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CGT small business concessions and contributions to super

Death and the small business CGT concessions

Section: 8.11

Beneficiaries, legal personal representatives and surviving joint tenants who acquire small business assets as a result of death will generally be eligible for the small business CGT concessions if:

  • The deceased would have met the basic conditions if disposing of the asset just prior to the time of death, and
  • The asset is disposed of by the beneficiary or legal personal representative within two years of the date of death.

Where the 15-year exemption is claimed in this case, the requirement that the CGT event happens in connection with retirement does not apply.  Where the small business retirement exemption is claimed in the event of death, there is no need to contribute the exempt amount to super, regardless of the individual's age.

Comment: Lifetime CGT cap not available on death

While beneficiaries, legal personal representatives and surviving joint tenants may be eligible for one or more small business CGT concessions, on a strict interpretation of the legislation, they do not appear to be able to elect for the contribution of eligible proceeds to count towards the lifetime CGT cap. Members in these circumstances should pursue their own private binding ruling from the ATO to confirm their position.

Last modified: Wednesday, July 24, 2019