Private ruling: CGT - replacement asset
Date of advice: 16 November 2022
Published: 16 January 2023
Ruling period: Year ending 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Will the Commissioner exercise his discretion under paragraph 124-75(3)(b) of the Income Tax Assessment Act 1997 (ITAA 1997) to allow an extension of time until 30 June 20YY for you to incur expenditure in acquiring a replacement CGT asset that meets the conditions to claim roll-over under Subdivision 124-B of the ITAA 1997 ? | A1: Yes.

Relevant facts and circumstances: This private ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are different from these facts, this private ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling. An authority of a State compulsorily acquired the Property. There has been a dispute over the quantum of the compensation for approximately a year since the compulsory acquisition. You recently received the compensation and there is a short period before time the end of the income year by which you should incur expenditure to acquire a replacement property.

Relevant legislative provisions: Income Tax Assessment Act 1997 subsection 104-10(6) | Income Tax Assessment Act 1997 section 124-70 | Income Tax Assessment Act 1997 section 124-75

Reasons for decision: Summary: All references made in these reasons for decision are to the Income Tax Assessment Act 1997 (ITAA 1997)unless otherwise stated. The Commissioner will exercise his discretion under paragraph 124-75(3)(b) to allow an extension of time until 30 June 20YY for you to incur expenditure in acquiring a replacement CGT asset that meets the conditions to claim roll-over under Subdivision 124-B. | Detailed Reasoning - Detailed reasoning: Subsection 124-70(1) state, an entity can choose a roll-over if the CGT asset that the entity owns is compulsorily acquired by an Australian government agency. Subsection 124-70(2) states that to be eligible for a roll-over, the entity must receive money or another CGT asset (except a car, motorcycle, or similar vehicle) or both as compensation for the event happening. Subsection 995-1(1) defines an Australian government agency to mean the Commonwealth, a State or a Territory, or an authority of the Commonwealth or of a State or Territory. The Property was compulsorily acquired by an authority of a State, and you received money as compensation for the CGT event A1 happening. You were an Australian tax resident just before the compulsory acquisition, therefore subsection 124-70(3) does not apply. You can choose a roll-over in relation to the capital gain, provided other requirements as stated in section 124-75 are met. Subsection 124-75(1) states: If you receive money for the event happening, you can choose to obtain a roll-over only if these other requirements are satisfied. Subsection 124-75(2) states: You must: (a) incur expenditure in acquiring another CGT asset (except a depreciating asset whose decline in value is worked out under Division 40 or deductions for which are calculated under Division 328) or. (b) if part of the original asset is lost or destroyed - incur expenditure of a capital nature in repairing or restoring it. Subsection 124-75(3) states: At least some of the expenditure must be incurred: (a) no earlier than one year, or within such further time as the Commissioner allows in special circumstances, before the event happens; or (b) no later than one year, or within such further time as the Commissioner allows in special circumstances, after the end of the income year in which the event happens. The relevant provision for you is paragraph 124-75(2)(a) whereby you are required to incur expenditure to acquire another CGT asset to obtain the roll-over. Subsection 124-75(3) requires you to incur some of the expenditure either one year before or one year after the end of the income year in which the event happens or within such further time as the Commissioner allows in special circumstances. The time of the CGT event A1 is determined by subsection 104-10(6): If the asset was acquired from you by an entity under a power of compulsory acquisition conferred by an Australian law or a *oreign law, the time of the event is the earliest of: (a) when you received compensation from the entity; or (b) when the entity became the asset ' s owner; or (c) when the entity entered it under that power; or (d) when the entity took possession under that power. The authority of a State compulsorily acquired the Property, and you did not receive compensation due to a dispute that took time to settle. The time of the event under subsection 104-10(6) is therefore the date the Property was compulsorily acquired. You did not acquire a replacement asset prior to the disposal of the Property therefore to satisfy subsection 124-75(3), you must incur at least some of the expenditure in acquiring another CGT asset no later than 30 June 20XX, (being one year after the end of the income year in which the event happened), or within such further time as the Commissioner allows in special circumstances (paragraph 124-75(3)(b)). There are no legislative provisions which provide guidance as to what may constitute special circumstances for the purposes of subsection 124-75(3). The matter depends on the facts of each case. Taxation Determination TD 2000/40 Income tax - capital gains - what are 'special circumstances' for the purposes of subsection 124-75(3) of the Income Tax Assessment Act 1997? (TD 2000/40) explains that the expression special circumstances in the context of subsection 124-75(3) by its nature is incapable of a precise or exhaustive definition. Some examples of special circumstances are provided under the tax determination. Examples 1 and 3 of TD 2000/40 are relevant to your circumstances. There were delays caused by the dispute over the quantum of the compensation and there is only a short period within which to incur at least some of the expenditure to acquire another CGT asset. We have also considered other facts of your situation. Your situation falls within scope of what would be considered special circumstances therefore the Commissioner will exercise his discretion under paragraph 124-75(3)(b) to allow an extension of time until 30 June 20YY for you to incur some of the expenditure to acquire a replacement CGT asset.