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本帖最后由 jeff_lawsons 于 2016-9-16 10:59 编辑
Under section 118-110 ITAA 1997 the main residence exemption can only apply to capital gains made by an individual and cannot generally apply to gains made by a trust. However, there are two limited exceptions to this rule:
- If the individual who lives in the property is ‘absolutely entitled’ to the property then it should be possible for them to apply the main residence exemption on sale of the property.
- If the trust is a special disability trust and the dwelling was the main residence of the primary beneficiary then the exemption can apply to the trust.
Assuming the trust is not a special disability trust, the key issue is confirming whether the individual who lives in the property is absolutely entitled to the property as against the trustee. Whether the individual is absolutely entitled to the property is a different issue to whether the property is held under a bare trust. It would be prudent to confirm with your legal adviser whether you are absolutely entitled to the property.
If the individual beneficiary is absolutely entitled to the property, a disposal of the property by the trustee is treated as a disposal by the beneficiary under section 106-50 ITAA97.
Refer to CGT Determination TD 58 at the link below which discusses this issue:
http://law.ato.gov.au/atolaw/vie ... ;PiT=20080301000001
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