Edited version of private advice

Authorisation Number: 1051800443831

Date of advice: 02 February 2021

Ruling

Subject: Agistment activities and capital gains tax

Question 1

Are you carrying on a business for the 2018-19 income year?

Answer

No.

Question 2

Do each of the titles included in the sale satisfy the active asset test?

Answer

No, none of the titles satisfy the active asset test.

Question 3

Have you held Lot 2 for at least 15 years for the purpose of Subdivision 152-B of the Income Tax Assessment Act 1997?

Answer

Yes.

Question 4

Have you held Lot 1 for at least 15 years for the purpose of Subdivision 152-B of the Income Tax Assessment Act 1997?

Answer

Yes.

This ruling applies for the following period

Year ended 30 June 2019

The scheme commenced on

1 July 2018

Relevant facts

You owned a property which you sold in xxxx for $xxxx. The contract of sale was entered into on xxxx and completion occurred on xxxx.

The sale assets included the property, water licences and listed equipment.

You acquired the original property in xxxx which consisted of a number of separate titles.

At the time of the sale in xxxx, all the titles were sold.

The original freehold interests have been held for at least 15 years.

The original leasehold interest were each held for less than 15 years.

The combined area of the titles at the time of sale was approximately xxxx hectares (with a carrying capacity of approximately xxxx head [adult equivalent]). The property was used for various activities during the period of your ownership, including:

(a) conducting your own farming operations;

(b) being leased to third parties; and

(c) managed agistment of animals.

The different activities that have been conducted for the given periods of time.

During the period that the managed agistment activities were undertaken there have been a number of agistment agreements entered into. These included the following;

(i) entity A for up to a maximum of xxxx from xxxx to xxxx. The agistment fee was paid on the basis of an amount per head. Your obligations included:

(A) regular inspections of livestock;

(B) yarding livestock;

(C) administering drenches, supplements and vaccines where required.

(ii) entiy B for up to xxxx head. The Agreement was signed on xxxx. The agistment fee was paid on the basis of an amount per head. Your obligations included:

(A) maintaining the fences and stock watering facilities;

(B) daily inspection of stock;

(C) dispensing supplement to the stock;

(D) supplying a full-time employee; and

(E) maintaining lantana control over the pastures.

(iii) entity C for approximately xxxx head from xxxx to xxxx. The agistment fee was paid on the basis of an amount per head. Your obligations included:

(A) securing the stock including maintaining fencing;

(B) providing and maintaining water;

(C) supplying a full-time employee;

(D) maintaining lantana control over the pastures;

(E) completing documentation in relation to the stock (including National Vendor Declaration Forms);

(F) updating the stock owner in relation to any deaths, injury or illnesses of the stock;

(G) dispensing supplement to the stock; and

(H) treating stock with veterinary products to combat ticks, worm and buffalo fly.

(iv) entity D for up to xxxx head from xxxx for x years. The agistment fee was paid on the basis of an amount per head. Your obligations included:

(A) mustering of stock;

(B) engaging employees to perform obligations;

(C) management of the land;

(D) dispensing supplement to the stock; and

(E) overseeing the wellbeing of the livestock.

(v) entity E for up to xxxx head from xxxx for x years. The agisted area included parts of Lot 1. The agistment fee was paid on the basis of an amount per head. Your obligations included:

(A) management of the land;

(B) engaging a full-time employee;

(C) dispensing supplement to the stock; and

(D) overseeing the wellbeing of the livestock.

(vi) entity F for up to xxxx head from xxxx to xxxx. The agistment fee was paid on the basis of an amount per head. Your obligations included:

(A) providing access to XXX Grazing Module;

(B) mustering;

(C) engaging a full-time employee;

(D) dispensing supplement to the stock; and

(E) monitoring stock and overseeing the wellbeing of the livestock.

(vii) entity G for up to xxxx head from xxxx for x years. The agistment fee was paid on the basis of an amount per head. Your obligations included:

(A) management of the land;

(B) providing access to XXX Grazing Module;

(C) mustering;

(D) engaging a full-time employee

(E) dispensing supplement to the stock; and

(F) monitoring stock and overseeing the wellbeing of the livestock.

(viii) The agreement with entity G was still in place at the time of the settlement of the sale together with three verbal agreements for managed agistments.

Although the fees were paid on a flat rate per head, the rate paid reflected the involvement required from you and your employees.

You would be at the property most weeks.

The vaccination of stock depends on the animals' welfare. Baby animals born on the property are vaccinated at the time of weaning. Young animals bought and transported to the property by the stockowner (which could happen on any week in the month, market dependant) were all inducted by you and your staff which required vaccination for botulism (a fatal disease commonly found on coastal properties).

The stock were mustered approximately every two to three months on average but seasonally dependant. At each muster you and your staff attended to the husbandry of the animals as required. This would involve checking on the general welfare and condition of the animals, weaning, branding, de-horning, applying pour-on tickicide, worming, weighing and recording, applying NLIS tags, receiving stock from road transport and sorting stock for transport out to market.

Supplements were distributed as directed by the client. Troughs throughout the property paddocks were checked daily by you or your staff (overseer and ringer). Mineral blocks were distributed every 2 or 3 days during dry times.

Under the agreements you were not generally liable for the death or injury of stock, however you were liable if you breached any of your contractual obligations under the agreements.

The relevant Animal Care Act imposes a legal duty of care on people in charge of animals to meet those animals' needs in an appropriate way which includes ensuring that there is adequate food and water to support the livestock numbers permitted to be agisted under the agreement.

Your duties included mechanical and chemical clearing of lantana. You had to ensure that the animals weren't affected by the lantana poisoning. Duties also included monitoring the grass production in the xx paddocks, monitoring the x dams and xx troughs each day to ensure stock had adequate clean water, checking fences daily to ensure cattle remained in their designated paddock, distributing baits to control dingoes and wild pigs and reduce the risk on animal killing, annual maintenance of fire breaks around the xx paddocks with bulldozer, During floods, creek crossing fences may be destroyed. You and your employees were required to move stock from the creek paddocks to protect them from drowning. Post floods you had to repair flood crossing fences to keep the stock in their allocated mobs.

Profit and loss statements were provided showing income and expense details.

Prior to acquiring the above property you operated a business. After this business was sold and you purchased the above property, some of the employees who worked for you were employed at the property.

None of the employees were related to you.

Your aggregated turnover for the 2018 year was less than $2 million and your aggregated annualised turnover for the 2019 year would have been less than $2 million.

You were xx at the time of the CGT event and the sale of the property happened in connection with your retirement.

You did not satisfy the maximum net asset value test in the 2018-19 income year.

Relevant legislative provisions

Income Tax Assessment Act 1997 Division 152

Income Tax Assessment Act 1997 Subdivision 152-A

Income Tax Assessment Act 1997 Section 152-35

Income Tax Assessment Act 1997 Section 152-40

Income Tax Assessment Act 1997 Section 995-1

Detailed reasoning

The capital gains tax (CGT) provisions provide some small business relief in Division 152 of the Income Tax Assessment Act 1997 (ITAA 1997). The definition of a small business entity is relevant for Division 152 purposes.

Small business entity

You are a small business entity for a year if you carry on a business in the current year and one or both of the following apply:

1) you carried on a business in the previous year and your aggregated turnover for the previous year was less than $2 million

2) your aggregated turnover for the current year is likely to be less than $2 million

We therefore need to consider if you were carrying on a business in the 2018-19 income year.

Carrying on a business

Business is defined in section 995-1 of the ITAA 1997 to be 'any profession, trade, employment, vocation or calling, but does not include occupation as an employee'.

Taxation Ruling TR 97/11 Income tax: am I carrying on a business of primary production? outlines some factors that indicate whether or not a business of primary production is being carried on. These factors equally apply to other types of businesses. No individual factor is determinative, but should be weighed up in conjunction with the other factors.

In the Commissioner's view, the factors that are considered important in determining the question of business activity are:

•   whether the activity has a significant commercial purpose or character,

•   whether the taxpayer has more than just an intention to engage in business,

•   whether the taxpayer has a purpose of profit as well as a prospect of profit from the activity,

•   whether there is regularity and repetition of the activity,

•   whether the activity is of the same kind and carried on in a similar manner to that of ordinary trade in that line of business,

•   whether the activity is planned, organised and carried on in a businesslike manner such that it is described as making a profit,

•   the size, scale and permanency of the activity, and

•   whether the activity is better described as a hobby, a form of recreation or sporting activity.

Whether a business is being carried on is a question of fact to be ascertained objectively based on the specific facts of a case (Evans v FCT (1989) 20 ATR 922 at 939; Hart v FCT (2003) 53 ATR 371). Several factors are typically relevant in making this determination (Martin v. FC of T (1953) 90 CLR 470 at 474). These indicia must be considered in combination and as a whole; no one factor is typically decisive (TR 97/11 [15]; Evans v. FC of T 89 ATC 4540).

The nature of agistment activities has been judicially considered in a number of cases which are relevant in the circumstances of this case.

'Agistment' was defined in Sinclair v Judge [1930] St R Qd 220 (Sinclair case) as "...the act of taking another's stock to graze, pasture or feed on land with an implied agreement to redeliver it to the owner on demand."

As per Taxation Ruling IT 225 Primary production - agistment income (IT 225), income derived solely from agistment will not typically constitute income from a business of primary production for tax purposes. The Australian Taxation Office (ATO) has previously used the following reasoning in prior decisions to explain the view expressed in IT 225:

"...in cases where the property is used solely for agistment, income will rarely equate to the running costs of the property, therefore lacking a commercial character. We consider that, in most cases, the agistment of the property occurs as a prelude to the use of the property for some other purpose, for example a business of primary production or private use. It is usual to apportion these cases to allow expenses to the extent of income received."

The question of whether agistment activities amount to carrying on a business was discussed in the AAT decision of Case 47/95 95 ATC 404 (Case 47/95), in which Associate Professor Fayle stated:

"Agisting another's livestock does not ordinarily constitute the carrying on of a business. Agistment fees ordinarily are in the nature of rent. However, where the land owner is charged with management, maintenance and care of the animals agisted then it is possible that the person is carrying on a business, the reward for which is the agistment fee. This is more likely if the level of the agistment fee depended on the effective management, maintenance and care of the animals." (Emphasis added).

In Case 47/95, the applicant claimed deductions for a partnership loss incurred by a partnership known as 'C Hills'. The ATO reduced these claims by $2,627 and $5,310 for each respective year on the basis that there was no business of primary production being carried on at the 400-acre (180 hectare) property owned by the partnership. The only income returned by the partnership was from agistment. There was no evidence to indicate that that partnership intended to conduct a business of primary production on the property in the future. The applicant did not provide any evidence to refute this conclusion.

Case 38/97 (1997) 36 ATR 1154 also supports the conclusion that agistment activities will not amount to carrying on a business. In this case, the taxpayers were a husband and wife who operated as a partnership. In the 1989 financial year, they purchased a 16-hectare farm near Cairns in Queensland. They carried out improvements to the property, such as weed control, fencing, connecting electricity, installing cattle troughs and building cattle yards, and used the property for the agistment of cattle owned by a neighbouring farmer. The maximum carrying capacity of the property was 40 animals, and the rate paid for agistment ranged between $2 per week per beast to $2.50. One of the taxpayers visited the property around two times a week to check it and the cattle, but he otherwise relied on neighbours to call him if the cattle strayed or ran out of water. All other aspects of the cattle's care were their owner's responsibility.

It was held that the taxpayers were not engaged in the business of agistment. The level of the taxpayers' activity, when taken with the lack of a planned approach to a business, and the disproportionate level of expenses when compared with income led to the conclusion that there was no business in the ordinary sense of the word. There were two purposes in holding the property: the generation of income and its value as an asset. On the basis of the evidence presented, the taxpayers were found not to be engaged in a business of agistment or primary production and that their activities were not directed to gaining or producing an assessable income.

There are also a number of cases where agistment activities were considered to amount to carrying on a business.

In Hope v Bathurst City Council, (1980) 144 CLR 1 (Hope v. Bathurst City Council case), the taxpayer was the owner and occupier of land near Bathurst. He appealed to the Land and Valuation Court against the decision of the Bathurst City Council that his land was not rural land, and therefore he was not entitled to the benefit of a lower general rate. 'Rural land' was defined as "...a parcel of ratable land... which is wholly or mainly used for the time being by the occupier for carrying on one or more of the businesses or industries of grazing...''. Over 80% of the land's total area (15.47 acres) was used by the appellant for the agistment of other persons' cattle or horses. Most of the land had been pasture improved and maintained; the appellant erected fences to ensure good stock control, kept the fences in repair and installed and maintained troughs for stock watering. The appellant had agisted stock on the land continuously since 1965 and had advertised the availability of the land since this time. The appellant kept detailed records of income and expenditure and sought and received expert advice on the care and use of the land.

Rath J. observed there appeared to be a minimum of activity on the appellant's land and held that "as a matter of fact the appellant's use of the land, albeit for commercial purposes and for the purpose of profit, was not significant enough to bring it within the scope of the common or general meaning of either of the words 'business' or 'industry'". This decision was appealed to both the Court of Appeal and High Court. The High Court allowed the appeal, and held that the appellant was in fact carrying on a business:

"Transactions were entered into on a continuous and repetitive basis for the purpose of making a profit. The activity had a permanent character in that it had been carried on without interruption since 1965. The appellant sought customers by advertising and kept appropriate financial records. The land, though small in area, was put to its best potential use and the pastures were improved and facilities including fences were provided for that use. There is nothing in the findings to suggest that the activities were other than genuine and real." (Emphasis added)

Mason J also observed that the expression "carrying on the business of grazing" meant "... grazing activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis".

The AAT determined that the agistment activities conducted in Case K53/78 78 ATC 514 also amounted to carrying on a business. The taxpayer, a private company, was incorporated in June 1973 to acquire a pastoral property. At the same time a wholly owned subsidiary of the taxpayer acquired the cattle then on the land. The taxpayer agreed to permit the subsidiary to agist the cattle on the property for a fixed figure per head. The agistment fee ($22,000) constituted the taxpayer's sole source of income in the year ended 30 June 1974. Both the taxpayer and the subsidiary had a common directorate which was responsible for the care and maintenance of the property and the agisted cattle and which owned an extensive area of land. It was agreed that the subsidiary would pay the insurance, rates and repairs, and be responsible for the general upkeep of the property in consideration of an agistment fee less than the rate then prevailing in the area. The taxpayer employed no labour and the workforce required from time to time to water the cattle, repair fences etc. was engaged by the subsidiary. It was admitted that the subsidiary had full and exclusive use of the property together with the plant and structural improvements.

The Chairman and Dr. Gerber both held:

"The payment was income consisting of the proceeds of a business carried on by the taxpayer and therefore constituted income from personal exertion. The payment could not be regarded as rent. The taxpayer's argument that the holding company of a wholly owned subsidiary must carry on the same business as its subsidiary must be rejected."

Dr. Beck, dissenting, ruled that "the fee received by the taxpayer was not an agistment fee. The fee was rent and it therefore constituted income from property. The taxpayer was not during the year under review carrying on primary production."

From the various court and tribunal decisions surrounding this issue, it appears the following factors are particularly relevant - that is, when assessed objectively, their presence indicates a business is being carried on:

•   the level and nature of the agistment activities (Case 47/95, Hope v. Bathurst City Council case);

•   the person's purpose and intention as they engage in the activities (Case Q101 (1983) 83 ATC 495);

•   the intention to make a profit from the activities, even if only a small profit is made or a small loss incurred. (If a loss is incurred every year for a number of years, however, that suggests the activity may be more of a hobby.) It seems that an intention to make a profit is not of itself sufficient (Case 38/97 (1997) 36 ATR 1154);

•   the size and scale of the activities - they must be in excess of domestic needs, but do not need to be the person's only activities and can be carried on in a small way (Ferguson v FCT (1979) 9 ATR 873);

•   repetition and regularity of the activities - although the expression "carry on" does not necessarily require repetition, and an isolated activity may constitute beginning a business (Hope v. Bathurst City Council case; FCT v Consolidated Press Holdings Ltd; CPH Property Pty Ltd v FCT (2001) 47 ATR 229 at 245);

•   the activities being carried on in a systematic and businesslike way, as usual for that type of business (for example, keeping detailed, up-to-date records and accounts) (Hope v. Bathurst City Council case); and

•   the existence of a business plan (Hope v. Bathurst City Council).

When assessing several of these indicia - such as the level and nature of the agistment activities, consideration of current industry standards and agistment guidelines may assist in the determination of whether the activities undertaken are those that would be expected to be provided where agistments services are offered.

When agisting an animal, the 'person in charge' (typically the person with custody of the animal) has a duty of care to the animal under the various state and territories. Proprietors of the land occupied by the livestock are therefore responsible for the reasonable or proper care for the health, welfare and safety of an agisted animal/s. This includes providing appropriate food and water, accommodation, treatment for any disease or injury, and ensuring proper handling of the animal. Typically, this involves ensuring that their property or enclosure is, and remains, safe and free from hazards, ensuring that the animals are agisted in the manner agreed with their owner (for example, if there is an agreement to house an animal alone, then that animal cannot be housed in a paddock or enclosure with other animals), and ensuring animals have proper access to water and feed.

Section 26-102 of the ITAA 1997 is also of relevance when considering whether agistment activities will amount to a business. Broadly speaking, section 26-102 provides carve-outs to the denial of vacant land deductions, with one such carve-out specifically relating to carrying on a business and carrying on a business of primary production. If these criteria are not met, deductions for expenses associated with holding vacant land will be denied. Section 26-102 is an integrity measure to address concerns that deductions are being improperly claimed for expenses, such as interest costs, related to holding vacant land, where the land is not genuinely held for the purpose of earning assessable income. As a consequence, ascertaining whether agistment activities will amount to a business will have significant implications to the application of section 26-102.

Feedback from stakeholders provided during the consultation process prior to the introduction of this measure indicated a level of concern that taxpayers undertaking agistment activities would be adversely impacted. Their responses, extracts of which are provided below, demonstrate a level of consensus that while the undertaking of agistment activities would mean the taxpayer has assessable income in the form of agistment fees, the deductions available would be limited because of the inability to demonstrate the land is being used in the carrying on of a business.

For example, in a media release BDO in BDO Australia, 'Changes to Vacant Land Tax deductions', BDO Australia (Media Release, 18 September 2019) have acknowledged that:

"A deduction will still be available where the land is ... used or held available for use, in carrying on a business of the taxpayer, an affiliate or connected entity (A non-corporate land owner is generally not considered to carrying on business in relation to the leasing or the land or agistment activity)."

Thompson Geer, in Thomson Geer Lawyers, 'Denial of Tax Deduction for Vacant Land Legislation Released', Thomson Geer lawyers (Tax Advocacy Release, 26 July 2019) in a tax advocacy submission, stated that:

"For primary producers, deductions will likely be denied where primary production activities (that do not constitute a primary production business) such as agistment, hobby/lifestyle farms or small-scale farms (and possibly share farming) are being conducted."

Finally, the National Tax and Accountants Association in National Tax & Accountants' Association Ltd, 'RE: Enhancing the integrity of tax deductions in relation to vacant land', NTAA, (Tax Advocacy Release, 30 October 2018), have expressed their concerns that:

"If section 26-105 is enacted as proposed, the land owning taxpayer in this case would be denied any deduction for costs associated with holding the vacant land that is leased for agistment purposes, despite the fact that the agistment income would continue to be fully assessable to the taxpayer. This is because s 26-105(1) prevents a deduction in respect of the leased land unless the land is either:

•   not vacant, which will only be the case if there is a substantive permanent building or other substantive permanent structure on the land, that is in use or ready for use. This would often not be the case in an agistment scenario where the leased land consists simply of fenced vacant farming paddocks; and/or

•   broadly, the land is being used in carrying on a business of the taxpayer or a specified (related) entity. This would not be the case in an agistment scenario where the land is leased to an unrelated neighbour."

These various media and tax advocacy submissions support the position adopted by the ATO that agistment activities will ordinarily not constitute a business.

Application of the law in your circumstances

In your case, you acquired the original property in xxxx. A contract of sale was entered into in xxxx. The sale assets included the property, water licences, listed equipment and the business name for a purchase price of $xxxx. The property consisted of a number of different titles with both freehold and leasehold interests. You advised that during the period of ownership, it has been used for farming, leased to third parties, and agistment. The combined area of the titles sold was approximately xxxx hectares, with a carrying capacity of approximately xxxx head. The lots owned for xx years and for which you are seeking the CGT small business 15-year exemption are xxxx hectares and xxxx hectares.

Multiple agistment agreements have been entered into over the years. Generally, there is only one agistment agreement at a time, however sometimes there were two different agistment agreements operating concurrently. Some agreements agisted up to xxxx stock. The agreement still in place at the time of the sale agisted up to xxxx cattle. The agistment activities included daily inspections of livestock, yarding livestock, administering drenches, supplements and vaccines where required, maintaining the fences and stock watering facilities and pastures, maintaining lantana control, securing stock, filing documentation in relation to the stock (including National Vendor Declaration Forms), mustering and updating the stock owner in relation to any deaths, injury or illnesses of the stock. Fees were paid on a flat rate per head and the rate paid reflected the involvement required from you and the employees. The agreement also included the supply of a full-time employee.

Profit and loss statements show the income and expenses for the agistment activities.

Several facts support the proposition that you may be carrying on a business of agistment based on indicia enunciated in case law. You assert agistment activities are carried out on a large scale and in a planned and organised manner. As landowner, you undertook an active role in management and care for the stock. The profit and loss statements provided demonstrate that you maintained financial records for the agistment activities. The agistment agreement also provided for the supply of a full-time employee. This may indicate that the agistment was more than a passive undertaking and that it involved a substantial level of activity on your behalf.

The facts of your case are, however, distinguishable from cases such as Bathurst City Council case for multiple reasons. Firstly, your agistment activities have not been conducted in an ongoing or continuous manner. The property was acquired in xxxx but was only available for agistment from xxxx to xxxx, and from xxxx until the sale of property in xxxx. Furthermore, in the case of the Bathurst City Council case, over 80% of the total area of the property was used for agistment purposes. By contrast, you have only utilized approximately xx% of your land for agistment purposes on a non-continuous basis. Additionally, the profit and loss statements indicate your agistment activities have only been profitable in x out of x periods. In the periods of profitability, only a small yield was returned. As a result, your agistment activities have resulted in a net loss of approximately $xxxx. This suggests that these activities are engaged in for an ancillary purpose, as opposed to being carried out in a business-like manner with the intention of deriving a profit. As stated in IT 225:

"...in cases where the property is used solely for agistment, income will rarely equate to the running costs of the property, therefore lacking a commercial character. We consider that, in most cases, the agistment of the property occurs as a prelude to the use of the property for some other purpose, for example a business of primary production or private use. It is usual to apportion these cases to allow expenses to the extent of income received."

In Case 47/95, Associate Professor Fayle stated:

"Agisting another's livestock does not ordinarily constitute the carrying on of a business. Agistment fees ordinarily are in the nature of rent. However, where the land owner is charged with management, maintenance and care of the animals agisted then it is possible that the person is carrying on a business, the reward for which is the agistment fee. This is more likely if the level of the agistment fee depended on the effective management, maintenance and care of the animals."

Under the agistment arrangements, you do not take full responsibility for the care and protection of the stock. You bear no liability for any deaths in the herd, unless they result from non-compliance with the terms of the agreement. Many activities engaged in by you, such as maintenance of the pastures, weeds, water and fences, are either normal landowner responsibilities, or a statutory requirement under the relevant legislation. Other actions, such as mustering, vaccinations, providing supplements to stock, and maintaining lantana control, are either conducted irregularly, or are again a requirement legally imposed on you under the relevant legislation. Provision of employees under the agreements, although an indicator a business may be carried on, is not in itself determinative. Accordingly, on balance of the facts, you are unlikely to be carrying on a business. You are merely agisting livestock in an ordinary manner, to the expected standard of the industry, with only one agreement being in place for the majority of the period when agistment fees were derived. Even if your activities were considered to be large scale, the scale of the activity is not a determinative factor, as stated in the Bathurst City Council case:

"it has been said that it is not necessary that the business should be a large one... but there must be some activity of which it can be said that it has a significant commercial purpose or character." (Emphasis added)

Making an overall assessment on the facts of your situation and the above guidelines, it is the Commissioner's view that the agistment activities are not regarded as a business for taxation purposes.

As the agistment activities are not regarded as a business for taxation purposes, you do not meet the requirements of a being a small business entity.

Active asset test

As outlined in subdivision 152-A of the ITAA 1997, the CGT asset must satisfy the active asset test and other conditions in order to qualify for the small business CGT concessions.

Under subsection 152-35(1) of the ITAA 1997, a CGT asset will satisfy the active asset test if:

(a) you have owned the asset for 15 years or less and the asset was an active asset of yours for a total of at least half of the test period, or

(b) you have owned the asset for more than 15 years and the asset was an active asset of yours for a total of at least 7½ years during the test period.

Subsection 152-40(1) of the ITAA 1997 provides that a CGT asset is an active asset at a time if it is used, or held ready for use, in the course of carrying on a business that is carried on by you, or your affiliate, or another entity that is connected with you.

Subsection 152-40(4) of the ITAA 1997 lists CGT assets that cannot be active assets. Under paragraph 152-40(4)(e) of the ITAA 1997, an asset whose main use is to derive rent cannot be an active asset unless the main use for deriving rent was only temporary.

That is, even if the asset is used in a business it will not be an active asset if its main use is to derive rent.

In your case, none of the various titles satisfy the active asset test. That is, none of the titles have been used in the course of carrying on a business for the required period of time.

Ownership of land

To be entitled to the small business 15-year exemption under subdivision 152-B of the ITAA 1997, several conditions need to be met.

Under paragraph 152-105(b) of the ITAA 1997, one of the conditions is that you continuously owned the CGT asset for the 15-year period ending just before the CGT event.

As you acquired the xxxxha of Lot 2 and Lot 1 in xxxx, you have owned these CGT assets for 15 years.

However, as outlined above, the agistment activities are not regarded as a business for taxation purposes and you do not satisfy the active asset test. Therefore, as all the requirements of subdivision 152-B of the ITAA 1997 have not been met, you are not entitled to the small business 15-year exemption. That is, you cannot disregard the capital gain relating to these lots under the small business 15-year exemption provisions contained in Subdivision 152-B of the ITAA 1997.

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