A client was considering the future sale of a commercial propertythat had increased substantially in value.
The property was owned by a family trust and leased to a companyconnected with the trust. The company operated the family's café business fromthe premises.
At first glance, the tax position could have lookedstraightforward:
The trust owned the property. The company paid rent. The trustreceived rental income.
So was it simply aninvestment property?
Not necessarily.
The important question waswho actually used the property
For the small business CGT concessions, an asset whose main use isto derive rent can generally be excluded from being an active asset.
But there is an important distinction where an asset is used in abusiness carried on by an affiliate or connected entity.
In this case, the tenant wasn't an unrelated third party.
The connected company was using the property to operate thefamily's café business.
That meant the payment of rent between the entities did not, byitself, prevent the property from potentially qualifying as an activeasset.
Instead of simply looking at the rental income appearing in thetrust's accounts, we needed to understand the broader structure:
Who controlled the entities? Were they connected for Division 152purposes? Who actually used the property? What was it used for? And for howlong?
Those questions could materially change the CGT outcome.
Could the capital gain potentially be eliminated?
The property's ownership history raised another important issue.
Where the relevant conditions are satisfied, the smallbusiness 15-year exemption canallow an eligible capital gain to be disregarded entirely.
But owning a commercial property for 15 years isn't enough byitself.
For a trust, additional requirements apply. Among other things,the basic Division 152 conditions must be satisfied, the asset must satisfy therelevant ownership and active-asset requirements, and the trust must satisfythe significant-individual requirements.
Broadly, the relevant significant individual immediately beforethe CGT event must also be 55 or older and the event occur inconnection with their retirement, or they must be permanentlyincapacitated.
Based on the circumstances we reviewed, there appeared to bepotential access to the small business CGT concessions, including thepossibility of the capital gain being disregarded entirely if all of therequirements for the 15-year exemption were ultimately satisfied.
That was a very different starting point from simply saying:
“The trust receives rent, so it's an investment property.”
And if the 15-year exemption wasn't available?
The analysis didn't necessarily end there.
Depending on the circumstances, Division 152 contains otherconcessions that can potentially reduce or defer an eligible capital gain,including the 50% active asset reduction, retirementexemption and small business rollover.
Which concession — or combination of concessions — is appropriatedepends on the particular transaction and taxpayer.
The important point for this client was that the property couldn'tbe analysed in isolation.
On paper:
Family Trust → owned the commercial property
Connected Company → operated the café from the property
Looking only at the trust's accounts showed rental income.
Looking at the broader business structure showed something muchmore important: the property was being used in thefamily's operating business by a connected entity.
That could fundamentally change the Division 152 analysis.
Before treating commercial property as a passive rental investmentfor CGT purposes, ask:
“Who is actually using theproperty — and what are they using it for?”
This case study has been generalised and certainfacts, entity details and financial information have been changed to protectclient and business confidentiality. General information only. Eligibility forthe small business CGT concessions depends on satisfying the requirements ofDivision 152, including the applicable basic conditions, active asset test andadditional conditions for each concession. Connected-entity and affiliaterelationships, aggregated turnover, maximum net asset value, ownership history,business use and significant-individual requirements can materially affect theoutcome. The 15-year exemption has additional requirements and does not applymerely because an asset has been owned for 15 years.
Stay Ahead with Business & Tax Insights
Receive practical business insights, taxation updates and strategic guidance delivered directly to your inbox. Stay informed about legislative changes, emerging opportunities and practical strategies to help you structure, grow and protect your business.

More real-world examples
Explore other situations where a closer look at the numbers, structure or timing helped uncover an opportunity or identify a potential issue.



