ATO ID 2003/786: Capital works: destruction of capital works on leased premises
Date of decision: 17 July 2003
Year of income: Year ended 30 June 2002
Business line: Private Groups and High Wealth Individuals

Issue
Can a lessee claim a deduction under Division 43 of the Income Tax Assessment Act 1997 (ITAA 1997) for an amount of undeducted construction expenditure for capital works which were demolished at the end of the lease to restore the premises to the condition they were in at the beginning of the lease?

Decision
Yes. A lessee can claim a deduction (balancing deduction) calculated under section 43-250 of the ITAA 1997 at the time the capital works are destroyed if the conditions in section 43-40 of the ITAA 1997 are met.

Facts
A partnership operated a shop from leased premises to produce assessable income. Capital expenditure was incurred after 26 February 1992 to fit out the shop. A deduction under section 43-10 of the ITAA 1997 was available for the construction expenditure on the capital works represented by the fit out. The premises were leased continuously from the time the construction commenced until the fit out was demolished and the lease was terminated. The fit out was demolished in order to return the premises to its original state as required under the lease agreement.

Reasons for decision
Summary: Section 43-40 of the ITAA 1997 provides for the deduction of an amount if all or part of 'your area' is destroyed in an income year and: For a lessee who has incurred construction expenditure, 'your area' is the part of the construction expenditure area to which that expenditure is attributed that has been leased continuously since the construction of the capital works was completed (section 43-120 of the ITAA 1997). A deduction was available to the lessee under Division 43 of the ITAA 1997 for the construction expenditure incurred in respect of the fit out of the shop from the time the construction was completed as it was used in a deductible way (that is, to produce assessable income; section 43-140 of the ITAA 1997). The area was used continuously in a deductible way until the fit out was demolished and the lease was terminated. This satisfies the requirements of (a) and (c) above. Paragraph 18 of Taxation Ruling TR97/25 states that section 43-40 of the ITAA 1997 applies both to the voluntary and involuntary destruction of capital works. The deliberate destruction of capital works does not affect the entitlement to the balancing deduction. At the time the capital works were demolished and the lease was terminated, the construction expenditure had not been fully deducted. The amount of undeducted construction expenditure for capital works incurred after 26 February 1992 is calculated under sections 43-230 and 43-235 of the ITAA 1997. Generally this amount will be the original construction expenditure less any amounts previously claimed, or able to be claimed had the capital works been used wholly in a deductible way. The balancing deduction is allowed in the income year in which the destruction occurs and is calculated under section 43-250 of the ITAA 1997. Generally, the balancing deduction is equal to the amount of undeducted construction expenditure less any insurance and salvage receipts and adjustments arising from using the area for a non-taxable purpose.

Legislative references: Income Tax Assessment Act 1997 section 43-10 section 43-40 section 43-120 section 43-140 section 43-230 section 43-235 section 43-250
Related public rulings and determinations: Taxation Ruling TR 97/25
Subject references: Deductions & expenses Construction expenditure area Capital Allowances CoE