Given it happens so infrequently, I thought I should mention a case where the AAT has required the Commissioner to exercise his discretion to not apply the non commercial losses rule in Division 35 of the ITAA97.
In AAT Case  AATA 620, Re Bentivoglio v FCT a medical doctor earning over $250,000 (so could not use the four exemptions) wanted to apply losses from his olive business against his other income.
The non commercial losses rules would not let him do this, so he asked the Commissioner to exercise his discretion to not apply these rules (the discretion is in section 35-55) and, like almost always, the Commissioner refused.
The taxpayer went to the AAT and stated the losses were due to the olive lace bug, drought, fire, an olive glut worldwide and the illness of a key worker. The taxpayer said these were special circumstances so the Commissioner should exercise his discretion. And at AAT agreed.
So tick off these issues and it might be worth asking for the 35-55 discretion next time you get stuck with unusable losses due to the rest of Division 35.
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