TAX TIP #52: | RESTRUCTURE SERIES | ROLL-OVER FOR THE DISPOSAL OF ASSETS TO, OR THE CREATION OF ASSETS IN, A WHOLLY-OWNED COMPANY

Playna Ho
Oct 23, 2023
3 min read

In our 'Restructure Series', we focus on various structures throughout the lifespan of a business from setup to growth to exit and how to restructure a business to achieve that purpose.

In this tax tip, we focus on restructuring when your business is in growth phase.

Facts

Client A operates a business in Trust T.

They wish to restructure to a company (Company C).

The reason for a restructure could be many including:

the ability to retain profits for business purchases and/or working capital without the need to consider Division 7A
offering employees equity under an employee share scheme
position the business for a future sale as a share sale results in less business interruption

Tax Tip

However, the costs of a restructure must also be considered including:

tax
stamp duty
administrative

Tax

CGT

If the restructure occurs where Trust T wholly owns the new Company C – there will be $nil tax in accordance with subdivision 122-A ITAA 1997.

There are other strict requirements to satisfy subdivision 122-A ITAA 1997 however all of those requirements can be achieved if properly implemented.

An important note is that a new Trust cannot wholly own the new Company C. This does not satisfy subdivision 122-A ITAA 1997 and does not satisfy the small business restructure rollover under subdivision 328-G ITAA 1997.

Depreciating Assets

Subdivision 122-A ITAA 1997 specifically excludes depreciating assets.

Therefore, if the business has depreciating assets that are to be transferred under the restructure, the balancing adjustment provisions in subdivision 40-D must be considered.

Thankfully, section 40-340 ITAA 1997 allows for a rollover where subdivision 122-A ITAA 1997 could also apply to the CGT asset. That is, if subdivision 122-A ITAA 1997 applies then section 40-340 will also apply.

Trading Stock

Subdivision 122-A ITAA 1997 also specifically excludes trading stock.

Therefore, if the business has trading stock that is to be transferred under the restructure, the trading stock provisions in division 70 ITAA 1997 must be considered.

As the restructure is an internal arrangement, the parties will be related and therefore section 70-20 ITAA 1997 could apply (about non-arm's length transactions). However, that section applies if the consideration is more than the market value. If the trading stock is transferred at cost, section 70-20 ITAA 1997 will not apply because the consideration is equal to or less than market value.

Further, section 70-90 ITAA 1997 (about disposals of trading stock outside the ordinary course of business) must also be considered. However, if the trading stock is transferred at cost, section 70-90 ITAA 1997 will not apply because the disposal is in the ordinary course of Trust T’s business.

Stamp duty

In NSW, VIC and SA, there is no stamp duty on the transfer of business assets.

In Qld there is a stamp duty exemption if the business asset is less than $10M value and the turnover is less than $5M.

In WA, we are not aware of any exemptions. Full stamp duty will apply.

Administrative

New TFN, ABN and GST registrations because the business is now owned by a company
This will lead to updating of invoices, etc displaying the new ABN
Possibly change business name registration to the new company
A new bank account
It is recommended any restructure is effective after the end of a relevant reporting period. The most convenient would be 1 July however, if that is too far away, then the next day after the end of a BAS period.

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