Income Tax Assessment Act 1997



Division 126 - Same-asset roll-overs  

Subdivision 126-G - Transfer of assets between certain trusts  

Operative provisions

SECTION 126-235   Exceptions for roll-over  

Foreign trusts

An exception applies for a *CGT asset if:

(a) the receiving trust is a *foreign trust for CGT purposes for the income year that includes the transfer time; and

(b) the roll-over asset is not *taxable Australian property just after the transfer time. Public trading trusts


Another exception applies if either trust is a trust to which section 102S of the Income Tax Assessment Act 1936 applies for the income year that includes the transfer time. Choices

Another exception applies if, just after the transfer time:

(a) a choice (however described) under a provision of a *taxation law is in force for either of the trusts in relation to particular circumstances; and

(b) the same choice (however described) under that provision for the other trust in relation to those circumstances (a mirror choice ) is not also in force; and

(c) the absence of a mirror choice would or could have an ongoing effect on the calculation of an entity's *net income, or taxable income, for:

(i) the entity's income year that includes the transfer time; or

(ii) a later income year.

However, the exception in subsection (3) does not apply if:

(a) the other trust makes a mirror choice before the first time after the transfer time when the absence of the mirror choice would affect the calculation of an entity's *net income, or taxable income, for an income year; or

(b) it would not be reasonable for subsection (3) to apply.


For paragraph (a), the other trust must still be able, under the relevant provision of the taxation law, to make the mirror choice.

If, just after the transfer time:

(a) a choice (however described) referred to in paragraph (3)(a) is in force for either of the trusts (the first choice ); and

(b) a provision of a *taxation law:

(i) prevents the revocation or variation of that choice; or

(ii) sets out a consequence for an entity if that choice is revoked or varied;

that provision is taken to apply for a mirror choice, in force for the other trust at or after that time, in a way corresponding to the way in which it applies for the first choice.


For example, if the provision sets out consequences that flow from the revocation of the first choice, then those consequences will also flow if the mirror choice is revoked.


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