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In a recent case before the Administrative Appeals Tribunal, the intricacies of tax law and property transactions came to the forefront as a taxpayer successfully argued for a significant deduction on the sale of her apartment. The decision, which favored the taxpayer, sheds light on the complexities surrounding profit-making ventures and the tax implications associated with them.

Case Overview

The key of the case revolved around a taxpayer who claimed a substantial loss of $265,935 on the sale of her apartment in her tax return. The taxpayer contended that despite living in the apartment as her primary residence, her primary intention was profit-oriented, thus justifying the loss as deductible.

Taxpayer’s Argument

The taxpayer insisted that the purchase and subsequent sale of the apartment constituted a short-term profit-making venture. Despite using the apartment as her private residence, the taxpayer maintained that her overarching intention was to generate profit from the transaction.

Case Timeline

The timeline of events provided critical context to the case:

  • July 2015: The taxpayer entered into an ‘off-the-plan’ contract to purchase the apartment.
  • December 2016: Completion of the apartment was delayed until June 2020.
  • May 2018: The taxpayer sold her family home and purchased another apartment with the intention to make a profit.
  • April 2020: The contract to sell the apartment was entered during the COVID lockdown.
  • July 2020: The sale of the apartment occurred, and the purchase of the off-the-plan apartment was settled.

ATO’s Position

The Australian Taxation Office (ATO) disagreed with the taxpayer’s claim, contending that a profit-oriented venture typically wouldn’t involve residing in the property and would likely wait for a more favorable market.

Tribunal’s Decision

Contrary to the ATO’s position, the Tribunal sided with the taxpayer. The Tribunal emphasized a low threshold for proving profit-making intentions and deemed living in the property as secondary to such intentions.


The implications of this decision extend beyond the specific case, potentially impacting how property transactions are taxed in Australia:

  • Tax Treatment: If deemed commercial, profits from property transactions may be taxed as ordinary income rather than under Capital Gains Tax (CGT) provisions.
  • CGT Exemptions: The decision challenges the assumption that living in a property automatically qualifies it for CGT exemptions, highlighting the importance of intention in property transactions.

Lessons Learned

This case underscores several important lessons for property owners and investors:

  • Unexpected Tax Consequences: Property owners, including those engaged in flipping properties, may face unexpected tax consequences on gains without access to CGT concessions.
  • Complexity of Tax Treatment: Determining the appropriate tax treatment for property transactions can be complex and often requires professional advice to navigate effectively.

Pending Decision

As of now, the ATO has not confirmed whether it will appeal the decision, leaving the full implications of the case uncertain for the time being.

In conclusion, this case serves as a reminder of the nuanced nature of tax law, particularly concerning property transactions. It underscores the importance of understanding the intentions behind such transactions and seeking professional guidance to navigate the complexities of tax implications effectively. 

Should you please have any question in regards to above, please feel free to contact our friendly team in Pitt Martin Tax at 0292213345 or

The material and contents provided in this publication are informative in nature only.  It is not intended to be advice and you should not act specifically on the basis of this information alone.  If expert assistance is required, professional advice should be obtained.

By Zoe Ma @ Pitt Martin Tax