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Subdivision 328-G: The limitations become apparent


The Subdiv 328-G roll-over, originally considered a “one stop shop” for small business owners to restructure their businesses into appropriate entities, has started to show its cracks. A little more than a year on from its commencement, the limitations of the Subdiv 328-G roll-over have become starkly apparent due to the complexity of the legislation and the narrow interpretation adopted by the ATO on issues such as “ultimate economic ownership”. The drafting of the relevant provisions and the ATO’s subsequent interpretation have meant many small businesses that philosophically should be able to access the roll-over relief have been left unable to qualify. This article explores the circumstances in which small businesses are unable to be restructured under Subdiv 328-G and highlights that the roll-over should be relied on with caution, as much will hinge on the application of technical requirements to the specific client circumstances and structure.

Author profiles

Matthew Burgess CTA
Photo of author, Matthew BURGESS Matthew co-founded specialist firm View Legal in 2014, having been a lawyer and partner of one of Australia’s leading independent law firms for over 17 years. Matthew’s passion is helping clients successfully achieve their goals. Matthew specialises in tax, and estate and succession planning, providing strategic advice to business owners and high net worth individuals. He has been recognised in the Best Lawyers list since 2014 in relation to trusts and estates and either personally or as part of View Legal in Doyles since 2015 in relation to taxation, and since 2017 in relation to wills, estates and succession planning. In part leveraging off the skills he has developed working in the SME market space, Matthew has been the catalyst for a number of innovative legal solutions for advisers and their clients, including establishing Australia’s first virtual law firm. - Current at 13 August 2018
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Patrick Ellwood FTI
Patrick holds a Bachelor of Laws and Bachelor of Information Technology from the University of Queensland, a Graduate Diploma in Legal Practice, Skills and Ethics from Griffith University and has been admitted as a Solicitor of the Supreme Court of Queensland. He has extensive experience as a speaker and is a regular presenter for a range of professional organisations. - Current at 11 September 2015
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