Edited version of your written advice

Authorisation Number: 1012930085737

Date of advice: 18 December 2015

Ruling

Subject: Capital Gains Tax

Question

Can the company apply the small business 15 year exemption, in relation to the capital gain made on the shares sold in X?

Answer

No.

This ruling applies for the following period

Year ended 30 June 20XX

The scheme commenced on

1 July 20XX

Relevant facts

The company sold its shareholding in A in XXXX.

The company held the shares in A for over 15 years.

The shares held in A were slightly less than X% of the total issued shares of A.

B and their spouse held additional shares in A.

Overall the combined shareholding in A, including B and their spouse's direct and indirect shareholding and the company's shareholding, was approximately only X%.

The company satisfies the maximum net asset value test.

B has held X% shares in the company since XXXX.

B is over 55 years of age.

Relevant legislative provisions

Income Tax Assessment Act 1997 Division 152

Income Tax Assessment Act 1997 section 152-10(2)

Income Tax Assessment Act 1997 section 152-15

Income Tax Assessment Act 1997 section 152-35

Income Tax Assessment Act 1997 section 152-40

Income Tax Assessment Act 1997 section 152-55

Income Tax Assessment Act 1997 section 152-60

Income Tax Assessment Act 1997 section 152-65

Income Tax Assessment Act 1997 subsection 152-70(1)

Income Tax Assessment Act 1997 section 152-75

Reasons for decision

To qualify for the small business capital gains tax (CGT) concessions, you must satisfy several conditions that are common to all the concessions. These are called the basic conditions.

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.

Additional basic conditions for shares in a company

Under subsection 152-10(2) of the ITAA 1997, if the CGT asset is a share in a company or an interest in a trust (the object company or trust), one of these additional basic conditions must be satisfied just before the CGT event:

(a) you are a CGT concession stakeholder in the object company or trust;

or

(b) CGT concession stakeholders in the object company or trust together have a small business participation percentage in you of at least 90%.

A company cannot satisfy the condition in paragraph (a) because a CGT concession stakeholder in the object company must be an individual.

CGT concession stakeholder

As per section 152-60 of the ITAA 1997 an individual is a CGT concession stakeholder of a company or trust if they are a significant individual or the spouse of a significant individual where the spouse has a small business participation percentage in the company or trust at that time that is greater than zero.

Under section 152-55 of the ITAA 1997 an individual is a significant individual in a company or trust if they have a small business participation percentage in the company or trust of at least 20%. This 20% can be made up of direct and indirect percentages.

Small business participation percentage

Under section 152-65 of the ITAA 1997 an entity's small business participation percentage in another entity at a time is the percentage that is the sum of:

• the entity's direct small business participation percentage in the other entity at that time, and

• the entity's indirect small business participation percentage in the other entity at that time.

Under subsection 152-70(1) of the ITAA 1997 an entity's direct small business participation percentage in a company is the percentage of:

• voting power that the entity is entitled to exercise

• any dividend payment that the entity is entitled to receive, or

• any capital distribution that the entity is entitled to receive, or

• if they are different, the smallest of the three definitions above.

Section 152-75 of the ITAA 1997 details that an entity's indirect small business participation percentage in a company or trust is calculated by multiplying together the entity's direct participation percentage in an interposed entity, and the interposed entity's total participation percentage (both direct and indirect) in the company or trust.

Application to your circumstances

In this case, the company sold shares held in A. In order to access the small business concessions not only will the company have to satisfy the standard basic conditions, but also the additional basic condition or '90% test' set out in subsection 152-10(2) of the ITAA 1997.

To satisfy this test, the CGT concession stakeholders in A (the object company) together must have a small business participation percentage in the company of at least 90%.

B has approximately X% small business participation percentage in A. Therefore, B is not a significant individual or CGT concession stakeholder of A.

As B is not a CGT concession stakeholder in A the additional requirements under subsection 152-10(2) of the ITAA 1997 for a CGT asset which is a share in a company are not satisfied.

Therefore, the company does not satisfy the basic conditions and is unable to apply the 15 year exemption small business concession.