| Disclaimer This edited version has been archived due to the length of time since original publication.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. You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of your private ruling
Authorisation Number: 1012025451983
This edited version of your ruling will be published in the public register of private binding rulings after 28 days from the issue date of the ruling. The attached private rulings fact sheet has more information.
Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet.
Ruling
Subject: Rental property expenses
Question 1
Are you assessable on 100% of rent on the rental property prior to the date the title deeds are changed?
Answer
No.
Question 2
Can you claim a deduction for 100% of expenses on the rental property prior to the date the title deeds are changed?
Answer
No.
This ruling applies for the following period
Year ended 30 June 2010
Year ended 30 June 2011
The scheme commenced on
1 July 2009
Relevant facts
You and your spouse separated in February 20XX.
In June 20XX, your spouse ceased to make repayments against the loan.
You obtained a Family Court order in June 20XX which provided, among other things, that the title of the property was to be transferred to you.
The title of the property was changed to your name after the date of the Court order.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 8-1
Income Tax Assessment Act 1997 Section 6-5
Reasons for decision
Co-owners of rental property generally hold the property as joint tenants or tenants in common. The income and loss from a rental property must be shared in the proportion of ownership.
Taxation Ruling TR 93/32 states that the net income or loss from a rental property must be shared according to the legal interest of the owners, except in those very limited circumstances where there is sufficient evidence to establish that the equitable interest is different from the legal title.
A person's legal interest in a property is determined by the legal title to that property under the land law legislation in the State or Territory in which the property is situated. The legal owner of the property is recorded on the title deeds for the property issued under that legislation.
While we accept that since June 20XX, you have been solely responsible for the interest on the loan of the property because your spouse did not contribute, this does not mean that the equitable interest in the properties is different from the legal interest.
Therefore, you are only entitled to include both the rental income received and expenses incurred according to your percentage of ownership as stated in the title deed of the properties up to the date when the title changes into your name only.