Revenue Note for Guidance
This section deals with the assessment treatment of civil partners 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 civil partners of unutilised losses. It also provides rules for the treatment of disposals between civil partners, and subsequent disposals of any assets which had previously been disposed of between civil partners.
(1)(a) An individual and his or her civil partner who are living together may, for a year of assessment, by written notice given to the inspector on or before 1 April in the year following that year of assessment, jointly nominate which of them is to be the nominated civil partner for the purposes of Chapter 2.
(1)(b) If the notice under paragraph (b) is not given on or before the date mentioned, the Revenue Commissioners will deem one of the civil partners to be the nominated civil partner.
(2) Capital gains tax on the chargeable gains of a civil partner living with another civil partner is to be assessed and charged on the civil partner who is the nominated civil partner. The total tax charged is not to be different from what it would be if each civil partner were to be assessed separately.
(3) Joint assessment under subsection (1) will not apply for a year of assessment if, on or before 1 April of the following year, either civil partner 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.
(4) If in a year of assessment one civil partner 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 civil partner’s gains (if any) can be offset against the other civil partner’s gains in the year of assessment. This treatment does not operate for a year of assessment where either civil partner makes an application, that this subsection (subsection (3)) does not apply, on or before 1 April of the following year.
(5) A disposal from one civil partner to another is deemed to have been made at a value such that no gain or loss arises to the civil partner making the disposal. However, this no gain/no loss rule does not apply to the disposal of trading stock by the civil partner making the disposal or if the asset is acquired as trading stock for the purposes of a trade carried on by the civil partner who acquires the asset.
(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.
(7) The no gain/loss rule does not, however, apply if the civil partner who acquires the asset from the other civil partner 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.
(8) Where the no gain/no loss treatment provided in subsection (5) applies in relation to the disposal of an asset and the civil partner 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 civil partner.
(9) 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