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原帖由 qisiwole 于 6/6/2008 11:23 发表 
If you are interested in the ato ruling on the wash sale, you can have a read on this tax ruling TR2008/1:Income tax: application of Part IVA of the Income Tax Assessment Act 1936 to 'wash sale' arr ...
Example 6: period of time between disposal and acquisition
61. David, a plumber by trade, has a keen interest in the share market and maintains an online trading account. David holds a diversified portfolio in a number of large publicly listed companies, but on occasion David likes to gamble on certain speculative stocks that attract his attention. His investment activities do not constitute the carrying on of a business.
62. One such speculative stock is the listed, widely traded and highly volatile technology based stock IT Ltd (IT). Following a recent rally, IT goes into 'free fall' in September 2006. Over the last weekend of September 2006, David reviews his portfolio, researches the company's financial position, the views held by commentators, and follows the discussion in various share market chat rooms. Following his research, David decides that he should sell his stake in IT, which has a reduced cost base of $2.88, in order to minimise further losses.
63. On 2 October 2006, David sells his entire holding in IT, being 30,000 shares at a price of $1.50 per share. CGT Event A1 happens upon the sale of the shares and David incurs a capital loss of $41,400. On 2 and 3 October David actively investigates potential companies to invest the proceeds he received from the sale of IT. During the course of those investigations he notices that the sentiment of certain investors towards IT has changed, that there has been a relative increase in the volume of IT shares traded and that the IT share price is climbing again. David continues to monitor IT whilst trying to decide what company he should invest the surplus funds. As he is unable to decide on a suitable investment, and IT's price has continued to climb, David decides to purchase shares in IT. On 5 October 2006 David purchases 27,000 shares at the prevailing market rate of $1.67 per share. On the 6 April 2007 David sells some other shares and makes a capital gain of $35,000. The $41,400 capital loss is applied against this capital gain, giving David a net capital loss of $6,400 for the 2006-2007 income year.
64. The scheme, for the purposes of subsection 177A(1), includes all the steps leading to (including the objective research undertaken by David) the entering into, and the implementation of the sale and the subsequent purchase of IT shares; the making of the $41,400 capital loss and the application of the capital loss against the $35,000 capital gain so that it was reduced to zero resulting in a net capital loss of $6,400 to David for the year ended 30 June 2007.
65. The objective circumstances of the scheme, in particular the offsetting nature of the transactions which occurred within 3 days of each other, may indicate that it is unreasonable to expect that David would have incurred the capital loss of $41,400 had the scheme not been carried out and, thus, that a tax benefit within the meaning of paragraph 177C(1)(ba) has been obtained, being the $41,400 capital loss. As the scheme had no material effect or outcome on David's economic exposure to the asset it is reasonable to conclude that nothing would have happened if the scheme had not been entered into or carried out. Alternatively, the length of time between the sale and purchase, which coincides with changes in the market performance of IT, may suggest that the sale and purchase are not part of the same scheme, and that David would have disposed of the IT shares, regardless of the scheme. If this is the case, David may not have obtained a tax benefit.
66. Section 177D provides that Part IVA applies to a scheme in connection with which the taxpayer has obtained a tax benefit if, after having regard to the eight specified factors, it would be concluded that a person who entered into or carried out the scheme, or any part of it, did so for the purpose of enabling the taxpayer to obtain the tax benefit. Having regard to the eight specified factors:
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The manner in which the scheme was entered into or carried out (subparagraph 177D(b)(i)), in particular the short period of time between the disposal and acquisition, may objectively be taken to indicate that David sold the shares without any intention of ceasing to hold an economic exposure to IT. However, the fact that the disposal and acquisition are explicable by reference to market changes, for instance the improvement in share price and demand for the stock may also be regarded as consistent with the way in which taxpayers usually hold and realise investments. The coincidence with market changes may lead a reasonable person to infer that the sale and purchase of the IT shares within a short time was the result of independent investment decisions to sell and buy for commercial reasons. Overall, this factor points away from the conclusion as to dominant purpose.
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There is no discrepancy between the form and substance of the scheme (subparagraph 177D(b)(ii)). In form, David has changed his beneficial ownership of the shares. The fact that David was at risk of (having regard to the widely held, actively traded and volatile nature of IT shares), and suffered, an adverse economic outcome from the change in the market value of the IT shares is consistent with David in substance disposing of his IT holding. The risk is material having regard to the market conditions of the time.
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The timing (subparagraph 177D(b)(iii)) of the scheme, in particular of the purchase, being referable to a change in investor sentiment and market activity tends against the dominant purpose of obtaining a tax benefit. The loss was incurred prior to the capital gain against which it was applied. However, there is nothing in the facts and circumstances to suggest that this gain was predictable or expected.
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The tax results achieved (but for Part IVA) (subparagraph 177D(b)(iv)) is the incurrence of the $41,400 capital loss that entirely reduced the tax David would otherwise have had to pay on the $35,000 capital gain he derived later in the year. This was the only material benefit obtained, as the sale proceeds he received were used to purchase shares in IT on 5 October 2006. There has been no material change in David's financial position as a result of the scheme (subparagraph 177D(b)(v)). Other than the increase in his financial resources from not having to pay tax on the capital gain David acquired materially the same value of shares as he disposed of, just a smaller number.
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There has been no change in the financial position of any parties associated with David (subparagraph 177D(b)(vi)), but this is because no such parties were involved in the scheme. David missed out on the increase in the market value of the IT shares whilst not holding them (subparagraph 177D(b)(vii)). Furthermore, David had to pay more to acquire each IT share than he received on disposal and, thus, could only purchase a smaller number of IT shares. Thus, David has suffered an economic loss in comparison to the counterfactual. If the counterfactual had occurred David would have continued to hold 30,000 IT shares, rather than 27,000 IT shares under the scheme. This loss of $5,100 is material when compared with the tax saving obtained. The only connection between David and the stockbroker arises from commercial or professional relationships (subparagraph 177D(b)(viii)). Thus, these factors are neutral, or tend against the conclusion as to the dominant purpose.
67. Upon weighing the eight matters it would be concluded that the dominant purpose of David in entering into and carrying out the scheme was not to obtain a tax benefit in the form of a capital loss. In particular the manner in which the sale and purchase were entered into, the form and substance of the scheme, the timing and other consequences of the scheme support this conclusion. Accordingly, Part IVA does not apply. |
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十年回首两茫茫，返澳半年找工经历回顾有感 (2009-4-17) 北雁南飞 
发表于 2008-6-4 16:34
