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This edited version has been archived due to the length of time since original publication.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 written advice

Authorisation Number: 1012790762664

Ruling

Subject: Small business CGT concessions

Question

Will the Commissioner allow further time as for you to choose to apply the small business retirement exemption to capital proceeds that relate to a CGT event that occurred in the 2010-11 financial year but were not received until the 2012-13 and 2013-14 financial years?

Answer

Yes, an extension will be granted to dd/mm/yyyy

This ruling applies for the following period(s)

Income year ended 30 June 2015

The scheme commences on

dd/mm/yyyy

Relevant facts and circumstances

You satisfy the conditions for the CGT small business retirement exemption.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 103-25

Income Tax Assessment Act 1997 section 104-10

Income Tax Assessment Act 1997 section 152-315

Reasons for decision

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

The general rule is that a choice available under the CGT provisions once made cannot 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

The Commissioner considers it fair and equitable in these circumstances to exercise his discretion. An extension of time until dd/mm/yyyy is allowed for you to make the choice to apply the retirement exemption.


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