Document ID: chunk:federal_register_of_legislation:C2016A00018:clause:1_1:p2
Version: federal_register_of_legislation:C2016A00018
Segment Type: clause
Provision Reference: sch 1 cl 1 (pt 2/5)
Character Range: 4857–7689

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.
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 part of, a genuine restructure of an ongoing *business if, in the 3 year period after the transaction takes effect:
 (a) there is no change in ultimate economic ownership of any of the significant assets of the business (other than *trading stock) that were transferred under the transaction; and
 (b) those significant assets continue to be *active assets; and
 (c) there is no significant or material use of those significant assets for private purposes.

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.

328‑445  Residency requirement
  For the purposes of paragraph 328‑430(1)(e), the residency requirement for an entity is that:
 (a) if the entity is an individual or a company—the entity is an Australian resident; or
 (b) if the