Taxation Determination

TD 1999/1W

Income tax: are deductions under Division 43 of the Income Tax Assessment Act 1997 (ITAA 1997) excluded by subsection 82(2) of the Income Tax Assessment Act 1936 (ITAA 1936) in calculating any assessable profit or deductible loss from the sale of the property by the person who constructed the building?

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FOI status:

may be releasedFOI number: I 1018333

Notice of Withdrawal

Taxation Determination TD 1999/1 is withdrawn with effect from today.

The views in TD 1999/1 conflict with the views expressed by the Federal Court in MLC Limited & Anor v. Deputy Commissioner of Taxation [2002] FCA 1491. That case held that the criterion for the deduction for building allowance under Division 10D of the ITAA 1936 (rewritten as Division 43 of the ITAA 1997) is not expenditure incurred but the use of the building as non-residential premises for the purposes of gaining assessable income. As a consequence, the court held that the building allowance deductions are not excluded by the operation of subsection 82(2) of the ITAA 1936 in the calculation of any assessable profit or deductible loss arising from the sale of the property.

Commissioner of Taxation
26 March 2003

TD 98/D5

References

ATO references:
NO 98/2475-8

ISSN 1038 - 8982

Subject References:
allowable deductions
capital expenditure
double deductions
losses
profit
sale of property

Legislative References:
ITAA36 Div 10D
ITAA36 82
ITAA36 82(2)
ITAA36 124ZG
ITAA36 124ZH
ITAA97 Div 43
ITAA97 43-10

TD 1999/1W history
  Date: Version: Change:
  24 March 1999 Original ruling  
You are here 26 March 2003 Withdrawn