In the case of a flat or home unit, you have an ownership interest if you have a:
- legal or equitable interest in a strata title in the flat or home unit
- licence or right to occupy the flat or home unit, or
- share in a company that owns a legal or equitable interest in the land on which the flat or home unit is constructed and that share gives you a right to occupy the flat or home unit.
In the case of a dwelling that is not a flat or home unit, you have an ownership interest if you have a:
- legal or equitable interest in the land on which it is constructed, or
- licence or right to occupy it.
In the case of land, you have an ownership interest if you have a:
- legal or equitable interest in it, or
- right to occupy it.
An equitable interest may include life tenancy of a dwelling that you acquire, for example, under a deceased’s will.
When do you acquire an ownership interest?
For the purposes of the main residence exemption, you have an ownership interest in a dwelling or land you acquire under a contract from the time you get legal ownership (unless you have a right to occupy it at an earlier time).
You have legal ownership of a dwelling or land from the date of settlement of the contract of purchase (or if you have a right to occupy it at an earlier time, that time) until the date of settlement of the contract of sale. This period is called your ownership period. If the dwelling is on two hectares of land or less, is your main residence for the whole of the ownership period and you do not use it to produce assessable income, the home is fully exempt.
Example 63: Full exemption
Frank signed a contract on 14 August 1999 to purchase 0.1 hectare of land from a developer and to have a house constructed on the land. Under the contract, settlement did not occur until construction was completed on 26 October 2000.
Frank moved into the house immediately upon settlement of the contract he had with the developer, that is, on 26 October 2000. He did not have a right to occupy the house at an earlier time under the purchase contract. He signed the contract to sell it on 25 May 2021 and settlement occurred on 20 July 2021. The house was Frank’s main residence for the full period he owned it and he did not use any part of it to produce income.
For CGT purposes, Frank is taken to have acquired the land on which the house was constructed on the date he entered into the contract, 14 August 1999. However, because the house was Frank’s main residence for the whole period between settlement of the purchase contract and settlement of the sale contract, it is fully exempt.
The period between when Frank entered into the purchase contract and started to live in the house (14 August 1999 to 25 October 2000) is ignored. This is because the relevant dates for the main residence exemption are the settlement dates or, if you had a right under the purchase contract to occupy the dwelling at an earlier time, that time until settlement of the sale contract.
End of exampleEven though the settlement dates are used to calculate the period for which the main residence exemption applies, the dates you enter into the purchase and sale contracts are important.
A CGT event occurs when you enter into the sale contract. You include any capital gain on your tax return for the income year in which the CGT event occurs. The dates you enter into the purchase and sale contracts are also relevant for determining what method you can use to work out your capital gain from your main residence.
Example 64: Partial exemption
The facts are the same as in the previous example except that Frank rented out the house from 26 October 2000, the date of settlement of the purchase contract, until 2 March 2002.
Frank makes a capital gain of $90,000 on the house. To work out the part of the capital gain that is not exempt, Frank must determine how many days in his ownership period the dwelling was not his main residence.
Frank had an ownership interest in the property from settlement of the purchase contract (26 October 2000) until settlement of the sale contract (20 July 2021), a total of 7,573 days.
The period between the dates the purchase contract was signed (14 August 1999) and settled (25 October 2000) is ignored. Because the house was not Frank’s main residence from 26 October 2000 to 2 March 2002 (493 days), he does not get the exemption for this period.
Frank calculates his capital gain as follows:
$90,000 capital gain × (493 days ÷ 7,573) = $5,859 taxable portion
Because Frank entered into the purchase contract before 11.45am (by legal time in the ACT) on 21 September 1999 and entered into the sale contract after owning the house for at least 12 months, he can choose either the indexation or the discount method to calculate his capital gain. Frank decides to reduce his capital gain by the CGT discount of 50% after applying any capital losses.
Because Frank signed the sale contract on 25 May 2021, the CGT event occurred in the 2020–21 income year, even though settlement occurred in the next income year. Frank writes the capital gain on his 2021 tax return.
End of example