When shares or options are offered as part of an employment contract, the timing of when those shares or options are acquired for tax purposes can be important for a number of reasons including to determine the date the option is acquired for Div 83A of the Income Tax Assessment Act 1997 (Cth) purposes (employee share schemes), and or for the transitional provisions or Div 83A (to see if Div 13A of the Income Tax Assessment Act 1936 (Cth) applies instead) and for Capital Gains Tax purposes. However, the thing granted under the employment contract may not be a share or an option, it may be a more nebulous right of some sort eg, it could be a performance right (right to a share subject to hurdles) or a right to obtain an option at a later date, as in FCT v McWilliam [2012] FCAFC 105. Once we leave the safe waters of familiar concepts such as shares and options, and we move to the murkier concept of a 'right to something', labelling that right, and how it fits in to existing statutory provisions, can be complex and confusing.
This article was first published in Thomson Reuters' Weekly Tax Bulletin and has been reproduced with the permission of the publisher.
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