Edited version of private advice

Authorisation Number: 1012285447572

Ruling

Subject: CGT Small business concessions

Questions:

1. Are your rental property activities considered to be business for the purposes of the small business capital gain tax (CGT) concessions?

Answer: No.

2. Are you eligible for the small business CGT concessions?

Answer: No.

This ruling applies for the following period

Year ended 30 June 2013

The scheme commenced on

1 July 2012

Relevant facts

You and your spouse own several investment properties; parking spots, units, a house and a unit in a retirement village.

The parking spots are on long term lease and require no maintenance and a manager looks after the unit in the retirement village.

You and your spouse manage the other units and the house. You collect the rent, send out receipts, do all repairs and maintenance and find new tenants when required.

You now want to sell the units, which you have owned for more than ten years, and purchase new units.

Relevant legislative provisions

Income Tax Assessment Act 1997 - Subdivision 152-A

Income Tax Assessment Act 1997 - Section 152-40

Reasons for decision

To qualify for the small business CGT concessions, you must satisfy several conditions that are common to all the concessions. These are called the 'basic conditions'.

The basic conditions are contained in subdivision 152-A - Income Tax Assessment Act 1997 (ITAA 1997).

STEP 1

You must first satisfy one of the following:

• you are a small business entity

• you do not carry on business (other than as a partner) but your asset is used in a business carried on by a small business entity that is your affiliate or an entity connected with you (passively-held assets)

• you are a partner in a partnership that is a small business entity, and the CGT asset is

• an interest in a partnership asset (partnership assets), or

• an asset you own that is not an interest in a partnership asset (partner's assets)

• you satisfy the maximum net asset value test.

STEP 2

The asset in question must satisfy the active asset test

STEP 1 - Carrying on a business

A person who simply co-owns investment properties is usually regarded as an investor and not carrying on a rental property business. This is because of the limited scope of the rental property activities and the limited degree to which a co-owner actively participates in rental property activities.

The Rental properties 2011-12 guide provides the following example (at page 5):

Example 3: Co-owners who are not carrying on a rental property business

The Tobins own, as joint tenants, two units and a house from which they derive rental income. The Tobins occasionally inspect the properties and also interview prospective tenants. Mr Tobin performs most repairs and maintenance on the properties himself, although he generally relies on the tenants to let him know what is required. The Tobins do any cleaning or maintenance that is required when tenants move out. Arrangements have been made with the tenants for the weekly rent to be paid into an account at their local bank. Although the Tobins devote some of their time to rental income activities, their main sources of income are their respective full-time jobs.

The Tobins are not partners carrying on a rental property business, they are only co-owners of several rental properties.

Your situation is identical to that outlined in the example above and you would not be considered to be carrying on a rental property business.

STEP 2 - Active asset

The requirements of an active asset and the active asset test are set out in Subdivision 152-A of the ITAA 1997.

For a CGT asset of a business to be an active asset for the purposes of Division 152 of the ITAA 1997, it must firstly satisfy one of the 'positive tests' in subsection 152-40(1) of the ITAA 1997, and then also not be excluded by one of the exceptions in subsection 152-40(4) of the ITAA 1997.

Under paragraph 152-40(1)(a) of the ITAA 1997 a CGT asset is an active asset (subject to the exclusions) if it is owned and used or held ready for use in the course of carrying on a business.

However, paragraph 152-40(4)(e) of the ITAA 1997 provides that an asset whose main use in the course of carrying on the business is to derive rent cannot be an active asset (unless that main use was only temporary). That is, even if the asset is used in a business it will not be an active asset if its main use is to derive rent.

Taxation Determination TD 2006/78 states (paragraph 22) that whether an assets main use is to derive rent will depend on the particular circumstances surrounding the derivation of income.

Relevant factors include whether the occupier has a right to exclusive possession (Radaich v. Smith (1959) 101 CLR 209 at 222), the degree of control retained by the owner and the extent of any services provided by the owner such as room cleaning, provision of meals, supply of linen and shared amenities (Appah v. Parncliffe Investments Ltd [1964] 1 All ER 838; Marchant v. Charters [1977] 3 All ER 918).

In your situation, your properties are solely used to derive rent and would not be considered to be active assets

Conclusion

Your rental property activities are not considered to be a business and the properties do not satisfy the active assets test under subdivision 152-A of the ITAA 1997. Therefore, you do not meet the basic requirements for the small business CGT concessions.