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Edited version of your written advice
Authorisation Number: 1012782194030
Ruling
Subject: CGT - small business concessions - replacement asset period - extension of time
Question 1
Will the Commissioner exercise his discretion under subsection 104-190(2) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the replacement asset period to XX April 20XX?
Answer
Yes
This ruling applies for the following periods:
Year ended 30 June 2015
Year ended 30 June 2016
The scheme commences on:
1 July 2014
Relevant facts and circumstances
In the 20XX-XX financial year you elected to use the small business rollover to defer capital gains that you made. The date of the capital gains tax (CGT) event was XX April 20XX.
You have considered a number of potential replacement assets within the replacement period, however you were unable to negotiate a suitable acquisition within the replacement period.
You are continuing to look for a suitable replacement asset which is within your price range and with a business structure that matches your needs.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 104-190(2)
Reasons for decision
In order to apply the small business rollover, a replacement asset must be acquired within two years after the relevant CGT event. However the Commissioner may extend the replacement asset period in certain circumstances (subsection 104-190(2) of the Income Tax Assessment Act 1997 (ITAA 1997)).
The relevant factors in determining whether to extend the replacement asset period are:
• there should be evidence of an acceptable explanation for the period of extension requested and that it would be fair and equitable in the circumstances to provide such an extension
• account must be had to any prejudice to the Commissioner which may result from the additional time being allowed, however the mere absence of prejudice is not enough to justify the granting of an extension
• account must be had of any unsettling of people, other than the Commissioner, or of established practices
• there must be a consideration of fairness to people in like positions and the wider public interest
• whether there is any mischief involved
• a consideration of the consequences.
You rolled over a capital gain under the small business rollover during the 20XX-XX financial year. You have been unable to acquire a suitable replacement asset within the replacement period. You have however, considered the purchase of a number of businesses. We consider that you have made ongoing efforts to acquire a replacement asset.
Having considered the relevant factors above, and the particular circumstances of your case, the Commissioner has applied his discretion and will extend the asset replacement period to XX April 20XX.
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