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Taxation Determination

TD 92/172

Income tax: capital gains: do the dwellings referred to in subsection 160ZZQ(9) have to be post-CGT assets?

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FOI status:

may be releasedFOI number: I 1213454

This Determination, to the extent that it is capable of being a 'public ruling' in terms of Part IVAAA of the Taxation Administration Act 1953, is a public ruling for the purposes of that Part. Taxation Ruling TR 92/1 explains when a Determination is a public ruling and how it is binding on the Commissioner. Unless otherwise stated, this Determination applies to years commencing both before and after its date of issue.

1. No. Subsection 160ZZQ(9) does not require that the dwellings be post-CGT assets. The subsection merely requires that each spouse has a separate dwelling which is his or her sole or principal residence.

Example:

A husband and wife jointly own both a pre-CGT house (occupied by the wife) and a post-CGT house (occupied by the husband). The wife can nominate her interest in the post-CGT house as her sole or principal residence under subsection 160ZZQ(9).
Assuming the husband nominates his interest in the post-CGT house as his sole or principal residence, full exemption will be available under subsection 160ZZQ(12).
Note: In this case, the spouses are not living separately and apart on a permanent basis (subsection 160K(2)).

Commissioner of Taxation
22/10/92

Previously Draft TD 92/D149

References

ATO references:
NO CGT Cell PRE

ISSN 1038 - 3158

Related Rulings/Determinations:

TD92173;
TD92174

Subject References:
Principal residence exemption;
interests in dwelling

Legislative References:
ITAA160ZZQ(9);
ITAA160ZZQ(12);
ITAA 160K(2)

TD 92/172 history
  Date: Version: Change:
You are here 22 October 1992 Original ruling  
  29 November 2006 Original ruling + note Repeal provision note
  17 March 2010 Consolidated ruling Addendum

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