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Edited version of your written advice
Authorisation Number: 1051520683864
Date of advice: 21 May 2019
Ruling
Subject: Capital Gains Tax Small Business Relief
Question 1
Will taxpayer A satisfy the basic conditions in section 152-10 of the Income Tax Assessment Act 1997 (ITAA 1997) to be able to reduce or disregard the capital gain that will arise from the sale of its shares in both Company B and Company C?
Answer
Yes
Question 2
Will taxpayer A meet the conditions set out in Subdivision 152-B of the ITAA 1997 to claim the small business 15 year exemption to disregard any capital gain arising from the sale of its shares in both Company B and Company C?
Answer
Yes
Question 3
Will the Discretionary Trust (Trust) satisfy the basic conditions in subsection 152-10 of the ITAA 1997 in relation to the sale of its shares in both Company B and Company C?
Answer
Yes
Question 4
Will the Trust meet the conditions set out in Subdivision 152-C to claim the small business 50% reduction to reduce the capital gain arising from the sale of its shares in both Company B and Company C?
Answer
Yes
Question 5
Will the Trust meet the conditions set out in Subdivision 152-D to claim the small business retirement exemption for both taxpayer A and taxpayer D to disregard all or part of the capital gain arising from the sale of its shares in both Company B and Company C?
Answer
Yes
This ruling applies for the following periods:
Year ending 30 June 201E
Year ending 30 June 201F
The scheme commences on:
01 July 201D
Relevant facts and circumstances
1. Company B was incorporated on date X and is 20% owned by taxpayer A and 80% by a trustee company for the Trust.
2. Taxpayer A has held these shares since date X.
3. Taxpayer A has 20% of the voting rights and has rights to 20% of any distributions and return of capital.
4. The Trust has increased its ownership over time from X% in 200C to 80% in 201D.
5. The Trust has 80% of the voting rights and has rights to 80% of any distributions and return of capital.
6. Company C was incorporated on date X and is 20% owned by Taxpayer A and 80% by the Trust.
7. Taxpayer A has held their shares since 200A.
8. Taxpayer A has 20% of the voting rights and has rights to 20% of any distributions and return of capital.
9. The Trust has owned these shares since 200C.
10. The Trust has 80% of the voting rights and has rights to 80% of any distributions and return of capital.
11. Taxpayer A owns 100% shares of in the trustee company
12. Taxpayer A is the sole director of Company B, Company C and the trustee. Taxpayer A is also the trustee and the appointer of the Trust.
13. Company B was incorporated for the specific purpose of acquiring land and building a facility.
14. Company C was incorporated for the specific purpose of operating the facility.
15. Company B purchased the property in late 200A to build the facility with the works commencing in early 200B with completion happening later that year.
16. Taxpayer A and the Trust provided guarantees to the banks that provided finance to Company B.
17. Company C owns a business that operates out of the property owned by Company B.
18. Company B charges Company C below market value rent for the use of its facilities.
19. Company B and Company C regularly pay expenses on behalf of each other and are then subsequently reimbursed.
20. Company B constructs facilities of a type and in a timeframe in accordance with the requirements of Company C.
21. The land represents at least 80% of the market value of all the assets owned by Company B.
22. Taxpayer A and the Trust have been approached to sell their shares in Company B and Company C, There are two individuals who would like to access the retirement exemption:
● Taxpayer A - Age over 55
● Taxpayer D – Age over 55
23. Taxpayer A would be a significant individual for the financial year ending 30 June 201F.
24. Taxpayer A and Taxpayer D plan to retire in conjunction with the sale of the shares in each company.
25. You have advised that there are no other connected or affiliate entities with either Taxpayer A or the Trust.
Information provided
26. You have provided the following documents in relation to the ruling request:
a. your private ruling application.
b. supplementary information provided.
Relevant legislative provisions
Income Tax Assessment Act 1997, Subsection 104-10(1)
Income Tax Assessment Act 1997, Subsection 104-10(2)
Income Tax Assessment Act 1997, Subsection 104-10(3)
Income Tax Assessment Act 1997, Subsection 108-5
Income Tax Assessment Act 1997, section 152-A
Income Tax Assessment Act 1997, section 152-B
Income Tax Assessment Act 1997, section 152-C
Income Tax Assessment Act 1997, section 152-D
Income Tax Assessment Act 1997, section 152-10
Income Tax Assessment Act 1997, section 152-10(1)
Income Tax Assessment Act 1997, section 152-10(1AA)
Income Tax Assessment Act 1997, section 152-10(1)(a)
Income Tax Assessment Act 1997, section 152-10(1)(b)
Income Tax Assessment Act 1997, section 152-10(1)(c)
Income Tax Assessment Act 1997, section 152-10(1)(c)(ii)
Income Tax Assessment Act 1997, section 152-10(2)
Income Tax Assessment Act 1997, section 152-10(2)(a)
Income Tax Assessment Act 1997, section 152-10(2)(b)
Income Tax Assessment Act 1997, section 152-10(2)(c)(ii)
Income Tax Assessment Act 1997, section 152-10(2)(d)
Income Tax Assessment Act 1997, section 152-10(2)(d)(i)
Income Tax Assessment Act 1997, section 152-10(2)(d)(ii)
Income Tax Assessment Act 1997, section 152-10(2A)(a)
Income Tax Assessment Act 1997, section 152-15
Income Tax Assessment Act 1997, section 152-35
Income Tax Assessment Act 1997, section 152-35(1)
Income Tax Assessment Act 1997, section 152-35(2)
Income Tax Assessment Act 1997, section 152-40
Income Tax Assessment Act 1997, section 152-40(1)
Income Tax Assessment Act 1997, section 152-40(3)
Income Tax Assessment Act 1997, section 152-40(3)(b)
Income Tax Assessment Act 1997, section 152-40(3)(b)(ii)
Income Tax Assessment Act 1997, section 152-40(3)(b)(iii)
Income Tax Assessment Act 1997, section 152-40(4)
Income Tax Assessment Act 1997, section 152-35
Income Tax Assessment Act 1997, section 152-50
Income Tax Assessment Act 1997, section 152-55
Income Tax Assessment Act 1997, section 152-60
Income Tax Assessment Act 1997, section 152-65
Income Tax Assessment Act 1997, section 152-70
Income Tax Assessment Act 1997, section 152-70(1)(3)
Income Tax Assessment Act 1997, section 152-75(1)
Income Tax Assessment Act 1997, section 152-105
Income Tax Assessment Act 1997, section 152-205
Income Tax Assessment Act 1997, section 152-300
Income Tax Assessment Act 1997, section 152-305
Income Tax Assessment Act 1997, section 152-305(2)
Income Tax Assessment Act 1997, section 152-305(2)(b)
Income Tax Assessment Act 1997, section 152-310
Income Tax Assessment Act 1997, section 152-315
Income Tax Assessment Act 1997, section 152-325
Income Tax Assessment Act 1997, section 152-325(1)
Income Tax Assessment Act 1997, section 328-110(1)
Income Tax Assessment Act 1997, section 328-115(1)
Income Tax Assessment Act 1997, section 328-115(3)
Income Tax Assessment Act 1997, section 328-125(1)
Income Tax Assessment Act 1997, section 328-125(2a)
Income Tax Assessment Act 1997, section 328-125(2b)
Income Tax Assessment Act 1997, section 328-125(3)
Income Tax Assessment Act 1997, section 328-125(7)
Reasons for decision
All legislative references are to the Income Tax Assessment Act 1997 (ITAA 1997) unless otherwise stated.
Question 1
Will Taxpayer A satisfy the basic conditions in section 152-10 of the Income Tax Assessment Act 1997 (ITAA 1997) to be able to reduce or disregard the capital gain that will arise from the sale of their shares in both Company B and Company C?
Summary
Taxpayer A will satisfy the basic conditions set out in section 152-10 to be able to reduce or disregard the capital gain that will arise from the sale of their shares in both Company B and Company C.
Detailed reasoning
Eligibility to claim small business relief
1. An entity may choose to use the small business relief provisions in Division 152 to reduce or disregard a capital gain they make from the sale of a CGT asset if the entity can satisfy the basic conditions set out in Subdivision 152-A.
2. The basic conditions for relief are set out in subsection 152-10(1) as follows:
(a) a *CGT event happens in relation to a CGT asset of yours in an income year;
Note: This condition does not apply in the case of CGT event D1: see section 152-12.
(b) the event would (apart from this Division) have resulted in the gain;
(c) at least one of the following applies:
(i) you are a *CGT small business entity for the income year;
(ii) you satisfy the maximum net asset value test (see section 152-15);
(iii) you are a partner in a partnership that is a *CGT small business entity for the income year and the CGT asset is an interest in an asset of the partnership;
(iv) the conditions mentioned in subsection (1A) or (1B) are satisfied in relation to the CGT asset in the income year;
(d) the CGT asset satisfies the active asset test (see section 152-35).
Note: This condition does not apply in the case of CGT event D1: see section 152-12.
A CGT event happens
3. CGT event A1 happens if you dispose of a CGT asset.1 You dispose of a CGT asset if a change of ownership occurs from you to another entity, whether because of some act or event or by operation of law.2 The time of the event is when you enter into the contract for disposal, or if there is no contract when the change of ownership occurs.3
4. When you dispose of the shares in each company CGT event A1 will happen for each disposal, as shares of a company will fall within the definition of a CGT asset in section 108-5. The time for this event happening will depend on whether the disposal is made via a contract for sale.
5. You have advised that Taxpayer A has been approached to sell their shares in Company B and Company C.
6. Therefore, the first basic condition in paragraph 152-10(1)(a) will be satisfied.
A capital gain is made from the CGT event
7. You have advised Taxpayer A will make a capital gain from the sale of the shares in Company B and Company C.
8. Therefore, the second basic conditions in paragraph 152-10(1)(b) will be satisfied.
CGT Small Business Entity
9. Subsection 152-10(1AA) states:
You are a ‘CGT small business entity’ for an income year if:
(a) you are a *small business entity for the income year; and
(b) you would be a small business entity for the income year if each reference in section 328-110 to $10 million were a reference to $2 million.
10. Subsection 328-110(1) states:
You are a small business entity for an income year (the current year) if:
(a) you carry on a *business in the current year; and
(b) one or both of the following applies:`
(i) you carried on a business in the income year (the previous year) before the current year and your *aggregated turnover for the previous year was less than $10 million; and
(ii) your aggregated turnover for the current year is likely to be less than $10 million.
11. As Taxpayer A does not carry on business, they cannot be a small business entity. To determine whether Taxpayer A passes the third basic condition in paragraph 152-10(1)(c) it has to be determined if Taxpayer A passes the maximum net asset value (MNAV) test.
Maximum Net Asset Value Test
12. Section 152-15 states:
You satisfy the maximum net asset value test if, just before the *CGT event, the sum of the following amounts does not exceed $6,000,000:
(a) the *net value of the CGT assets of yours;
(b) the net value of the CGT assets of any entities *connected with you;
(c) the net value of the CGT assets of any *affiliates of yours or entities connected with your affiliates (not counting any assets already counted under paragraph (b)).
13. Subsection 328-125(1) provides that an entity is connected with another entity if one of the entities controls the other entity, or if the two entities are controlled by the same third entity.
14. Paragraph 328-125(2)(a) contains a general direct control test which applies to all entities, except discretionary trusts, and is based on a ‘control percentage’ of at least 40% of any distribution of income or capital of the entity.
15. In addition, paragraph 328-125(2)(b) contains a specific test for control of companies. Paragraph 328-125(2)(b) provides that an entity controls a company if the entity and / or its affiliates own, or have the right to acquire ownership of, equity interests in the company with at least 40% of the voting power in the company.
16. Taxpayer A owns 20% of the shares in both Company B and Company C and will therefore not directly control either of these companies.
17. An entity can also ‘indirectly control’ an entity if the entity (the first entity) directly controls a second entity, and that second entity also controls (whether directly or indirectly) a third entity. In this case, the first entity is taken to control the third entity.4
18. The trustee company ATF the Trust holds the remaining 80% of the shares in both Company B and Company C. As the Trust owns 80% of the shares in Company B and Company C, it has control of 80% of the voting power in the company and also has the right to receive 80% of any distribution of income or capital from the company.
19. Taxpayer A is the sole director and shareholder of the trustee company for the Trust. Taxpayer A is also the sole Appointer of the Trust.
20. Taxpayer A will therefore have direct control of the trustee company and the Trust. This means that Taxpayer A is taken to have indirect control of both Company B and Company C. Therefore, both Company B and Company C will be connected entities of Taxpayer A.
21. Subsection 328-125(3) states:
An entity (the first entity) controls a discretionary trust if a trustee of the trust acts, or could reasonably be expected to act, in accordance with the directions or wishes of the first entity, its affiliates, or the first entity together with its affiliates.
22. As stated above, Taxpayer A has direct control of the trustee company and therefore the Trust. Therefore, the trustee company and the Trust will be connected entities to Taxpayer A. As such the net assets of Taxpayer A, the Trustee Company, the Trust, Company B and Company C would need to be included in determining if the MNAV test has been satisfied.
23. You have stated that there are no other affiliates of Taxpayer A or the Trust. Therefore the net value of the CGT assets for the connected entities of Taxpayer A, the Trustee Company, the Trust, Company B and Company C is $X. Based on the information you have provided, the MNAV test will be satisfied. However, as no contract has been entered into for the sale of the shares for either company, this figure will need to be reviewed to determine if the MNAV test will still be satisfied just before the CGT event happens. Therefore, the third basic condition in subparagraph 152-10(1)(c)(ii) will be satisfied.
Active asset test
24. The final basic condition is for the CGT asset to satisfy the active asset test in section 152-35.
25. Subsection 152-35(1) states:
A *CGT asset satisfies the active asset test if:
(a) you have owned the asset for 15 years or less and the asset was an active asset of yours for a total of at least half of the period of ownership specified in subsection (2); or
(b) you have owned the asset for more than 15 years and the asset was an active asset of yours for a total of at least 71/2 years during the period specified in subsection (2).
26. Subsection 152-35(2) states:
The period:
(a) begins when you *acquired the asset, and
(b) ends at the earlier of
(i) the *CGT event; and
(i) if the relevant business ceased to be carried on in the 12 months before that time or any longer period that the Commissioner allows - the cessation of the business.
27. Subsection 152-40(1) relevantly states:
A *CGT asset is an active asset at a time if, at that time you:
a) own the asset (whether the asset is tangible or intangible) and it is used, or held ready for use, in the course of carrying on a *business that is carried on (whether alone or in partnership) by:
(i) you; or
(ii) your *affiliate; or
(iii) another entity that is *connected with you; or
b) if the asset is an intangible asset – you own it and it is inherently connected with a business that is carried on (whether alone or in partnership) by you, your affiliate, or another entity that is connected with you.
28. The combined effect of sections 152-35 and 152-40 is that the asset will meet the active asset test if the asset was used, or held ready for use, in the course of carrying on a business for at least half of the time period it was owned, subject to the exclusions in subsection 152-40(4).
29. The relevant CGT assets in question are the shares Taxpayer A owns in Company B and Company C since 200A. Where the CGT assets are shares in a company, the definition of an active asset is modified. For a share in an Australian resident company to be considered an active asset, paragraph 152-40(3)(b) states:
the total of:
(i) the market values of the active assets of the company or trust; and
(ii) the market value of any financial instruments of the company or trust that are inherently connected with a business that the company or trust carries on; and
(iii) any cash of the company or trust that is inherently connected with such a business;
is 80% or more of the market value of all of the assets of the company or trust.
30. Company B is an Australian resident company. You advised the freehold property owned by the company has always accounted for more than 80% of the market value of all of the assets of the company since 200B. Accordingly, the shares in Company B will be considered active assets under subsection 152-40(3) for the same period of time that the freehold property itself has been an active asset of Company B.
31. Company C is an Australian resident company. You advised the only active asset of Company C is goodwill and that it is inherently connected with the business the company is carrying on. Company C had valuable goodwill from an early stage when the company started it took over customers of another self-storage company that had recently closed. The goodwill of Company C is more than 80% of the value of all the assets owned by the company.
Additional basic condition for shares in a company or interests in a trust
32. For CGT events happening on or after 8 February 2018, subsection 152-10(2) states:
The following additional basic conditions must be satisfied if the *CGT asset is a *share in a company, or an interest in a trust, (the object entity):
(a) the CGT asset would still satisfy the active asset test (see section 152-35) if the assumptions in subsection (2A) were made;
(b) if you do not satisfy the maximum net asset value test (see section 152-15) - you are carrying on a *business just before the *CGT event;
(c) either:
(i) the object entity would be a *CGT small business entity for the income year; or
(ii) the object entity would satisfy the maximum net asset value test (see section 152-15);
if the following assumptions were made:
(iii) the only CGT assets or *annual turnovers considered were those of the object entity, each affiliate of the object entity, and each entity controlled by the object entity in a way described in section 328-125;
(iv) each reference in section 328-125 to 40% were a reference to 20%;
(v) no determination under subsection 328-125(6) were in force;
(d) just before the CGT event, either:
(i) you are a *CGT concession stakeholder in the object entity; or
(ii) CGT concession stakeholders in the object entity together have a *small business participation percentage in you of at least 90%.
Assumptions in subsection 152-10(2A)
33. Subsection 152-10(2A) states:
For the purposes of paragraph (2)(a), in working out whether subsection 152-40(3) applies at a given time (the test time) assume that:
(a) an asset of a company or trust is covered by neither:
(i) subparagraph 152-40(3)(b)(ii) (about financial instruments); nor
(ii) subparagraph 152-40(3)(b)(iii) (about cash);
if the company or trust acquired that asset for a purpose that included assisting an entity to otherwise satisfy paragraph (2)(a) of this section; and
(b) paragraph 152-40(3)(b) does not cover an asset that:
(i) is a share in a company, or an interest in a trust, (the later entity); and
(ii) is held at the test time by the object entity directly or indirectly (through one or more interposed entities); and
(c) subparagraph 152-40(3)(b)(i) also covers each asset that:
(i) is held at the test time by a later entity covered by subsection (2B); and
(ii) is, for that later entity, an asset of a kind referred to in subparagraph 152-40(3)(b)(i), (ii) or (iii), as modified by paragraphs (a) and (b) of this subsection; and
(d) subject to paragraph (b) of this subsection, all of the assets of the object entity at the test time included all of the assets of each later entity at the test time; and
(e) for the purposes of paragraph 152-40(3)(b), the *market value at the test time of an asset held by a later entity were the product of:
(i) the asset ' s market value, apart from this paragraph, at the test time; and
(ii) the object entity's *small business participation percentage in the later entity at the test time.
34. Subparagraphs 152-40(3)(b)(ii) and (iii) states that an asset of the company includes the market value of any financial instruments of the company or any cash of the company that is inherently connected with the business of the company.
35. As the only active asset of Company B is the freehold property the additional basic conditions do not apply.
36. You have advised that Company C had a loan classified as a financial instrument from incorporation until 200C. The loan was repaid in full during the 200C year and from that time the only active asset of the company was goodwill. You are not certain of the exact amount of the loan and therefore whether the active asset test will be passed if the loan was included in the calculation. However, as the loan was paid out during the 200C year and the goodwill of Company C was the only active asset of the company for more than half of the 15 years the shares have been held, the active asset test will be passed for the shares in Company C.
37. Subparagraphs 152-10(2A)(b), (c), (d) and (e) do not apply to Taxpayer A as they hold the shares directly and not through an interposed entity.
38. Therefore the condition in subparagraph 152-10(2A)(a) has been satisfied.
Remaining additional basic conditions in subsection 152-10(2)
39. Subparagraph 152-10(2)(b) will not apply to Taxpayer A as he satisfies the MNAV test.
40. Both Company B and Company C pass the MNAV test in subsection 152-10(2)(c)(ii) as mentioned above.
41. Subsection 152-10(2)(d) advises that just before the CGT event
(i) you are a *CGT concession stakeholder in the object entity; or
(ii) CGT concession stakeholders in the object entity together have a *small business participation percentage in you of at least 90%.
42. Section 152-60 states:
An individual is a CGT concession stakeholder of a company or a trust at a time if, the individual is:
(a) a *significant individual in the company or trust; or
(b) a spouse of a significant individual in the company or trust, if the spouse has a *small business percentage in the company or trust at that time is greater than zero.
43. Section 152-55 states:
An individual is a significant individual in a company or a trust at a time if, at that time, the individual has a *small business participation percentage in the company or trust of at least 20%.
44. An individual's small business participation percentage is worked out in accordance with section 152-65 and is the sum of the individual’s direct and indirect small business participation percentage.
45. An individual’s direct small business participation percentage in a company is the least of the following percentages:
(a) the percentage of voting power in the company; or
(b) the percentage of any dividend that the company may pay; or
(c) the percentage of any distribution of capital that the company may make.5
46. Taxpayer A owns 20% of ordinary shares in Company B and Company C. They are entitled to 20% of the votes, 20% of the dividends paid and 20% of any distribution of capital that the companies may make. As Taxpayer A has a direct small business participation percentage in both companies of 20%, they are a significant individual for both Company B and Company C.
47. Taxpayer A therefore satisfies the remaining conditions in subparagraph 152-10(2A).
Conclusion basic conditions
48. Based on the information provided, the basic conditions in Subdivision 152-A will be satisfied, provided the MNAV test is satisfied just before the CGT event happens.
Question 2
Will taxpayer A meet the conditions set out in Subdivision 152-B of the ITAA 1997 to claim the small business 15 year exemption to disregard any capital gain arising from the sale of their shares in both Company B and Company C?
Summary
49. Taxpayer A will be able to disregard any capital gain arising from any sale of their shares in Company B and Company C as all the conditions in section 152-105 will be satisfied.
Detailed reasoning
50. Subdivision 152-B contains the small business 15-year exemption that allows a small business to disregard a capital gain arising from a CGT asset that it has owned for at least 15 years.
51. Section 152-105 sets out the following conditions that individuals must satisfy before an individual can claim the 15-year exemption:
If you are an individual, you can disregard any *capital gain arising from a *CGT event if all of the following conditions are satisfied:
(a) the basic conditions in Subdivision 152-A are satisfied for the gain
(b) you continuously owned the *CGT asset for the 15-year period ending just before the CGT event;
Note: Section 152-115 allows for continuation of the period if there is an involuntary disposal of the asset.
(c) if the CGT asset is a *share in a company or an interest in a trust - the company or trust had a *significant individual for a total of at least 15 years (even if the 15 years was not continuous and it was not always the same significant individual) during which you owned the CGT asset;
(d) either:
(i) you are 55 or over at the time of the CGT event and the event happens in connection with your retirement; or
(ii) you are permanently incapacitated at the time of the CGT event.
52. Where all of these conditions are satisfied, the individual can disregard any capital gain arising from the CGT event.
53. As set out earlier, provided Taxpayer A satisfies the MNAV test at the time the sale of the shares in both companies happens, the basic conditions in Subdivision 152-A will be satisfied for the capital gain made.
54. Taxpayer A has owned their 20% of shares in Company B and Company C since 200A. They will therefore have continuously owned the shares for more than 15 years.
55. Given the CGT asset concerned is Taxpayer A’s ownership of shares in Company B and Company C, there is a requirement that each company had a significant individual for a total of at least 15 years.
56. Section 152-50 states that an entity satisfies the significant individual test if the entity had at least one significant individual just before the CGT event. Section 152-55 states that an individual is a significant individual in a company or a trust at a time if, at that time, the individual has a small business participation percentage in the company or trust of at least 20%. Taxpayer A has owned 20% of the shares in Company B and Company C since 200A and is therefore considered to be a significant individual for both companies for at least 15 years.
57. In relation to the fourth and final condition in section 152-105, Taxpayer A will be over 55 at the time of the CGT event. Whether a CGT event happens ‘in connection with an individual's retirement’ depends on the particular circumstances of each case. There would need to be at least a significant reduction in the number of hours the individual works or a significant change in the nature of their present activities to be regarded as a retirement. However, it isn't necessary for there to be a permanent and everlasting retirement from the workforce.
58. You have stated that Taxpayer A will be selling their shares in connection with their retirement.
59. Based on the information provided Taxpayer A should satisfy all the conditions in section 152-105 and be entitled to reduce or disregard the capital gain that is expected to arise from the sale of their shares in Company B and Company C under the small business 15 year exemption.
Question 3
Will the Trust satisfy the basic conditions in subsection 152-10 of the ITAA 1997 in relation to the sale of its shares in both Company B and Company C?
Summary
The Trust will satisfy the basic conditions set out in section 152-10 to be able to reduce or disregard the capital gain that will arise from the sale of shares in both Company B and Company C.
Detailed reasoning
Eligibility to claim small business relief
60. An entity may choose to use the small business relief provisions in Division 152 to reduce or disregard a capital gain they make from the sale of a CGT asset if the entity can satisfy the basic conditions set out in Subdivision 152-A.
61. The basic conditions for relief are set out in subsection 152-10(1) as follows:
(a) a *CGT event happens in relation to a CGT asset of yours in an income year;
Note: This condition does not apply in the case of CGT event D1: see section 152-12.
(b) the event would (apart from this Division) have resulted in the gain;
(c) at least one of the following applies:
(i) you are a *CGT small business entity for the income year;
(ii) you satisfy the maximum net asset value test (see section 152-15);
(iii) you are a partner in a partnership that is a *CGT small business entity for the income year and the CGT asset is an interest in an asset of the partnership;
(iv) the conditions mentioned in subsection (1A) or (1B) are satisfied in relation to the CGT asset in the income year;
(d) the CGT asset satisfies the active asset test (see section 152-35).
Note: This condition does not apply in the case of CGT event D1: see section 152-12.
A CGT event happens
62. CGT event A1 happens if you dispose of a CGT asset.6 You dispose of a CGT asset if a change of ownership occurs from you to another entity, whether because of some act or event or by operation of law.7 The time of the event is when you enter into the contract for disposal, or if there is no contract when the change of ownership occurs.8
63. Shares of a company fall within the definition of a CGT asset in section 108-5 of the ITAA 1997. Therefore the disposal of shares in each company will result in CGT event A1. The time for each event happening will depend on whether the disposal is made via a contract for sale.
64. You have advised the Trust has been approached to sell its shares in Company B and Company C.
65. Therefore, the first basic condition in paragraph 152-10(1)(a) will be satisfied.
A capital gain is made from the CGT event
66. You have advised the Trust will make a capital gain from the sale of the shares in Company B and Company C.
67. Therefore, the second basic conditions in paragraph 152-10(1)(b) will be satisfied.
CGT Small Business Entity
68. Subsection 152-10(1AA) states:
You are a ‘CGT small business entity’ for an income year if:
(a) you are a *small business entity for the income year; and
(b) you would be a small business entity for the income year if each reference in section 328-110 to $10 million were a reference to $2 million.
69. Subsection 328-110(1) states:
You are a small business entity for an income year (the current year) if:
(a) you carry on a *business in the current year; and
(b) one or both of the following applies:
(i) you carried on a business in the income year (the previous year) before the current year and your *aggregated turnover for the previous year was less than $10 million;
(ii) your aggregated turnover for the current year is likely to be less than $10 million
70. The meaning of ‘aggregated turnover’ is set out in subsection 328-115(1), as the sum of the relevant annual turnovers, excluding any amounts covered by subsection 328-115(3). The relevant annual turnovers are:
● your annual turnover for the income year; and
● the annual turnover for the income year of any entity that is connected with you at any time during the income year; and
● the annual turnover for the income year of any entity that is an affiliate of yours at any time during the income year.
71. On the basis the Trust does not carry on business, it cannot be a small business entity. Therefore to determine whether the Trust passes the third basic condition in paragraph 152-10(1)(c) it will need to be determined if the Trust passes the MNAV test.
Maximum Net Asset Value Test
72. Section 152-15 states:
You satisfy the maximum net asset value test if, just before the *CGT event, the sum of the following amounts does not exceed $6,000,000:
(a) the *net value of the CGT assets of yours;
(b) the net value of the CGT assets of any entities *connected with you;
(c) the net value of the CGT assets of any *affiliates of yours or entities connected with your affiliates (not counting any assets already counted under paragraph (b)).
73. Subsection 328-125(1) provides that an entity is connected with another entity if one of the entities controls the other entity, or if the two entities are controlled by the same third entity.
74. Paragraph 328-125(2)(a) contains a general direct control test which applies to all entities, except discretionary trusts, and is based on a ‘control percentage’ of at least 40% of any distribution of income or capital of the entity.
75. In addition, paragraph 328-125(2)(b) contains a specific test for control of companies. Paragraph 328-125(2)(b) provides that an entity controls a company if the entity and / or its affiliates own, or have the right to acquire ownership of, equity interests in the company with at least 40% of the voting power in the company.
76. The Trust owns 80% of the shares in both Company B and Company C and will therefore directly control both of these companies.
77. Company B and Company C are connected to the Trust.
78. An entity can also ‘indirectly control’ an entity if the entity (the first entity) directly controls a second entity, and that second entity also controls (whether directly or indirectly) a third entity. In this case, the first entity is taken to control the third entity.9
79. The Trust owns 80% of the shares in Company B and Company C it has control of 80% of the voting power in the company and also has the right to receive 80% of any distribution of income or capital from the company. Taxpayer A is the sole director and shareholder of the trustee company for the Trust. Taxpayer A is also the sole Appointer of the Trust.
80. Taxpayer A will therefore have direct control of the trustee company and the Trust.
81. Subsection 328-125(3) states:
An entity (the first entity) controls a discretionary trust if a trustee of the trust acts, or could reasonably be expected to act, in accordance with the directions or wishes of the first entity, its affiliates, or the first entity together with its affiliates.
82. As stated above, Taxpayer A has direct control of the trustee company and therefore the Trust. Therefore, the trustee company and the Trust will be connected entities to Taxpayer A. As such the net assets of Taxpayer A, the Trustee Company, the Trust, Company B and Company C would need to be included in determining if the MNAV test has been satisfied.
83. You have stated that there are no other affiliates of Taxpayer A or the Trust. Therefore the net value of the CGT assets for the connected entities of Taxpayer A, the Trustee Company, the Trust, Company B and Company C is $Xm. Based on the information you have provided, the MNAV test will be satisfied. However, as no contract has been entered into for the sale of the shares for either company, this figure will need to be reviewed to determine if the MNAV test will still be satisfied just before the CGT event happens. Therefore, the third basic condition in subparagraph 152-10(1)(c)(ii) will be satisfied.
Active asset test
84. The final basic condition is for the CGT asset to satisfy the active asset test in section 152-35.
85. Subsection 152-35(1) states:
A *CGT asset satisfies the active asset test if:
(a) you have owned the asset for 15 years or less and the asset was an active asset of yours for a total of at least half of the period of ownership specified in subsection (2); or
(b) you have owned the asset for more than 15 years and the asset was an active asset of yours for a total for at least 71/2 years during the period specified in subsection (2).
86. Subsection 152-35(2) states:
The period:
(a) begins when you *acquired the asset, and
(b) ends at the earlier of
(ii) the *CGT event; and
(iii) if the relevant business ceased to be carried on in the 12 months before that time or any longer period that the Commissioner allows - the cessation of the business.
87. Subsection 152-40(1) relevantly states:
A *CGT asset is an active asset at a time if, at that time you:
a) own the asset (whether the asset is tangible or intangible) and it is used, or held ready for use in the course of carrying on a *business (whether alone or in partnership) by:
(i) you; or
(ii) your *affiliate; or
(iii) another entity that is *connected with you; or
b) if the asset is an intangible asset – you own it and it is inherently connected with a business that is carried on (whether alone or in partnership) by you, your affiliate, or another entity that is connected with you.
88. The combined effect of sections 152-35 and 152-40 is that the asset will meet the active asset test if the asset was used, or held ready for use, in the course of carrying on a business for at least half of the time period it was owned, subject to the exclusions in subsection 152-40(4).
89. The relevant CGT assets in question are the shares that the Trust own in Company B and Company C since 200C. Where the CGT assets are shares in a company, the definition of an active asset is modified. For a share in an Australian resident company to be considered an active asset, paragraph 152-40(3)(b) states:
the total of:
(i) the market values of the active assets of the company or trust; and
(ii) the market value of any financial instruments of the company or trust that are inherently connected with a business that the company or trust carries on; and
(iii) any cash of the company or trust that is inherently connected with such a business;
is 80% or more of the market value of all of the assets of the company or trust.
90. Company B is an Australian resident company. You advise that the freehold property owned by the company has always accounted for more than 80% of the market value of all of the assets of the company since 200B. Accordingly, the shares in Company B will be considered active assets under subsection 152-40(3) for the same period of time that the freehold property itself has been an active asset of Company B.
91. Company C is an Australian resident company. You advise the only active asset of Company C is goodwill and that it is inherently connected with the business the company is carrying on. Company C had valuable goodwill from an early stage when the company started it took over customers of another self-storage company that had recently closed. The goodwill of Company C is more than 80% of the value of all the assets owned by the company.
Additional basic conditions for shares in a company or interests in a trust
92. For CGT events happening on or after 8 February 201D, subsection 152-10(2) states:
The following additional basic conditions must be satisfied if the *CGT asset is a *share in a company, or an interest in a trust, (the object entity):
(a) the CGT asset would still satisfy the active asset test (see section 152-35) if the assumptions in subsection (2A) were made;
(b) if you do not satisfy the maximum net asset value test (see section 152-15) - you are carrying on a *business just before the *CGT event;
(c) either:
(i) the object entity would be a *CGT small business entity for the income year; or
(ii) the object entity would satisfy the maximum net asset value test (see section 152-15);
if the following assumptions were made:
(iii) the only CGT assets or *annual turnovers considered were those of the object entity, each affiliate of the object entity, and each entity controlled by the object entity in a way described in section 328-125;
(iv) each reference in section 328-125 to 40% were a reference to 20%;
(v) no determination under subsection 328-125(6) were in force;
(d) just before the CGT event, either:
(i) you are a *CGT concession stakeholder in the object entity; or
(ii) CGT concession stakeholders in the object entity together have a *small business participation percentage in you of at least 90%.
Assumptions in subsection 152-10(2A)
93. Subsection 152-10(2A) states:
For the purposes of paragraph (2)(a), in working out whether subsection 152-40(3) applies at a given time (the test time) assume that:
(a) an asset of a company or trust is covered by neither:
(i) subparagraph 152-40(3)(b)(ii) (about financial instruments); nor
(ii) subparagraph 152-40(3)(b)(iii) (about cash);
if the company or trust acquired that asset for a purpose that included assisting an entity to otherwise satisfy paragraph (2)(a) of this section; and
(b) paragraph 152-40(3)(b) does not cover an asset that:
(i) is a share in a company, or an interest in a trust, (the later entity); and
(ii) is held at the test time by the object entity directly or indirectly (through one or more interposed entities); and
(c) subparagraph 152-40(3)(b)(i) also covers each asset that:
(i) is held at the test time by a later entity covered by subsection (2B); and
(ii) is, for that later entity, an asset of a kind referred to in subparagraph 152-40(3)(b)(i), (ii) or (iii), as modified by paragraphs (a) and (b) of this subsection; and
(d) subject to paragraph (b) of this subsection, all of the assets of the object entity at the test time included all of the assets of each later entity at the test time; and
(e) for the purposes of paragraph 152-40(3)(b), the *market value at the test time of an asset held by a later entity were the product of:
(i) the asset ' s market value, apart from this paragraph, at the test time; and
(ii) the object entity's *small business participation percentage in the later entity at the test time.
94. Subparagraphs 152-40(3)(b)(ii) and (iii) says that an asset of the company includes the market value of any financial instruments of the company or any cash of the company that is inherently connected with the business of the company.
95. As the only active asset of Company B is the freehold property the additional basic conditions do not apply.
96. You have advised that Company C had a loan classified as a financial instrument from incorporation until 200C. The loan was repaid in full during the 200C year and from that time the only active asset of the company was goodwill. You are not certain of the exact amount of the loan and therefore whether the active asset test will be passed if the loan was included in the calculation. However, as the loan was paid out during the 200C year and the goodwill of Company C was the only active asset of the company for more than half of the time that the shares have been held, the active asset test will be passed for the shares in Company C.
97. Subparagraphs 152-10(2A)(b), (c), (d) and (e) do not apply to the Trust as the shares are held directly and not through an interposed entity.
98. Therefore the condition in subparagraph 152-10(2A)(a) has been satisfied.
Remaining additional basic conditions in subsection 152-10(2)
99. Subparagraph 152-10(2)(b) will not apply to the Trust as it satisfies the MNAV test..
100. Both Company B and Company C pass the MNAV test in subsection 152-10(2)(c)(ii) as mentioned above.
101. Subsection 152-10(2)(d) advises that just before the CGT event
(i) you are a *CGT concession stakeholder in the object entity; or
(ii) CGT concession stakeholders in the object entity together have a *small business participation percentage in you of at least 90%.
102. Section 152-60 states:
An individual is a CGT concession stakeholder of a company or a trust at a time if, the individual is:
(a) a *significant individual in the company or trust; or
(b) a spouse of a significant individual in the company or trust, if the spouse has a *small business percentage in the company or trust at that time is greater than zero.
103. As the Trust holds the shares and it is not an individual subparagraph 152-10(2)(d)(i) does not apply. To determine whether the Trust passes the basic condition in subparagraph 152-10(2)(d)(ii) it has to be determined if the Trust has CGT concession stakeholders in Company B and Company C that together have a small business participation percentage of at least 90%.
104. Taxpayer A is a CGT concession stakeholder in both Company B and Company C.
105. Taxpayer A holds 100% of shares in the Trustee Company.
106. As such Taxpayer A’s small business participation percentage is worked out in accordance with section 152-65 and is the sum of the individual’s direct and indirect small business participation percentage in the trustee company.
107. An individual’s direct small business participation percentage in a company is the least of the following percentages:
(a) the percentage of voting power in the company; or
(b) the percentage of any dividend that the company may pay; or
(c) the percentage of any distribution of capital that the company may make.10
108. Taxpayer A owns 100% of the ordinary shares in the trustee company. He is entitled to 100% of the votes, 100% of the dividends paid and 100% of any distribution of capital that the company may make.
109. As Taxpayer A has a direct small business participation percentage in the trustee company of 100%, he is a CGT concession stakeholder that has a small business participation percentage in the trustee company of at least 90%.
110. Therefore subparagraph 152-10(2)(d)(ii) is satisfied.
Conclusion basic conditions
111. Based on the information provided, the basic conditions in subdivision 152-A will be satisfied, provided the MNAV test is satisfied just before the CGT event happens.
Question 4
Will the Trust meet the conditions set out in subdivision 152-C to claim the small business 50% reduction to reduce the capital gain arising from the sale of its shares in both Company B and Company C?
Answer
Yes
Summary
112. The Trust will be able to claim the small business 50% reduction on any capital gain arising from the sale of its shares in Company B and Company C as all the conditions in section 152-205 will be satisfied.
Detailed reasoning
113. Subdivision 152-C contains the small business 50% reduction that allows a small business to reduce the amount of a capital gain arising from the sale of a CGT asset.
114. Section 152-205 states:
The amount of a capital gain remaining after applying step 3 of the method statement in subsection 102-5(1) is reduced by 50%, if the basic conditions in Subdivision 152-A are satisfied for the gain.
115. As the Trust satisfies the basic conditions of subdivision 152-A the Trust can reduce the amount of the capital gain by 50%.
Question 5
Will the Trust meet the conditions set out in Subdivision 152-D to claim the small business retirement exemption for both taxpayer A and taxpayer D to disregard all or part of the capital gain arising from the sale of its shares in both Company B and Company C?
Answer
Yes
Summary
116. The Trust will be able to claim the small business retirement exemption to disregard all or part of the capital gain arising from the sale of its shares in Company B and Company C as all the conditions in subsection 152-305(2) will be satisfied.
Detailed reasoning
117. Under the retirement exemption in Subdivision 152-D, a choice can be made to disregard a capital gain from a CGT event happening to a CGT asset of your small business if the capital proceeds are used in connection with your retirement
118. There is a lifetime limit of $500,000 for all such choices in respect of an individual under this subdivision.
119. Subsection 152-305(2) sets out the conditions that need to be met if the entity making the gain is a company or trust:
(a) the basic conditions in Subdivision 152-A are satisfied for the capital gain; and
(b) the entity satisfies the significant individual test (section 152-50), and
(c) the company or trust conditions in section 152-325 are satisfied.
120. The Trust satisfies the basic conditions of subdivision 152-A.
121. Section 152-50 states:
An entity satisfies the significant individual test if the entity had at least one significant individual just before the CGT event.
122. Section 152-55 states:
An individual is a significant individual in a company or a trust at a time if, at that time, the individual has a *small business participation percentage in the company or trust of at least 20%.
123. An individual's small business participation percentage is worked out in accordance with section 152-65 and is the sum of the individual’s direct and indirect small business participation percentage.
124. An individual’s direct small business participation percentage in a company is the least of the following percentages:
(a) the percentage of voting power in the company; or
(b) the percentage of any dividend that the company may pay; or
(c) the percentage of any distribution of capital that the company may make.11
125. Section 152-70 describes the direct small business participation percentage. As the Trust owns 80% of shares in Company B and Company and it is entitled to any dividends that they may pay the trust has a small business percentage of 80% in both Company B and Company C.
126. Taxpayer A received a 25% distribution of the income and Taxpayer D received a distribution of 54% of the income of the Trust in the 201D income year.
127. Under subsection 152-70(1) table item (3) Taxpayer A and Taxpayer D have a direct small business participation percentage in the Trust in the 201D income year of 25% and 54% respectively.
128. However, to determine if the Trust has a significant individual in both Company B and Company C the indirect small business participation percentage needs to be determined.
129. Subsection 152-75(1) states that to work out the indirect small business participation percentage that an entity (the holding entity) holds at a particular time in another entity (the test entity) by multiplying:
(a) the holding entity’s *direct small business participation percentage (if any) in another entity (the intermediate entity) at that time; by
(b) the sum of:
(i) the intermediate entity’s direct small business participation percentage (if any) in the test entity at that time; and
(ii) the intermediate entity’s indirect small business participation percentage (if any) in the test entity at that time (as worked out under one or more other applications of this section).
130. Taxpayer A has a small business participation of 25% in the Trust. The Trust has a small business percentage in Company B and Company C of 80%. To determine Taxpayer A’s indirect small business percentage these two amounts are multiplied. Taxpayer A has an indirect small business percentage of 20%.
131. Taxpayer D has a small business participation percentage of 54% in the Trust. The Trust has a small business percentage in Company B and Company C of 80%. To determine Taxpayer D’s indirect small business percentage these two amounts are multiplied. Taxpayer D has an indirect small business percentage in both companies of 43%. Taxpayer A and Taxpayer D are significant individuals in both Company B and Company C.
132. The taxpayer has stated that there will be at least one significant individual in the 201F income year.
133. As such subparagraph 152-305(2)(b) is satisfied.
134. Subsection 152-325(1) requires a company or trust to make a payment to at least one of its CGT concession stakeholders if the company or trust receives an amount of capital proceeds from a CGT event for which it makes a choice under Subdivision 152-D.
135. An individual is a CGT concession stakeholder of a company or trust at a time if the individual is a significant individual in a company or trust.12
136. Taxpayer A and Taxpayer D are both significant individuals and therefore CGT concessional stakeholders of the trust.
137. Section 152-310 states that a choice has to be made by the individual, company or trust for the CGT exempt amount to be disregarded.
138. According to section 152-315 where the taxpayer is a company or trust the amount chosen cannot exceed the CGT retirement exemption limit for each individual for who the choice is made.
139. The Trust will make the choice to apply the retirement exemption and the choice to make the payments to the individuals will be made prior to, or on the day of lodgement of the income tax return for the year ended 30 June 201F.
140. The Trust has confirmed that both Taxpayer A and Taxpayer D will each receive a retirement payment of $500,000 to be used in connection with their retirement.
141. On the basis the Trust satisfies all the conditions, Taxpayer A and Taxpayer D are each entitled to the retirement exemption under Subdivision 152-D
Conclusion
142. Based on the facts you have provided, the conditions contained in Division 152 are met. Therefore, Taxpayer A, the Trust, Company B, Company C and Taxpayer D are eligible for CGT relief under Subdivision 152-B, Subdivision 152-C and Subdivision 152-D to reduce or disregard the capital gain that will be made on the disposal of the made on the disposal of the shares.
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