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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-B - Core provisions    View history reference

Operative provisions

SECTION 40-40  

40-40  Meaning of hold a depreciating asset  

 View history reference ITAA 36
Use this table to work out who holds a * depreciating asset. An entity identified in column 3 of an item in the table as not holding a depreciating asset cannot hold the asset under another item.
Identifying the holder of a depreciating asset
ItemThis kind of depreciating asset:Is held by this entity:
1A *car in respect of which a lease has been granted that was a *luxury car when the lessor first leased itThe lessee (while the lessee has the *right to use the car) and not the lessor
.......... .
2A *depreciating asset that is fixed to land subject to a *quasi-ownership right (including any extension or renewal of such a right) where the owner of the right has a right to remove the assetThe owner of the quasi-ownership right (while the right to remove exists)
.......... .
3An improvement to land (whether a fixture or not) subject to a *quasi-ownership right (including any extension or renewal of such a right) made, or itself improved, by any owner of the right for the owner ' s own use where the owner of the right has no right to remove the assetThe owner of the quasi-ownership right (while it exists)
.......... .
4A *depreciating asset that is subject to a lease where the asset is fixed to land and the lessor has the right to recover the assetThe lessor (while the right to recover exists)
.......... .
5A right that an entity legally owns but which another entity (the economic owner ) exercises or has a right to exercise immediately, where the economic owner has a right to become its legal owner and it is reasonable to expect that:The economic owner and not the legal owner
 (a)the economic owner will become its legal owner; or 
 (b)it will be disposed of at the direction and for the benefit of the economic owner 
.......... .
6A *depreciating asset that an entity (the former holder ) would, apart from this item, hold under this table (including by another application of this item) where a second entity (also the economic owner ):The economic owner and not the former holder
 (a)possesses the asset, or has a right as against the former holder to possess the asset immediately; and 
 (b)has a right as against the former holder the exercise of which would make the economic owner the holder under any item of this table; 
 and it is reasonable to expect that the economic owner will become its holder by exercising the right, or that the asset will be disposed of at the direction and for the benefit of the economic owner 
.......... .
7A *depreciating asset that is a partnership assetThe partnership and not any particular partner
.......... .
8*Mining, quarrying or prospecting information that an entity has and that is relevant to:The entity
 (a)*mining and quarrying operations carried on, or proposed to be carried on by the entity; or 
 (b)a *business carried on by the entity that includes *exploration or prospecting for *minerals or quarry materials obtainable by such operations; 
 whether or not it is generally available 
.......... .
9Other *mining quarrying or prospecting information that an entity has and that is not generally availableThe entity
.......... .
9A(Repealed by No 96 of 2014) 
.......... .
10Any *depreciating assetThe owner, or the legal owner if there is both a legal and equitable owner

Example 1:

Power Finance leases a luxury car to Kris who subleases it to Rachael. As lessee, item 1 makes Rachael the holder of the car. Power, as the legal owner, would normally hold the car under item 10.

However, item 1 makes it clear that Power, as lessor, does not hold the car. As the lessee, item 1 would normally mean that Kris held the car but, again, she is also a lessor and so is not the holder (she also doesn ' t have the right to use the car during the sublease).

Example 2:

Sandra sells a packing machine to Jenny under a hire purchase agreement. Jenny holds the machine under item 6 because, although she is not the legal owner until she exercises her option to purchase, she possesses the machine now and can exercise an option to become its legal owner.

Jenny is reasonably expected to exercise that option because the final payment will be well below the expected market value of the machine at the end of the agreement. Sandra, as the machine ' s legal owner, would normally be its holder under item 10 but item 6 makes it clear that the legal owner is not the holder.

Note 1:

Some assets may have holders under more than one item in the table.

Note 2:

As well as hire purchase agreements, items 5 and 6 cover cases like assets subject to chattel mortgages, sales subject to retention of title clauses and assets subject to bare trusts.


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