Does the proposed transfer of land from the Taxpayer to a new discretionary trust qualify for roll-over relief under Subdivision 328-G of the Income Tax Assessment Act 1997 (ITAA 1997)?
Yes. This ruling applies for the following period Year ending 30 June 20YY
The Taxpayer is a partner in a farming partnership (the Partnership). The Taxpayer does not carry on a business other than as a partner in the Partnership. The Taxpayer owns farming land (the Property) that is used by the Partnership to conduct its farming business. Under the Partnership Agreement, the partners of the Partnership (Partners) are entitled to a share of the profits and losses of the Partnership as follows: • Taxpayer's parent A - 22% • Taxpayer's parent B - 22% • Discretionary Trust A - 22% • Discretionary Trust B - 22% • Taxpayer - 6% • Taxpayer's sibling - 6%. The Partners' entitlement to the income and capital of the Partnership is the same as their entitlement to the profit and losses of the Partnership. The Partners are jointly and severally liable for the liabilities of the Partnership. All Partners are Australian residents for income tax purposes.
The Partnership has carried on the business since at least 20XX when the Taxpayer acquired the Property. The Partners are extremely active in the business - they contribute significant labour and management to the business that is well above any standard salary and wage employee. The average labour contribution is approximately 45-60 hours per week for each Partner. All Partners contribute to the decision making process of the Partnership. All meetings for business, cash flow, tax planning and reviews are done with all Partners present. The Partnership had an aggregated turnover of less than $10 million in the year ended 30 June 20YY. Proposed Restructure The Taxpayer proposes to transfer the Property to a newly established discretionary trust (the Trust) in the 20YY income year (Proposed Restructure). The Trust will not carry on a business. It will be an asset owning trust only which may acquire additional farm land in the future.
The Partnership will continue to operate the business on the Property. There will be no lease agreement for the use of the Property and there will be no charge for the use the of the Property. There are no plans to dispose of the Property which will be held in the Trust for the foreseeable future. The Trust The Taxpayer will be the appointor of the Trust. The trustee of the Trust will be a company. The directors and shareholders of the company will be The Taxpayer and their parents. The Taxpayer and their parents, as directors of the corporate trustee will be responsible for decision making of the Trust. However, the need for decision making will be extremely limited given the Trust will not receive any annual income and the Property is expected to be held by the Trust for the foreseeable future. The Trust will be an Australian resident for income tax purposes. The Trust will neither be an 'exempt entity', nor a 'complying superannuation entity' as defined in section 995-1 of the ITAA 1997. The primary beneficiaries of the Trust will be the Taxpayer and their parents. The secondary beneficiaries of the Trust will be the Taxpayer's sibling.
The Trust will make a family trust election (FTE) in the 20YY income year nominating the Taxpayer as the 'test individual' pursuant to section 272-80 of Schedule 2F to the Income Tax Assessment Act 1936 (ITAA 1936). The Trust will be a 'family trust' under section 272-75 of Schedule 2F to the ITAA 1936. Reasons for the restructure According to the Taxpayer, asset protection is a major factor for the restructure. Operating heavy machinery, using chemicals and considerable time on the road in trucks carting grains and livestock are some of the risks associated with operating an enterprise of this size. Having the Property owned in a separate entity will assist in reducing the overall risk of the business. The Taxpayer also believes that the transfer of the Property to the Trust allows for the consolidation of major business assets in a single entity. Assumptions
1. The Partnership will be a small business entity (SBE) under section 328-110 of the ITAA 1997 for the income year of the transfer of the Property on the basis that it will continue to carry on business and its aggregated turnover for the previous income year is less than $10 million. By extension, the Partnership would also be a 'CGT small business entity' for the transfer year pursuant to subsection 152-10(1AA) of the ITAA 1997 if paragraph 152-10(1AA)(b) were disregarded. 2. Both the Taxpayer and the Trust will elect to choose the roll-over under Subdivision 328-G of the ITAA 1997 in relation to the Property.
Income Tax Assessment Act 1936 subsection 6(1) Income Tax Assessment Act 1936 section 272-75 of Schedule 2F Income Tax Assessment Act 1936 section 272-80 of Schedule 2F Income Tax Assessment Act 1997 subsection 152-10(1A) Income Tax Assessment Act 1997 paragraph 152-10(1AA)(b) Income Tax Assessment Act 1997 section 328-110 Income Tax Assessment Act 1997 subsection 328-110(1) Income Tax Assessment Act 1997 subsection 328-110(6) Income Tax Assessment Act 1997 section 328-125 Income Tax Assessment Act 1997 paragraph 328-125(1)(a) Income Tax Assessment Act 1997 paragraph 328-125(1)(b) Income Tax Assessment Act 1997 paragraph 328-125(2)(a) Income Tax Assessment Act 1997 subparagraph 328-125(2)(a)(i) Income Tax Assessment Act 1997 subparagraph 328-125(2)(a)(ii) Income Tax Assessment Act 1997 sub
Summary The proposed transfer of the Property from the Taxpayer to the Trust meets the requirements under section 328-430 to qualify for the small business restructure roll-over (SBRR) under Subdivision 328-G. Detailed reasoning Subdivision 328-G allows flexibility for owners of small businesses to restructure their businesses and the way their business assets are held while disregarding the tax gains and losses that would otherwise arise. Subdivision 328-G applies to the transfer of active assets as part of a genuine restructure on or after 1 July 2016. Subsection 328-430(1) provides that roll-over relief is available in relation to an asset if the following conditions are met: 1. The transaction is, or is part of, a 'genuine restructure of an ongoing business' (paragraph 328-430(1)(a)). 2. For the income year in which the transfer occurred, each party to the transfer is either a SBE, or affiliate of or connected with a SBE, or a partner in a partnership that is a SBE (paragraph 328-430(1)(b)). 3. The transaction does not have the effect of materially changing the ultimate economic ownership of the transferred asset (paragraph 328-430(1)(c)).
4. The asset transferred is an active asset (paragraph 328-430(1)(d)). 5. The transferor and each transferee are residents of Australia (paragraph 328-430(1)(e)). 6. Both the transferor and each transferee choose to apply the roll-over (paragraph 328-430(1)(f)). Condition 1 - genuine restructure - paragraph 328-430(1)(a) Paragraph 328-430(1)(a) requires that the transfer of the asset is, or is part of, a 'genuine restructure of an ongoing business'. Law Companion Ruling LCR 2016/3 Small Business Restructure Roll-over: genuine restructure of an ongoing business and related matters (LCR 2016/3) provides guidance of the Commissioner's view on whether a transaction is, or is part of, a genuine restructure of an ongoing business. According to LCR 2016/3, whether a transaction is, or is part of, a 'genuine restructure of an ongoing business' is a question of fact that is determined having regard to all of the circumstances surrounding the restructure.
The Commissioner's view in LCR 2016/3 is that a 'genuine restructure of an ongoing business' is one that could be reasonably expected to deliver benefits to small business owners in respect of their efficient conduct of the business going forward. It can encompass a restructure of the way in which business assets are held where that structure is likely to have been adopted had the business owners obtained appropriate professional advice when setting up the business. It is a composite phrase emphasising that the SBRR is not available to small business owners who are restructuring in the course of winding down or realising their ownership interests. Paragraph 7 of LCR 2016/3 lists the following features that indicate that a transaction is, or is part of, a genuine restructure: • it is a bona fide commercial arrangement undertaken to facilitate growth, innovation and diversification, to adapt to changed conditions, or to reduce administrative burdens and compliance costs; • it is authentically restructuring the way the business is conducted, as opposed to a divestment or a preliminary step to facilitate the economic realisation of assets;
• the economic ownership of the business and its restructured assets is maintained; • the small business owners continue to operate the business through a different legal structure; and • it results in a structure likely to have been adopted had the small business owners obtained appropriate professional advice when setting up the business. Paragraph 10 of LCR 2016/3 lists some factors which tend to indicate that a restructure is not a genuine restructure of an ongoing business. These include: • it is a preliminary step to facilitate the economic realisation of assets, or takes place in the course of winding down to transfer wealth between generations; • it effects an extraction of wealth from the assets of the business for personal investment or consumption; • it creates artificial losses or brings forward their recognition; • it effects a permanent non-recognition of gain or creates artificial timing advantages; and/or • there are other tax outcomes that do not reflect economic reality.
Since the Taxpayer is individually and severally liable for the liabilities of the Partnership (as a partner), their personal assets are at risk should any legal action be taken against the Partnership. The Partnership's primary production business involves activities (e.g. using chemicals and driving trucks) that could expose the Partnership, or more specifically the Partners, to being sued. Asset protection could be achieved by transferring significant assets from the entity conducting the business to another entity in order to protect those assets from legal action against the entity carrying on the business. As discussed in Example 1 of LCR 2016/3, a transaction implemented for asset protection purposes is an example of a transaction that is or part of a 'genuine restructure of an ongoing business'. The Commissioner accepts that the transfer of the Property from the Taxpayer to the Trust, undertaken for the purposes of protecting a core asset of the business, satisfies the 'genuine restructure of an ongoing business' condition. Other factors which support such a conclusion include:
• it is not part of a divestment or preliminary step to facilitate the economic realisation of assets; • the ownership of the Property by a discretionary trust is in keeping with the structure under which the property would have been purchased today, as will be the case in respect of any additional farm land purchased for use in the Business; and • none of the factors listed in paragraph 10 of LCR 2016/3 which indicate a restructure is not a genuine restructure of an ongoing business apply. Condition 2: The SBE connection - paragraph 328-430(1)(b) Paragraph 328-430(1)(b) requires both the transferor and transferee to satisfy one or more of the following in the income year the transaction occurs: (i) be a SBE (ii) have an affiliate that is a SBE (iii) be connected with a SBE (iv) be a partner in a partnership that is a SBE. SBE An entity is a SBE for an income year under subsection 328-110(1) if it carries on a business in the current income year and the aggregated turnover for the previous income year was less than $10 million or likely to be less than $10 million for the current income year.
A person who is a partner in a partnership is not, in their or her capacity as a partner, a SBE (subsection 328-110(6)). Affiliate Affiliate is defined in subsection 328-130(1) as an individual or company that acts, or could reasonably be expected to act, in accordance with the entity's directions or wishes, or in concert with the entity, in relation to the affairs of the business of that individual or company. Under the subsection 328-130(1) definition of affiliate: • An individual or company that is not carrying on a business cannot be an affiliate of another entity. • Only an individual or company can be an affiliate of another entity. A partnership therefore cannot be an affiliate of another entity, but can have an affiliate that is in an individual or company. However, an individual or company is not your affiliate merely because of the nature of the business relationship you and the individual or company share (subsection 328-130(2)). Subsection 328-130(2) provides the following example:
A partner in a partnership would not be an affiliate of another partner merely because the first partner acts, or could reasonably be expected to act, in accordance with the directions or wishes of the second partner, or in concert with the second partner, in relation to the affairs of the partnership. Directors of the same company, or the company and a director of that company, would be in a similar position. Whether a person acts, or could reasonably be expected to act, in accordance with your directions or wishes, or in concert with you, depends on the circumstances of the case. The relevant factors that may support a finding that a person acts as an affiliate include: • the existence of a close family relationship between the parties; • the lack of any formal agreement or formal relationship between the parties setting out how the parties are to act in relation to each other; • the likelihood that the way the parties act, or could reasonably be expected to act, in relation to each other would be based on the relationship between the parties rather than on formal agreements or legal or fiduciary obligations; and • the actions of the parties.
Connected entity An entity is 'connected with' another entity pursuant to paragraph 328-125(1)(a) if either entity controls the other entity in a way described in section 328-125, or pursuant to paragraph 328-125(1)(b) if both entities are controlled in way described in this section by the same third entity. An entity (first entity) controls a partnership if the first entity, its affiliates, or the first entity together with its affiliates, own or have the right to acquire ownership interests in the partnership that carry between them the right receive a percentage that is at least 40% of: • any distribution of income or capital of the partnership - subparagraph 328-125(2)(a)(i) and (iii); or • the net income of the partnership - subparagraph 328-125(2)(a)(ii). An entity (first entity) controls a discretionary trust if the trustee of the trust acts, or could reasonably be expected to act, in accordance with the directions or wishes of the first entity, its affiliates, or the first entity together with its affiliates (subsection 328-125(3)).
An entity also controls a discretionary trust if, for any of the 4 income years before that year, the trustee of the trust paid or applied at least 40% of the income or capital of the trust paid or applied by the trustee for that year for the benefit of the first entity or any of the first entity's affiliates or the first entity and any of its affiliates (subsection 328-125(4)). The parties to the transfer will be the Taxpayer (the transferor) and the Trust (the transferee). The Partnership is a SBE in the 20YY income year on the basis that it carried on the Business in the 2024 and 2023 income years and its aggregated turnover for the 20YY income year was less than $10 million. An assumption is made for the purposes of this ruling that the Partnership will also be a SBE in the 20YY income year on the basis that it will carry on business in the 20YY income year and its aggregated turnover for the 20YY income year was less than $10 million. The Partnership is the relevant SBE to consider for the purposes of applying the tests in paragraph 328-430(1)(b). The transferor and transferee are connected with a SBE - subparagraph 328-430(1)(b)(iii)
If both the Taxpayer and the Trust are 'connected with' the Partnership in the income year of the transfer subparagraph 328-430(1)(b)(iii) is satisfied. The Taxpayer The Taxpayer is connected with the Partnership under paragraph 328-125(1)(a) if he controls the Partnership. The Taxpayer has an entitlement to 6% of the net income, income and capital distributions of the Partnership so does not control the Partnership in thier own right under paragraph 328-125(2)(a). However, if the Taxpayer's parents (and sibling, although this is not necessary) could be considered their 'affiliates' then the Taxpayer will control the Partnership: • under subparagraph 328-125(2)(a)(ii) since the Taxpayer, together with their affiliates will have entitlements to at least 40% of the net income of the Partnership; and • under subparagraphs 328-125(2)(a)(i) and (iii) since the Taxpayer, together with their affiliates will have the right to at least 40% of the income and capital distributions of the Partnership.
The Taxpayer will then be connected with the Partnership. As mentioned, the fact that the Taxpayer, their parents and sibling are partners in the Partnership alone does not make the Partners affiliates of each other. However, the following factors support a finding that the other Partners act, or could reasonably be expected to act, in accordance with the Taxpayer's directions or wishes, or in concert with the Taxpayer, in relation to the affairs of the business of the other Partners, and therefore are affiliates of the Taxpayer pursuant to subsection 328-130(1): • the Taxpayer has a close family relationship with the other Partners; • there is no formal agreement between the Taxpayer and the other Partners dictating how the parties are to act in relation to each other; • there is a likelihood that the way the Partners act, or could reasonably be expected to act, in relation to each other would be based on the relationship between them (rather than on formal agreements or legal or fiduciary obligations); and • the Partners all contribute to the decision making process of the Partnership.
Consequently, the Taxpayer, their parents and their sibling are affiliates of each other pursuant to section 328-130. Each of the Taxpayer, their parents and sibling would be considered to control the Partnership within the meaning in paragraph 328-125(2)(a) and are 'connected with' the Partnership within the meaning in paragraph 328-125(1)(a). The Taxpayer therefore satisfies subparagraph 328-430(1)(b)(iii). The Trust As the test in subsection 328-125(4) relies on previous distributions made by the trustee, this test will not be satisfied as the Trust is a newly created trust that doesn't have a distribution history. The Trust has no ownership interest in the Partnership and cannot be connected with the Partnership by any direct ownership interest. The Trust will be connected with the Partnership under paragraph 328-125(1)(b) if it is controlled by the same third entity that controls the Partnership. As discussed, the Taxpayer, their parents and their sibling each control and are connected with the Partnership. If either of them also control the Trust, the Trust will be connected with the Partnership.
The 3 directors and shareholders of the trustee will be the Taxpayer and their parents. Since the directors of the trustee will be responsible for decisions made by the trustee, the trustee could reasonably be expected to act in accordance with the wishes of the Taxpayer and their parents. As discussed, the Taxpayer and their parents are affiliates of each other due to the existence of the close family relationship. Therefore, each of the Taxpayer and their parents would be considered to have direct control of the Trust under paragraph 328-125(3) on the basis that the trustee could reasonably be expected to act in accordance with the wishes of the Taxpayer and their parents combined. Since the Taxpayer and their parents each control the Partnership and the Trust, both the Trust and the Partnership are connected entities under paragraph 328-125(1)(b). Therefore, each party to the transfer, being the Taxpayer (as transferee) and the Trust (as transferor), are connected with the Partnership (a SBE) and subparagraph 328-430(1)(b)(iii) is satisfied. Condition 3: ultimate economic ownership - paragraph 328-430(1)(c)
Paragraph 328-430(1)(c) requires the transaction not to materially change the ultimate economic ownership of the asset. According to the Explanatory Memorandum (EM) to Tax Laws Amendment (Small Business Restructure Roll-over) Bill 2016 , which introduced the provisions in Subdivision 328-G, the ultimate economic owners of an asset are the individuals who, directly or indirectly, beneficially own an asset. Under ordinary legal concepts, a beneficiary of a discretionary trust is not entitled to income or capital of the trust until the trustee exercises their discretion to distribute income or to make an appointment of capital. As such, beneficiaries of a discretionary trust cannot have ultimate economic ownership of the assets held by the trust, making it impossible to satisfy paragraph 328-430(1)(c). To address this problem, section 328-440 contains an alternative ultimate economic ownership test for discretionary trusts for the purposes of paragraph 328-430(1)(c). A transaction does not have the effect of changing the ultimate economic ownership of an asset if section 328-440 is satisfied. Section 328-440 is satisfied if: (a) either or both of the following applies:
(i) just before the transaction took effect, the asset was included in the property of a *non-fixed trust that was a *family trust; (ii) just after the transaction takes effect, the asset is included in the property of a non-fixed trust that is a family trust; and (b) every individual who, just before the transfer took effect, had the ultimate economic ownership of the asset was a member of the family group (within the meaning of Schedule 2F to the Income Tax Assessment Act 1936 ) relating to the trust or trusts referred to in paragraph (a); and (c) every individual who, just after the transfer takes effect, has the ultimate economic ownership of the asset is a member of that family group. Section 328-440 is satisfied on the following basis: • just after the transfer, the Property will be the property of the Trust which will be a family trust on the basis that the trustee of the Trust will make a FTE under section 272-80 of Schedule 2F to the ITAA 1936; and
• the Taxpayer is the only ultimate economic owner of the Property before the transfer and will be a member of the family group in relation to the Trust since he will be the 'specified individual' specified in the FTE; and • the Taxpayer, their parents and their sibling are all members of the Taxpayer's family group that will all be beneficiaries of the Trust and have ultimate economic ownership of the asset just after the transfer. Therefore, the ultimate economic test in paragraph 328-430(1)(c) is satisfied because the alternative test in section 328-440 is satisfied. Condition 4: Active asset - paragraph 328-430(1)(d) Paragraph 328-430(1)(d) requires the asset to be a CGT asset (other than a depreciating asset) that is, at the time of the transfer, an active asset. Subparagraph 328-430(1(d)(ii) applies since subparagraph 328-430(1)(b)(iii) applies. Subparagraph 328-430(1)(d)(ii) Subparagraph 328-430(1)(d)(ii) requires the Property to be a CGT asset (other than a depreciating asset) that is, at the time the transfer takes place: • an active asset in relation to which subsection 152-10(1A) is satisfied in the income year the transfer takes place, or
• an active asset in relation to which subsection 152-10(1A) would be satisfied in the income year the transfer takes place if paragraph 152-10(1AA)(b) were disregarded. A CGT asset is defined in subsection 108-5(1) as any kind of property, or a legal or equitable right that is not property. Subsection 152-40(1) provides the meaning of an active asset: A CGT asset is an active asset at a time if, at that time: (a) you own the asset (whether the asset is tangible or intangible) and it is used, or held ready for use, in the course of carrying on a business that is carried on (whether alone or in partnership) by: (i) you; or (ii) your affiliate; or (iii) another entity that is connected with you; or ... The asset subject to the proposed transfer (i.e. the Property) is a CGT asset (other than a depreciating asset) that will, at the time the transfer takes effect, be an active asset pursuant to subparagraph 152-40(1)(a)(iii) on the basis that it will be owned by the Taxpayer and used in the course of carrying on a business by the Partnership (an entity connected with the Taxpayer).
Subsection 152-10(1A) is satisfied in relation to an asset in the income year if: (a) your affiliate or an entity that is connected with you, is a CGT small business entity for the income year; and (b) you do not carry on a business in the income year (other than in partnership); and (c) if you carry on a business in partnership - the CGT asset is not an interest in an asset of the partnership, and (d) in any case - the CGT small business entity referred to in paragraph (a) is the entity that, at the time in the income year, carries on the business (as referred to in subparagraph 152-40(1)(a)(ii) or (iii) or paragraph 152-40(1)(b)) in relation to the CGT asset. At the time the proposed transfer takes effect, the Property will be an asset to which subsection 152-10(1A) would be satisfied in that income year if paragraph 152-10(1AA)(b) were disregarded. This is because: • the Partnership (being an entity connected with the Taxpayer and the Trust) would be a 'CGT small business entity' for the 2025 income year if paragraph 152-10(1AA)(b) were disregarded;
• the Taxpayer and the Trust do not carry on a business in the 2025 income year (other than the Taxpayer in partnership); • the Property is not an interest in an asset of the Partnership since it is owned only by the Taxpayer; and • the Partnership is the entity that uses the Property in carrying on the business. Therefore the condition in paragraph 328-430(1)(d) is satisfied. Condition 5: Residency requirement - paragraph 328-430(1)(e) Both the transferor and transferee must meet the residency requirement in section 328-445. This requires an individual to be an Australian resident and a trust to be a 'resident trust for CGT purposes'. In the context of trusts that are not unit trusts, a resident trust for CGT purposes is defined in section 995-1 as a trust that, at any time during the income year, has a trustee that is an Australian resident or the central management and control of the trust is in Australia.
The Taxpayer is an Australian resident for tax purposes. The Trust will be a resident trust for CGT purposes on the basis the trustee will be an Australian incorporated company that will therefore be a 'resident' or 'resident of Australia' under subsection 6(1) of the ITAA 1936. Therefore, both the Taxpayer and the Trust satisfy the residency requirement under section 328-445 and as a consequence also satisfy paragraph 328-430(1)(e). Condition 6: Election to apply the roll-over - paragraph 328-430(1)(f) Both the transferor and transferee must elect to apply the roll-over under Subdivision 328-G in relation to the asset transferred. An assumption is made for the purposes of this ruling that the Taxpayer and the Trust will choose to apply the roll-over under Subdivision 328-G. Roll-over denied for tax exempt and complying superannuation entities
Subsection 328-430(2) states that a roll-over under Subdivision 328-G is not available if the transferor or transferee is either an exempt entity or a complying superannuation entity. Neither the Taxpayer nor the Trust are such entities so are not denied from choosing the Subdivision 328-G roll-over if subsection 328-430(1) is otherwise satisfied. Conclusion Since all the requirements in subsection 328-40(1) are satisfied, the proposed transfer of the Property from the Taxpayer to the Trust qualifies for the roll-over under Subdivision 328-G