1028 Married persons

Summary

This section deals with the assessment treatment of married persons for capital gains tax purposes. It sets out the method of joint assessment, makes provision for applications for separate assessment and provides rules for the transfer between spouses of unutilised losses. It also provides rules for the treatment of disposals between spouses, and subsequent disposals of any assets which had previously been disposed of between spouses.

Details

Joint assessment

(1) Capital gains tax on the chargeable gains of a married woman living with her husband is to be assessed and charged on the husband. The total tax charged is not to be different from what it would be if each spouse were to be assessed separately.

Separate assessment

(2) Joint assessment under subsection (1) will not apply for a year of assessment if, on or before 1 April of the following year, either spouse makes an application that subsection (1) will not apply. This effective application for separate assessment remains in force for future years of assessment until a notice of withdrawal of the application is made. Such a notice of withdrawal is not valid unless it is made on or before 1 April in the year following the year of assessment for which the notice of withdrawal is given.

Losses

(3) If in a year of assessment one spouse has allowable losses which he/she cannot utilise because of an insufficiency of chargeable gains (from which those allowable losses would be deductible under section 31), the balance of the losses after being set off against that spouse’s gains (if any) can be offset against the other spouse’s gains in the year of assessment. This treatment does not operate for a year of assessment where either spouse makes an application, that this subsection (subsection 3) does not apply, on or before 1 April of the following year.

Transfer of unutilised annual exemption between spouses

This subsection (subsection(4)) was repealed by section 75 of the Finance Act, 1998.

Disposal from one spouse to another

(5) A disposal from one spouse to another is deemed to have been made at a value such that no gain or loss arises to the spouse making the disposal. However, this no gain/no loss rule does not apply to the disposal of trading stock between spouses, (where trading stock means trading stock of a trade carried on by the spouse making the disposal).

(6) The no gain/no loss rule effectively overrules the capital gains tax provisions which fix the consideration deemed to have been given on the disposal or acquisition of an asset (for example, at market value for disposals not made at arm’s length).

(6A) The no gain/loss rule does not, however, apply if the spouse who acquires the asset (from the other spouse) could not be taxed in the State (for the year of assessment in which the acquisition took place) on a disposal of the asset in that year and a gain had accrued on that disposal. Such a scenario might arise where the taxing rights on such a disposal, under a Double Taxation Agreement, rested with a foreign jurisdiction.

Subsequent disposal

(7) Where the no gain/no loss treatment provided in subsection (5) applies in relation to the disposal of an asset and the spouse who acquired the asset subsequently disposes of it (the subsequent disposal not being a disposal to which subsection (5) applies), he/she is treated as if he/she had acquired it at the time and cost at which it was originally acquired by the other spouse.

Prescribed forms

(8) An application for separate assessment under this section and a notice of withdrawal of such an application must be made in the prescribed form.

Relevant Date: Finance Act 2021