Applying CGT in Divorce Cases, Reports for the Court

Applying capital gains tax (CGT )in Divorce Cases

More often than not, a divorce will result in assets being transferred from one spouse to another. Read on for a better understanding of the application of CGT, including how and when it is used. You may need to produce a capital gains tax report for the court.

When a marriage breaks down, no one ever thinks of the tax obligations that may arise from subsequent happenings. However, it is important to do some tax planning as this can have some significant benefits for both parties.

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Transfers between Spouses

Taxation of Chargeable Gains Act 1992 Section 58 has the provision asserting that if civil partners or spouses that happen to be living together transfer assets in a tax year, the transfers are deemed to be made on a no loss/no gain basis.

The implication is that the person who receives the asset will be treated like they paid an amount equivalent to the total of the original cost of acquisition.

Transfers between Spouses in the Year of Separation
The no loss/no gain treatment is also applicable to transfers between civil partners and spouses for the remainder of the year that the separation is reported, even if the civil partners or spouses may not be living together when the transfers are made.

If dissolution of a civil partnership or a divorce happens in the same year in which the separation was reported, the no loss/no gain treatment is applicable to all asset transfers made after the dissolution or divorce as long as they happen before the end of the tax year.

The ICTA 1988/S 282 defines living together. A woman is deemed to be living together with the husband unless she can show that (a) she separated in circumstances that are likely to make the separation permanent (b) she has a formal deed of separation (c) she separated under a court order.

According to the ruling in Holmes v Mitchell STC 25, a couple may be deemed separated even if they still share a residence. For instance, when financial considerations make it impossible for one civil partner or spouse to move out or when the parties desire to minimize the initial harm that could be inflicted on the children.

Conclusion
In conclusion, capital gains tax on transfers between civil partners or spouses is not payable in a year in which they still live together. This will still be applicable for the entire year in which they got separated. You may have to pay capital gains tax if the asset transfer is done in the year following the separation. The assumption made in such an instance is that the transfer is made at market value. The reasoning for this is that the spouses are still connected to each other until the provisional decree of divorce is proclaimed.

In an ideal situation, the asset transfers if they may attract chargeable tax should be conducted before the end of the tax year of separation. In an instance in which asset transfers could result in tax liability on capital gains, a transfer made in different years may be the best option. The reason for this is that you can reduce the

total payable amount since you get to enjoy two annual exemptions. If the transferor civil partner’s or spouses capital gains tax are likely to be lower in a given tax year as compared to another, then delaying, accelerating or asset transfers could be one way of improving their capital gains tax position.

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