Edited version of private advice

Authorisation Number: 1012623600480

Ruling

Subject: small business concessions

Question 1

Will the Commissioner allow further time as provided in paragraph 103-25(1)(b) of the Income Tax Assessment Act 1997 (ITAA 1997) for you to choose to apply the small business retirement exemption to a capital gain that arose in the 2012-13 financial year?

Answer

Yes.

This ruling applies for the following period:

Year ending 30 June 2013

The scheme commences on:

1 July 2012

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

You are eligible for the small business retirement exemption.

Your previous accountant has already lodged your 2012-13 income tax return.

Your previous accountant applied both the 50% active asset reduction and the 50% capital gains tax (CGT) discount to your capital gain.

You recently changed accountants and they made you aware of the retirement exemption.

You wish to make a contribution into your superannuation fund to take advantage of the exemption.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 103-25.

Income Tax Assessment Act 1997 Subsection 152-315(4).

Reasons for decision

You may choose to disregard or defer all or part of a capital gain under the small business CGT concessions if you satisfy certain conditions.

The general rule is that a choice available under the CGT provisions once made can not be changed. Generally, such a choice must be made by the time the income tax return is lodged, or within such further time as the Commissioner allows (subsection 103-25(1) of the ITAA 1997).

Under subsection 103-25(2) of the ITAA 1997, the way you prepare your income tax return is sufficient evidence of the making of the choice. Paragraph 103-25(3)(b) of the ITAA 1997, however, contains an exception in relation to the small business retirement exemption, as subsection 152-315(4) of the ITAA 1997 requires the choice for this exemption to be made in writing.

In determining if the Commissioner should use his discretion to allow an extension of time the following will be considered:

• 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; and

• a consideration of the consequences.

Application to your circumstances

An oversight by your previous accountant meant that the retirement exemption was not applied to your capital gain which was included in your 2012-13 income tax return.

We consider this to be an acceptable explanation for the period of extension required. There would be no prejudice to the Commissioner or unsettling of people by allowing the extension. There is no mischief involved. The Commissioner considers it fair and equitable in these circumstances to exercise his discretion.

An extension of time is allowed for you to make the choice to apply the retirement exemption.