What is the Market Value for the Small Business CGT Concessions

Syttadel Holdings Pty Ltd sold a CGT asset, the Spinnaker Sound marina at Sandstone Point, in August 2006 for $8.9 million.

Syttadel had acquired the asset, comprising land, buildings, marina berths, goodwill and plant and equipment, in June 1996 for $1.675 million.

The venture was not initially profitable but by 2006 its net profit was $280,306. The majority of the revenue was earned from the hiring of wet berths and dry storage and some income was received from the lease of commercial premises within the marina and the sale of fuel.

Mr Godden, a director and member of Syttadel gave evidence about several enquiries and offers to purchase the marina over time. One, at $2.5 million was made in 2004 – it was rejected because the proposed purchaser wanted vendor finance. The first ‘serious offer’ was made in mid-2005 and was for $3.7 million. A written offer of $4 million was made by the same prospective purchaser in February or March 2006. It was not accepted as Mr Godden ‘was hoping for a price closer to $4.5 million’.

Whilst these dealings were taking place a consortium led by a local real estate agent enquired at what price Mr Godden would be prepared to sell. He replied ‘$9 million’, which response he said was made ‘tongue in cheek’ with the figure of $9 million being ‘completely over the top’.

The consortium negotiated with Mr Godden and a written contract for the sale and purchase of the marina at $8.7 million was executed in early December 2005. The purchaser, World Housing Corporation Pty Ltd, ultimately failed to complete the transaction and forfeited its deposit.

After that Mr Godden had further dealings with the local real estate agent which led to the execution of a new contract, dated 4 July 2006, by which Spinnaker Sound Joint Venture Pty Ltd agreed to purchase the marina as a going concern for $8.9 million. The contract was completed on 14 August 2006.

Syttadel submitted a private ruling request to the Commissioner in November 2008 requesting that the Commissioner rule that, despite the sale at $8.9 million, the market value of the marina was in the range of $4 million to $4.5 million so that Syttadel would be eligible for the small business CGT concessions. The Commissioner ruled on 25 November 2008 that the value of the asset was its sale price and that Syttadel did not qualify for concessional capital gains tax treatment.

Syttadel objected to the ruling, but by then an assessment had issued, and the Commissioner treated the objection as being one against the assessment. The Commissioner disallowed the objection.

The Tribunal mentioned that both parties made reference to the passages from Spencer v The Commonwealth (1907) 5 CLR 418 where Griffith CJ said,

In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring ‘What would a man desiring to buy the land have had to pay for it on that day to a vendor will to sell it for a fair price but not desirous to sell?’

and where Isaacs J said

To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding
features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.

The Tribunal also noted that the parties agreed that the market value of the land had to take into account the highest and best use of the land.

The Tribunal had been provided with two valuations, one for the company where the value was set at $4.5 million, and one for the ATO where the valuer had originally set a value of $6.3 million but revised that down to $5.3 million.

The Tribunal were unprepared to accept the $4.5 million valuation figure as the Deputy President did not agree with the valuation methodology employed. The company’s valuer had set the value as being the value at which the vendor would be prepared to sell, and justified this by valuing the component parts of the marina using capitalization rates of 9% and 12%. The ATO’s valuer by contrast had used capitalization rates of 6% which the Deputy President considered ‘appropriate rate having regard to the market evidence and the potential for future growth but taking account the generally poor condition of the marina’. The ATO’s valuer had also supported their valuation by using comparable sales data.

As the Tribunal was unprepared to accept the company’s valuation it held that the small business CGT concessions would not be available.

Capital Allowances and Impact on Capital Gains Tax

Many people ask how capital allowances impact on the calculation of the capital gain when disposing of a property.  Capital allowances are covered by Division 43 of the Tax Act.  Effectively this allows someone to claim a write-off for the building construction costs over a period of time.

If a taxpayer is selling an investment property that was acquired after 13 May 1997 then they must reduce the cost base of that property by any Division 43 capital allowances that they have claimed.  If a capital loss is made on the sale of an investment property the reduced cost base must generally be reduced by any Division 43 capital allowances that the taxpayer was entitled to claim regardless of when the property was acquired.

If a taxpayer is selling an investment property that was acquired on or before 13 May 1997 the cost base of that property will only be reduced where the deductions relate to improvement expenditure incurred after 30 June 1999 and which is included in the fourth element of the cost base.

It is important for people selling investment properties that if capital allowances have been claimed the vendor is required to provide the purchaser with a written notice containing information that will allow the purchaser to calculate the remaining capital allowances.  The vendor needs to consider this as part of the sale if the building commenced construction after 26 February 1992.  This notification must be provided within 6 months after the end of the year of the income in which the property was sold or penalties can apply for the vendor.  This is something frequently overlooked by both parties.

If the taxpayer has not claimed the Division 43 capital allowance they are however required to reduce the cost base by the amounts they could have claimed regardless of whether they have been claimed or not by virtue of s110-45(2) of ITAA 1997 and s 110-45(4) of the ITAA 1997. Taxation Determination TD 2005/47 also deals with this issue http://law.ato.gov.au/atolaw/view.htm?docid=TXD/TD200547/NAT/ATO/00001. This is something which is frequently identified during audit and can result in penalties and interest if the taxpayer or their accountant have not identified this during their calculation of the capital gain.

However the ATO does provide a concession to not reduce the cost base where

  • the taxpayer does not have sufficient information to determine the property’s construction expenditure ; and
  • the taxpayer does not seek to claim any deduction for the capital allowance.

PS LA 2006/1 does not require the taxpayer to obtain a depreciation schedule to determine the amount of any eligible claim however as noted above as the vendor is required to provide the purchaser with notification of any remaining capital allowances to be written off then many times this information will be available for the taxpayer and the concession will not apply.  As with all aspects of tax law the devil is in the detail and House of Wealth can deal with your clients property investment and the tax related consequences can assist in dealing with this area of tax law.