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ATO Interpretative Decision

ATO ID 2003/163 (Withdrawn)

Income Tax
Capital Gains Tax: main residence exemption - residence owned by company

Attention This ATO ID is withdrawn. Guidance on the basis of the decision in this ATO ID can be found in the Guide to capital gains tax (NAT 4151).
Attention This document has changed over time. View its history.

Status of this decision: Decision withdrawn 5 May 2017.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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Is the main residence exemption in Subdivision 118-B of the Income Tax Assessment Act 1997 (ITAA 1997) available to a company that owns a dwelling?

Decision

No. The main residence exemption in Subdivision 118-B of the ITAA 1997 is not available to a company that owns a dwelling.

Facts

The taxpayer, a company, made a capital gain from the disposal of a dwelling that it acquired after 19 September 1985. The directors of the company lived in the property throughout the company's ownership period of the dwelling.

Reasons for Decision

Section 118-110 of the ITAA 1997 provides that a capital gain or capital loss made by a taxpayer from a CGT event happening to a CGT asset that is a dwelling or to an 'ownership interest' in a dwelling is disregarded, if certain conditions are met. One of the conditions is that the taxpayer is an individual (paragraph 118-110(1)(a) of the ITAA 1997). 'Individual' is defined in subsection 995-1(1) of the ITAA 1997 to mean a natural person. A company is not an individual. It follows that the main residence exemption in Subdivision 118-B of the ITAA 1997 does not apply in respect of a dwelling owned by a company, even though the directors of the company lived in the property throughout the ownership period.

Date of decision: 8 November 2002

Year of income:Year ending 30 June 2003

Legislative References:
Income Tax Assessment Act 1997
   Subdivision 118-B
   section 118-110
   paragraph 118-110(1)(a)
   subsection 995-1(1)

Keywords
Capital gains tax
CGT assets
CGT events
CGT main residence exemption

Siebel/TDMS Reference Number: 3353314; 1-7ICKBY2; 1-B0LFZF3

Business Line: Small Business/Individual Taxpayers

Date of publication: 28 March 2003
Date reviewed: 1 December 2015

ISSN: 1445-2782

ATO ID 2003/163 (Withdrawn) history   Top  
   Date   Version 
    8 November 2002   Original statement   
 You are here ®   5 May 2017   Withdrawn   


 


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