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Edited version of your private ruling
Authorisation Number: 1012468088711
Ruling
Subject: Capital gains tax - extension to replacement asset period
Question
Will the Commissioner exercise his discretion under subsection 104-190(2) of the Income Tax Assessment Act 1997 (ITAA 1997) to extend the replacement asset period?
Answer
Yes
This ruling applies for the following periods:
Year ending 30 June 2013
Year ending 30 June 2014
The scheme commenced on:
1 July 2012
Relevant facts and circumstances
In the 20XXfinancial year you elected to use the small business rollover to defer capital gains that you made.
You have provided a number of potential replacement assets that you have considered within the replacement period, however, you were not able to negotiate a suitable acquisition within the replacement period.
More recently, you have been negotiating the purchase of the assets of a new business. The value of this business is over $X and you have found it difficult to obtain finance from your banks for the acquisition. You are now in the process of obtaining funds from other sources.
You have requested an extension to the replacement asset period of 6 months from 30 June 20YY in relation to the above CGT events that were rolled over.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subsection 104-190(2)
Reasons for decision
In order to apply the small business rollover, a replacement asset must be acquired within two years after the relevant CGT event. However the Commissioner may extend the replacement asset period in certain circumstances (subsection 104-190(2) of the ITAA 1997).
The relevant factors in determining whether to extend the replacement asset period are:
· there should be evidence of an acceptable explanation for the period of extension requested and that it would be fair and equitable in the circumstances to provide such an extension
· account must be had to any prejudice to the Commissioner which may result from the additional time being allowed, however the mere absence of prejudice is not enough to justify the granting of an extension
· account must be had of any unsettling of people, other than the Commissioner, or of established practices
· there must be a consideration of fairness to people in like positions and the wider public interest
· whether there is any mischief involved
· a consideration of the consequences.
You rolled over capital gains under the small business rollover during the 20XX financial year. You have been unable to acquire a suitable replacement asset within the replacement period. You have however, considered the purchase of a number of businesses. We consider that you have made ongoing efforts to acquire a replacement asset.
Having considered the relevant factors above, and the particular circumstances of your case, the Commissioner has applied his discretion and will extend the asset replacement period.