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Edited version of private advice
Authorisation Number: 1052191577465
Date of advice: 20 November 2023
Ruling
Subject: CGT - extension of time
Question
Will the Commissioner exercise their discretion under paragraph 103-25(1)(b) of the Income Tax Assessment Act 1997 (ITAA 1997) to allow an extension of time for you to choose to apply any available small business capital gains tax (CGT) concessions to a capital gain that arose in the 20XX financial year?
Answer
Yes. The trust's previous tax agent did not consider the small business CGT concession and was not applied in the 20XX tax return. Due to the advice from the previous tax agent, the entity did not consider the relevant CGT concessions and effectively has not made a choice. This is an acceptable explanation for the period of extension required. There would be no prejudice to the ATO by allowing the extension. There is no mischief involved. Having considered your circumstances and the relevant factors. The Commissioner considers it fair and equitable in these circumstances for an extension to be allowed. An extension of time until 31 December 20XX is allowed for you to make the choice to apply the relevant CGT concessions.
This ruling applies for the following period:
Year ending 30 June 20XX
The scheme commenced on:
1 July 2020
Relevant facts and circumstances
In 20XX the trust made a capital gain on the disposal of shares.
At the time of the event, the trust was eligible for the small business CGT concessions.
The trust used the services of a tax agent to prepare the trust's income tax return.
The tax agent didn't consider the small business CGT concessions at time of lodging the 20XX tax returns.
The trust included a capital gain in the 20XX tax return.
The trust has engaged the services of a new tax agent who has reviewed the trust's previous income tax returns.
The trust wishes to alter their choice and to apply small business concessions.
Relevant legislative provisions
Income Tax Assessment Act 1997 subsection 103-25