| Disclaimer This edited version has been archived due to the length of time since original publication.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: 1012550639975
Ruling
Subject: Small business concessions - Commissioner's discretion
Question
Will the Commissioner exercise his discretion under paragraph 152-180(3) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time to the two year period?
Answer
Yes
This ruling applies for the following periods:
Year ended 30 June 2013
Year ending 30 June 2014
Year ending 30 June 2015
The scheme commences on:
1 July 2012
Relevant facts and circumstances
The deceased had owned blocks of farming land. The deceased had farmed then leased the land until they passed away in 200X.
These blocks were left to you in the will of the deceased. The will was subsequently contested, preventing you from disposing of the properties as intended.
For you to put the blocks on the market, you had to prepare the blocks for sale which has taken considerable effort.
Due to the nature of the blocks of land not being premium farming land they have been slow to sell, but have been actively marketed.
Several blocks have been sold to date and there are still a few blocks of land remaining.
The deceased would have been entitled to access the small business CGT concessions prior to their death.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 150-80(3).
Reasons for decision
According to the Advance guide to capital gains tax concessions for small business 2010-11, if you are a beneficiary of a deceased estate you may be eligible for the concessions to the same extent that the deceased would have been just prior to their death.
You will be eligible for the concessions where the CGT event happens within two years of the individual's death. The active asset test applies to you for any capital gain made on a sale of the assets after the two year time limit. This means that if you do not continue to carry on the deceased's business, or use the asset in another business, after the two year time period the active asset test may not be satisfied and the small business concessions may not be available.
However, in appropriate circumstances, the Commissioner may extend this two year period. The abovementioned guide also provides the relevant considerations applied by the Commissioner to extend the two year period.
Having regards to your full circumstances and the above principles, the Commissioner will allow an extension of time.