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Ruling

Subject: non-commercial losses

Question

Will the Commissioner exercise the discretion in paragraph 35-55(1)(a) of the Income Tax Assessment Act 1997 (ITAA 1997) to allow you to include any losses from your primary production business activity in your calculation of taxable income for the 2010-11 financial year?

Answer Yes

This ruling applies for the following period

Year ended 30 June 2011

The scheme commenced on

1 July 2009

Relevant facts and circumstances

You run a retail partnership with your spouse.

The business commenced part way through the 2009-10 financial year.

You have provided proof that had the business been operating for the full 2009-10 financial year you would have produced in excess of $20,000 in assessable income.

In the 2010-11 financial year there was major construction in your area which significantly decreased customer numbers. You submit that the construction prevented you from passing the assessable income test.

You satisfy the <$250,000 income requirement set out in subsection 35-10(2E) of the ITAA 1997.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 35-10(1)

Income Tax Assessment Act 1997 subsection 35-10(2)

Income Tax Assessment Act 1997 subsection 35-10(2E)

Income Tax Assessment Act 1997 paragraph 35-55(1)(a)

Reasons for decision.

For the 2009-10 and later financial years, Division 35 of ITAA 1997 will apply to defer a non-commercial loss from a business activity unless:

§ you satisfy the income requirement and you pass one of the four tests

§ the exceptions apply, or

§ the Commissioner exercises his discretion.

In your situation, none of the exceptions would apply and although you satisfy the income requirement, you do not meet any of the four tests in the years of income under consideration. Your losses are therefore subject to the deferral rule, unless the Commissioner exercises his discretion.

The relevant discretion may be exercised for the income year in question where your business activity is affected by special circumstances outside your control.

'Special circumstances' are those circumstances which are sufficiently different to distinguish them from the circumstances that occur in the normal course of conducting a business activity, including drought, flood, bushfire or some other natural disaster.

For individuals who satisfy the income requirement, special circumstances are those which have materially affected their business activity, causing it not to meet any of the four tests. In this context, the Commissioner may exercise this discretion for the income year(s) in question where, but for the special circumstances the activity would have passed at least one of the tests.

Having regard to your full circumstances, it is accepted that your business activity was affected by special circumstances outside your control and that these prevented you meeting one of the four tests.

Consequently the Commissioner will exercise his discretion in the 2010-11 financial year.