Private ruling: The Commissioner's discretion and non-commercial business losses
Date of advice: 15 July 2015
Published: July 2015
Ruling period: Year ended 30 June 20YY
Date scheme commenced: 1 July 20WW

Ruling: Q1: Will the Commissioner exercise the discretion in paragraph 35-55(1)(b) of the Income Tax Assessment Act 1997 (ITAA 1997) to allow you to include any losses from your activity in your calculation of taxable income for the 20XX-YY financial year? | A1: No.

Relevant facts and circumstances: You satisfy the <$250,000 income requirement set out in subsection 35-10(2E) of the ITAA 1997. You carry on an activity through a partnership structure, and made a loss during the 20XX-YY financial year. You state that you commenced activity on 1 July 20WW. Since commencement the activity has incurred expenses. The activity did not earn income during the first year of trading, and earned a small amount in the following financial year. You have a small number of clients that you trade with through the activity. However you hope to build on that number in future financial years. Whilst you do not think you will pass the $20,000 assessable income test during the 20YY-ZZ financial year, you do think that the activity will make a profit. You state you did not reach $20,000 in 20WW-XX and 20XX-YY financial years due to the following reasons: n the activity is new n you relied on word of mouth to advertise the activity which has not worked as you hoped it would n you are both employed full-time and only carry out with the activity in your spare time n after commencing the activity, competing businesses have opened up in your region. You don't think that there is enough business to sustain that many businesses, therefore you plan to "ride it out" and hope that one or some fail and your activity will pick up more clients, and n you are currently building up your client base. Your other income for non-commercial loss purposes was more than $40,000 but less than $250,000 for the 20XX-YY financial year.

Relevant legislative provisions: Income Tax Assessment Act 1997 Subsection 35-10(1) | Income Tax Assessment Act 1997 Subsection 35-10(2) | Income Tax Assessment Act 1997 Subsection 35-10(2E) | Income Tax Assessment Act 1997 Paragraph 35-55(1)(b)

Reasons for decision: Summary: For the 2009-10 and later financial years, Division 35 of the ITAA 1997 will apply to defer a non-commercial loss from a business activity unless: n you satisfy the income requirement and you pass one of the four tests, n the exceptions apply, or n the Commissioner exercises the discretion. In your situation, none of the exceptions would apply and although you satisfy the income requirement, you do not meet any of the four tests in the years of income under consideration. Your losses are therefore subject to the deferral rule, unless the Commissioner exercises his discretion. The relevant discretion may be exercised for the financial year in question where: n it is in the nature of the business activity that there will be a period of time before it can be expected to pass one of the four tests n there is an objective expectation your business activity will produce a tax profit or meet one of the four tests within a commercially viable period for your industry. The note to section 35-55 of the ITAA 1997 which contains the discretion states this discretion is intended to cover a business activity where there is an inherent period of time between the commencement of the activity and the production of assessable income. For example, an activity involving the planting of hardwood trees for harvest, where many years would pass before the activity could reasonably be expected to produce income. For the discretion to be applied there needs to be an inherent or innate feature of the activity resulting in an inability to produce income in the year of commencement and (in most cases) a number of years thereafter. Further examples that fall into this category are forestry, viticulture and certain horticultural activities. The note does not support any view that the discretion should be exercised for any start-up activity that is yet, for example, to satisfy the assessable income test in section 35-30 of the ITAA 1997, simply because of the small scale on which it was started, because of the number of competing businesses in your area or because a client base is being built up. We do not consider that there is a lead time between the commencement of your activity and the production of any assessable income. Your activity would be able to generate income from professional fees in your first financial year in operation. Therefore we do not consider that there is anything inherent or innate in the nature of your activity that it has not yet been able to satisfy one of the tests. Your activity is of a type that is able to produce assessable income quite soon after its commencement, as the services performed from your activity during the 20XX-YY financial year have demonstrated. Therefore the Commissioner cannot exercise the discretion to allow you to include any losses from your activity in your calculation of taxable income for the 20XX-YY financial year.