CGT small business concessions and contributions to super
In specie transfers to an SMSF and the small business CGT concessions
It is unclear whether in specie contributions of active assets, such as business real property, will qualify for the lifetime CGT cap where the super contribution is also the event that qualifies for the small business CGT concessions.
A number of private binding rulings (eg 1013054081138 and 1013008906784) have denied an in specie contribution from being counted under the lifetime CGT cap where the property was owned by an individual, and the individual qualified for the 15-year exemption or the retirement exemption.
Other private binding rulings (eg 1051480898467 and 1051456343199) have allowed an in specie contribution to be counted under the lifetime CGT cap where the property was owned by an individual and the individual qualified for the 15-year exemption or the retirement exemption.
Where the contribution does not count against the CGT lifetime cap, it will be made as a non-concessional or concessional contribution, depending on whether a valid deduction notice is submitted.
Note: In other circumstances, such as where the CGT event and the in specie contribution are separate events, in specie contributions may qualify for the CGT small business concessions and the lifetime CGT cap. See ATO ID 2010/217.
Members making in specie contributions to super should seek a private binding ruling from the ATO or professional taxation advice regarding the eligibility to have such a contribution count against their lifetime CGT cap.
Last modified: Wednesday, July 24, 2019