Facts
- Zim Properties Ltd acquired shares in a company that might have possessed a legal claim against its auditors for negligence.
- The company subsequently sold the shares, including the associated right to pursue legal action, to another party.
- Tax authorities contended that the right to sue constituted a separate asset, and its disposal led to a taxable gain under capital gains tax (CGT).
Issues
- Whether the right to sue for negligence could be regarded as a separate, taxable asset for capital gains tax purposes.
- Whether a legal claim, when transferred together with property, is distinct from property-tied rights for the purposes of CGT.
- How to distinguish between standalone legal claims and those connected to property in the context of CGT.
Decision
- The High Court held that the right to sue for negligence was not a distinct asset separate from the shares and thus not separately chargeable to tax under CGT.
- The court distinguished between personal legal claims (which are not transferable or taxable as assets) and claims tied to property, finding the former fall outside CGT.
- The sale of shares and the right to sue, considered together, was treated as a single transaction for capital gains tax purposes, not as separate disposals.
Legal Principles
- Not all legal rights qualify as taxable assets for capital gains tax purposes; for a legal right to be a taxable asset, it must exist independently of other property.
- Standalone rights to sue, which are unconnected to property, are not taxable assets for CGT purposes.
- Legal rights attached to or arising from property (e.g., rights to recover debts) may be transferred and can give rise to CGT liability upon disposal.
- When a legal right is incidental to the transfer of an asset, it forms part of the asset sale for CGT assessment.
- The origin and nature of the right must be examined to determine its tax treatment on transfer.
Conclusion
The court in Zim Properties Ltd v Procter confirmed that a right to sue constitutes a taxable asset for capital gains tax only when it is connected to property being transferred; standalone legal claims remain outside the scope of CGT, a principle impacting subsequent asset transfers involving legal rights.