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Can a taxpayer deduct an amount for capital works under section 43-10 of the Income Tax Assessment Act 1997 (ITAA 1997) after the rental property was destroyed even though the taxpayer received compensation for the loss of rent from their insurance company until the new building was constructed?

No. The taxpayer cannot deduct an amount for capital works under section 43-10 of the ITAA 1997 when the rental property was destroyed as the taxpayer could not use their area (or their building) for the purpose of producing assessable income as required by Table 43-140 (Current year use) in section 43-140 of the ITAA 1997.

A taxpayer owned a rental property. Capital works deductions were claimed under Division 43 of the ITAA 1997 from the 1995-96 income year when the rental property was originally constructed. The property has always been used for income producing purposes.

The rental property was destroyed by fire in March 2002. The undeducted construction expenditure for the building at the date of destruction was $120,500. The total proceeds received from the taxpayer's insurance company for the construction of a new or replacement building were $150,000.

In addition, the taxpayer received weekly compensation for the loss of rent from their insurance company until the end of December 2002.

Section 43-10 of the ITAA 1997 allows a taxpayer to deduct an amount for capital works for an income year if: • their capital works have a construction expenditure area • there is a pool of construction expenditure for that area, and • they use that area in a deductible way as set out in Table 43-140 (Current year use).

Table 43-140 (Current year use) in section 43-140 of the ITAA 1997 sets out the various ways that an area can be used in order for it to be used in a deductible way for that income year. Common amongst the requirements of use for each time period is that an area is used in a deductible way if it is used to produce assessable income.

After the rental property was destroyed by fire in March 2002, the taxpayer could not use their area (or their building) in a deductible way as set out in Table 43-140 (Current year use). Therefore a deduction under Division 43 of the ITAA 1997 for the 2001-02 income year would not be available to the taxpayer for the number of days in that year the building was not present and was, therefore, not available for use in a deductible way as set out in Table 43-140 (Current year use).

Date of Amendment Part Comment 15 May 2015 Reasons for Decision The phrase 'they incurred expenditure attributable to that area' is replaced with 'there is a pool of construction expenditure for that area' in order to clarify the operation of section 43-10. Amendment of typo at second dot point - delete 'of'.

Date of Amendment | Part | Comment

15 May 2015 | Reasons for Decision | The phrase 'they incurred expenditure attributable to that area' is replaced with 'there is a pool of construction expenditure for that area' in order to clarify the operation of section 43-10. Amendment of typo at second dot point - delete 'of'.