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Division 40 - Capital allowances    View history reference

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 rollover 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.

Subdivision 40-J - Capital expenditure for the establishment of trees in carbon sink forests    View history reference

Operative provisions

SECTION 40-1010  Expenditure for establishing trees in carbon sink forests  

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Expenditure is covered under this section in relation to particular trees if:

(a) the trees are established in an income year; and

(b) you incur or another entity incurs the expenditure in the income year or an earlier income year for establishing the trees; and
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(c) the entity incurring the expenditure (the establishing entity ) is carrying on a *business in the income year; and
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(d) the establishing entity ' s primary and principal purpose for establishing the trees is *carbon sequestration by the trees (see section 40-1015 ); and
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(e) the establishing entity ' s purposes for establishing the trees do not include any of the following:

(i) felling the trees;

(ii) using the trees for *commercial horticulture; and
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(f) the establishing entity does not incur the expenditure under:

(i) a *managed investment scheme; or

(ii) a *forestry managed investment scheme; and
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(g) all of the conditions in subsection (2) are satisfied for the trees; and

(h) the establishing entity gives the Commissioner, in accordance with subsection (4) , a statement that:

(i) sets out all information necessary to determine whether all of the conditions in subsection (2) are satisfied for the trees; and

(ii) is in the *approved form.
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The conditions are as follows:

(a) at the end of the income year, the trees occupy a continuous land area in Australia of 0.2 hectares or more;

(b) at the time the trees are established, it is more likely than not that they will:

(i) attain a crown cover of 20% or more; and

(ii) reach a height of at least 2 metres;

(c) on 1 January 1990, the area occupied by the trees was clear of other trees that:

(i) attained, or were more likely than not to attain, a crown cover of 20% or more; and

(ii) reached, or were more likely than not to reach, a height of at least 2 metres;

(d) the establishment of the trees meets the requirements of the guidelines mentioned in subsection (3) .


The *Climate Change Minister must, by legislative instrument, make guidelines about environmental and natural resource management in relation to the establishment of trees for the purposes of *carbon sequestration.


The statement mentioned in paragraph (1)(h) is to be given to the Commissioner no later than:

(a) if the establishing entity lodges its *income tax return for the income year within 5 months after the end of the income year - the day the establishing entity lodges that income tax return; or
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(b) otherwise - 5 months after the end of the income year.


However, expenditure is not covered under this section if the *Climate Change Secretary gives the Commissioner a notice under subsection (6) in relation to the trees.


The *Climate Change Secretary must give the Commissioner a notice in writing under this subsection if the Climate Change Secretary is satisfied that one or more of the conditions in subsection (2) have not been satisfied for the trees.


A person may apply to the *AAT for review of a decision (as defined in the Administrative Appeals Tribunal Act 1975 ) of the *Climate Change Secretary to give a notice under subsection (6) .


The Commissioner may give the *Climate Change Secretary a copy of the statement mentioned in paragraph (1)(h) , for the purposes of subsections (5) , (6) and (7) .


This information is provided by CCH Australia Limited. View the disclaimer and notice of copyright.
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