Taxation Determination
TD 92/158
Income tax: capital gains: can the following comprise a 'dwelling' and therefore be eligible for exemption as a main residence
- (i)
- a structure built underground?
- (ii)
- a yacht?
- (iii)
- a tent?
-
Please note that the PDF version is the authorised consolidated version of this ruling and amending notices.This document has changed over time. View its history.
FOI status:
may be releasedFOI number: I 1213291|
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, the Determination applies to transactions entered into 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. The meaning of 'dwelling' is defined in section 118-115 of the Income Tax Assessment Act 1997 (ITAA 1997). A 'dwelling' includes:
- •
- a unit of accommodation that is a building or is contained in a building and consists wholly or mainly of residential accommodation; and
- •
- a unit of accommodation that is a caravan, houseboat or other mobile home; and
- •
- any land immediately under the unit of accommodation.
However, except as provided in section 118-120 of the ITAA 1997, a dwelling does not include any land adjacent to a building.
A Structure Built Underground
2. A structure built underground (e.g. an underground home at Coober Pedy) would constitute a 'dwelling'. There is no requirement that a residential building be constructed above the ground to qualify for exemption.
A Yacht
3. A yacht may, under certain circumstances, constitute a mobile home or houseboat and therefore, a 'dwelling' for exemption purposes. Provided that the level of facilities is such as to make the yacht habitable, the yacht will be accepted as a 'dwelling'.
A Tent
4. In most circumstances, a tent will not be regarded as a substantial structure within the scope envisaged by the definition of 'dwelling' in section 118-115 of the ITAA 1997. As the definition connotes a substantial permanent structure, a tent would usually not satisfy this requirement.
Note: Whether a dwelling is a person's main residence is a question of fact.
Commissioner of Taxation
17/09/92
Previously Draft TD 92/D109
References
ATO references:
NO CGT Cell PRE
Subject References:
dwelling;
main residence exemption
Legislative References:
ITAA 1997 118-115
ITAA 1997 118-120
| Date: | Version: | Change: | |
| 17 September 1992 | Original ruling | ||
| 29 November 2006 | Original ruling + note | Repeal provision note | |
| You are here | 21 April 2010 | Consolidated ruling | Addendum |