INCOME TAX ASSESSMENT ACT 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-3 - CAPITAL GAINS AND LOSSES: SPECIAL TOPICS  

Division 122 - Roll-over for the disposal of assets to, or the creation of assets in, a wholly-owned company  

Subdivision 122-B - Disposal or creation of assets by partners to a wholly-owned company  

When is a roll-over available

SECTION 122-135   Other requirements to be satisfied  

122-135(1)  


The partners must own all the *shares in the company just after the time of the trigger event.

122-135(2)  


Each partner must own the *shares the partner received for the trigger event happening in the same capacity that the partner:


(a) owned the partner ' s interests in the assets that the company now owns; or


(b) participated in the creation of the asset in the company.

Note:

If a partner ' s interests were owned as trustee, the partner must receive shares as trustee.

122-135(3)  


This Subdivision does not apply to the *disposal or creation of any of the assets specified in this table:


Assets to which Subdivision does not apply
Item In this situation: This Subdivision does not apply to:
1 The partners *dispose of their interests in a *CGT asset to, or create a CGT asset in, the company (a) a *collectable or a *personal use asset; or
(b) a decoration awarded for valour or brave conduct (except if a partner paid money or gave any other property for it); or
(c) a *precluded asset; or
(d) an asset that becomes *trading stock of the company just after the *disposal or creation
.
2 The partners *dispose of their interests in all the assets of a business (a) a *collectable or a *personal use asset; or
(b) a decoration awarded for valour or brave conduct (except if a partner paid money or gave any other property for it); or
(c) an asset that becomes *trading stock of the company just after the disposal or creation (unless it was trading stock of the partnership when it was disposed of)

122-135(4)  


If:


(a) the *CGT asset or any of the assets of the *business is a right, option, *convertible interest or *exchangeable interest; and


(b) the company *acquires another CGT asset by exercising the right or option or by converting the convertible interest or in exchange for the disposal or redemption of the exchangeable interest;

the other asset cannot become *trading stock of the company just after the company acquired it.

122-135(5)  


The *ordinary income and *statutory income of the company must not be exempt from income tax because it is an *exempt entity for the income year of the trigger event.

122-135(6)  


For a partner who is not a trustee of a trust at the time of the trigger event, either:


(a) the partner and the company must both be Australian residents at that time; or


(b) both of the following requirements must be satisfied:


(i) each asset must be *taxable Australian property at that time; and

(ii) the shares in the company mentioned in subsection 122-130(1) must be taxable Australian property just after that time.

122-135(7)  


For a partner who is a trustee of a trust at the time of the trigger event, either:


(a) at that time, the trust must be a *resident trust for CGT purposes and the company must be an Australian resident; or


(b) both of the following requirements must be satisfied:


(i) each *CGT asset must be a CGT asset of the trust that is *taxable Australian property at that time; and

(ii) the shares in the company mentioned in subsection 122-130(1) must be taxable Australian property just after that time.

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