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ATO Interpretative Decision

ATO ID 2001/478 (Withdrawn)

Income Tax
Borrowing expenses - on purchase of vacant land and the construction of a house for future income producing purposes

Attention This ATO ID is withdrawn. Guidance on the basis of the decision in this ATO ID can be found in Taxation Ruling TR 2004/4 Income tax: deductions for interest incurred prior to the commencement of, or following the cessation of, relevant income earning activities.
Attention This document has changed over time. View its history.
FOI status: may be released
Status of this decision: Decision withdrawn 24 March 2017.

CautionCAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.


Issue

Can the taxpayer claim a deduction under section 25-25 of the Income Tax Assessment Act 1997 (ITAA 1997) for borrowing expenses to fund the purchase of land and the construction of a house for future income producing purposes?

Decision

Yes, the taxpayer can claim a deduction under section 25-25 of the ITAA 1997 for borrowing expenses to fund the purchase of land and the construction of a house to be used for future income producing purposes.

Facts

The taxpayer purchased land and intends to complete the building of a house on the land within 12 to 18 months.

The taxpayer borrowed funds to purchase the land and construct the house.

Borrowing costs were incurred prior to the commencement of construction of the house.

The taxpayer intends to use the property to produce rental income.

Reasons for decision

Section 25-25 of the ITAA 1997 allows a deduction for certain borrowing expenses. Where the total borrowing costs exceed $100, the claim must be apportioned over the period of the loan or five years, whichever is the lesser.

Borrowing expenses such as procuration fees, legal expenses, stamp duty on the mortgage, valuation and survey fees associated with the borrowing are deductible to the extent that the borrowed monies are actually or intended to be used during the income year for income producing purposes.

It is not necessary, however, that the expenditure in question should produce assessable income in the same year in which the expenditure is incurred. Taxation Ruling TR 2004/4 in considering the decision of the High Court in Steele v. Deputy Commissioner of Taxation (1999) 197 CLR 459; [1999] HCA 7; 99 ATC 4242; (1999) 41 ATR 139 (Steele's Case) concludes that interest incurred in a period prior to the derivation of relevant assessable income will be incurred in gaining or producing the assessable income in the following circumstances:

-
  The interest is not incurred 'too soon', is not preliminary to the income earning activities and is not a prelude to those activities;
-
  The interest is not private or domestic;
-
  The period of interest outgoings prior to the derivation of relevant assessable income is not so long, taking into account the kind of income earning activities involved, that the necessary connection between outgoings and assessable income is lost;
-
  The interest is incurred with one end in view, the gaining or producing of assessable income; and
-
  Continuing efforts are undertaken in pursuit of that end.

While Steele's Case deals with the issue of interest, the principles can be applied to other types of expenditure including borrowing costs.

The borrowing expenses are incurred with regard to the purchase of land and the construction of a house that will be used solely for income producing purposes. The borrowing expenses are not considered to have been incurred at a point 'too soon' before the commencement of the income producing activity.

There is no private or domestic purpose for holding the property, the taxpayer's intention was always to build an income producing property.

The length of time between purchase of the property and completion of construction is not considered to be so long that the necessary connection between the outgoings and the assessable income is lost. The taxpayer intended to complete construction within 12 to 18 months of the purchase of the land.

In these circumstances, the taxpayer is entitled to a deduction for borrowing costs under section 25-25 of the ITAA 1997. The borrowing expense deduction will be spread over the period of the loan or five years whichever is the lesser.

[HISTORY: This ATOID was amended on 7 May 2007 by replacing the references to Taxation Ruling TR 2000/17 with references to Taxation Ruling TR 2004/4.]

Amendment History

Date of amendment Part Comment
13 June 2014 Title, Reasons for Decision, Case References, Keywords Amended for style adherence.
  Related ATO Interpretative Decisions Amended to remove withdrawn ATO IDs and add related ATO ID.

Date of decision: 26 July 2001

Legislative References:
Income Tax Assessment Act 1997
   section 25-25

Case References:
Steele v. Deputy Commissioner of Taxation
   (1999) 197 CLR 459
   [1999] HCA 7
   99 ATC 4242
   (1999) 41 ATR 139

Related Public Rulings (including Determinations)
TR 2004/4

Related ATO Interpretative Decisions
ATO ID 2001/479

Keywords
Acquisition of real estate
Deductions & expenses
Expenses of borrowing
Potential residential land
Real estate related expenses
Rental expenses
Potential residential land

Siebel/TDMS Reference Number: DW251463; 1-58H05F2; 1-AZMF1BA

Business Line: Small Business/Individual Taxpayers

Date of publication: 17 October 2001

ISSN: 1445-2782

ATO ID 2001/478 (Withdrawn) history   Top  
   Date   Version 
   26 July 2001   Original statement   
   13 June 2014   Updated statement   
 You are here ®  24 March 2017   Withdrawn   


 


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