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Taxation Determination

TD 92/158

Income tax: capital gains: can the following comprise a 'dwelling' and therefore be eligible for exemption as a sole or principal residence

(i)
a structure built underground?
(ii)
a yacht?
(iii)
a tent?

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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.

1. A 'dwelling' comprises a unit of residential accommodation contained in a building. It also extends to include caravans, houseboats or other mobile homes (subsection 160ZZQ(1) of the Income Tax Assessment Act 1936 ).

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 subsection 160ZZQ(1). As the definition connotes a substantial permanent structure, a tent would usually not satisfy this requirement.

Note: Whether a dwelling is a person's sole or principal residence is a question of fact (CGT Determination TD 51).

Commissioner of Taxation
17/09/92

Previously Draft TD 92/D109

References

ATO references:
NO CGT Cell PRE

ISSN 1038 - 3158

Related Rulings/Determinations:

TD 51

Subject References:
principal residence exemption;
dwelling;
underground structure;
yacht;
tent

Legislative References:
ITAA 160ZZQ(1)

TD 92/158 history
  Date: Version: Change:
You are here 17 September 1992 Original ruling  
  29 November 2006 Original ruling + note Repeal provision note
  21 April 2010 Consolidated ruling Addendum

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