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Taxation Determination

TD 92/172

Income tax: capital gains: do the dwellings referred to in subsection 118-170(1) of the Income Tax Assessment Act 1997 have to be post-CGT assets?

  • Please note that the PDF version is the authorised consolidated version of this ruling and amending notices.
    This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

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.

[ Note: This is a consolidated version of this document. Refer to the Tax Office Legal Database (http://law.ato.gov.au) to check its currency and to view the details of all changes.]

1. No. Subsection 118-170(1) of the Income Tax Assessment Act 1997 (ITAA 1997)[1] 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 main residence.

Example

2. 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 husband and wife can choose the post-CGT house as their main residence under paragraph 118-170(1)(a).

3. Note: in this case, the spouses are not living separately and apart on a permanent basis (subsection 118-170(1)).

Commissioner of Taxation
22/10/92

Footnotes

All legislative references are to the ITAA 1997 unless indicated otherwise.

Previously Draft TD 92/D149

References

ATO references:
NO CGT Cell PRE

ISSN 1038 - 3158

Related Rulings/Determinations:

TD92174

Subject References:
CGT main residence exemption
interests in dwelling

Legislative References:
ITAA 1997 118-170(1)
ITAA 1997 118-170(1)(a)

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

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