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This edited version has been archived due to the length of time since original publication.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: 1013024469144

Date of advice: 26 May 2016

Ruling

Subject: Extension of time to acquire a replacement asset

Question

Will the Commissioner extend the replacement asset period to allow an additional 7 months to acquire a replacement asset?

Answer

Yes.

This ruling applies for the following period

Year ended 30 June 2014

Year ended 30 June 2015

Year ended 30 June 2016

The scheme commences on

1 July 2013

Relevant facts and circumstances

You sold an active asset.

You applied the small business roll-over to the capital gain made on the sale of the active asset.

You have been actively looking for a suitable replacement asset but have been unsuccessful.

You are currently in negotiations to secure a replacement asset.

You request an extension of time to acquire a replacement asset.

Relevant legislative provisions

Income Tax assessment Act 1997 paragraph 104-185(1)(a)

Income Tax assessment Act 1997 subsection 104-190(2)

Income Tax assessment Act 1997 subsection 104-197(1)

Income Tax assessment Act 1997 subsection 104-197(5)

Income Tax assessment Act 1997 Subdivision 152-E

Reasons for decision

The rules covering the small business roll-over are contained in Subdivision 152-E of the Income Tax Assessment Act 1997 (ITAA 1997). The small business roll-over allows you to defer all or part of a capital gain made from a capital gains tax (CGT) event happening to an active asset.

CGT event J5 happens if you choose a small business roll-over under Subdivision 152-E and you have not acquired a replacement asset by the end of the replacement asset period (subsection 104-197(1) of the ITAA 1997).

The replacement asset period is the period starting one year before and ending two years after the last CGT event in the income year for which you obtain the roll-over (paragraph 104-185(1)(a) of the ITAA 1997).

The replacement asset period may be extended or modified by the Commissioner (subsections 104-197(5) and 104-190(2) of the ITAA 1997).

In determining whether to allow an extended asset replacement period the Commissioner considers the following factors:

    • whether there is evidence of an acceptable explanation for the period of extension requested and whether it would be fair and equitable in the circumstances to provide such an extension

    • whether there is any prejudice to the Commissioner if the additional time is allowed (however, the mere absence of prejudice is not enough to justify the granting of an extension)

    • whether there is any unsettling of people, other than the Commissioner, or of established practices

    • the need to ensure fairness to people in like positions and the wider public interest

    • whether there is any mischief involved, and

    • the consequences of the decision.

Having considered the relevant factors above, and the particular circumstances of your case, the Commissioner has applied his discretion and will extend the replacement asset period.


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