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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your private ruling

Authorisation Number: 1012528217249

Ruling

Subject: Commissioner's Discretion

Question

Will the Commissioner exercise the discretion in paragraph 35-55(1)(b)of the Income Tax Assessment Act 1997 (ITAA 1997) to allow you to include any losses from your primary production activity in your calculation of taxable income for the 2011-12 to 2034-35 financial years?

Answer

Yes.

This ruling applies for the following periods:

Year ending 30 June 2012 through to 30 June 2035.

The scheme commenced on

1 July 2011

Relevant facts and circumstances

You commenced your primary production activity.

For non-commercial loss purposes your income is less than $250,000.

At year 17 for the commercial operation should produce turnover of approximately $X per hectare and at year 25 a turnover of $X per hectare is expected.

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)(b)

Reasons for decision

For the 2009-10 and later financial years, Division 35 of the 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

    · 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. The relevant discretion may be exercised for the income year in question where:

    · it is in the nature of the business activity that there will be a period of time before it can be expected to pass one of the four tests

    · there is an objective expectation your business activity will produce a tax profit or meet one of the four tests within a commercially viable period for your industry.

Having regard to your full circumstances, it is accepted that it is in the nature of the business activity that has prevented one of the four tests being passed. It is also accepted that you will pass one of the four tests or make a tax profit within the commercially viable period for your industry.

Consequently the Commissioner will exercise the discretion in the 2011-12 to the 2034-35 financial years.


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