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14 November 2014

Mentor

When space is at a premium

Dear Mentor

I have a couple who have investment properties in the husband's name. They have agreed to transfer one property to the wife and another to the husband. While they have agreed to give the wife an investment property due to capital gains tax they decided to leave it in his name.

If he dies, she may be left out of will and will not inherit that property. They do not want to do consent orders and I am reluctant to do a binding financial agreement. Please advise.


Answer:

If a capital gains tax (CGT) event occurs because of an order or financial agreement under the Family Law Act 1975 (Cth), the CGT event is disregarded s118.75 Income Tax Assessment Act 1997 (Cth).

That is, if the order or agreement requires a capital gains tax asset to be transferred to a spouse, the transfer is not treated as a GCT event.

The corollary to this of course is that the transferred asset in the hands of the transferee spouse retains the CGT status it had in the hands of the transferor.

If a CGT event occurs, for example the subsequent sale of the asset by the transferee, the transferee will be assessed for CGT as if he or she had acquired the asset at the time and for the cost base of the spouse.

In normal circumstances, this will result in the transferee spouse paying capital gains tax at some time in the future.

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