ATO Interpretative Decision

ATO ID 2003/407 (Withdrawn)

Income Tax

Non Commercial Losses: profits test and change of business ownership
FOI status: may be released

This ATO ID is withdrawn as the position stated in this ATO ID is no longer current. The current ATO position on this issue is contained in TR 2001/14 Income tax: Division 35 - non-commercial business losses.

This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Can previous income year 'profits' from a business activity be used by an individual taxpayer for the purposes of the 'profits test' in section 35-35 of the Income Tax Assessment Act 1997 (ITAA 1997), even though they were made during income years in which a different taxpayer carried on that activity?

Decision

Yes. Previous income year 'profits' can be taken into account for the purpose of the 'profits test' in section 35-35 of the ITAA 1997, notwithstanding the change in ownership of the business activity, provided there is a sufficient continuity of identity with the business activity.

Facts

The business activity is a primary production business. The previous owner of the activity was a family trust.

The taxpayer purchased the activity from the family trust part way through the current income year, and is now the new owner.

The change of ownership has not materially altered how the activity is carried on as a business.

The taxpayer satisfies the income requirement in subsection 35-10(2E).

The family trust made 'profits' in the four previous income years, prior to the change of ownership, in the sense referred to in section 35-35 of the ITAA 1997, that is, the sum of the deductions attributable to the activity was less than the assessable income from it for each of those four previous income years.

The taxpayer made a 'loss' from the business activity for the current income year.

Reasons for Decision

Division 35 of the ITAA 1997 will apply to defer a non-commercial loss from a business activity carried on by a taxpayer who is an individual, unless:

•: the taxpayer satisfies the income requirement in subsection 35-10(2E) and their business activity satisfies one of the four tests in Division 35; or
•: the Commissioner has exercised the discretion in section 35-55 for the activity; or
•: the individual comes within the Exception to Division 35, contained in subsection 35-10(4).

(refer subsection 35-10(1) of the ITAA 1997)

One of the four tests is the Profits test in section 35-35 of the ITAA 1997, which involves determining whether an activity has produced a tax profit in three out of the past five years. The five year period includes the current income year in which the loss has arisen. If a tax profit has resulted from the relevant business activity in three out of the last five income years (including the current year), the rule in subsection 35-10(2) of the ITAA 1997 does not apply to the individual for that income year (subsection 35-35(1) of the ITAA 1997).

Section 35-35 of the ITAA 1997 examines the results of the business activity, and is not directly concerned in this respect with who is the owner of the activity. A change of ownership in a particular year will not prevent 'profits' from a business activity, made under a previous owner, from being taken into account for the purpose of the 'profits test'. However, this is provided the change in the ownership or the terms and conditions of a sale of the business do not result in a loss of continuity of identity of the business activity.

Date of decision: 12 May 2003

Year of income: Year ended 30 June 2003

Legislative References:
Income Tax Assessment Act 1997
   Division 35
   subsection 35-10(1)
   subsection 35-10(2)
   subsection 35-10(2E)
   subsection 35-10(4)
   section 35-35
   subsection 35-35(1)

Related Public Rulings (including Determinations)
Taxation Ruling TR 2001/14
Taxation Ruling TR 2001/14A - Addendum

Keywords
Non Commercial Losses
NCL Profits Test

Business Line: Private Groups and High Wealth Individuals

Date of publication: 30 May 2003

ISSN: 1445-2782

history

	Date:	Version:
	12 May 2003	Original statement
You are here	17 December 2014	Archived

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