Private ruling: Subdivision 328-G transfer of land - rollover relief
Date of advice: 4 April 2024
Published: 13 May 2024
Ruling period: DD MM YYYY to DD MM YYYY
Date scheme commenced: DD MM YYYY

Ruling: Q1: Does the proposed transfer of land from the individual taxpayers to a new discretionary trust qualify for rollover relief under Subdivision 328-G of the Income Tax Assessment Act 1997 ('ITAA 1997')? | A1: Yes

Relevant facts and circumstances: This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect, and you cannot rely on it. The fact sheet has more information about relying on your private ruling. Background information 1. The taxpayers in this application are taxpayer 1 and taxpayer 2. The taxpayers are spouses. 2. The taxpayers (transferors) are individuals and do not carry on a business individually. 3. The taxpayers own land located in XXX under the following titles: • Title A - taxpayer 1 only (purchased in MM YYYY) • Title B - taxpayer 1 only (purchased in MM YYYY) • Title C - taxpayer 1 only (xx% purchased in MM YYYY and the other xx% transferred to taxpayer 1 in MM YYYY from deceased relative) • Title D - both taxpayers jointly (purchased in MM YYYY) • Title E - both taxpayers jointly (purchased in MM YYYY) 4. The land has all been used in a primary production business since the date of purchase. • From YYYY to YYYY it operated through a discretionary trust. o This trust was established in MM YYYY and has a corporate trustee which was established in MM YYYY o The appointors of the trust are the personal representatives of taxpayer 1's deceased relative o The directors and shareholders of the trustee company are taxpayer 1 and his relative, equally • From YYYY it has operated through a new discretionary trust (current trading trust). o This trust was established in MM YYYY and has a corporate trustee which was also established in MM YYYY o ▪ The appointor of the trust is taxpayer 1 o ▪ The directors and shareholders of the trustee company are the taxpayers (taxpayer 1 and taxpayer 2) jointly 5. The taxpayers are beneficiaries of the trading trust. The trading trust has a family trust election in place with taxpayer 1 being the specified individual. 6. The business carried on by the trading trust is solely for the benefit of the two taxpayers and their family. 7. The business activities of the trading trust are primary production business. 8. The trading trust is financially dependent on the land and the taxpayers are financially dependent on the trust business and act in concert to ensure that the trust is run in such a way as to meet their financial requirements. 9. There is no formal lease in place with the trading trust in respect to the use of the land owned by the taxpayers due to the close intertwined relationship between the land holders and the trading trust. 10. The aggregated turnover for the trading trust is under $xx million for the current and foreseeable future financial years. Proposed restructure 11. The land owned by the taxpayers will be transferred to new discretionary trust(s) (transferee) with a corporate trustee. 12. Under the transaction, taxpayer 1 is disposing of land they own, and both taxpayers 1 and 2 are transferring land they own jointly. 13. The discretionary trust(s) established to hold the land will have a family trust election in place with taxpayer 1 named as the test individual. 14. The taxpayers will be joint appointors of the new discretionary trust(s). The taxpayers and their family will be beneficiaries of the new discretionary trust(s). 15. Both taxpayers will be joint appointors of the new discretionary trust(s) created to hold the farming land being transferred in question and will also be both Director and Shareholder of the trustee company of the new trust(s). 16. Both taxpayers are supported by both their relatives in the trading trust and they are paid a wage, only for their work performed in the business. Final decisions are made by both taxpayers, and they are paid in the form of drawings from the business and have been receiving xx % of any distribution from the trading trust to date. 17. The trustee of the trading trust and the proposed new discretionary trust will be expected to act in accordance with the directions or wishes of the taxpayers. The taxpayers will be the only ones providing directions for the trustee of the trading trust and any new trust. All decisions for the trading trust are made by both taxpayers. 18. All entities party to the restructure are Australian Residents for tax purposes. 19. The land will continue to be used by the trading trust in the carrying on of its business activities. 20. Both the transferor and transferee will choose to apply the roll-over in relation to the assets transferred under the transactions. 21. For CGT purposes, a joint tenancy (between taxpayer 1 and 2) is treated as a tenancy-in-common, meaning that they are each treated as disposing of a separate interest in the jointly held property. Information provided 22. You have provided a number of documents containing detailed information in relation to the taxpayers' private ruling application, including: • Private Binding Ruling ('PBR') Application, dated DD MM YYYY 23. We have referred to the relevant information within these documents in applying the relevant tests to your circumstances.

Relevant legislative provisions: Income Tax Assessment Act 1997 subdivision 328-G | Income Tax Assessment Act 1997 section 152-10 | Income Tax Assessment Act 1997 section 152-40 | Income Tax Assessment Act 1997 section 328-430 | Income Tax Assessment Act 1997 subsection 328-430(1) | Income Tax Assessment Act 1997 paragraph 328-430(1)(a) | Income Tax Assessment Act 1997 paragraph 328-430(1)(b) | Income Tax Assessment Act 1997 paragraph 328-430(1)(c) | Income Tax Assessment Act 1997 paragraph 328-430(1)(d) | Income Tax Assessment Act 1997 paragraph 328-430(1)(e) | Income Tax Assessment Act 1997 paragraph 328-430(1)(f) | Income Tax Assessment Act 1997 subsection 328-430(2) | Income Tax Assessment Act 1997 section 328-435 | Income Tax Assessment Act 1997 section 328-435(a) | Income Tax Assessment Act 1997 section 328-440 | Income Tax Assessment Act 1936 section 272-70 of Schedule 2F

Reasons for decision: Summary: All legislative references are to the Income Tax Assessment Act 1997 ('ITAA 1997') unless otherwise stated. | Detailed Reasoning - Summary:: The proposed transfer of land from the individual taxpayers to a new discretionary trust will qualify for rollover relief under Subdivision 328-G as the facts of the case meet all the conditions as detailed in Subdivision 328-G. | Detailed Reasoning - Detailed reasoning: 24. Subdivision 328-G allows flexibility for owners of small business entities to restructure their businesses and the way their business assets are held while disregarding tax gains and losses that would otherwise arise. 25. There are tax-neutral consequences for a small business entity that restructures the ownership of the assets of the business, without changing the ultimate economic ownership of the assets. | Detailed Reasoning - Requirements for rollover: 26. Section 328-430 discusses when a roll-over is available. There are 6 basic conditions which must be met for the application of the rollover concessions for the 'Restructures of small businesses' which are contained in subsection 328-430(1) . This subsection states that: (1) A roll-over under this Subdivision is available in relation to an asset that, under a transaction, an entity (the transferor) transfers to one or more other entities (transferees) if: a) the transaction is, or is a part of, a genuine restructure of an ongoing business; and b) each party to the transfer is an entity to which any one or more of the following applies: i. it is a small business entity for the income year during which the transfer occurred; ii.it has an affiliate that is a small business entity for that income year; iii.it is connected with an entity that is a small business entity for that income year; iv.it is a partner in a partnership that is a small business entity for that income year; and c) the transaction does not have the effect of materially changing: #160; i. which individual has, or which individuals have, the ultimate economic ownership of the asset; and ii. if there is more than one such individual - each such individual's share of that ultimate economic ownership; and d) the asset is a CGT asset (other than a depreciating asset) that is, at the time the transfer takes effect: i. if subparagraph (b)(i) applies - an active asset; or ii.if subparagraph (b)(ii) or (iii) applies - an active asset in relation to which subsection 152-10(1A) is satisfied in that income year; or iii.if subparagraph (b)(iv) applies - an active asset and an interest in an asset of the partnership referred to in that subparagraph; and e) the transferor and each transferee meet the residency requirement in section 328-445 for an entity; and f) the transferor and each transferee choose to apply a roll-over under this Subdivision in relation to the assets transferred under the transaction. (2) However, a roll-over under this Subdivision is not available if the transferor, or any transferee, is either an exempt entity or a complying superannuation entity. 27. Subsection 328-430(2) does not apply in this matter, as the parties to the proposed transactions are not either an exempt entity or a complying superannuation entity. | Detailed Reasoning - Genuine Restructure of an ongoing business - Paragraph 328-430(1)(a): 28. 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. 29. The Law Companion Ruling LCR 2016/3 Small Business Restructure Roll-over: genuine restructure of an ongoing business and related matters provides further guidance of the Commissioner's view on whether a transaction will be part of a 'genuine restructure of an ongoing business'. 30. 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 Small Business Rollover Relief ('SBRR') is not available to small business owners who are restructuring in the course of winding down or realising their ownership interests. 31. Paragraph 7 of LCR 2016/3 outlines the following features that the Commissioner accepts will indicate that a transaction is, or is part of, a genuine restructure of an ongoing business: • 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. 32. However, the Commissioner's view is that the restructure of an ongoing business by a business owner is not genuine if it is done in the course of winding down to transfer wealth between generations or realising their ownership interests. In the Commissioner's view, a restructure is likely to not be a genuine restructure of an ongoing business if: • 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. | Detailed Reasoning - Small business or related entity - Paragraph 328-430(1)(b): 33. Paragraph 328-430(1)(b) requires both the transferor and the transferee to be one or more of the following entities in the income year the transaction occurs: (i) a small business entity (ii) an affiliate of a small business entity (iii) connected with a small business entity, and (iv) a partner in a partnership that is a small business entity 34. Paragraph 328-430(1)(b) states that an entity is 'connected with' another entity pursuant to paragraph 328-125(1)(a) if either entity 'controls the other' in a way described in section 328-125. 35. Relevantly, subparagraph 328-125(2)(a)(ii) states that an entity controls a partnership if the entity, its affiliates, or the entity together with its affiliates, own interests in the partnership that carry between them the right to receive a percentage that is at least 40% of the net income of the partnership. 36. An entity is 'connected with' another entity pursuant to paragraph 328-125(1)(b) if both entities are controlled in a way described in section 328-125 by the same third entity. Therefore, a discretionary trust to which the Land will be transferred will be connected with the partnership if, like the partnership, the discretionary trust is controlled in a way described in section 328-125 by the taxpayers. 37. Relevantly, subsection 328-125(3) states that an entity controls a discretionary trust if a trustee of the trust acts, or could reasonably be expected to act, in accordance with the direction or wishes of the entity, its affiliates, or the entity together with its affiliates. | Detailed Reasoning - Ultimate economic ownership - Paragraph 328-430(1)(c): 38. Paragraph 328-430(1)(c) requires the transaction to not have the effect of materially changing which individual has, or which individuals have, the ultimate economic ownership of the assets. Additionally, where more than one individual holds the ultimate economic ownership of the asset, each individual's share of that ownership must not materially change. 39. The phrase 'ultimate economic ownership' is not defined in the ITAA 1997. 40. The Macquarie Dictionary defines: • 'ultimate' as 'forming the final aim or object' or being the 'last, as in a series', • 'economic' as 'relating to the production, distribution, and use of income and wealth', and • 'ownership' as 'the state or fact of being an owner' or the 'legal right of possession; proprietorship'. 41. Further, extrinsic material can be consulted to resolve ambiguity or confirm the ordinary meaning conveyed by the text of the provision: pursuant to section 15AB of the Acts Interpretation Act 1901 (AIA). 42. Guidance on the meaning of the term can be found in the Explanatory Memorandum ('the EM') to the Tax Laws Amendment (Small Business Restructure Roll-over) Bill 2016 , which introduced the provisions. The EM states: 1.29 The ultimate economic owners of an asset are the individuals who, directly or indirectly, beneficially own an asset. 1.30 Ultimate economic ownership of an asset can only be held by natural persons. Therefore, where a company, partnership or trust owns an asset it will be the natural person owners of the interests in these interposed entities that will ultimately benefit economically from that asset. 43. The EM further provides that for the purposes of subparagraph 328-430(1)(c)(ii) , an individual's share of the ultimate economic ownership of an asset being 'materially unchanged' means that they have the same proportion of ultimate economic ownership before and after the transaction. In other words, that an individual's share of ultimate economic ownership of an asset is ascertainable. Paragraph 1.31 states: 1.31 If there is more than one individual who is an ultimate economic owner of an asset, there is an additional requirement that each of those individuals' shares of that ultimate economic ownership be materially unchanged, maintaining the same proportionate ownership in the asset. [Schedule 1, item 1, subparagraph 328-430(1)(c)(ii)] | Detailed Reasoning - Ultimate economic ownership - discretionary trusts: 44. 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. A beneficiary of a discretionary trust only has a right to require the trustee to consider whether or not to exercise their discretion. Instead, a beneficiary of a discretionary trust generally has a 'mere expectancy' in the income or capital of a trust and does not have an interest in possession. Given this, the portion of the share of the ultimate economic ownership of an asset held by a beneficiary of a discretionary trust is impossible to specify. 45. The requirement under paragraph 328-430(1)(c) would generally not be able to be satisfied by discretionary trusts, however, section 328-440 contains an alternative ultimate economic ownership test for discretionary trusts. 46. Section 328-440 states that for the purposes of paragraph 328-430(1)(c) of ITAA 1997, a transaction does not have the effect of changing the ultimate economic ownership of an asset, or any individual's share of that ultimate economic ownership if the requirements in that section are satisfied. 47. Section 328-440 provides that: 328-440 Ultimate economic ownership - 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, or any individual ' s share of that ultimate economic ownership, 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. | Detailed Reasoning - Eligible CGT assets - Paragraph 328-430(1)(d): 48. Section 328-430(1)(d)(ii) of the ITAA is met if the CGT asset at the time the transfer takes effect is an active asset in relation to which subsection 152-10(1A) is satisfied in that income year. 49. Section 152-10(1A) is satisfied in relation to the CGT 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. | Detailed Reasoning - Residency requirement - Paragraph 328-430(1)(e): 50. Subparagraph 328-430(1)(e) requires that each party to the transfer meets a residency requirement in section 328-445 for an entity. | Detailed Reasoning - Choice to apply rollover - Paragraph 328-430(1)(f): 51. Section 328-430(1)(f) requires the transferor and each transferee to choose to apply a rollover under this Subdivision in relation to the assets transferred under the transaction. | Detailed Reasoning - Genuine Restructure of an ongoing business - Paragraph 328-430(1)(a): 52. The transaction relevant to the taxpayers under the proposed arrangement in relation to its eligibility for rollover in Subdivision 328-G is the transfer of the farming land from the taxpayers to the new discretionary trust(s) with a corporate trustee. 53. The transfer will be expected to deliver benefits to the small business owners (the taxpayers). The benefits expected to result are as follows: • Increased asset protection. The restructure is a response to their business needs and creates additional layers of protection for the core assets, being land, which has appreciated considerably in value and could be at risk should any legal action be taken. The taxpayers' business is primary production and that comes with significant risks in today's increasing litigious environment and is at a heightened risk due to potential for fires to be ignited through operational practices. • Potentially enable additional options with financiers to be negotiated over longer or better terms than that available to the individual, which will assist in growth of the business. 54. The transaction is for the purposes of transferring the farming land into the new discretionary trust, whereby the taxpayers and their family will be beneficiaries of the new discretionary trust(s). 55. The discretionary trust(s) established to hold the land will have a family trust election in place with taxpayer 1 (transferor) named as the test individual. 56. The land will continue to be used by the trading trust in the carrying on of its business activities. 57. The taxpayers are not in the course of winding down or realising their ownership interest with the current trading position to be maintained and built upon. The taxpayers will be appointors of the newly established discretionary trust(s). The newly established discretionary trust(s) would also have the same specified individual in the family trust election (taxpayer 1). 58. As the taxpayers will continue to operate the business, but through a different legal structure, Paragraph 328-430(1)(a) is satisfied. | Detailed Reasoning - Small business or related entity - Paragraph 328-430(1)(b): 59. Subsection 328-125(3) states that an entity controls a discretionary trust if a 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. 60. In this matter, the taxpayers are connected to the trading trust. They control the trust as the trustee either acts, or might reasonably be expected to act, in accordance with the directions or wishes of the taxpayers. The taxpayers also own the farmland which the trust uses to carry out its primary production business. 61. The taxpayers currently provide the land to the trading trust to utilise to produce primary production income and without that land the trading trust would not have the capacity or resources required to trade as efficiently as they do (the trading trust is reliant upon the use of that land to trade efficiently). 62. The taxpayers are equal shareholders in the corporate trustee of the trading trust. Taxpayer 1 is an appointor of the trading trust. The taxpayers are beneficiaries of the trading trust. 63. The taxpayers are considered the 'public faces' of the trading trusts business and the trading trust operates in accordance with the taxpayers wishes and the taxpayers and their direct family have benefited from the trading trust. 64. Although a trustee company will be appointed as the trustee of the respective transferee trust(s), the following will apply: • The taxpayers will be equal shareholders in the corporate trustee of the respective transferee(s) • The taxpayers will all be appointors of the land holding trust(s) • Taxpayer 1 will continue to be the appointor of the trading trust • The taxpayers are primary beneficiaries of the trading trust and will also be primary beneficiaries of the transferee trust(s) • The taxpayers are considered the 'public faces' of the trading trust's business and the trading trust operates in accordance with the taxpayers wishes • The taxpayers and their direct family have benefited from the trading trust 65. All decisions for the trading trust are made by both taxpayers. They have been receiving xx % of any distribution from the trading trust to date. 66. The taxpayers will be joint appointors of the new trust(s) created to hold the farming land being transferred in question and will also be both Director and Shareholder of the trustee company of the new trust(s). They will be the only ones providing directions for the trustee of the trading trust and any new trust. 67. This supports the conclusion that each trustee acts, or could reasonably be expected to act, in accordance with the directions or wishes of the taxpayers. As each individual controls the trading trust and will control any new trust(s), the trust entities are connected as they are both controlled by each individual per the test in paragraph 328-125(1)(b). 68. From this, we can conclude that 328-430(1)(b)(iii) is satisfied, as each transferor and transferee are connected with the trading trust. (Note the trading trust is a small business entity for the subsection 152-10(1A) requirements as turnover is under $xx M and this is the effect of disregarding paragraph 152-10(1AA)(b)). 69. For section 328-440 to apply, the assets must be included in the property of a family trust either just before the transaction or just after it. In addition to this, 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 and every individual who, just after the transfer takes effect, has the ultimate economic ownership of the asset is a member of that family group. 70. The taxpayers are currently the ultimate economic owners of the assets. The proposal requires the transfer of the assets to a discretionary trust(s). The proposal would not meet the normal ultimate economic ownership test in paragraph 328-430(1)(c) as the taxpayers who currently have the ultimate economic ownership in the business asset will not after the restructure have ultimate economic ownership, as this would rest with the beneficiaries of the discretionary trust. 71. Therefore, the proposed restructure would need to meet the alternative ultimate economic ownership test provided by section 328-440 in order for the restructure to be available. 72. In this matter, a family trust election will be in place just after for the respective trusts with taxpayer 1 as the specified primary individual. Therefore, just after the transaction takes effect, the land will be included in the property of the new discretionary trust that is a family trust. 73. After the transfer takes effect, the land will be included as an asset of a family trust (paragraph 328-440(a)(ii) is satisfied), before the transfer the taxpayers own the assets and were members of a family group (subsection 328-440(b) is satisfied). After the transfer, the beneficiaries of the new trust(s) will be members of that family group (subsection 328-440(c) is satisfied). 74. This means that paragraph 328-430(1)(c) is satisfied as the transfer does not have the effect of changing the ultimate economic ownership of an asset, or any individual's share of that ultimate economic ownership. | Detailed Reasoning - Eligible CGT assets - Paragraph 328-430(1)(d): 75. As noted above subparagraph 328-430(1)(b)(iii) applies, paragraph 328-430(1)(d)(ii) of the ITAA will be satisfied if the CGT asset at the time the transfer takes effect is an active asset in relation to which subsection 152-10(1A) is satisfied in that income year. 76. Section 152-10(1A) is satisfied in relation to the CGT 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. 77. In this matter, the taxpayers are connected to the discretionary trust which is a small business entity for the income year. The taxpayers do not carry on a business in partnership. The entity referred to in paragraph 152-10(1A)(a) is the entity that, at the time in the income year, carries on the business. Consequently, the CGT asset at the time the transfer takes effect is an active asset in relation to which subsection 152-10(1A) is satisfied. Subparagraph 328-430(1)(d)(ii) is therefore satisfied. | Detailed Reasoning - Residency requirement - Paragraph 328-430(1)(e): 78. Subparagraph 328-430(1)(e) requires that each party to the transfer meets a residency requirement in section 328-445 for an entity. 79. In this matter, the taxpayers and the trust(s) are both Australian residents for tax purposes, therefore this condition is satisfied. | Detailed Reasoning - Choice to apply rollover - Paragraph 328-430(1)(f): 80. Section 328-430(1)(f) requires the transferor and each transferee to choose to apply a rollover under this Subdivision in relation to the assets transferred under the transaction. 81. This condition will be met as the taxpayers and the trust(s) will choose to apply the roll over. Subsection 328-430(2) is also satisfied as no party to the transfer is an exempt entity or complying superannuation entity. 82. In this case, the Commissioner has found that the transfer of the land to the new discretionary trust(s) is not restructuring in the course of winding down or realising its ownership interests. It is also evident that the restructure is not an artificial or inappropriately tax-driven scheme. It is considered that the proposed restructure meets the requirements of section 328-430 . | Detailed Reasoning - Conclusion: The proposed transfer of land from the individual taxpayers to a new discretionary trust will qualify for rollover relief under Subdivision 328-G as the facts of the case meet all the conditions as detailed in Subdivision 328-G.