ATO Interpretative Decision

ATO ID 2003/359

Income Tax

Primary Production Averaging: partner in a partnership
FOI status: may be released

CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 individual taxpayer, who is a partner in a partnership which carries on a primary production business, considered to be 'an individual who carries on a primary production business' for the purposes of Division 392 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Decision

Yes. An individual taxpayer, who is a partner in a partnership which carries on a primary production business, is considered to be an individual who carries on a primary production business for the purposes of Division 392 of the ITAA 1997.

Facts

The taxpayer is an individual and is a partner in a partnership.

The partnership has carried on a primary production business in Australia for two or more income years in a row, the last of which is the current year.

Reasons for Decision

Division 392 of the ITAA 1997 deals with long term averaging of primary producer's tax liability.

Section 392-10 of the ITAA 1997 provides, in part, that Division 392 of the ITAA 1997 may apply to a taxpayer's assessment if:

-: they are an individual, and
-: they have carried on a primary production business in Australia for 2 or more income years in a row (the last of which is the current year).

The term 'partnership' is defined in section 995-1 of the ITAA 1997 to include 'an association of persons carrying on business as partners.'

This aspect of the definition imports the common law meaning of partnership, being the relationship which exists between persons carrying on business in common with a view to profit.

A partnership is not a separate legal identity. Each partner of a partnership is carrying on the partnership business. It follows that, where a partnership is carrying on a primary production business, each partner of that partnership is considered to be carrying on the primary production business.

Accordingly, the individual taxpayer who is a partner in a partnership which carries on a primary production business is considered to be an individual who carries on a primary production business for the purposes of Division 392 of the ITAA 1997.

The taxpayer would therefore, be entitled to the benefit of the averaging provisions under Division 392 of the ITAA 1997, if they also meet all of the other requirements of that Division.

Date of decision: 22 April 2003

Year of income: Year ended 30 June 2001

Legislative References:
Income Tax Assessment Act 1997
   Division 392
   section 392-10
   section 995-1

Keywords
Primary production
Partnerships

Siebel/TDMS Reference Number: 3511455; 1-5THN3PK; 1-B3LMH9I

Business Line: Private Groups and High Wealth Individuals

Date of publication: 15 May 2003
Date reviewed: 18 April 2017

ISSN: 1445-2782

Copyright notice

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).