23 Nov 09 Work commitments precluded availability of main residence exemption - Caller
The AAT has held that the main residence exemption in s 118-110 ITAA 1997 was not available to the taxapayers (husband and wife) during the period when work commitments of the husband prevented occupation of their property at Wauchope, New South Wales. In particular, the taxpayers were not entitled to the benefit of s 118-135, which extends the period when a dwelling is entitled to the main residence exemption if the taxpayer takes up residence by the time it was "first practicable" for them to do so after acquisition.
The husband was a police officer who was seconded to Walgett, New South Wales for a three year period. He was accompanied by his wife. The property was purchased by the taxpayers with the intent that it would be let until the completion of the husband’s three-year term of service in Walgett. The AAT said, at para 39:
"It may be that section 118-135 of the Tax Act could have been worded rather more precisely, but the explanatory memorandum makes it clear that a period when the property is let out and during which rental is being derived cannot qualify."
Caller and FCT  AATA 890 (AAT, Block DP, 19 November 2009).
For a copy of the decision, go here