Document ID: chunk:federal_register_of_legislation:C2025C00029:section:12:p28
Version: federal_register_of_legislation:C2025C00029
Segment Type: section
Provision Reference: s 12 (pt 28/34)
Character Range: 5145595–5148426

assets
328‑475 Small business restructures involving assets already subject to small business roll‑over

Object of this Subdivision

328‑425  Object of this Subdivision
  The object of this Subdivision is to facilitate 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.

Requirements for a roll‑over under this Subdivision

328‑430  When a roll‑over is available
 (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:
 (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 would be satisfied in that income year if paragraph 152‑10(1AA)(b) were disregarded; 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.
Note: The roll‑over of a depreciating asset transferred in the restructuring of a small business is addressed in item 8 of the table in subsection 40‑340(1).
 (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.

328‑435  Genuine restructures—safe harbour rule
  For the purposes of paragraph 328‑430(1)(a) (but without limiting that paragraph), a transaction is, or is a