ATO Interpretative Decision
ATO ID 2003/276 (Withdrawn)
Income Tax
CGT Rollover relief: disposal of asset by unit trust to its trustee companyFOI status: may be released
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This ATO ID is withdrawn and is replaced by ATO ID 2010/72.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is rollover relief available, to the trust and its unit holders, under Subdivision 124-N of the Income Tax Assessment Act 1997 (ITAA 1997) where the entity, a unit trust, disposes of all its assets to its resident trustee company?
Decision
Yes. Rollover relief is available, to the unit trust and its unit holders, under Subdivision 124-N of the ITAA 1997 where the entity, a unit trust, disposes of all its assets to its resident trustee company.
Facts
The unit trust carries on a business. The trustee is an Australian resident and is a company limited by shares. The trustee will restructure the unit trust by disposing of all the assets of the trust to itself. The unitholders will exchange their units for shares in the trustee company. The trust will cease to exist.
Reasons for Decision
Rollover relief is available to a unit trust and its unitholders under Subdivision 124-N of the ITAA 1997 where the trust disposes of all its CGT assets to a company limited by shares and its units are replaced with shares in the company.
The company must satisfy the conditions at section 124-860 of the ITAA 1997. Some of these conditions are set out at subsection 124-860(4) of the ITAA 1997. These conditions include that the company must never have carried on commercial activities, had no CGT assets other than a small amount of cash or debts, and had no losses of any kind.
The conditions placed on the company by subsection 124-860(4) do not apply where the company is the trustee of the trust. Subsection 124-860(5) of the ITAA 1997 provides that subsection 124-860(4) does not apply where the company is the trustee of the transferor trust. The explanatory memorandum relating to Taxation Laws Amendment Bill (No. 4) 2002 states in reference to subsection 124-860(5):
There will be situations where the trustee of the trust is itself a company (a corporate trustee). Rather than requiring the trust to set up a new company for the purpose of the rollover it permits the trust to dispose of its assets to the corporate trustee and be eligible for the rollover.
Therefore, the rollover relief under Subdivision 124-N of the ITAA 1997 is available to the unit trust and its unit holders where all the unit trust's CGT assets are transferred to its corporate trustee, provided all the other conditions of the Subdivision are satisfied.
Date of decision: 6 March 2003Year of income: Year ended 30 June 2003
Legislative References:
Income Tax Assessment Act 1997
Subdivision 124-N
section 124-860
subsection 124-860(4)
subsection 124-860(5)
Other References:
Explanatory Memorandum, Taxation Laws Amendment Bill (No. 4) 2002
Keywords
Capital gains tax
CGT replacement asset roll-over
CGT roll-over relief
CGT same asset roll-over
ISSN: 1445-2782
| Date: | Version: | |
| 6 March 2003 | Original statement | |
| You are here | 1 April 2010 | Archived |