Question

Sian Suds (a resident of Australia) and Luke Suds (a non-resident) own a handcrafted soap shop in partnership, and trade as ‘Suds’ Soaps’. Gross income for the current income year is $40,000. $8,000 of this amount was made on Suds’ Soaps’ sales outside Australia. No expenses are incurred for these sales. Business expenses of $25,000 include a salary of $5,000 paid to Sian. All expenses relate to Australian source income.

Required B    

Assume that the assets of Suds’ Soaps are sold. How are capital gains or losses relating to partnership assets dealt with?

In your response give reasons and refer to sections of legislation and cases, where relevant.

Answer 1

Introduction: S. 45(3) and S. 45(4) were brought in to the statute book to deem pooling of assets by partners in to the firm and distribution of assets by the firm to partners on dissolution or otherwise, as transfers for tax purposes with a view to block certain escape routes for avoiding capital gains tax. Section 2(47) of the Act, which inclusively defines the term “transfer” in relation to capital assets, becomes a stranger in this context. Typical tax controversies qua transfer of property between firm and partners are discussed hereunder.

Section 45. (3) The profits or gains arising from the transfer of a capital asset by a person to a firm or other association of persons or body of individuals (not being a company or a co-operative society) in which he is or becomes a partner or member, by way of capital contribution or otherwise, shall be chargeable to tax as his income of the previous year in which such transfer takes place and, for the purposes of section 48, the amount recorded in the books of account of the firm, association or body as the value of the capital asset shall be deemed to be the full value of the consideration received or accruing as a result of the transfer of the capital asset.

Legislative intent as explained by CBDT in circular No. 495 dt. 22.09.87: One of the devices used by assessees to evade tax on capital gains is to convert an asset held individually into an asset of the firm in which the individual is a partner. The decision of the Supreme Court in Kartikeya V. Sarabhai v. CIT [1985] 156 ITR 509 has set at rest the controversy as to whether such a conversion amounts to transfer. The Court held that such conversion fell outside the scope of capital gain taxation. The rationale advanced by the Court is, that the consideration for the transfer of the personal asset is indeterminate, being the right which arises or accrues to the partner during the subsistence of the partnership to get his share of the profits from time to time and on dissolution of the partnership to get the value of his share from the net partnership assets. With a view to blocking this escape route for avoiding capital gains tax, the Finance Act, 1987 has inserted new sub-section (3) in section 45.

Section 45. (4) The profits or gains arising from the transfer of a capital asset by way of distribution of capital assets on the dissolution of a firm or other association of persons or body of individuals (not being a company or a co-operative society) or otherwise, shall be chargeable to tax as the income of the firm, association or body, of the previous year in which the said transfer takes place and, for the purposes of section 48, the fair market value of the asset on the date of such transfer shall be deemed to be the full value of the consideration received or accruing as a result of the transfer.

Legislative intent as explained by CBDT in circular No. 495 dt. 22.09.87: Conversion of partnership assets into individual assets on dissolution or otherwise also forms part of the same scheme of tax avoidance. Accordingly, the Finance Act, 1987 has inserted new sub-section (4) in section 45 of the Income-tax Act, 1961.