Restructuring is where the rollovers, the concessions and the integrity provisions all meet at once. A step that solves an asset protection problem can crystallise a capital gain, break a pre-CGT status, trigger duty in three jurisdictions, or create a Division 7A loan nobody intended.
The value in this work is in the sequencing. The same commercial outcome, executed in a different order, can produce materially different tax. That has to be worked out before anything is signed.
Where we act
What we do
- Choice of structure for new businesses, investments and property projects
- Small business restructure rollover (Subdivision 328-G) and the genuine restructure requirement
- Rollovers under Subdivision 122-A, 122-B, 124-M and 615, and the interaction between them
- Small business CGT concessions (Division 152): basic conditions, active asset test, significant individual and the 15-year exemption
- Pre-CGT assets and Division 149 — identifying whether pre-CGT status has already been lost
- Corporate group reorganisations, share buy-backs, returns of capital and dividend access shares
- Company wind-downs and liquidator’s distributions
- Business succession and intergenerational transfers, including farm succession
- Part IVA risk review on restructures and back-to-back rollovers
- Employee incentive and equity arrangements
Common situations
What we are usually brought in on
A sale is coming and the structure is wrong
The concessions available on exit depend on facts that were fixed years earlier — who holds what, for how long, and whether the asset was active. Restructuring on the eve of a sale attracts scrutiny.
Two rollovers back to back
Individually each step may qualify. Taken together they may be a scheme to which the general anti-avoidance provision applies. The sequence and the reason for it both matter.
Pre-CGT status may already be gone
Division 149 can strip pre-CGT status through changes in majority underlying interests that happened decades ago and were never documented.
The concession is assumed rather than tested
The small business CGT concessions have several separate gateways. Failing one of them — often the active asset test or a connected entity question — changes the outcome entirely.
How we work
Our approach
Model the exit at the start. The right structure is the one that still works when the business is sold, the family changes, or a beneficiary moves overseas.
Written advice you can actually rely on. Advice sets out the facts assumed, the analysis, the conclusion and the risks. It is designed to be readable by the client and defensible to the ATO.
Phased scoping. Structuring work is scoped in phases — usually a preliminary review, then advice, then implementation — each with its own estimate.
Common questions
Can I restructure without triggering CGT?
Sometimes. There are several rollovers that can defer a capital gain on a restructure, including the small business restructure rollover and the various Division 122 and 615 rollovers. Each has its own conditions, and none of them address duty, which is a separate state-based question that has to be dealt with alongside the income tax analysis.
Does the ATO look at restructures?
Yes, particularly where a restructure precedes a sale, where it produces a step-up in cost base, or where the commercial rationale is thin. The general anti-avoidance provision looks at the scheme as a whole, so documenting the actual commercial reason at the time it is done is the single most useful protective step.
Related insights
Further reading
Division 7A
Bendel is decided. Now mind the window
The High Court has held an unpaid present entitlement is not a Division 7A loan. What it means, what must be unwound, and why 1 July 2028 changes things.
Trusts
Five traps hiding in old trust deeds
Appointor dead-ends, no income definition, defective default clauses, foreign beneficiaries and missing streaming powers: five defects in older trust deeds.
Have a matter you want a straight answer on?
Most engagements start with a short conversation about the issue, what the exposure looks like and what it would cost to deal with it properly. There is no charge for that conversation.