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Edited version of private advice
Authorisation Number: 1052116421759
Date of advice: 11 May 2023
Ruling
Subject: CGT - small business concessions
Question
Will the Commissioner exercise their discretion under paragraph 103-25(1)(b) of the Income Tax Assessment Act 1997 (ITAA 1997) to allow an extension of time for you to choose to apply any available small business capital gains tax (CGT) concessions to a capital gain that arose in the 20XX-XX financial year?
Answer
Yes.
After taking into consideration your relevant circumstances, including the fact that your capital gain was incorrectly included as other gross income and not under the correct CGT labels on your tax return for the 20XX-XX financial year, it is our view that no choice was made regarding small business concessions when the return was initially lodged. Therefore, the Commissioner will allow you an extension of time to make a choice to apply any available small business CGT concessions.
The private ruling has been limited to the question requested upon application which is whether the Commissioner can exercise their discretion under paragraph 103-25(1)(b) of the ITAA 1997. Thus, the Commissioner has not considered whether you are in fact entitled to the small business CGT concessions
This ruling applies for the following periods:
Year ending 30 June 20XX
Year ending 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
You are a company who received a capital gain from a CGT event that occurred in in the 20XX-20XX financial year.
You used the services of a registered tax agent to prepare your income tax return for the 20XX-20XX financial year, which was lodged in 20XX.
Your capital gain was incorrectly reported by your tax agent as other gross income on your tax return.
Your tax agent failed to inform you about the relevant small business CGT concessions that may have been available to you.
You have engaged the services of a new tax agent to amend your 20XX-20XX tax return.
You now wish to have the choice to apply any available small business CGT concessions to the amended capital gain.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 103-25
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