Small Business CGT Concessions

 

This article is an overview of the small business CGT concessions. The small business CGT concessions can significantly reduce and sometimes eliminate tax payable on the sale of a small business. The concessions are therefore extremely important when tax planning for small businesses. This article is a brief overview only it focuses on the most common and important issues and is not to be relied on without seeking expert advice. It is essential that you obtain expert advice if you intend to obtain the benefit of any of the small business CGT concessions.

To qualify for the small business CGT concessions, you must satisfy several conditions that are common to all the concessions. These are called the basic conditions. The basic conditions are outlined in section 152 5 Income Tax Assessment Act 1997 (ITAA 1997).

Each concession also has further requirements that you must satisfy for the concession to apply, except for the small business 50% active asset reduction, which applies if the basic conditions are satisfied.

Basic conditions 

The basic condition for small business CGT concessions are:

  • You must be a small business entity
  • You must satisfy the maximum net asset value test
  • The asset in question must satisfy the active asset test

If the CGT asset is a share in a company or an interest in a trust, one of these additional basic conditions must be satisfied just before the CGT event:

  • the entity claiming the concession must be a CGT concession stakeholder in the company or trust, or
  • CGT concession stakeholders in the company or trust together have a small business participation percentage in the entity claiming the concession of at least 90%.

Maximum net asset value test

To pass this test, the total net value of CGT assets must not exceed $6 million for the following entities:

  • you
  • entities connected with you
  • your affiliates, or entities connected with your affiliates

When calculating net asset values, include only those assets that are used, or held ready for use, in a business of yours, or an entity connected with you. Don’t include assets of your affiliate, or an entity connected with your affiliate, unless they are in your business or the business of an entity connected with you. The net value of the CGT assets of an entity is the total market value of its assets, less any liabilities relating to those assets.

Small business 50% active asset reduction

Unlike the other small business concessions, the small business 50% active asset reduction applies automatically if the basic conditions are satisfied, unless you choose for it not to apply. For example, you might prefer for it not to apply, and instead, choose the small business retirement exemption or the small business rollover. Making this choice allows you to achieve the best result for your circumstances, for example, a company or trust may make larger tax free payments under the small business retirement exemption.

Otherwise, the small business retirement exemption or the small business rollover (or both) may apply to the capital gain that remains after applying the small business 50% active asset reduction.

If you satisfy the basic conditions, the capital gain that remains after applying any current year capital losses and any unapplied prior year net capital losses, and the CGT discount (if applicable), is reduced by 50%.

This means that if you are an individual or a trust and you have applied the CGT discount and the small business 50% active asset reduction, the capital gain (after being reduced by any capital losses applied against it) is effectively reduced by 75% (that is, 50% then 50% of the remainder).

a man seen preparing a dessert by the kitchen counter

Small business 15 year exemption

If you qualify for the small business 15 year exemption, you can entirely disregard the capital gain and do not need to apply any other concessions. This exemption is the most valuable of the small business CGT concessions.

You can disregard a capital gain from a CGT event happening to a CGT asset you have owned for at least 15 years if you:

  • satisfy the basic conditions for the small business CGT concessions
  • continuously owned the CGT asset for the 15 years ending just before the CGT event happened.

If you are an individual:

  • when the CGT event happened
    • you were permanently incapacitated, or
    • you were 55 years old, or older, and the event happened in connection with your retirement, and
  • if the CGT asset is a share in a company or an interest in a trust, that company or trust must have had a significant individual for periods totaling at least 15 years during the entire time you owned the share or interest, even if it was not the same significant individual during the whole period.

If you are a company or trust:

  • you had a significant individual for a total of at least 15 years of the whole period of ownership (even if it was not the same significant individual during the whole period), and
  • the individual who was signed just before the CGT event was
    • at least 55 years old at that time and the event happened in connection with their retirement, or
    • was permanently incapacitated at that time.

If a capital gain of a company or trust qualifies for the 15 year exemption, any payment of the exempt amount (whether directly or indirectly through one or more interposed entities) to a CGT concession stakeholder will be exempt if it is made before the later of:

  • 2 years after the CGT event, or
  • if the relevant CGT event occurred because of the disposal of a CGT asset 6 months after the latest time a possible financial benefit becomes or could become due under a look through earnout right relating to that CGT asset and the disposal.

However, the exemption in this case is limited to the percentage interest that the CGT concession stakeholder has in the company or trust. In the case of a discretionary trust, a CGT concession stakeholder’s participation percentage is 100% divided by the number of such stakeholders in the trust.

Where a CGT asset was acquired prior to 20 September 1985 but is treated as a post CGT asset because of a change in the majority underlying ownership, the 15 year exemption will apply such that the period of ownership will start from the time of actual acquisition, not the time the asset is deemed to have been acquired. Similarly, any change in majority underlying interest in an asset is ignored for testing whether the entity had a significant individual for at least 15 years.

In calculating the CGT exempt amount the capital gain is calculated using the original cost base of the asset, not the deemed cost base of the asset at the time of the change in majority underlying interest. This ensures the full capital gain on the asset is exempt and can be distributed to CGT concession stakeholders tax free.

a line of guitars displayed inside a store

Small business retirement exemption

You may choose to disregard all or part of a capital gain under the small business retirement exemption if you satisfy certain conditions. If you are an individual who chooses the retirement exemption, you do not need to terminate any activity or cease business. This concession allows you to provide for your retirement. If you are a CGT concession stakeholder and receive payments under the retirement exemption, you are not required to terminate your employment with the company or trust.

The CGT retirement exemption is available to companies and trusts if the basic conditions are satisfied, the entity satisfies the significant individual test and the company or trust conditions are satisfied.

The company or trust conditions require the entity to make payments of the CGT exempt amount to at least one of its CGT concession stakeholders upon: (a) making the choice to apply the exemption if the relevant event is CGT event J2, J5 or J6; or (b) in any other case, the entity receiving an amount of capital proceeds from a CGT event for which it chooses to disregard a capital gain under the CGT retirement exemption. If the company or trust receives the capital proceeds in instalments, payments must be made from each instalment in succession up to the CGT exempt amount.

The payment or payments must meet the following requirements:

  • Where the payment is made to more than one CGT concession stakeholder the amount of each payment is worked out by reference to the individual’s percentage entitlement to the relevant CGT exempt amount.
  • The percentage entitlement for each CGT concession stakeholder is the amount specified in the written choice to apply the exemption. The percentage can range from nil to 100%, but the total of the percentages must add up to 100%.
  • If the CGT concession stakeholder is an employee of the entity, the payment must not be of a kind, which specifies certain types of payments that are not employment termination payments, including a payment that is deemed to be a dividend.
  • The payment must be made by the later of 7 days after (a) the choice to apply the retirement exemption is made or (b) the entity receives the capital proceeds. However, if CGT event J2, J5 or J6 applies the payment must be made within 7 days of the choice to apply the retirement exemption.
  • The amount of the payment, or sum of the amounts of the payments, must be equal to the lesser of the capital proceeds received and the relevant CGT exempt amount.
  • If a CGT concession stakeholder is under the age of 55 just before receiving the payment, the payment must be made into a complying superannuation fund on behalf of the CGT concession stakeholder.

CGT retirement exemption limit

The amount of the capital gain that you choose to disregard (that is, the CGT exempt amount) must not exceed your CGT retirement exemption limit or, in the case of a company or trust, the CGT retirement exemption limit of each CGT concession stakeholder receiving a payment.

An individual’s lifetime CGT retirement exemption limit is $500,000, reduced by any previous CGT exempt amounts the individual has disregarded under the retirement exemption. This includes amounts disregarded under former (repealed) retirement exemption provisions. For a company or trust with eight CGT concession stakeholders (four significant individuals and their four spouses, where each spouse has a small business participation percentage greater than zero) the limit is effectively $4 million, that is, $500,000 for each stakeholder.

A company or trust may determine the percentage of the exempt amount attributable to each stakeholder, having regard to each stakeholder’s retirement exemption limit (or remaining limit).

a restaurant window with the words 'relax' illuminated by evening lights

Consequences of choosing the retirement exemption

If you choose this exemption, you disregard the amount of the capital gain you have chosen as the CGT exempt amount. The amount of any capital gain that exceeds the CGT exempt amount does not qualify for this exemption.

If you are a CGT concession stakeholder, a payment you receive from a company or trust to satisfy the retirement exemption requirements is not assessable income and is not exempt income. If you are a company or trust making the payment, it is not able to be deducted from your assessable income.

If you are a company or trust receiving a payment (whether directly or indirectly through one or more interposed entities) that another company or trust made to satisfy the retirement exemption requirements, and you are passing that payment on to a CGT concession stakeholder or another interposed entity:

  • the payment you receive is not included in your assessable income and is not exempt income, and
  • the payment you make is not deductible from your assessable income.

Amounts that are not assessable income and not exempt income have no implications for tax losses of previous years.

A payment you make to satisfy the retirement exemption requirements is not treated as a dividend nor a frankable distribution provided:

  • you are an interposed entity receiving payment and passing that payment on, or
  • you are a company making a payment to
    • a CGT concession stakeholder, or
    • an interposed entity.

This is the case despite section 109 of the ITAA 1936 which can treat excessive payments to shareholders, directors and associates as dividends. Therefore, section 109 has no application to these payments.

Division 7A of the ITAA 1936 also does not apply to treat such payments made by a company or trust as dividends.

Small business rollover

The small business rollover allows you to defer all or part of a capital gain made from a CGT event happening to an active asset. You may choose to apply the small business rollover to as much of the capital gain as you decide:

  • after the small business 50% active asset reduction, that is, to the remaining 50% (or if the CGT discount has also applied, the remaining 25%) of the capital gain after you have applied capital losses, or
  • instead of the small business 50% active asset reduction, that is, to the capital gain remaining after you have applied any capital losses and CGT discount. Making this choice might ultimately allow a company or trust to make a larger tax free payment under the small business retirement exemption if they choose the retirement exemption after the deferred capital gain has crystallised, for example, when the replacement asset is later sold.

You may instead choose the small business retirement exemption if its conditions are satisfied, or you may choose both concessions for different parts of the remaining capital gain.

If you choose the rollover, the capital gain will not be included in your assessable income.

Further CGT events happen if you previously chose the rollover and certain conditions are not met by the end of the replacement asset period. This period starts one year before and ends two years after the last CGT event that occurs in the income year for which you choose the rollover.

A capital gain will arise if:

  • you do not acquire one or more CGT assets as replacement assets or make a capital improvement to one or more existing assets, or both, within the replacement asset period (CGT event J5)
  • the replacement asset you acquired, or the asset to which you made the capital improvement is not an active asset at the end of the replacement asset period (a depreciating asset such as a plant can be a replacement asset) (CGT event J5)
  • if the replacement asset is a share in a company or an interest in a trust, at the end of the replacement asset period
    • you, or an entity connected with you, are not a CGT concession stakeholder in the company or trust, or
    • CGT concession stakeholders in the company or trust do not have a small business participation percentage in you of at least 90% (CGT event J5)
  • the capital gain previously disregarded under the rollover is, at the end of the replacement asset period, more than the sum of the following
    • the amount paid to acquire the replacement asset (that is, the first element of the cost base of the replacement asset)
    • any incidental costs incurred in acquiring that asset, which can include giving property (that is, the second element of the cost base of the replacement asset), and
    • the amount expended on capital improvements to one or more assets that were acquired or already owned (that is, fourth element expenditure) (CGT event J6).

For a share in a company or interest in a trust to be an active asset, the company or trust must satisfy the 80% test, that is, the market value of the active assets and certain financial instruments of the company or trust must be 80% or more of the total of the market value of all the assets of the company or trust.

barrels of molasses inside a store

Definitions of important terms

Active asset

A Capital Gains Tax (CGT) asset is an active asset if you own it and:

  • you use it or hold it ready for use in the course of carrying on a business (whether alone or in partnership)
  • it is an intangible asset (for example, goodwill) inherently connected with a business you carry on (whether alone or in partnership).

A CGT asset is also an active asset if you own it and it is used or held ready for use in the course of carrying on a business, or it is an intangible asset inherently connected with a business carried on, (whether alone or in partnership) by any of the following:

  • your affiliate
  • your spouse or child under 18 years
  • an entity connected with you.

However, certain CGT assets cannot be active assets, even if they are used or held ready for use in the course of carrying on a business, for example, assets whose main use is to derive rent (unless the asset was rented to an affiliate or connected entity for use in their business). Generally, a rental property will not be an active asset.

Affiliate

An affiliate is an individual or company that, in relation to their business affairs, acts or could reasonably be expected to act:

  • per your directions or wishes, or
  • in concert with you.

Trusts, partnerships and superannuation funds cannot be your affiliates. However, a trust, partnership or superannuation fund may have an affiliate who is an individual or company.

However, a person is not your affiliate merely because of the nature of a business relationship you and the person share. For example, if you are a partner in a partnership, another partner is not your affiliate merely because they act, or could reasonably be expected to act, under your directions or wishes concerning the affairs of the partnership.

Similarly, companies and trusts are not affiliates of their directors and trustees respectively, and vice versa, merely because of the positions held.

Whether a person acts, or could reasonably be expected to act, following the taxpayer’s directions or wishes, or in concert with the taxpayer, is a question of fact dependent on all the circumstances of the particular case. No single factor will necessarily be determinative.

Relevant factors that may support a finding that a person acts, or could reasonably be expected to act, in accordance with the taxpayer’s directions or wishes, or concert with the taxpayer, include:

  • the existence of a close family relationship between the parties
  • the lack of any formal agreement or formal relationship between the parties dictating how the parties are to act in relation to each other
  • the likelihood that the way the parties act, or could reasonably be expected to act, in relation to each other would be based on the relationship between the parties rather than on formal agreements or legal or fiduciary obligations
  • the actions of the parties.

Generally, another business would not be acting in concert with you if they:

  • have different employees
  • have different business premises
  • have separate bank accounts
  • do not consult you on business matters
  • conduct their business affairs independently in all regards

CGT concession stakeholder

Share or interest owned by individual

You are a CGT concession stakeholder if:

  • you are an individual that holds interests, either directly or indirectly, in the company or trust that carries entitlements to at least 20% of the
    • dividends, capital distributions or voting power (except for jointly owned shares) if the asset is a share in a company
    • distributions of income or capital if the asset is an interest in a trust, or
  • you are the spouse of an individual who holds at least 20% of the interests and you also hold a percentage of shares or trust interests your percentage can be less than 20% but must be greater than zero.

Share or interest owned by company or trust

If the share or interest is held by a non individual, the 90% test must be met just before the CGT event. This test will be met if the CGT concession stakeholders in the entity in which the shares or interests are held, between them (either directly or indirectly) hold 90% of the shares or interests in the company or trust that made the capital gain.

Connected with you

An entity is connected with another entity if:

  • either entity controls the other entity, or
  • both entities are controlled by the same third entity.

Small business entity

The definition of a small business entity for tax purposes is essentially a taxpayer which has less than $2 million aggregated turnover. Aggregated turnover is your annual turnover plus the annual turnovers of any business entities that are your affiliates or that are connected with you.

Company issues

Access to the small business CGT concessions is more complex when a business is being run through a company, because of the need to identify a significant individual. Moreover, if the additional 50% reduction is claimed in the company, the benefit of this concession will be reclaimed when distributed to the shareholders in the form of an unfranked dividend.

Selling a business conducted through a company may be achieved by:

  • selling the shares in the company, or
  • selling the assets out of the company.

When selling the shares, an individual shareholder may be able to consider the application of the 50% CGT discount.

This choice will also affect the ability of the individual to access the small business CGT concessions. In addition to the general conditions for the small business CGT concessions, the additional considerations outlined below will apply.

Selling the shares in the company

A taxpayer selling shares in a company may have access to the following:

  • 15 year exemption provided:
    • they held the shares for at least 15 years
    • the company had a significant individual for a total period of 15 years (although it need not have had the same significant individual), and
    • the disposal happened in connection with the individual’s retirement
  • Additional 50% small business reduction provided the company whose shares are sold has a significant individual just before the time of the disposal.
  • Retirement exemption (up to the $500k lifetime limit) provided the company whose shares are sold has a significant individual just before the time of the disposal. If the shareholder is under 55, the relevant capital proceeds must be paid into a complying superannuation fund.
  • Roll over relief provided the company whose shares are sold has a significant individual just before the time of the disposal.

Selling the shares out of the company

A company selling assets may have access to the following concessions:

  • 15 year exemption provided:
    • the company held the assets for at least 15 years
    • the company had a significant individual for a total period of 15 years (although it need not have had the same significant individual), and
    • the disposal happened in connection with the individual’s retirement.

Note: There will be no recapture of the exempt amount when it is distributed to the individual shareholder or their spouse.

  • Additional 50% small business reduction it is not necessary to identify a significant individual in these circumstances. When the exempt amount it distributed to the shareholders in the company, it will take the form of an unfranked dividend, and will be fully assessable to the shareholder. The benefit of the additional 50% reduction in these circumstances is a timing benefit only, as it is recaptured at the shareholder level.
  • Retirement exemption (up to the $500k lifetime limit) provided the company has a significant individual just before the time of the disposal. If the shareholder is under 55, the relevant capital proceeds must be rolled into a complying superannuation fund.
  • Roll over relief it is not necessary to identify a significant individual for roll over relief to be applied in this situation.

Partnership issues

As partnership is not a taxpaying entity, the entitlement to the various small business CGT concessions for CGT events relating to partnership assets (or interests in the partnership itself) is determined on a per partner basis. For small business taxpayers, the existence of the partnership will therefore not hold back access to these significant CGT concessions.

There is no need to identify a significant individual in relation to the partnership.

The availability of the small business CGT concessions together with access to the general 50% CGT discount, makes a partnership an extremely attractive business structure for small business people.

A 'Yes, we're open' sign in from of a store, representing the concept of small business CGT concessions.

Discretionary trust issues

To access the concessions, it is crucial that the assets subject to the CGT event must be active assets, meaning those used in a business. Accordingly, the small business CGT concessions will not be available in respect of discretionary trusts holding investment assets.

Where a small business is operated by a discretionary trust, to qualify for the concessions in respect of assets disposed of by the trustee, it is necessary to identify a significant individual of the trust just before the relevant CGT event. A person will be a significant individual in relation to a discretionary trust if they have received at least 20% of all income and capital distributed by the trust in the income year in which the relevant CGT events occur.

If an appropriate individual can be identified, access to the concessions is relatively straightforward. The benefit of the concessions at the trust level is not clawed back when the tax sheltered gain is distributed to the beneficiary. This may be contrasted with a company and, in some respects, a fixed unit trust.

Unit trust issues

Access to the small business CGT concessions is more complicated when a business is conducted through a unit trust, because of the need to identify a significant individual. Where the additional 50% reduction is claimed in the unit trust, the benefit of this concession will be recaptured when distributed to the unitholders in the form of a non assessable amount.

The application of CGT event and the recapture of non assessable amounts distributed to unitholders affects the attractiveness of the use of the unit trust as a trading vehicle, particularly so in relation to a business that may qualify for the small business CGT concessions.

Gains excluded from the net income of the unit trust by virtue of the 15 year exemption can flow through to the unitholder without being subject to a recapture at the unitholder level. However, the amount excluded from the net income of a unit trust under the small business 50% CGT reduction will trigger CGT event E4. Accordingly, the benefit of this concession will be lost if accessed through a unit trust structure. The following further considerations apply to accessing the small business concessions through a unit trust.

Selling the units in the unit trust

A taxpayer selling units in a unit trust:

  • 15 year exemption (Subdiv 152 B) provided that:
    • they held the units for at least 15 years
    • the unit trust had a significant individual for a total period of 15 years (although it need not have had the same significant individual), and
    • the disposal happened in connection with the individual’s retirement.
  • Additional 50% reduction provided that the unit trust whose units are sold has a significant individual just before the time of the disposal
  • Retirement exemption (up to the $500k lifetime limit) provided that the unit trust whose units are sold has a significant individual just before the time of the disposal. If the unitholder is under 55, the relevant capital proceeds must be paid into a complying superannuation fund
  • Roll over relief provided that the unit trust whose units are sold has a significant individual just before the time of the disposal.

Selling the assets out of the unit trust

A unit trust selling assets:

  • 15 year exemption provided that the:
    • unit trust held the assets for at least 15 years,
    • unit trust had a significant individual for a total period of 15 years (although it need not have had the same significant individual), and
    • disposal happened in connection with the individual’s retirement.

Note: There will be no recapture of the exempt amount when it is distributed to the unitholders or their spouses.

  • Additional 50% reduction it is not necessary to identify a significant individual in these circumstances. However, when the exempt amount it distributed to the unitholders in the unit trust, it will take the form of a non assessable amount and will therefore trigger CGT event E4. The benefit of the additional 50% reduction in these circumstances is therefore only a timing benefit, as it is ultimately recaptured at the unitholder level

Retirement exemption (up to the $500k lifetime limit) provided that the unit trust has a significant individual just before the time of the disposal. If the unitholder is under 55, the relevant capital proceeds must be rolled into a complying superannuation fund

Roll over relief it is not necessary to identify a significant individual in these circumstances.

Disposal of Shares or Trust Interests

The topic of this article concerns a niche but very commonly questioned aspect of the the small business CGT concessions – the availability of the concessions where there is a disposal or other CGT event over shares in a company or interests in a trust. This article sets out the conditions of eligibility for a taxpayer looking to dispose of shares or trust interests.

A quick word on conditions of eligibility. You will note that that the basic conditions concerning active assets which are not shares in a company or interests in a trust will continue to apply. However, there are several ‘additional’ basic conditions that have application for CGT events occurs from 8 February 2018.

*Note that the below condition 4 and 5 are the additional basic conditions and condition 2 and 3 are modified versions of the basic conditions.

  • A CGT event happens in relation to the share or trust interest that results in a capital gain
  • The taxpayer satisfies either the maximum net asset value ‘MNAV’ test or is carrying on a business just before the CGT event
  • The CGT asset is an active asset under modified rules
  • The object entity must satisfy the small business entity ‘SBE’ test or the MNAV test under modified rules that deem an entity a ‘connected entity’ based on a 20% control test.
  • The taxpayer was a CGT concession stakeholder in the object entity or CGT concession stakeholders in the object entity together have a small business participation percentage in the taxpayer of at least 90%

Taxpayer = the entity which disposes of the shares or trust interests and is to looking to utilise the small business CGT concessions.

Object entity = the company or trust which the taxpayer holds shares or trust interests in.

Further entity or entities = an entity or entities which the object entity holds shares or interests in.

CGT concession stakeholder = natural person with a 20% or greater small business participation percentage in the object entity, or the spouse of such a person provided the spouse holds some interest in the object entity themselves.

Small business participation percentage ‘SBPP’ = the sum of direct SBPP and indirect SBPP held in another entity. In respect of a company, the SBPP is the smallest of the entity’s percentage entitlement to dividends, capital and voting power. In respect of a trust (other than a discretionary trust), it is the smallest of the rights to capital and income distributions. In respect of a discretionary trust, it is the smallest of the entity’s percentage share of distributions of capital and income for the relevant income year.

First condition: A CGT event happens in relation to the share or trust interest that results in a capital gain

Second condition: The taxpayer satisfies either the MNAV test or is carrying on a business before the CGT event

This condition is a slight modification to the standard basic condition that applies when we are not dealing with shares or interests. Specifically, under this condition it is not necessary for the taxpayer to be a ‘small business entity’ i.e. an entity with an aggregated turnover of less than $2 million.

Third condition: The CGT asset is an active asset under modified rules

Essentially, 80% of the total market value of all company or trust assets must be active assets in order for the shares or interests in the object entity to be considered ‘active assets’. Note that the 80% test must be satisfied for a minimum of: (i) 7.5 years, or (ii) half the period of the time the taxpayer owned the share or interest.

There a few special rules to keep in mind here. In particular, note that where the object entity itself has shares or interests in another entity (a ‘further entity’), the value of those shares or interests is excluded from total assets.

Instead, the market value of the assets of that later entity multiplied by the object entity’s SBPP in that later entity will be added to the object entity’s total assets. The assets of the later entity will only be considered ‘active’ if the later entity is itself a CGT small business entity or satisfies the MNAV test (under slightly modified versions of those tests) AND the taxpayer is a CGT concession stakeholder in that further entity.

For example, take Abbie and Magnolia (taxpayers) who are considering selling shares held in Abbie Pty Ltd (object entity). Abbie Pty Ltd (object entity) itself holds shares in Tom Pty Ltd (further entity). The value of shares Abbie Pty Ltd holds in Tom Pty Ltd will be excluded in calculating the total market value of assets in Abbie Pty Ltd.

Instead, the market value of the assets of Tom Pty Ltd multiplied by the SBPP of Abbie Pty Ltd in Tom Pty Ltd will be used to calculate the total market value of assets of Abbie Pty Ltd as the object entity. At least 80% of the total assets of Abbie Pty Ltd (incorporating the relevant percentage of Tom Pty Ltd’s total assets) must be considered ‘active’.

Whether the incorporated assets held by Tom Pty Ltd are considered ‘active’ depends on a number of factors including whether Tom Pty Ltd is itself a small business entity or satisfies the MNAV test under modified versions of those tests.

Fourth condition: The object entity must satisfy the SBE test or the MNAV test under modified rules

This includes turnover / net assets of affiliates and connected entities. Regarding the connected entities test, ‘control’ is based on a 20% connection instead of 40%. 40% is the control threshold under the basic conditions for standard active assets.

The means of assessing the level of control varies depends on the type of entity being referred to. For a company, control is determined by reference to either rights to voting, dividend income and / or capital distributions. For a discretionary trust, control is determined by reference to a distributions test or influence over trustee test.

The distributions test considers historic distributions of income and capital from the trust to beneficiaries. Essentially, a beneficiary will be connected with a discretionary trust where – for any income year within the past 4 years prior to the current income year – that beneficiary has received a distribution of income or capital from the trust in excess of 20% of the total income or capital for that particular income year. Note the turnover or assets of entities that control the object entity are disregarded.

Fifth condition: The taxpayer was a CGT concession stakeholder in the object entity OR CGT concession stakeholders in the object entity together have a small business participation percentage in the taxpayer of at least 90%.

If the taxpayer is a natural person, they will satisfy the condition where:

  • they have a SBPP in the object entity of at least 20%; or
  • they are the spouse of such a person; and
  • they have a SBPP in the object entity which is greater than nil.

For example, Tom and Magnolia every year receive 50% of trust income. They both have a SBPP in the trust exceeding 20% and therefore both qualify as CGT concession stakeholders in the object entity.

If the taxpayer is a company or trust, the CGT concession stakeholders of the object entity must together have a SBPP in the taxpayer of at least 90%.

For example, the Magnolia Discretionary Trust holds 90% of the shares in private company, Abbie Pty Ltd. As per the last example, the trustee of the Magnolia Discretionary Trust has historically distributed 50% of trust income to Magnolia and 50% of trust income to Tom.

In this scenario, the CGT concession stakeholders of Abbie Pty Ltd (object entity) include Tom and Magnolia as they both have an SBPP of 45% (50% interest in trust x 90% interest of trust in company) in Abbie Pty Ltd.

The next step is then to check whether Tom & Magnolia, as CGT concession stakeholders in Abbie Pty Ltd (object entity), have a small business participation in the Magnolia Discretionary Trust (taxpayer) of at least 90%.

In this case, Tom & Magnolia both have a SBPP of 50% in the Magnolia Family Trust. Therefore, CGT concession stakeholders (Tom & Magnolia) of the object entity (Abbie Pty Ltd) have a combined SBPP in the taxpayer (Magnolia Family Trust) of 100%. This exceeds the 90% requirement. The fifth and final condition is satisfied.

This article is general information only and does not provide advice to address your personal circumstances. To make an informed decision you should contact an appropriately qualified professional.