Husbands Share Transfer To Wife Is Taxable

Juticalpa Co-ownership of assets is an issue that couples need to consider as a fact of sharing their lives. However, a decision by the Administrative Appeals Tribunal (AAT) has highlighted that the romantic notion of “what’s mine is yours, and what’s yours is mine” does not apply from a tax point of view. The case highlights the importance of seeking tax advice before transferring assets between partners to formalise joint ownership. Couples often need to deal with the issue of co-ownership of assets. This is a fact of sharing their lives together. For example, should an asset be held in the name of one of the partners or should the asset be held as tenants in common or as joint tenants? However, one case before the Administrative Appeals Tribunal (AAT) has highlighted that if an asset was held in the name of one partner, it may be wiser to leave that asset in that partner’s name, rather than take action to formally recognise joint ownership.

In Re Murphy and FCT [2014] AATA 461, the AAT confirmed that a taxpayer who was the sole owner of shares he inherited, but who transferred the registered title to the shares to joint ownership with his wife, was liable for capital gains tax (CGT) on the transaction. It did so on the basis that the taxpayer had disposed of a fractional interest in his shares (namely, 50%), and that this triggered a taxable event known under the tax law as CGT event A1. As a result, the taxpayer was assessable on a $20,000 capital gain made on the transfer.

The taxpayer argued that he and his wife regarded themselves as joint owners of all that they collectively owned, and that he believed from the outset that in equity, and morally, the shares that were transferred were owned “jointly”. He also claimed that he did not make any capital gain because he had not received anything and that if he knew he would be subject to tax on the transfer, he would not have transferred the shares.

However, the AAT found that tax law (unlike family law) did not recognise such sorts of “joint asset ownership” arrangements involving family members and that the transfer fell squarely within the terms of CGT event A1 (and that shares were clearly a CGT asset). It also noted that while CGT concessions under the tax law, such as a CGT rollover, are available on the transfer of assets between spouses on marriage breakdown, no CGT rollover was available in these circumstances.

Finally, the AAT cautioned that “unless there is reason to do otherwise, partners to a marriage or marriage-like relationship who hold the assumption that his or her assets are our assets, would be well advised to continue with that assumption, without taking the step of formalising any joint ownership arrangements, as there will be a taxing point if they do if the transferred assets have increased in value”. Take home message

The often quoted phase “what’s mine is yours, and what’s yours is mine” may be true in a relationship. However, when it comes to transferring assets between partners, the tax law does not recognise such romantic notions. Couples should consider seeking advice on tax implications before deciding to transfer assets. Please contact our office for further information. Joint ownership

The following are some key points from the ATO concerning joint ownership:

  • Tenants in common – individuals who own an asset as tenants in common may hold unequal interests in the asset. Each owner makes a capital gain or capital loss from a CGT event in line with their interest. For example, a couple could own a rental property as tenants in common, with one having a 20% interest and the other having an 80% interest. When they sell the rental property (or any other CGT event occurs), they split the resultant capital gain or capital loss between them according to their legal interest.
  • Joint tenants – for CGT purposes, joint tenants are treated as tenants in common having equal shares in the asset. Each party therefore has an equal share of any capital gain or capital loss from a CGT event. For example, a couple that owns a rental property as joint tenants splits the capital gain or capital loss equally when they sell the property. When one joint tenant dies, their interest in the asset is taken to have been acquired in equal shares by the surviving joint tenants on the date of death.

Partnerships – for CGT purposes, a partnership itself does not own assets. Instead, each partner owns a proportion of each CGT asset. The partners use their proportion to work out their capital gain or capital loss from a CGT event affecting any asset.