Capital Gains Tax

What is capital gains tax?

Capital Gains Tax (CGT) is essentially income tax on net capital gains. CGT is not a separate tax from income tax. Net capital gains are included in assessable income for the income year and taxed at the applicable income tax rate.

The CGT provisions detail the various scenarios when a transaction will result in a capital gain or loss. These are referred to as CGT events. Unless a transaction falls within one of these scenarios, there will not be a CGT liability. See our CGT Events article for a full list and description of all CGT events.

Calculating a net capital gain or loss

For most CGT events you make a capital gain if your capital proceeds from the CGT event are greater than your cost base.

You make a capital loss if your cost base is greater than the capital proceeds from the event.

There is no separate tax on capital gains. A net capital gain is included in assessable income. A net capital loss can only be offset against capital gains in subsequent income years.

Determining the net capital gain or loss for an income year involves the following steps:

Step 1.
Add up the capital gains made during the income year. Also, add up the capital losses made in the year.

Step 2.
Subtract the capital losses for the income year from the capital gains. You choose the order in which you reduce your capital gains. This means that where a discount is available on a capital gain and where another capital gain is not discounted, the capital losses can be offset first against the non-discounted capital gain. If the losses exceed the capital gains, there is no net capital gain for the income year). There is a net capital loss if the capital losses exceed the capital gains.

Step 3.
If the gains exceed the losses, reduce them by applying any unapplied net capital losses from previous income years. If the result is still more than zero, then this is the net capital gain.

Step 4.
Reduce each amount of a discount capital gain by its discount percentage. Apply the small business concessions if applicable.

Step 5.
If the capital losses for the income year exceed the capital gains, the difference is the net capital loss. (A net capital loss cannot be deducted from assessable income.) Defer any net capital loss to the next income year for which there are capital gains that exceed the capital losses for that income year.

Capital proceeds

The capital proceeds from a CGT event are ordinarily the total of:

• the money received or, entitled to receive, in respect of the event happening; and
• the market value of any other property received (or entitled to receive).

Sometimes this general rule is varied. The most common variation is the deeming of market value consideration to have been received where no consideration is received or where the asset was disposed of in a non-arm’s length dealing – (market value substitution rule).

Cost base

The cost base consists of 5 elements:

• the price paid, or the market value of the property given, to acquire the asset.
• the incidental non-deductible costs of acquiring the asset or of the CGT event:
• remuneration for specified professional services
• transfer costs
• stamp duty or similar duty
• advertising costs
• valuation costs
• costs of ownership such as interest and rates which are not deductible (for assets acquired after 20 August 1991)
• expenditure of a capital nature incurred to increase or preserve the value of the asset
• expenditure of a capital nature incurred to the extent to which it was incurred in establishing, preserving or defending the taxpayer’s title to, or a right over the asset

As with capital proceeds, if no money is paid or no property is given to acquire the asset or the asset is not acquired through an arm’s length dealing, the market value of the CGT asset may be considered in calculating the cost base.

Example
Jane gifts property with a market value of $400,000 to her daughter. Her daughter will have a deemed cost base of $400,000 even though she has paid no consideration. Jane is deemed to have received market value proceeds.

Timing of capital gains

Capital gains made on the sale of assets will be assessable income in the year the contract is entered.

A contract is entered into where there is a contract at common law (i.e. there is an offer and an acceptance, certainty of terms, and consideration).

If there is no contract, the timing of the capital gain is when the change of ownership occurs.

CGT discount

For assets held for at least 12 months and then disposed of, individuals and trusts include in their assessable income half the realised nominal gain (i.e. half the capital proceeds less the cost base).

If not held for 12 months, the discount is not available.

The same rules apply to complying superannuation funds, but they are only allowed a 1/3 exemption on any capital gain made in relation to assets.

Companies do not qualify for the CGT discount.

If the taxpayer chooses the CGT discount, capital losses will be applied against capital gains before applying the CGT discount.

Example
Assume an asset that has been held for 2 years is disposed of for $500,000. Its cost base is $300,000. There are capital losses of $20,000.

Discount capital gain = ½ x ($500,000 – $300,000 – $20,000) = $90,000.

CGT and depreciating assets

Where there is a capital gain or loss made from a depreciating asset used 100% for income-producing purposes, the gain or loss is completely disregarded for CGT purposes.

However, where the asset was not wholly used for income-producing purposes, a capital gain or loss may arise under CGT event K7. It applies where a balancing adjustment event has happened to a depreciating asset that has been used wholly or partly for non-taxable purposes.

The most common balancing adjustment event for a depreciating asset occurs when the taxpayer stops holding it (for example, it is sold, lost or destroyed).

A capital gain or capital loss from a depreciating asset used for a non-taxable purpose is calculated using the uniform capital allowance concepts of cost and termination value, not the concepts of capital proceeds and cost base found in the CGT provisions.

A capital gain from CGT event K7 happening may qualify for the CGT discount.

A capital gain or loss from CGT event K7 happening to a depreciating asset arises in the same income year as any balancing adjustment calculated under Subdiv 40-D.

See CGT treatment of the sale of business assets for further details.

Exemptions from CGT

The major exclusions from CGT are:

• trading stock
• a plant used 100% for income-producing purposes
• cars, motorcycles and similar vehicles
• assets used to produce exempt income
• the CGT main residence exemption
• compensation for wrong or injury
• life assurance and superannuation policies
• gambling winnings
• pre-CGT property which isn’t deemed to be post-CGT

CGT Record keeping

CGT records must be in English and contain the detail relevant to working out the capital gain or loss. Generally, records must be retained for five years after the last CGT event to which they relate.

However, if the relevant details (amounts, dates, names etc) are entered on an asset register, the source documents can be discarded five years after certification of the entry. A registered tax agent (or other person approved by the ATO) is required to certify that the information has been properly entered into the asset register.