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Edited version of your written advice
Authorisation Number: 1012999059646
Date of advice: 21 April 2016
Ruling
Subject: Capital gains tax - small business concessions - small business rollover
Question 1
Will the Commissioner, exercise discretion under subsection 104-190(2) of the Income Tax Assessment Act 1997 (ITAA 1997) and allow an extension of time to the replacement asset period?
Answer
Yes.
This ruling applies for the following periods:
Year ending 30 June 2014
Year ending 30 June 2015
Year ending 30 June 2016
Year ending 30 June 2017
The scheme commences on:
1 July 2013
Relevant facts and circumstances
The taxpayer sold an active asset as described under subdivision of 152-A of the ITAA 1997 on in the relevant financial year.
The taxpayer applied the small business rollover to the capital gain made by the sale of the asset.
The taxpayer is now a party to a dispute.
As a result the taxpayer cannot access funds to purchase a replacement asset until a financial agreement or settlement is reached.
Relevant legislative provisions
Income Tax Assessment Act 1997 subdivision 152-A
Income Tax Assessment Act 1997 subdivision 152-E
Income Tax Assessment Act 1997 section 104-190
Income Tax Assessment Act 1997 subsection 104-190 (2)
Reasons for decision
Subdivision 152-E of the Income Tax Assessment Act 1997 (ITAA 1997) allows a small business to 'rollover', that is to defer, all or part of a capital gain made from a capital gains tax (CGT) event happening to an active asset.
A condition of choosing the rollover is that you must replace the active asset or incurred expenditure on a capital improvement to an existing asset by the end of the replacement asset period. This period starts one year before and ends two years after the relevant CGT event.
However, the Commissioner may extend the replacement asset period in certain circumstances (subsection 104-190(2) of the ITAA 1997).
The relevant factors in determining whether to extend the replacement asset period are:
• 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.
The taxpayer rolled over capital gains under the small business rollover concession during the 20XX-XX financial year. The taxpayer was expecting to purchase a replacement asset within the two year timeframe; however the taxpayer became a party to a dispute in the 20YY-YY financial year. As a result the taxpayer cannot access funds to purchase a replacement asset until a financial agreement or settlement is reached.
Having considered the circumstances and the factors outlined above, the Commissioner is able to apply his discretion under subsection 104-190(2)) of the ITAA 1997 and allow an extension.