Income tax: capital gains: does subsection 160M(12) of the Income Tax Assessment Act 1936 prevent a taxpayer from making an election under subsection 160ZZQ(11A) in respect of a sole or principal residence (SPR) that the taxpayer owned before becoming a resident of Australia?

No. Provided the other requirements of subsection 160ZZQ(11) are satisfied, a taxpayer can, in relation to an SPR that he/she owned before becoming a resident of Australia, make an election in accordance with subsection 160ZZQ(11A).

Although for Australian tax purposes subsection 160M(12) deems an acquisition date for certain assets on a non-resident becoming an Australian resident taxpayer, it does not mean that the assets were not owned by the taxpayer before the taxpayer became a resident. If the taxpayer owned a dwelling overseas and it ceased to be the taxpayer's SPR on the taxpayer becoming an Australian resident, paragraph 160ZZQ(11)(a) can apply.