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The AAT has held that Part IVA applied to an elaborate scheme entered into by the taxpayers to attract the small business CGT concessions in Div 152 ITAA 1997. The effect of the scheme was that, but for Part IVA, a trust that derived significant capital gains satisfied the maximum net asset value test. The taxpayer's argument that capital distributions made to various trusts that were established as part of the scheme were made for "asset protection" purposes was rejected by the AAT.

The AAT said, at para 102-103:

"... the evidence of the principals does not satisfy me that there was, in 2005, either a need for asset protection or a view, genuinely held on reasonable grounds, that there was a need for asset protection. Mr Forde, who might be thought to have the best grasp of the commercial ramifications of the transactions, acknowledged in his evidence that advice was sought 'in order to pay as little tax as possible' whilst at the same time asserting the need for asset protection.

The manner in which the scheme was entered into, or carried out, points strongly to a contrivance, designed to take advantage of the small business concession threshold, in circumstances where the sale then in prospect clearly demonstrated that the assets of the business exceeded that threshold by a considerable amount. The fact of capital distributions having been made in one financial year, prior to the sale in the following financial year, merely emphasises the contrivance and that the contrivance was directed to obtaining a tax benefit in connection with the scheme."

Track and Ors and FCT [2015] AATA 45 (AAT, Hack SC DP, 29 January 2015).


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