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Edited version of private advice
Authorisation Number: 1051915534950
Date of advice: 21 December 2021
Ruling
Subject: Capital gains tax
Question
Does the Commissioner accept that you became the owner of the property from the date of acquisition and used it as your main residence from that date?
Answer
Yes. Having considered your circumstances as a whole and the relevant factors, the Commissioner accepts that you had beneficial ownership of the property from the date the property was purchased by your child. Therefore, you had a sufficient ownership interest in the property in order to treat the property as your main residence from the date of acquisition.
This ruling applies for the following period:
Year ended 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
You became a resident of Australia over a decade ago.
In several years ago your child purchased the property (The Property).
The purchase was partly funded by you and partly funded by a mortgage.
It was your intention that the property would be purchased solely in the name of your child and they would hold it in trust for you.
Your child purchased the property jointly in their name and that of their spouse.
You lived in the property from the date of acquisition and consider it to be your main residence.
Your child and their spouse separated a couple of years after the purchase.
The spouse began property settlement proceedings in the following year to gain exclusive rights to occupy the Property.
The Courts dismissed the application in the same year.
A few years after the Court ruled that the property was held in trust by your child and their spouse and that within one year they were required to transfer their interest in the property to you.
You have met all mortgage repayment and outgoings of the Property.
The property is less than two hectares.
Your spouse resides overseas and does not have any properties under their name.
For a couple of years during the period of ownership, some rooms of the house were rented to a third party and you were in receipt of the rental income which you used to pay for various outgoings of the Property.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 118-110