Income Tax (Transitional Provisions) Act 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-25 - PARTICULAR KINDS OF TRUSTS  

Division 275 - Australian managed investment trusts  

Subdivision 275-A - Choice for capital treatment of MIT gains and losses  

SECTION 275-10   Consequences of making choice - Commissioner cannot make certain amendments to previous assessments  

275-10(1)    
This section applies if:

(a) the trustee of a managed investment trust makes a choice under section 275-115 of the Income Tax Assessment Act 1997 covering the trust that is in force for the 2008-09 income year; and

(b) the Commissioner made an assessment (the previous assessment ) for a previous income year for any of the following entities:

(i) the trustee of the managed investment trust;

(ii) a beneficiary of the managed investment trust;

(iii) an entity that holds interests in the managed investment trust indirectly, through a chain of trusts; and

(c) the previous assessment was made on the basis that:

(i) a CGT event happened at a time involving a CGT asset that was owned by the managed investment trust; and

(ii) a gain or loss was realised for income tax purposes because of the circumstances that gave rise to the CGT event; and

(d) the previous assessment was also made on the basis that:

(i) the gain or loss should be reflected in the net income of the managed investment trust for that previous income year; or

(ii) the gain or loss should be reflected in a tax loss or net capital loss of the managed investment trust for that previous income year; and

(e) the previous assessment was also made on one of these bases:

(i) the CGT asset was a revenue asset;

(ii) the CGT asset was not a revenue asset; and

(f) none of the provisions mentioned in subsection 275-100(2) of the Income Tax Assessment Act 1997 would have applied at the time of the CGT event in relation to the asset, if these assumptions were made:

(i) Subdivision 275-B of the Income Tax Assessment Act 1997 (and any other provision of that Act or of the Income Tax Assessment Act 1936 , to the extent that it relates to that Subdivision) had applied in relation to the CGT event;

(ii) a choice under section 275-115 of the Income Tax Assessment Act 1997 covering the entity for which the assessment was made was in force for the previous income year.

275-10(2)    
The Commissioner cannot amend the previous assessment on the basis that:

(a) if subparagraph (1)(e)(i) applies - the CGT asset should not have been treated as a revenue asset; or

(b) if subparagraph (1)(e)(ii) applies - the CGT asset should have been treated as a revenue asset.

275-10(3)    
Subsection (2) applies despite any other provision of this Act (apart from subsection (4) of this section), the Income Tax Assessment Act 1997 and the Income Tax Assessment Act 1936 .

275-10(4)    
Subsection (2) does not apply in any of these cases:

(a) if the entity for which the assessment was made gives the Commissioner a written consent to the amendment;

(b) if the Commissioner may amend the assessment in accordance with item 5 (fraud or evasion) or 6 (review or appeal) of the table in subsection 170(1) of the Income Tax Assessment Act 1936 ;

(c) if the amendment is made for the purpose of giving effect to a provision specified in the regulations for the purposes of this paragraph.