Document ID: chunk:federal_register_of_legislation:C2025C00029:section:3:p29
Version: federal_register_of_legislation:C2025C00029
Segment Type: section
Provision Reference: s 3 (pt 29/35)
Character Range: 3281075–3283672

is usually worked out under section 102‑5.
 (2) However, the Commissioner cannot *disallow the *excluded loss if, in determining (under section 165‑96) whether Subdivision 165‑A would prevent the company from deducting the loss (or the part of the loss) for the income year if the loss were a *tax loss of the company for that earlier income year, the company:
 (a) would fail to meet a condition in section 165‑12 (which is about the company maintaining the same owners) in respect of the income year; but
 (b) would meet the condition in section 165‑13 in respect of the income year by satisfying the *business continuity test under section 165‑210.
Note: Subdivision 165‑A deals with the deductibility of a company's tax loss for an earlier income year if there has been a change in the ownership or control of the company in the period from the start of the loss year to the end of the income year.

175‑45  First case: capital gain injected into company because of available net capital loss
 (1) The Commissioner may *disallow the *excluded loss if, during the income year, the company made a *capital gain some or all of which (the injected capital gain) it would not have made if the excluded loss had not been available to be applied in working out the company's *net capital gain for the income year (or for some other income year).
 (2) However, the Commissioner cannot *disallow the *excluded loss if the *continuing shareholders will benefit from the making of the injected capital gain to an extent that the Commissioner thinks fair and reasonable having regard to their respective rights and interests in the company.
Note: Section 175‑100 allows the Commissioner to disallow an excluded loss of an insolvent company.
 (3) The continuing shareholders are:
 (a) all of the persons who had *more than 50% of the voting power in the company during the whole (or the relevant part) of the earlier income year and during the whole of the income year; and
 (b) all of the persons who had rights to *more than 50% of the company's dividends during the whole (or the relevant part) of the earlier income year and during the whole of the income year; and
 (c) all of the persons who had rights to *more than 50% of the company's capital distributions during the whole (or the relevant part) of the earlier income year and during the whole of the income year.
To find out who they were, apply whichever tests are applied in order to determine (under section 165‑96) whether Subdivision 165‑A would prevent the company from deducting the loss for the current year if it were a *tax loss of the