Brightline application for 'private transfer' of inherited properties

This week’s question comes from Irene B and the answer is kindly provided by Amanda Watt of Shortland Chartered Accountants. The answer is intended to be for general information
only and not tax advice.

We inherited a residential property which was also in a Company ( we inherited the company). After a time we sold this property from the company to a trust. The only two directors of the Company are also the only two trustees of the Trust. Effectively we the owners of the property sold it to ourselves. We now want to sell this property after two years of it being in the Trust. Is it subject to the Bright Line test given that it was inherited property?

The starting point is always that any residential property purchased on or after the 29th of March 2018 and sold within five years is subject to the Brightline
rules. As with many other tax rules, certain exemptions apply.

Inherited property is one such exemption. If you inherit a property and then sell it within five years then the sale is exempt from the Brightline rules.

In this instance, however, it is unclear how the company was inherited. Assuming that you’ve inherited the shares and the company only owned the
property then the sale would not be caught by Brightline rules. It is important to note that under this particular exemption, you need to inherit the property as part of the Will of the deceased person as opposed to having “bought” it from them and/or transferred the shares (or property) prior to death.

The transfer of the property from the company to the trust is considered a sale for the purposes of the Brightline rules. Ergo, if the property
is sold within five years it will be subject to the Brightline test and you will be taxed on the gain. For the purposes of the Brightline rule, the
property’s prior ownership period in the company is not counted when determining how long the trust is considered to have owned the property. You would
want to ensure that the original transfer from the company to the trust was at market value.

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