Division 43 of the ITAA 1997 provides for a system of deducting capital expenditure incurred in the construction of building and other capital works used to produce assessable income.
Capital works
You can deduct construction costs in respect of the following capital works:
- buildings or extensions, alterations or improvements to a building
- structural improvements or extensions, alterations or improvements to structural improvements
- environmental protection earthworks.
Deductions for construction costs and structural improvements must be based on actual costs incurred. If it is not possible to genuinely determine the actual costs, obtain an estimate by a quantity surveyor or other independent qualified person. The costs incurred by the fund to obtain this estimate are deductible as a tax-related expense, not as an expense in gaining or producing assessable income.
Different deduction rates apply (2.5% or 4%) depending on the date on which construction began, the type of capital works, and the manner of use.
Who can claim?
The fund can claim a deduction under Division 43 for an income year only if it:
- owns, leases or holds under quasi-ownership rights part of a construction expenditure area of capital works (‘your area’)
- incurred the construction expenditure or is an assignee of the lessee or holder who incurred the expense, and
- uses ‘your area’ to produce assessable income.
In calculating the fund's deduction, identify ‘your area’ for each construction expenditure area of the capital works. Your area may comprise the whole of the construction area or part of it.
Lessee or holder of capital works
A lessee or holder can claim a deduction in respect of an area leased or held under a quasi-ownership right.
To claim a deduction, the lessee or holder must have:
- incurred the construction expenditure or been an assignee of the lessee who incurred the expenditure
- continuously leased or held the capital works area itself, or leased or held the area that had been so held by previous lessees, holders or assignees since completion of construction, and
- used the area to produce assessable income.
If there is a lapse in the lease the entitlement to the deduction reverts to the building owner.
Requirement for deductibility
A fund can deduct an amount for capital works in an income year if:
- the capital works have a ‘construction expenditure area’
- there is a ‘pool of construction expenditure’ for that area, and
- the fund uses the area in the income year to produce assessable income.
No deduction until construction is complete
A fund cannot claim a deduction for any period before the completion of construction of the capital works even though the fund used them, or part of them, before completion. Additionally, the deduction cannot exceed the undeducted construction expenditure for your area.
Capital works are taken to have begun when the first step in the construction phase starts, for example, pouring foundations or sinking pylons for a building.
Establishing the deduction base
The fund can deduct expenditure for the construction of capital works if there is a construction expenditure area for the capital works.
Whether there is such an area and how it is identified depends on:
- the type of expenditure incurred
- the time the capital works commenced
- the area of the capital works to be owned, leased or held by the entity that incurred the expenditure
- for capital works begun before 1 July 1997, the area of the capital works that was to be used in a particular manner, see section 43-90 of the ITAA 1997.
Construction expenditure
Construction expenditure includes:
- preliminary expenses such as architect’s fees, engineering fees, foundation excavation expenses and costs of building permits
- costs of structural features that are an integral part of the income-producing building or income-producing structural improvements, for example, lift wells and atriums
- some portion of indirect costs.
For an owner-builder entitled to a deduction under Division 43 of the ITAA 1997, the value of their contributions to the works (that is, labour or expertise and any notional profit element) do not form part of construction expenditure. See TR 97/25 Income tax: property development: deduction for capital expenditure on construction of income producing capital works, including buildings and structural improvements.
Construction expenditure does not include expenditure on:
- acquiring land
- demolishing existing structures
- clearing, levelling, filling, draining or otherwise preparing the construction site before carrying out excavation work
- landscaping
- plant
- property or expenditure for which a deduction is allowable or would be allowable if the property were to be used for the purpose of producing assessable income under another specified provision of the ITAA 1936 or the ITAA 1997.
Construction expenditure area
The construction of the capital works must be complete before the construction expenditure area is determined. A separate construction expenditure area is created each time an entity undertakes the construction of capital works.
The construction expenditure area for capital works that started after 30 June 1997 is the part of the capital works on which the construction expenditure was incurred by a fund that, at the time it was incurred, was to be owned, leased or held (under of quasi-ownership rights) by the fund.
For construction area expenditure before 1 July 1997, the capital works must have been intended for use for a certain specified purpose at the time of completion. The type of capital works and the intended use on completion depends on the time when the capital works commenced. The first specified use construction time was 22 August 1979; see the table at section 43-90 and subsection 43-75(2) of the ITAA 1997.
Pool of construction expenditure
The pool of construction expenditure is the portion of the construction expenditure incurred by a fund on capital works that is attributable to the construction expenditure area.
The portion of the pool of construction expenditure that is attributable to the area that is owned, leased or held by the fund is called ‘your construction expenditure’.
Deductible use
A fund can only claim a deduction under Division 43 if it uses the area in a way described in table 43-140 or 43-145 of Subdivision 43-D of the ITAA 1997.
Special rules about uses
Your area is taken to be used for a particular purpose or in a particular manner if:
- it is maintained ready for that use, is not used for another purpose and its use had not been abandoned, or
- its use for a particular purpose or in a particular manner has temporarily ceased because of construction of an extension, alteration or improvement or the making of repairs or seasonal or climatic factors.
Your area is not accepted as being used to produce assessable income:
- if it is a building (other than a hotel building or apartment building) used, or for use, wholly or mainly, for exhibition or display in connection with the sale of all or part of any building and construction began after 17 July 1985 but before 1 July 1997; if construction began after 30 June 1997, buildings that are used for display are eligible
- if it is a building, (other than a hotel building or apartment building), or an extension, alteration or improvement to such a building, where construction began after 19 July 1982 and before 18 July 1985, and it is used or available for use wholly or mainly for
- or in association with, residential accommodation, or
- exhibition or display in connection with the sale of all or part of any building, or the lease of all or part of any building for use wholly or mainly for, or in association with, residential accommodation
- to the extent the building (other than a hotel building or an apartment building) is for use mainly for, or in association with, residential accommodation, by the fund or an associate. See subsection 43-170(2) of the ITAA 1997 for exceptions to this rule.
Your area is taken to be used, or for use wholly or mainly for, or in association with, residential accommodation if it is:
- property (other than a hotel building or apartment building) and is part of an individual’s home, or
- a building (other than a hotel building or apartment building) where construction began after 19 July 1982 and before 18 July 1985 and that is used or for use, wholly or mainly for the purpose of operating a hotel, motel or guest house. Thus a hotel, motel or guest house, for which construction began during the specified time, and which does not qualify as a hotel building or apartment building (e.g. because it has fewer than 10 bedrooms or apartments) does not qualify for a deduction under Division 43.
Special rules for hotel and apartment buildings are contained in section 43-180 of the ITAA 1997.
Calculation and rate of deduction
A fund’s entitlement to a deduction begins on the date the building is first used to produce assessable income after construction is completed. The first and last years of use may be apportioned. The entitlement to a deduction runs for either 25 or 40 years (the limitation period) depending on the rate of deduction applicable.
The legislation contains two calculation provisions:
- section 43-215 of the ITAA 1997, deduction for capital works which began before 27 February 1992
- section 43-210 of the ITAA 1997, deduction for capital works which began after 26 February 1992.
Capital works begun before 27 February 1992 and used as described in table 43-140 of the ITAA 1997
Calculate the deduction separately for each part of capital works that meets the description of your area.
Multiply the construction expenditure by the applicable rate (either 4% if the capital works began after 21 August 1984 and before 16 September 1987 or 2.5% in any other case) and by the number of days in the income year in which the fund owned, leased or held your area and used it in a relevant way. Divide that amount by the number of days in the income year. See section 43-215, Subdivision 43-F of the ITAA 1997.
Apportion the amount if your area is used only partly to produce assessable income.
The amount the fund claims cannot exceed the undeducted construction expenditure.
Capital works begun after 26 February 1992
Calculate the deduction separately for each part of capital works that meets the description of your area.
Multiply the construction expenditure by the applicable rate and by the number of days in the income year in which the fund owned, leased or held your area and used it in a relevant way. Divide that amount by the number of days in the income year. See section 43-210, Subdivision 43-F of the ITAA 1997.
Apportion the amount if your area is used only partly to produce assessable income (or if relevant partly for the purposes of conducing R&D activities).
There is a basic entitlement to a rate of 2.5% for parts used as described in table 43-140 Current year use. The rate increases to 4% for parts used as described in table 43-145 Use in the 4% manner.
Undeducted construction expenditure
The undeducted construction expenditure for your area is the part of the construction expenditure that remains to write off. It is used to work out:
- the number of years in which the fund can deduct amounts for construction expenditure
- the amount that the fund can deduct under section 43-40 of the ITAA 1997 if your area or a part of it is destroyed.
The methods for calculating undeducted construction expenditure are included in sections 43-230, 43-235 and 43-240, Subdivision 43-G of the ITAA 1997.
Balancing deduction on destruction
If a building is destroyed during an income year, you can claim a deduction for the remaining amount of undeducted construction expenditure that has not yet been deducted, less any compensation received. This applies even if the destruction or demolition is voluntary.
You can claim the deduction in the income year in which the destruction occurs.
The deduction is reduced if the capital works are used in an income year only partly for the purpose of producing assessable income.
The method statement for calculating the amount of the balancing deduction is included at section 43-250, Subdivision 43-H of the ITAA 1997.
See also