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Edited version of your written advice
Authorisation Number: 1012983869616
Date of advice: 11 March 2016
Ruling
Subject: Small Business Concessions
Question
Will the Commissioner exercise his discretion under subsection 152-80(3) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the time limit until XX/XX/XXXX to allow the small business concessions to be applied to the properties that were acquired by you?
Answer
Yes.
This ruling applies for the following period
Year ended 30 June 20XX
Year ended 30 June 20XX
The scheme commences on
1 July 20XX
Relevant facts and circumstances
The deceased had owned X blocks of land.
These blocks were left to you in the will of the deceased.
The will was subsequently contested, preventing you from disposing of the properties as intended.
For you to put the blocks on the market, you had to prepare the blocks for sale.
Due to the nature of the blocks of land not being premium farming land they have been slow to sell, but have been actively marketed.
The deceased would have been entitled to access the small business CGT concessions prior to their death.
Settlement date for the final block of land was XX/XX/XXXX.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 152-80
Income Tax Assessment Act 1997 Subsection 152-80(3)
Reasons for decision
Section 152-80 of the ITAA 1997 allows either the legal personal representative of an estate or the beneficiary to apply the small business CGT concessions in respect of the sale of the deceased's asset in certain circumstances.
Specifically, the following conditions must be met:
• the asset devolves to the legal personal representative, passes to a beneficiary or is acquired by a surviving joint tenant
• the deceased would have been able to apply the small business concessions themselves if they had disposed of the asset immediately prior to their death, and
• a CGT event happens within 2 years of the deceased's death unless the Commissioner extends the time period in accordance with subsection 152-80(3) of the ITAA 1997.
In determining whether the discretion to allow further time would be exercised, the Commissioner has considered the following factors:
• evidence of an acceptable explanation for the period of the extension requested (and whether it would be fair and equitable in the circumstances to provide such an extension)
• prejudice to the Commissioner which may result from the additional time being allowed (but the mere absence of prejudice is not enough to justify the granting of an extension)
• unsettling of people, other than the Commissioner, or of established practices
• fairness to people in like positions and the wider public interest
• whether any mischief is involved, and
• consequences of the decision.
Having regards to your full circumstances and the above principles, the Commissioner will allow an extension of time until XX/XX/XXXX.
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