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Edited version of your private ruling
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Ruling
Subject: Non-commercial losses - Commissioner's discretion
Question
Will the Commissioner exercise the discretion in paragraph 35-55(1)(a) of the Income Tax Assessment Act 1997 (ITAA 1997) to allow you to include any losses from your primary production activity in your calculation of taxable income for the 2011-12 income year?
Answer
Yes
This ruling applies for the following period
1 July 2011 to 30 June 2012
The scheme commenced on
1 July 2011
Relevant facts
You operated a primary production business.
During the 2011-12 financial year, it was discovered that some of your stock had been stolen.
You estimated the amount of lost turnover that was caused by the theft.
Based on your actual turnover, but for the stock losses by theft, you expected to meet the assessable income test.
You reported the stock theft to police and a police report is available.
Your income for non-commercial loss purposes for the 2011-12 income year was less than $250,000.
Relevant legislative provisions
Income Tax Assessment Act 1997 paragraph 35-55(1)(a)
Reasons for decision
Losses from activities that do not meet any of the four tests under Division 35 of the ITAA 1997, or the exception in subsection 35-10(4) of the ITAA 1997 will be subject to the loss deferral rule in subsection 35-10(2) of the ITAA 1997, unless the Commissioner exercises a discretion under paragraph 35-55(1)(a) of the ITAA 1997 that it would be unreasonable to defer the loss.
Paragraph 35-55(1)(a) of the ITAA 1997 provides that the Commissioner can exercise the discretion where certain special circumstances apply. Special circumstances in this context are those outside the control of the business operator, including those such as drought, flood, bushfire or some other disaster or event that has materially affected that activity.
It is intended that the Commissioner only exercise this arm of the discretion if one of the tests would have been satisfied but for the special circumstances.
The Commissioner accepts that your business activity was affected by circumstances that were unusual and outside your control and that in the absence of those circumstances it was probable that a taxation profit may have been made from the activity, or one of the four tests passed, for the income year in question.
Therefore the Commissioner's discretion under paragraph 35-55(1)(a) has been granted for the 2011-12 financial year.
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