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Edited version of your written advice
Authorisation Number: 1012694603075
Ruling
Subject: non-commercial losses
Question
Will the Commissioner exercise the discretion in paragraph 35-55(1)(b) of the Income Tax Assessment Act 1997 (ITAA 1997) to allow you to include any losses from your business activity in the calculation of your taxable income for the 2012-13 to the 2013-14 financial years?
Answer
Yes.
This ruling applies for the following periods:
Year ended 30 June 2013
Year ended 30 June 2014
The scheme commenced on
1 July 2012
Relevant facts and circumstances
You commenced your business activity in May 2007.
You do meet the income requirement of Division 35 of the ITAA 1997.
You have a private ruling exercising the Commissioner's discretion for lead time from the 2006-07 to the 2011-12 financial years.
The industry's accepted lead time is 6 to 8 years.
You have projected to pass the assessable income test in the 2014-15 financial year which is within the accepted lead time for your industry.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 35-10(1)
Income Tax Assessment Act 1997 subsection 35-10(2)
Income Tax Assessment Act 1997 subsection 35-10(2E)
Income Tax Assessment Act 1997 paragraph 35-55(1)(b)
Reasons for decision
For the 2009-10 and later financial years, Division 35 of the ITAA 1997 will apply to defer a non-commercial loss from a business activity unless:
• you satisfy the income requirement and you pass one of the four tests
• the exceptions apply
• the Commissioner exercises his discretion.
In your situation, none of the exceptions would apply and although you satisfy the income requirement, you do not meet any of the four tests in the years of income under consideration. The relevant discretion may be exercised for the income year in question where:
• it is in the nature of the business activity that there will be a period of time before it can be expected to pass one of the four tests
• there is an objective expectation your business activity will produce a tax profit or meet one of the four tests within the accepted lead time period for your industry.
Having regard to your full circumstances, it is accepted that it is in the nature of the business activity that has prevented one of the four tests being passed. It is also accepted that you will pass one of the four tests or make a tax profit within the accepted lead time period for your industry.
Consequently the Commissioner will exercise the discretion to allow you to include any losses from your business activity in the calculation of your taxable income for the 2012-13 to the 2013-14 financial years.
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