Private ruling: Extension of - capital gains tax (CGT) small business concessions
Date of advice: 26 September 2025
Published: 17 November 2025
Ruling period: Year ended 30 June 2023
Date scheme commenced: 1 July 2022

Ruling: Q1: Will the Commissioner exercise the discretion under paragraph 103-25(1)(b) of the Income Tax Assessment Act 1997 (ITAA 1997) to allow further time for the Company to change the choice from the small business retirement concession in subdivision 152-D of the ITAA 1997 to apply the small business rollover concession in subdivision 152-E of the ITAA 1997 to the 2023 financial year? | A1: No

Relevant facts and circumstances: The Director is the sole shareholder of the Company. The Company sold its business assets on X February 20XX. On the XX May 20XX the Director consulted with the tax advisor about capital gains tax concessions. The Director also consulted with his financial advisor to discuss the tax advice from the tax advisor. On XX June 20XX the Director chose on behalf of the Company the retirement concession under subdivision 152- D of the ITAA 1997 with a contribution amount to the superannuation provider and confirmed this decision to his financial advisor. On this date, the financial advisory administration staff contacted the superannuation provider regarding the process of the retirement contribution to the Director's account and it was stated during this interaction with the superannuation provider that a CGT retirement concession was the relevant concession being enquired about. On XX June 20XX, administration staff of the financial advisory firm submitted the contribution amount via electronic funds transfer via the superannuation provider desktop application. The contribution type was incorrectly assigned by the administration staff from the financial advisory company as 'personal' due to administrative error. No 'CGT cap election form' was therefore generated by the desktop application. On XX August 20XX the Company lodged their tax return for 2023 financial year and applied the small business retirement exemption On XX September 20XX the Director received an excess non-concessional superannuation contribution letter.

Relevant legislative provisions: Income Tax Assessment Act 1997 paragraph 103-25(1)(b) Income Tax Assessment Act 1997 Subdivision 152-D Income Tax Assessment Act 1997 Subdivision 152-E

Reasons for decision: Summary: Paragraph 103-25(1)(b) of the ITAA 1997 states that an extension of time can be granted as per Commissioner's discretion to make a choice in relation to capital gains tax (CGT) small business concessions. Under paragraph 103-25(2) of the ITAA 1997, the way you prepare your income tax return is sufficient evidence of the making of the choice. Paragraph 103-25(3)(b) of the ITAA 1997 however, contains an exception in relation to the small business retirement exemption, as subsections 152-315(4) and (5) of the ITAA 1997 require the choice for this exemption to be made in writing. The general rule is that a choice available under the CGT provisions, once made, cannot be changed. A taxpayer who has considered the application of the CGT concessions and chosen a particular concession has made a choice which cannot later be changed. However, there are some circumstances when we consider that you have not made a choice. These are if you lodge your tax return without being aware that either: • events have happened that required you to make a choice • a choice was available. In these circumstances, the Commissioner may allow you more time to make a choice. | Detailed Reasoning - Factors Commissioner considers whether to allow a longer period: In determining whether to allow a longer period, the Commission will consider a range of factors such as: • 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 • 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 • the consequences of the decision | Detailed Reasoning - Application to your circumstances: In this case the company made a choice to apply the small business retirement concession in the 2023 financial year. Paragraph 103-25(1)(b) of the ITAA 1997 allows the Commissioner to grant an extension of time in which to make a choice. However, paragraph 103-25(1)(b) of the ITAA 1997 has no application once a taxpayer has made a choice. The Company made a choice to elect the small business rollover in subdivision 152-E of the ITAA 1997. The Company is not able to change that choice and elect the small business rollover concession in subdivision 152-E of the ITAA 1997. Therefore, the Commissioner will not exercise the discretion set out in paragraph 103-25(1)(b) of the ITAA 1997.