising from transactions involving collectables (as defined in s. 118-10) must be adjusted against capital gains against the same type. No such restriction exists for other asset types (Nethercott, Richardson and Devos, 2016).

Step 4: The adjusted capital gains is still not subject to CGT. This is because concessions are available under ITAA 1997 in order to lessen the burden. One of the commonly used methods in this regards is the discount method which has been outlined in s. 115-25 ITAA 1997 (Woellner, 2017). This section allows a flat 50% reduction in the capital gains subject to one condition which is that the underlying capital gains must be long term. This can be ascertained by considering the holding period of the underlying asset before selling. If this period exceeds one year, then the resultant gains would be termed as long term capital gains and eligible for discount under this section.

In case of asset liquidation, there may a arise a situation when there is significant time difference between the contract enactment with regards to asset sale and the proceeds being received from the asset sale. At times, this time difference becomes more critical since these two events happen to fall in different tax years (Hodgson,Mortimer and Butler, 2016). As a result, this provides a choice before the taxpayer so to when the CGT consequences on the asset sale ought to be considered in the tax return. To resolve this issue reference, needs to be made to TR 94/29 which clearly hints that irrespective of when the sale proceeds are recovered by the seller, the CGT consequences ought to be considered in the same year as the underlying contract for asset sale is enacted or executed between the seller of asset and corresponding buyer (ATO, 1994).

Process of CGT Computation

Revenue v Capital Proceeds

In wake of the information provided, relevant discussion needs to be initiated with regards to the nature of proceeds. It is known that for the given assets, the client does not conduct any business transactions and is infact an investor. Thus, the given receipts would not be regarded as revenue owing to the assets not being termed as trading stock. Thereby, the conclusion can be drawn that the underlying proceeds would be capital in nature and hence non-taxable. Hence, the focus shifts to determine the potential capital gains or losses arising from the asset sale.

CGT Exemption

The purchase date of various assets needs to be considered in order to segregate any pre-CGT asset amongst the given transactions. Only one asset i.e. painting qualifies as a pre-CGT asset owing to the purchase date belonging to the time when there was no tax on the capital gains and losses derived by the taxpayer. All the other assets are purchased at a time when CGT did exist.  Hence, it can be concluded that no CGT implication would arise in case of painting.

Further, antique bed is a collectable as per s. 118-10 but the price paid to acquire this asset exceeds the threshold limit of $ 500 and hence CGT exemption is not available for this asset. An additional asset that requires consideration is violin. Based on the given information, it would be appropriate to label this as a personal use asset considering the fact that client uses this violin and others from her collection for playing and entertainment on a frequent basis. Thus, the minimum purchase price should exceed 10,000 which is not the case with violin sold. Therefore, CGT exemption can also be availed by the violin.

Process of CGT computation

The taxable capital gains calculation for the remaining assets i.e. land, antique bed and shares is shown below. Further, the adjustment of carry forward capital losses is also depicted during these computations.

With regards to land sale, there is a mismatch between the date of signing of contract and the proceeds of sale being received. The client has enacted a contract for land sale in the current tax year but the proceeds from this would only be recovered by the client in the next year. In this scenario, taking TR 94/29 as the reference point, it can be concluded that the computation of CGT would be within the current year only with regards to land asset.

Conclusion

The net result of the computation carried out above clearly reflects that the taxable capital gains for the current tax year for the client would be $139,100 and the CGT would apply on the same.

The key objective is to outline the Fringe Benefit Tax (FBT) payable that would arise for the employer Rapid Heat on account of the various benefits that have been provided to employee Jasmine. Also, the likely deductions possible particularly in terms of loan extended also need to be discussed.

In relation to fringe benefits, the underlying tax liability is governed by Fringe Benefits Tax Assessment Act 1986. The underlying FBT implications on account of the various employee fringe benefits would only extend on the employer while the employee would be completely exempt from any FBT burden. The key fringe benefits which are relevant to the situation presented are highlighted below (Sadiq, et.al., 2015).

• Car Fringe Benefit

These benefits are extended as per s. 8 FBTAA 1986 whereby it is necessary that the employee should have the permission to use the car given by employer in personal use (Gilders, et. al., 2015). Limitation of usage to only professional reason would not constitute any fringe benefit. To determine the FBT liability on the employer, the following three steps ought to be performed (Woellner, 2017).

Base value of car provides deduction for repair related expense from the car buying price. Adjustment to days of car fringe benefits is allowed for the period when car not available for private usage or in garage for undergoing major repairs (Nethercott, Richardson and Devos, 2016). As a result, when car is available for private use and not being used, deduction does not apply.

Step 2: Taxable fringe benefit related to car = Step 1 value * Gross up factor

Gross up factor is contingent on two aspects namely the tax year and whether GST is levied on good or not.

Step 3: FBT payable by employer on car related benefit = Step 2 value * Rate of FBT

The above rate is not static and may alter for different tax year.

• Loan Fringe Benefit

These benefits are extended to employee only when the employer provides low interest or zero interest loan as mentioned in s. 16, FBTAA 1986 (ATO, 2018). To avoid any fringe benefit, the interest rate must not be lesser than the benchmark interest cost which the RBA decides yearly. If the loan rate is lower than the above rate, the taxable benefits in the form of fringe benefits on account of loan are extended. To determine the FBT liability on the employer, the following three steps ought to be performed (Krever, 2017).

Step 1: Compute the savings in interest payment that employee has realised during the tax year. A key element would be the number of days for which loan has been extended to employee during the year.

Step 2: Taxable fringe benefit related to loan = Step 1 value * Gross up factor

Gross up factor is contingent on two aspects namely the tax year and whether GST is levied on good or not.

Step 3: FBT payable by employer on loan related benefit = Step 2 value * Rate of FBT

The above rate is not static and may alter for different tax year

Also, in accordance with deduction rule, employer can make deduction claims in FBT payable to the extent that the loan proceeds provided to the employer is used for taxable income production. However, this deduction does not extend to case where the loan proceeds are deployed by an associate of employee (Hodgson, Mortimer and Butler, 2016).

• Internal expense fringe benefit (Electric heater)

Expense fringe benefit has been dealt with in s. 20 FBTAA 1986 and arises when the employer meets some personal expense of employee (Sadiq, et.al., 2015). A special case is when a discounted price is provided on a good that is internally manufactured. This is referred to as internal type of expense fringe benefit (ATO, 2018).

Step 1: 75% of actual price minus cost savings would be fringe benefits

Step 2: Taxable fringe benefit related to expense = Step 1 value * Gross up factor

Gross up factor is contingent on two aspects namely the tax year and whether GST is levied on good or not.

Step 3: FBT payable by employer on expense related benefit = Step 2 value * Rate of FBT

• The computation of the relevant FBT related liability on account of the various benefits has been carried out in accordance with the discussion in applicable law.

There is extension of car fringe benefit as personal use of car is permitted to Jasmine.  Also, days deduction would not be availed in neither minor repairs related five days garage visit not airport parking stay of ten days.

There is extension of loan fringe benefit as loan given to employee is at 4.25% p.a. against the applicable benchmark rate of 5.25% pa.

Jasmine uses the 90% loan amount foe buying of holiday home and in the future if assessable income results for Jasmine, then employer would be able to claim deduction in this regards. However, no deduction on 10% loan amount used by husband.

The price of electric heater that is charged by Rapid Heat is $ 2,600. However, the same is extended to employee Jasmine as a lower price of $ 1,300.

• In wake of altered loan utilisation proceeds whereby 100% of loan amount is used by Jasmine, the available deduction to employer would increase. This is because $ 50,000 is invested in stock and dividend income would be generated which makes the employer eligible for the following deduction.

Conclusion

The above computations clearly reflect that FBT liability would arise for Rapid Heat (employer) on account of the above discussed benefits given to Jasmine. Further, some reduction in FBT payable may also be expected for the employer on account of assessable income production from loan proceeds for Jasmine.

References

ATO, (1994) Taxation Ruling –TR 94/29 [Online]. Available at: Income tax: capital gains tax consequences of a contract for the sale of land falling through. https://www.ato.gov.au/law/view/document?DocID=TXR/TR9429/NAT/ATO/00001&PiT=99991231235958 (Accessed: 29 September 2018)

ATO, (2018) Fringe Benefits Tax- A Guide For Employers. https://law.ato.gov.au/atolaw/view.htm?DocID=SAV%2FFBTGEMP%2F00010 (Accessed: 29 September 2018)

Austlii, (2018) Income Tax Assessment Act 1997- SECT 110.25.General Rules About Cost Base [Online]. Available at: https://www5.austlii.edu.au/au/legis/cth/consol_act/itaa1997240/s104.5.html (Accessed: 29 September 2018)

Barkoczy, S. (2017) Foundation of Taxation Law 2017. 9^th ed. Sydney: Oxford University Press.

Deutsch, R., Freizer, M., Fullerton, I., Hanley, P., and Snape, T. (2015) Australian tax handbook.  8th ed. Pymont: Thomson Reuters.

Gilders, F., Taylor, J., Walpole, M., Burton, M. and Ciro, T. (2016) Understanding taxation law 2016. 9^th ed.  Sydney: LexisNexis/Butterworths.

Hodgson, H., Mortimer, C. and Butler, J. (2016) Tax Questions and Answers 2016. 6^th ed. Sydney: Thomson Reuters.

Krever, R. (2017) Australian Taxation Law Cases 2017. 2^nd ed. Brisbane: THOMSON LAWBOOK Company.

Nethercott, L., Richardson, G., & Devos, K. (2016)  Australian Taxation Study Manual 2016. 8^th ed. Sydney: Oxford University Press.

Sadiq, K., Coleman, C., Hanegbi, R., Jogarajan, S., Krever, R., Obst, W., and Ting, A. (2015) Principles of Taxation Law 2015. 7th ed. Pymont: Thomson Reuters.

Woellner, R., Barkoczy, S., Murphy, S. and Pinto, D. (2017). Australian Taxation Law Select Legislation and Commentary Curtin 2017. 2^nd ed. Sydney: Oxford University Press Australia.