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Again thanks for your reply. I actually meant to say "write CALL...

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bellenuit

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19/04/20

12:03

Post #: 44124946
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Originally posted by Headhunter ↑

I think you may be getting too caught up on whether the 'scheme' fits into the definition of a wash sale. Part IVA is a wide reaching general tax avoidance provision that is not limited in its scope to any particular set of circumstances. I do know that there is a tax ruling specifically addressing whether Part IVA will aplly to a particular type of wash sale, but this in no way limits Part IVAs application to other circumstances.

For example it has been successfully applied by the Commissioner (going all the way to the High Court) in a case involving a split loan where no repayments were made on the deductible portion and all repayments were directed to the non-deductible portion with interest on the deductible portion also being capitalisd.

I think the put option strategy would still fall afoul of Part IVA (afterall the strategy is merely trying to 'dress-up' the transaction to not look like tax avoidance). That being said there would be great difficulty in even identifying such a scheme was being undertaken. However, if the ATO were to pick up on the put option and determine Part IVA applied it might be hard to argue otherwise (noting that the burden of proof is on the taxpayer in tax disputes) especially if the put options have a premium and strike price similar to the share price as courts tend to look at the substance of the transaction when it comes to tax cases (there would be very few, if any, commercial reasons for going to the effort of granting options that are essentially just a straight up sale due to the pricing). If the premium and strike price were too dissimilar to the SP you would be either losing money (to ensure exercise, but once again no commercial justification) or you would risk the option either not being exercised at all or exercised only in a later income year. If it is not exercised then there will be no uplift in the cost base of shares as intended. Alternatively if the option is exercised in a later income year you not only lose out on including assessable income in the year the option was granted (noting that the capital gain on the granting of the option is disregarded once exercised and the price paid for the option along with exercise price are deemed to be your proceeds for the disposal of the shares), but you also make the 'scheme' harder to manage and achieve what it is trying to achieve.

That being said if the option strategy is genuinely to derive additional income then Part IVA shouldn't apply as tax avoidance wouldn't be the sole or dominant purpose.

Due to Part IVAs wide scope there are an array of circumstances that fall into a 'gray area', which is highlighted by the ATO increasingly declining to rule on Part IVA in private ruling applications in recent times.

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Again thanks for your reply. I actually meant to say "write CALL options" not "write PUT options", but the gist of what you said would still be applicable.
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