CGT - Mature Adult or Unruly Adolescent?

Abstract

The Australian capital gains tax is approaching its twentieth birthday. This paper reflects on why the CGT provisions were introduced and considers how they have impacted upon taxpayers and tax practitioners. It argues that there has been progress in removing some of the inconsistencies and anomalies in the CGT regime, but that a number of problems still exist. The paper explores a variety of technical areas that are still problematic, including issues surrounding the grandfathered status of pre-CGT assets, technical difficulties with the operation of the small business concessions, and problems relating to the application of the CGT provisions to trusts.

The causes of these technical difficulties lie in inappropriate policy selection, poor or incomplete legislative drafting, poor implementation and administration of the provisions and 'legislative layering' - whereby new policy and legislation is superimposed upon an existing framework that is insufficiently robust or compatible.

Technical solutions can be attempted, but ultimately, the paper argues, the remedy to many of the technical problems does not lie in ad hoc and reactive fixes, but in a more principled approach to the design of the CGT regime.

Keywords: Capital gains tax, tax policy, tax legislation, tax administration, tax implementation, legislative layering