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Taxation Determination

TD 92/174

Income tax: capital gains: how does subsection 118-170(1) of the Income Tax Assessment Act 1997 interact with section 118-145 of that Act?

  • 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.

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. A dwelling chosen or nominated under subsection 118-170(1) of the ITAA 1997[1] may be one which is deemed to be a person's main residence because of section 118-145.

Example

2. A husband and wife own a pre-CGT house which they both occupy. Due to a change in employment, the husband moves to another town and they acquire another (post-CGT) house on 1 July 2000. The husband occupies this house for 2 years during the course of his employment contract. On 1 July 2002, he returns to the pre-CGT house which he then continues to occupy with his wife. The post-CGT house is sold within six years of the husband ceasing to occupy it.

3. To obtain a full main residence exemption on disposal of the post-CGT house, the husband must make a choice under section 118-145 to treat that house as his main residence for the period 1 July 2002 until disposal. The husband and wife can then choose to treat the post-CGT house as their main residence under paragraph 118-170(1)(a) for the entire period that they owned it.

4. If the husband does not make the choice under section 118-145, neither would be entitled to an exemption for the period after the husband ceased to occupy the post-CGT house.

Commissioner of Taxation
22/10/92

Footnotes

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

Previously Draft TD 92/D151

References

ATO references:
NO CGT Cell PRE

ISSN 1038 - 3158

Related Rulings/Determinations:

TD 92/172
TD 92/173

Subject References:
CGT main residence exemption
nominated dwellings

Legislative References:
ITAA 1997
ITAA 1997 118-170(1)
ITAA 1997 118-170(1)(a)
ITAA 1997 118-145

TD 92/174 history
  Date: Version: Change:
  22 October 1992 Original ruling  
  29 November 2006 Original ruling + note Repeal provision note
You are here 10 March 2010 Consolidated ruling Addendum

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