A Warning Against Wash Sales: The Tax Treatment of Wash Sales at the End of the Financial Year

Commercial, Property

What is Wash Sale?

A wash sale describes a transaction where an individual sells and purchases an asset that is the same or substantially similar within a short period of time, with the effect being that their economic exposure remains unchanged. While such a sale is perfectly permissible, wash sales undertaken around the end of the financial year have been the subject of scrutiny from the ATO.

CGT Implication

If a taxpayer expected to have a Capital Gains Liability and was holding an easily saleable asset, such as stocks or cryptocurrency, the taxpayer could theoretically instigate a wash sale on an asset that is running at a loss before June 30th and repurchase the same asset in the new financial year. The effect being that the taxpayer holds the same economic benefit, but registers a capital gains loss in the preceding financial year. The economic position of the taxpayer in respect of the asset remains the same, but they are able to offset their capital gains liability via the sale.

ATO Determination

In 2008 the ATO released a tax determination specifically focused on wash sales performed around the end of the financial year.

In its determination the ATO canvassed a number of situations that would be worthy of investigation by the ATO, such as:

  • Where the taxpayer disposes of an asset and after a short amount of time acquires the same or substantially the same asset
  • The taxpayer acquires the same or substantially the same asset shortly before disposing of an asset
  • Shortly before disposing of an asset the taxpayer enters into an arrangement to acquire the same or substantially the same asset at the same price in the future
  • Shortly after disposing of an asset the taxpayer enters into derivatives or a financial instrument that provides the same exposure as if they held the asset
  • Around the time of disposal the taxpayer enters into an arrangement that affords them the same benefit, such as rent, income, interest or appreciation as if they still held the asset

Consistent throughout these example situations is the notion that the taxpayers’ economic circumstances are the same on either side of the wash sale. In determining what would constitute “the same, or substantially the same” the ATO held that assets would satisfy the test if they were economically equivalent or fungible with the original asset. For example, shares from the same industry but from different, competing, companies might not satisfy the test notwithstanding that they are similar shares.

Under the Tax Legislation

Whilst there is not specific provision prohibiting wash sales undertaken to avoid tax, such sales undertaken to incur a capital gains offset might be caught by the catch-all provision of s 177F(1)(c) of the Income Tax Assessment Act. The provision acts as a blanket prohibition on activity undertaken for the dominant purpose of avoiding tax, and as such it’s application will depend on the circumstances of a case.

If a sale is determined by the ATO to be in breach of the provision, then the commissioner may make a determination to cancel any tax benefits that were applied to the assessment of the individuals tax liability.

Case Study

In the case of Cumins v Commissioner of Taxation, Cumins purchased shares which were held in a trust of which he was sole trustee and a beneficiary. In other transactions he incurred capital gains liability of approximately $800,000. Before the end of the financial year, he sold the shares from one trust to another, of which he was also trustee and beneficiary, for a loss of about $800,000 to effectively render his capital gains liability at 0. The tribunal found that the dominant purpose of the transaction was the avoidance of capital gains tax and thus made an order that Cumin’s income tax liability be increased by $800,000.

Keystone Lawyers thus reminds clients of the importance to be certain when selling an asset, given the risk that a ‘change of mind’ repurchase could result in tax liability. Taxpayers making a sale should ensure they are able to display honest intentions in the event they decide to repurchase an asset and may thus come under the investigation of the ATO.

Our team of lawyers is available to provide advice as to the tax implications of any asset sales.