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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

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Edited version of your written advice

Authorisation Number: 1051269023126

Date of advice: 16 August 2017

Ruling

Subject: Capital gains tax - main residence exemption

Question 1:

Will you be entitled to a full main residence exemption on the sale of Property B under section 118-110 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer:

No.

Question 2:

Will you be entitled to a partial main residence exemption on the sale of Property B under section 118-185 of the ITAA 1997?

Answer:

Yes.

This ruling applies for the following period

Income year ending 30 June 2016.

The scheme commences on

1 July 2015.

Relevant facts and circumstances

Prior to 1985, you and your family moved into your spouse’s parent’s residence (Property A).

After 1985, you and your spouse jointly purchased a property (Property B).

You and your family moved into Property B and it was your main residence.

A number of years after you had moved into Property B, the health of your spouse’s parents declined and they became their parent’s primary carer.

Your spouse’s parents gifted them Property A, with the title of Property A being transferred into your spouse’s name.

You and your family moved solely into Property A shortly after its title had been transferred into your spouse’s name.

Your spouse made the choice for Property A to be their main residence from the time they acquired their ownership interest in the property.

You made the choice for Property A to be your main residence from the time your spouse acquired their ownership interest in Property A.

A number of years after you and your family had moved into Property A, you and your spouse sold Property B and have made a capital gain as a result of its sale.

Relevant legislative provisions

Income Tax Assessment Act 1997 Part 3-1

Income Tax Assessment Act 1997 Part 3-3

Reasons for decision

Main residence exemption

Generally, any capital gain or capital loss that you make on the sale of a dwelling that was your main residence for your entire ownership period is disregarded under the capital gains tax (CGT) provisions.

However, in order to obtain a full exemption from CGT, the dwelling must have been the taxpayer’s main residence for the entire period they owned it and must not have been used to produce assessable income.

If a taxpayer owns more than one dwelling during a particular period, only one dwelling can be their main residence at any one time.

Spouse having different main residence

Where spouses, such as husbands and wives, have separate main residences, they must nominate which dwelling is their main residence during the period they have separate main residences.

You can nominate one dwelling as the main residence for both of you or each nominates a separate dwelling. The nomination rule applies to each home the spouses own whether or not each spouse has an interest in the property.

Partial main residence exemption

If a CGT event happens to a dwelling you acquired on or after 1985 and that dwelling was not your main residence for the whole time you owned it, you are entitled to a partial exemption.

You calculate your capital gain using the following formula:

Capital gain X ________Non-main residence days_________

Total number of days in your ownership period

Capital gain will be calculated as the difference between the capital proceeds received on the disposal of the dwelling, and the dwelling’s cost base.

Non-main residence days will be the total number of days that the dwelling is not considered to be your main residence.

Days in your ownership period will be the total days from the date of settlement of the contract of purchase of the dwelling until the date of settlement of the contract of sale when the dwelling is sold.

Application to your situation

In your situation, you and your spouse jointly purchased Property B after 1985, and it was your main residence.

The title of Property A was transferred into your spouse’s name a number of years after you had purchased Property B and you and your family moved into Property A shortly after the title was transferred.

You and your spouse have both made the choice for Property A to be your main residence from the time your spouse acquired their ownership interest in it.

You and your spouse sold Property B a number of years after your spouse had acquired their ownership in Property A. Therefore, as you and your spouse made the choice for Property A to be your main residence from the time your spouse acquired their ownership interest in Property A, you will not be entitled to apply to the main residence exemption to Property B from the time your spouse acquired their ownership interest in Property A until settlement on the sale of Property B occurred.

As a result of that choice Property B was not your main residence for the whole of your ownership period and you are not entitled to a full main residence exemption. However, you will be entitled to a partial main residence exemption for the period from the date settlement on the purchase of Property B occurred until the date the title of Property A was transferred into your spouse’s name.

The capital gain made on the disposal of your 50% ownership in Property B will be calculated using the formula provided above and:

Note: If you do not use the indexation method to calculate the capital gain, you will be able to reduce the capital gain made on the sale of your ownership interest in Property B by the 50% CGT discount.

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