ATO Interpretative Decision
ATO ID 2004/7 (Withdrawn)
Income Tax
CGT small business concessions: active asset - intangible asset used in a connected entity's businessFOI status: may be released
-
This ATO ID is a straight application of the law and does not contain an interpretive decision.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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 an intangible asset owned by a taxpayer that is used in a connected entity's business, an active asset of the taxpayer under paragraph 152-40(1)(c) of the Income Tax Assessment Act 1997 (ITAA 1997)?
Decision
Yes. An intangible asset owned by a taxpayer that is used in a connected entity's business is an active asset of the taxpayer under paragraph 152-40(1)(c) of the ITAA 1997 (subject to any exclusion).
Facts
The taxpayer acquired an existing business by purchasing all the business assets including the goodwill. The taxpayer then leased the assets, including the goodwill, to a company connected with the taxpayer, and the connected company then operated the business.
Several years later, the taxpayer sold the business and made a capital gain on the goodwill.
Reasons for Decision
To qualify for the small business CGT concessions in Division 152 of the ITAA 1997 the goodwill must satisfy the active asset test, and accordingly, must be an active asset at certain times.
Under subsection 152-40(1) of the ITAA 1997 a CGT asset is an active asset if a taxpayer owns it and:
- (a)
- uses it, or holds it ready for use, in the course of carrying on a business; or
- (b)
- it is an intangible asset that is inherently connected with a business the taxpayer carries on; or
- (c)
- it is used, or held ready for use, in the course of carrying on a business by:
- i.
- a small business CGT affiliate of the taxpayer; or
- ii.
- an entity connected with the taxpayer.
The purpose and effect of paragraph 152-40(1)(b) of the ITAA 1997, which specifically refers to intangible assets, is to extend (not impliedly limit) paragraph 152-40(1)(a) of the ITAA 1997. Paragraph 152-40(1)(c) of the ITAA 1997 in turn supplements both paragraphs 152-40(1)(a) and 152-40(1)(b). As such, it is not intended that intangible assets can only qualify as active assets under paragraph 152-40(1)(b) of the ITAA 1997.
If an intangible asset owned by a taxpayer is used, or held ready for use, in the course of carrying on a business by a small business CGT affiliate of the taxpayer or an entity connected with the taxpayer it may qualify as an active asset under 152-40(1)(c) of the ITAA 1997.
Date of decision: 18 December 2003Year of income: Year ended 30 June 2004
Legislative References:
Income Tax Assessment Act 1997
Division 152
subsection 152-40(1)
paragraph 152-40(1)(a)
paragraph 152-40(1)(b)
paragraph 152-40(1)(c)
Keywords
Capital gains
Capital gains tax
CGT small business relief
Basic conditions for relief
Small Business CGT affiliate
Connected entity
Active asset test
ISSN: 1445-2782
| Date: | Version: | |
| 18 December 2003 | Original statement | |
| You are here | 18 December 2009 | Archived |