Edited version of your written advice

Authorisation Number: 1012694430183

Ruling

Subject: Small business concessions

Question

Is any part of the distribution included in your assessable income?

Answer

No.

This ruling applies for the following period

Year ended 30 June 2012

Year ended 30 June 2013

Year ended 30 June 2014

Year ending 30 June 2015

Year ending 30 June 2016

The scheme commences on

1 July 2011

Relevant facts and circumstances

You are an Australian resident for tax purposes.

Your relative settled a Discretionary Trust with an overseas corporate Trustee.

You are a beneficiary of the trust.

Your relative assigned their business to the trust.

During the relevant financial year, a block of land was sold and the proceeds were distributed by the trust to you and several others in equal shares.

The land was used solely for the business activity and not to derive rental income.

The turnover of the business in the relevant financial year was well below $2 million.

You were over 55 years of age when the distribution was set aside for your benefit.

You have not previously disregarded a capital gain under the retirement exemption.

You are a significant individual of the trust.

If the trust applied the 50% active asset reduction and the retirement exemption, the entire capital gain would be disregarded.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 99B(1)

Income Tax Assessment Act 1936 paragraph 99B(2)(a)

Income Tax Assessment Act 1997 section 855-10

Income Tax Assessment Act 1997 Division 152

Income Tax Assessment Act 1997 subdivision 152-C

Income Tax Assessment Act 1997 section 152-15

Income Tax Assessment Act 1997 section 152-35

Income Tax Assessment Act 1997 subsection 152-40(1)

Income Tax Assessment Act 1997 subdivision 152-D

Reasons for decision

Under section 855-10 of the ITAA 1997, an entity can disregard a capital gain or loss from a CGT event if they are a foreign resident, or the trustee of a foreign trust for CGT purposes, just before the CGT event happens and the CGT event happens in relation to a CGT asset that is not taxable Australian property.

In this case, the trust is a foreign resident for CGT purposes and the CGT event happened in relation to a CGT asset that is not taxable Australian property. Therefore, the trust itself can disregard the capital gain (or loss) from the CGT event.

However, subsection 99B(1) of the ITAA 1936 provides that where an amount, being property of a trust estate, is paid or applied for the benefit of a beneficiary during a year of income, and the beneficiary was a resident at any time during the year, that amount is included in the assessable income of the beneficiary.

Paragraph 99B(2)(a) of the ITAA 1936 modifies the rule in subsection 99B(1) and has the effect that the amount included in assessable income under subsection (1) is reduced to the extent that the amount represents corpus of the trust estate, except to the extent to which the amount is attributable to amounts that would be assessable, if they were derived by a resident taxpayer.

To determine if the amounts received by you are assessable income under subsection 99B(1) of the ITAA 1936, we need to consider the hypothetical test in paragraph 99B(2)(a) of the ITAA 1936.

The hypothetical test is whether amounts received by the trust in relation to the sale of the land would have been assessable to the trust if the trust was a resident of Australia.

Had the trust been a resident of Australia at the time its ownership of the land ended, CGT event A1 would have happened to the trust. Any net capital gain from the resulting A1 event would have been included in the assessable income of the trust. However, we must also consider whether the trust could have applied the small business concessions.

Small business concessions

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. Subdivision 152-C of the ITAA 1997 applies the small business 50% active asset reduction provided the basic conditions are satisfied.

A capital gain that you make may be reduced or disregarded under Division 152 of the ITAA 1997 if the following basic conditions are satisfied:

• A CGT event happens in relation to a CGT asset of yours in an income year,

• The event would have resulted in a gain,

• The CGT asset satisfies the active asset test in section 152-35 of the ITAA 1997, and

• At least one of the following applies;

• you are a small business entity for the income year,

• you satisfy the maximum net asset value test in section 152-15 of the ITAA 1997,

• you are a partner in a partnership that is a small business entity for the income year and the CGT asset is an interest in an asset of the partnership, or

• you do not carry on a business, but your CGT asset is used in a business carried on by a small business entity that is your affiliate or an entity connected with you.

Active asset test

A capital gains tax (CGT) asset will satisfy the active asset test if:

(a) you have owned the asset for 15 years or less and the asset was an active asset of yours for a total of at least half of the test period, or

(b) you have owned the asset for more than 15 years and the asset was an active asset of yours for a total of at least 7½ years during the test period.

The test period beings when you acquired the asset and ends at the earlier of the CGT event and if the relevant business ceased to be carried on in the 12 months before that time - the cessation of the business.

Subsection 152-40(1) of the ITAA 1997 details that a CGT asset is an active asset at a time if it is used, or held ready for use, in the course of carrying on a business that is carried on by you, or your affiliate, or another entity that is connected with you.

In this case we are satisfied that the basic conditions for the small business concessions have been satisfied. Therefore, the trust would have been entitled to apply the 50% active asset reduction.

Retirement exemption - trust

The rules covering the small business retirement exemption are contained in Subdivision 152-D of the ITAA 1997. An entity may choose to disregard all or part of a capital gain under the retirement exemption if certain conditions are satisfied.

If the entity is a company or trust, they can choose to disregard all or part of a capital gain where all of the following conditions are met:

• the trust satisfies the basic conditions

• the trust satisfies the significant individual test

• a written record of the amount disregarded is kept and if there are more than one CGT concession stakeholders, each stakeholder's per cent of the exempt amount (one may be nil, but together they must add up to 100%)

• a payment is made to at least one of the CGT concession stakeholders worked out by reference to each individual's percentage of the exempt amount

• the payment is equal to the exempt amount or the amount of capital proceeds, whichever is less, and

• where the capital proceeds are received in instalments, a payment is made to a CGT concession stakeholder for each instalment in succession.

CGT retirement exemption limit

The amount of the capital gain that you choose to disregard must not exceed your CGT retirement exemption limit or, in the case of a company or trust, the CGT retirement exemption limit of each CGT concession stakeholder receiving a payment.

Under section 152-320 of the ITAA 1997, an individual's lifetime CGT retirement exemption limit is $500,000 reduced by any previous CGT exempt amounts the individual has disregarded under the retirement exemption.

In this case we are satisfied that the trust would have been entitled to disregard the remaining capital gain under the retirement exemption.

Application to your circumstances

In this case, the trust would then have been eligible to apply the 50% active asset reduction and the small business retirement exemption to completely disregard the capital gain.

Accordingly to the extent that the distribution you received is attributable to a gain from the hypothetical CGT event A1 happening to the trustee of Trust, it will be assessable to you under section 99B of the ITAA 1936. As the trust would have been entitled to completely disregard the capital gain, no amount is assessable to you.