CHAPTER 3
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SPECIALIST LIABILITY RULES
PART 3-45
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RULES FOR PARTICULAR INDUSTRIES AND OCCUPATIONS
Division 328
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Small business entities
History
Div 328 (heading) substituted by
No 80 of 2007
, s 3 and Sch 3 item 1, applicable in relation to the 2007-08 income year and later income years. The heading formerly read:
Division 328
-
STS taxpayers
Div 328 inserted by No 78 of 2001.
Subdivision 328-G
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Restructures of small businesses
History
Subdiv 328-G inserted by No 18 of 2016, s 3 and Sch 1 item 1, applicable to:
(a) the transfer of a depreciating asset if the balancing adjustment event arising from the transfer occurs on or after 1 July 2016; or
(b) the transfer of trading stock or a revenue asset if the transfer occurs on or after 1 July 2016; or
(c) the transfer of a CGT asset (other than a depreciating asset, trading stock or a revenue asset) if the CGT event arising from the transfer occurs on or after 1 July 2016.
Former Subdiv 328-G repealed by No 80 of 2007, s 3 and Sch 3 item 86, applicable in relation to the 2007-08 income year and later income years. Subdiv 328-G formerly read:
Subdivision 328-G
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Entering and leaving the STS
SECTION 328-430 What this Subdivision is about
Eligible taxpayers have a choice as to whether to enter the STS.
The rules for entering and leaving the STS are set out in this Subdivision.
Operative provisions
SECTION 328-435 Entering the STS
328-435
You are an
STS taxpayer
for an income year if:
(a)
you are eligible to be an *STS taxpayer for that year (see Subdivision 328-F); and
(b)
you notify the Commissioner, in the *approved form, of your choice to become such a taxpayer for that year.
SECTION 328-440 Leaving the STS
328-440(1)
You continue to be an
STS taxpayer
for each later income year unless:
(a)
you notify the Commissioner, in the
*
approved form, of your choice to stop being an STS taxpayer; or
(b)
you are not eligible to be an STS taxpayer for that later year (see Subdivision 328-F).
328-440(2)
If you are not eligible to be an STS taxpayer for that later year, you must notify the Commissioner, in the *approved form, of that fact.
Restriction on re-entry
328-440(3)
If you
choose
to stop being an *STS taxpayer, you cannot again become an STS taxpayer until at least 5 years after the income year that you left the STS.
Note:
If you stop being an STS taxpayer because of increased turnover or because of the value of your depreciating assets, you can become an STS taxpayer for an income year again as soon as you are eligible.
Former Subdiv 328-G inserted by No 78 of 2001.
Commissioner
'
s Remedial Power
Note:
A Commissioner
'
s Remedial Power (CRP 2017/2) is relevant to this part of the tax law. Taxation Administration (Remedial Power
-
Small Business Restructure Roll-over) Determination 2017 (F2017L01687) modifies the operation of s
40-340
of the
Income Tax Assessment Act 1997
and any other provisions of a taxation law whose operation is affected by the modified operation of s
40-340
in relation to an asset transferred under a small business restructure roll-over (item 8 of the table in s
40-340(1)
).
The operation of the relevant provisions is modified as follows:
If s
40-340
of ITAA 1997 provides for roll-over relief in relation to a disposal of a depreciating asset because the condition in item 8 of the table in s
40-340(1)
of ITAA 1997 is satisfied in relation to the asset, that section has effect as if it also provided that the disposal of the asset has no direct consequences under the income tax law (other than Div
40
of ITAA 1997).
The modification applies in respect of transfers on or after 8 May 2018.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s
370-5
of Sch
1
to the
Taxation Administration Act 1953
to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
Consequences of a roll-over under this Subdivision
SECTION 328-455
Effect of small business restructures on transferred cost of assets
328-455(1)
The *income tax law applies to an entity in relation to the transfer of an asset by the entity, or to the entity, as if the transfer takes place for the asset
'
s *roll-over cost if:
(a)
the transfer occurs under a transaction in relation to which section
328-430
applies; and
(b)
a roll-over under this Subdivision is available under that section in relation to the asset.
328-455(2)
The asset
'
s
roll-over cost
is whichever of the following amounts is applicable in relation to the transfer:
(a)
in relation to the application of subsection (1) to the asset as a *CGT asset (other than *trading stock, a *revenue asset or a *depreciating asset)
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the transferor
'
s *cost base for the asset just before the transfer takes effect;
(b)
in relation to the application of subsection (1) to the asset as trading stock
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the amount equal to:
(i)
the *cost of the item for the transferor; or
(ii)
if the transferor held the item as trading stock at the start of the income year
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the *value of the item for the transferor then;
(c)
in relation to the application of subsection (1) to the asset as a revenue asset
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the amount that would give rise to the transferor not making a profit or a loss on the transfer.
History
S 328-455 inserted by No 18 of 2016, s 3 and Sch 1 item 1, applicable to:
(a) the transfer of a depreciating asset if the balancing adjustment event arising from the transfer occurs on or after 1 July 2016; or
(b) the transfer of trading stock or a revenue asset if the transfer occurs on or after 1 July 2016; or
(c) the transfer of a CGT asset (other than a depreciating asset, trading stock or a revenue asset) if the CGT event arising from the transfer occurs on or after 1 July 2016.
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