Income Tax Assessment Act 1997
View history note
Hide history noteSECTION 126-235 Exceptions for roll-over
Foreign trusts
126-235(1)
An exception applies for a *CGT asset if:
(a) the receiving trust is a *foreign trust for CGT purposes for the income year that includes the transfer time; and
(b) the roll-over asset is not *taxable Australian property just after the transfer time.
Public trading trusts
126-235(2)
Another exception applies if either trust is a trust to which section 102S of the Income Tax Assessment Act 1936 applies for the income year that includes the transfer time.
Choices
126-235(3)
Another exception applies if, just after the transfer time:
(a) a choice (however described) under a provision of a *taxation law is in force for either of the trusts in relation to particular circumstances; and
(b) the same choice (however described) under that provision for the other trust in relation to those circumstances (a mirror choice ) is not also in force; and
(c) the absence of a mirror choice would or could have an ongoing effect on the calculation of an entity's *net income, or taxable income, for:
(i) the entity's income year that includes the transfer time; or
(ii) a later income year.
126-235(4)
However, the exception in subsection (3) does not apply if:
(a) the other trust makes a mirror choice before the first time after the transfer time when the absence of the mirror choice would affect the calculation of an entity's *net income, or taxable income, for an income year; or
(b) it would not be reasonable for subsection (3) to apply.
Note:
For paragraph (a), the other trust must still be able, under the relevant provision of the taxation law, to make the mirror choice.
126-235(5)
If, just after the transfer time:
(a) a choice (however described) referred to in paragraph (3)(a) is in force for either of the trusts (the first choice ); and
(b) a provision of a *taxation law:
(i) prevents the revocation or variation of that choice; or
(ii) sets out a consequence for an entity if that choice is revoked or varied;
that provision is taken to apply for a mirror choice, in force for the other trust at or after that time, in a way corresponding to the way in which it applies for the first choice.
Note:
For example, if the provision sets out consequences that flow from the revocation of the first choice, then those consequences will also flow if the mirror choice is revoked.
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