ATO Interpretative Decision

ATO ID 2002/1098

Income Tax

Consultants fee in relation to building an investment property
FOI status: may be released

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Issue

Is the taxpayer entitled to a capital works deduction under section 43-10 of the Income Tax Assessment Act 1997 (ITAA 1997) for a consultant fee in relation to building an investment property?

Decision

Yes. The taxpayer is entitled to deduct an amount for capital works under section 43-10 of the ITAA 1997 for a consultant fee in relation to building an investment property.

Facts

The taxpayer engaged the services of a consultant in building an investment property.

The consultant fee related to the services of the consultant in holding discussions and negotiations regarding the property, providing supervision during construction, reporting to and liaising with the taxpayer and ensuring the property was completed to the required standard and within budget.

Reasons for Decision

Section 43-10 of the ITAA 1997 provides a deduction of an amount for capital works in respect of certain 'construction expenditure' incurred in respect of the construction of capital works.

Section 43-20 of the ITAA 1997 recognises three categories of capital works:

•: buildings or extensions, alterations or improvements to buildings;
•: structural improvements or extensions, alterations or improvements to structural improvements; and
•: environment protection earthworks.

The building of the investment property qualifies as capital works under section 43-20 of the ITAA 1997.

Section 43-70 of the ITAA 1997 defines 'construction expenditure' as capital expenditure in respect of the construction of capital works. Taxation Ruling TR 97/25 deals with the operation of Division 43 and provides at paragraph 9 that construction expenditure includes preliminary expenses such as architect fees, engineering fees, foundation excavation expenses and costs of building permits. These expenses are accepted as being in respect of the construction of capital works.

Given the tasks that the consultant is required to perform, it is considered to be similar in character to those costs accepted as preliminary expenses forming part of the construction expenditure. The consulting service is an integral part of the taxpayer's investment property project and is sufficiently related to the actual construction of the building itself as to form part of the construction expenditure.

Consequently, the taxpayer is entitled to a deduction of an amount for capital works under section 43 of the ITAA 1997 for the consultant fee in relation to building an investment property.

Note: the amount of the deduction will depend on when the capital works began and the intended use on completion of the capital works.

Date of decision: 11 November 2002

Year of income: Year ended 30 June 2002

Legislative References:
Income Tax Assessment Act 1997
   Division 43
   section 43-10
   section 43-20
   section 43-70

Related Public Rulings (including Determinations)
Taxation Ruling TR 97/25

Keywords
Construction costs
Consulting fee expenses
Landlord expenses
Rental expenses
Newly constructed buildings and structures
Capital Allowances

Siebel/TDMS Reference Number: CW3154430; 1-5CHEGHD; 1-B23BFN2

Business Line: Private Groups and High Wealth Individuals

Date of publication: 30 November 2002
Date reviewed: 19 April 2017

ISSN: 1445-2782

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