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Can rollover relief under Subdivision 126-B of the Income Tax Assessment Act 1997 (ITAA 1997) be chosen in relation to the transfer of an asset, prior to 1 July 2003, from an Australian resident company (the originating company) to another Australian resident company (the recipient company) that is a member of the same wholly-owned group of companies if the originating company and the recipient company were members of separate consolidated groups at the time of the transfer?

No. Rollover relief under Subdivision 126-B of the ITAA 1997 cannot be chosen. As a result of amendments made to subsection 126-50(5) of the ITAA 1997 by the New Business Tax System (Consolidation) Act (No. 1) 2002 (NBTS Act), rollover is no longer available in respect of asset transfers between Australian resident companies. Because the originating company became a member of a consolidated group prior to 1 July 2003, those amendments apply from the day on which the consolidated group was formed.

The taxpayer, an Australian resident company (the originating company) acquired a small shareholding in an Australian resident listed company in the 2001 income year.

The originating company is a member of a wholly-owned group of companies with a foreign resident company as its immediate parent company.

In May 2003, the taxpayer transferred the shares in the listed company to another Australian resident company (the recipient company) and made a capital gain. The recipient company is a member of the same wholly-owned group as the originating company and both companies have the same foreign resident company as their immediate parent company.

The originating company and the recipient company were head companies of separate consolidated groups at the time of the transfer. Both consolidated groups were formed with effect from 1 July 2002.

Both the originating company and the recipient company wish to choose to obtain rollover relief under Subdivision 126-B of the ITAA 1997 in relation to the transfer of the shares.

Subdivision 126-B of the ITAA 1997 provides for a rollover in relation to certain transactions between two companies that are members of the same wholly-owned group of companies. There are a number of requirements that must be met for the rollover to be available.

Subsections 126-45(1) and 126-45(2) of the ITAA 1997 require that a CGT event of a specified type happen to the originating company as a result of the transaction. CGT event A1 is one of the CGT events listed in subsection 126-45(2). In this case, CGT event A1 happened on the transfer of the shares from the originating company to the recipient company.

The rollover requirements are set out in section 126-50 of the ITAA 1997. Those requirements were amended by the NBTS Act. As a result, rollover is no longer available under Subdivision 126-B in respect of asset transfers between Australian resident companies: subsection 126-50(5) of the ITAA 1997. More precisely, rollover is not available for CGT events that happen after 30 June 2003: subitem 23(1) of Schedule 3 to the NBTS Act.

Also, rollover may not be available for CGT events that happen before 1 July 2003 if, before that date, the originating company became a member of a consolidated group or multiple entry consolidated (MEC) group when the group was formed: subitem 23(2) of Schedule 3 to the NBTS Act. In that case, rollover is not available from the day on which the group was formed: subitem 23(3) of Schedule 3 to the NBTS Act.

In this case, the originating company and the recipient company were head companies of separate consolidated groups that were formed with effect from 1 July 2002. Therefore, as the CGT event happened in May 2003 when the shares were transferred, it is the requirements which exist in section 126-50 of the ITAA 1997 after the amendments that must be met. Under those requirements, rollover is not available in respect of asset transfers between Australian resident companies: subsection 126-50(5) of the ITAA 1997.

Accordingly, the originating company and the recipient company cannot choose to obtain rollover relief in relation to the transfer under Subdivision 126-B of the ITAA 1997. Consequently, the originating company cannot disregard the capital gain that arises from the transfer of the shares to the recipient company.