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I have assumed that your friend is an Australian resident for tax purposes. If this property was his main residence then he should be able to continue treating it as his main residence by applying the absence rule. This choice can apply indefinitely if the property is not being used to derive assessable rental income; otherwise a 6 year time limit applies. If this choice is made, no other dwelling can be treated as his main residence for the same period. If this property has never been used as his main residence then he would not be able to apply the main residence exemption to it. However, the general 50% CGT discount should be available if the property has been held for more than 12 months.
1. Land Tax
An exemption from land tax should be available in respect of a person's principal place of residence (PPR) in both VIC and NSW. Both states allows an owner of a PPR to move to another residence, rent out their PPR at market rate, and still maintain their PPR to claim the land tax exemption up to a maximum of six years.
2. Subdivide and sell the block and permit
Whether the sale of subdivided lot is on capital or revenue account is determined by considering a number of factors. In ATO ID 2002/700, the Commissioner sets out the following factors that lead to the gain being realised on capital account rather than revenue account:
• The sale of the subdivided land was precipitated by the inherent unprofitability of the land;
• The land was originally purchased for the purpose of conducting farming;
• The land was used for farming activities for an extensive period prior to subdivision;
• Little of the subdivision work was performed by the taxpayer;
• The taxpayer had no other business relating to property development; and
• The taxpayer relied on town planners, engineers, contractors and consultants to design, plan and sell the allotments;
• The original purchase of the land i.e. whether this was purchased for re-sale or whether it was held previously for another purpose;
• The extent that the work on the property was done by the taxpayer (the more work done by the taxpayer, the more likely that a profit making undertaking will arise);
• Whether the taxpayer has other business relating to property development; and
• The extent to which the taxpayer relied upon other parties (i.e. planners, engineers and consultants) to sell the property.
If your friend’s original intention to purchase the property for own stay and the property has been mainly used as his main residence (with some income producing use) (ie, held it as a capital asset, and he only undertakes subdivision work without embarking further development activities, it may be reasonable to argue that the subdivision work and disposal would represent the mere realisation of a capital asset to its best advantage. If this is the case, the sale of subdivided lot would be subject to CGT. The main residence exemption would not be available if your friend is selling vacant land, although the general CGT discount could apply if he has held the land for more than 12 months.
A valuation shall be required on the date the property was used to produce rent. The cost base needs to be apportioned on a reasonable basis such as area basis or the market value of each block at the time of subdivision.
Please note that if the land was sold within a relatively short timeframe there is a risk that the ATO might seek to argue that the sale should be taxed on revenue account. That is, the ATO might try and argue that your friend bought the land with the intention of selling it again at a profit in the short term.
The tax treatment of a subdivision is different if both the following apply:
• his intention or purpose in entering into the transaction was to make a profit or gain; and
• he entered into the transaction, and the profit was made, in the course of carrying on a business or in carrying out a business operation or commercial transaction.
In this case any profit is treated as ordinary income (not a capital gain), and they will probably have GST obligations. This should not apply to your friend’s situation where he has simply subdivided the land to maximise his sale price without developing the land.
If your friend wants to argue that the sale is on capital account (eg, so he can access the CGT discount) then he should gather and retain as much evidence as possible to show that the land was bought with the genuine intention of building a private dwelling and also to explain the reasons for selling the land instead of going ahead with the original plans.
3. Subdivide, rent out one unit and occupy the other as PPR, then sell the PPR a year later
Subdividing the land does not result in a CGT event if your friend retains ownership of the subdivided blocks. Therefore, he does not make a capital gain or a capital loss at the time of the subdivision. However, he will make a capital gain or capital loss when he sells the PPR. The cost base of the new dwelling will be the cost base of the subdivided block of land plus the construction costs. The main residence CGT exemption shall be available to your friend.
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把炒菜当艺术品来弄 - 东坡肉 (2009-8-30) 老陶 
发表于 2015-5-19 13:29
