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.
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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.

[ 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

ISSN 1038 - 3158

Subject References:
dwelling;
main residence exemption

Legislative References:
ITAA 1997 118-115
ITAA 1997 118-120

TD 92/158 history
  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

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