Incorrect CGT small business entity requirement in 328-430


There appears to be a drafting error in subsection 328-430(1)(d)(ii) dealing with small business entity ['SBE'] rollovers. A SBE is defined in section 328-110 as an entity that has an aggregated turnover of less than $10 million, accordingly it should be possible to roll an asset into a SBE using Subdivision 328-G provided the SBE is either an affiliate of or connected with the transferor (assuming the other requirements in section 328-430 are met).

The current wording of subsection 328-430(1)(d)(ii) however, requires the asset transferred to meet the requirements of subsection 152-10(1A) - which means that the transferee has to be a "CGT small business entity" (rather than an ordinary SBE).

A "CGT small business entity" is defined in subsection 152-10(1AA) as an entity that would be a SBE under section 328-110 if the aggregated turnover test was done using a $2 million threshold - this much lower threshold means that many taxpayers will not be able to obtain relief under section 328-430 despite transferring assets to entites that are SBEs.

This drafting error / gremlin can be corrected by amending subsection 328-430(1)(d)(ii) to add words like "if the references to 'CGT small business entity' in that subsection were instead references to a small business entity."