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The Federal Court ruled in favour of YTL Power Investments, finding that its transmission network lease assets were not ‘taxable Australian real property’ under Division 855 of the ITAA 1997.
Justice Hespe rejected the Commissioner’s broader interpretation, confirming that determining whether an asset is 'taxable Australian real property' (TARP) requires consideration of the rights conferred on the taxpayer and whether those rights are TARP.
This decision may influence currently stalled legislative reforms, as the Government continues to consult on clarifying foreign resident CGT rules.
On 30 October 2025, the Federal Court (Hespe J) handed down its decision in YTL Power Investments Limited v Commissioner of Taxation, finding for the Applicant and providing important guidance on the interpretation of ‘taxable Australian real property’ under Division 855 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997).
The details
The Applicant’s submission was that the relevant assets derived from the transmission network leases related to the lease of assets other than land or interests in land, and that section 30 of Schedule 1 of the Electricity Corporations (Restructuring and Disposal) Act 1999 (SA) (‘Disposal Act’) has the result of treating the leased assets as ‘personal property severed from any land to which it is affixed or annexed and owned separately to land’ and that s855 ITAA 1997 applied to the taxable facts which included the effect of relevant South Australian legislation.
The Commissioner argued s855 ITAA 1997 was to be construed in a broader context that included the former Division 136 ITAA 1997, which it replaced. Under former Division 136 a non-resident made a capital gain from the disposal of assets that had a necessary connection with Australia, including land, or a building or structure in Australia. The Commissioner's view was that this was indicative of an intention that the term real property includes a structure physically affixed to land.
The Commissioner also contended that the term real property bore its ordinary meaning through reference to the Explanatory Memorandum to the Tax Laws Amendment (2006 Measures no 4) Act 2006 (Cth). The Commissioner argued that technical matters such as the operation of statutory severance provisions were not determinative of whether the relevant assets were real property and that the deeming provisions in the Disposal Act was for the limited purpose of facilitating separate transfer and did not have the effect of denying the infrastructure the character of real property.
The Commissioner further submitted that 855-20(a) ITAA 1997 extended to a lease of land and the concept of land extended to buildings and other structures on land.
Hespe J rejected the Commissioner’s contention that Division 136 should inform the construction of s855 stating, "by the enactment of Division 855 there was an intentional narrowing of the classes of CGT assets gains on which were to be taxable to non-residents" and similarly rejected the Commissioner's argument that the term real property has an ordinary meaning stating "there is a danger in assuming that explanatory memorandum are drafted with the same precision as legislation."
Hespe J went on to state, "a conclusion that it is the legal concept of real property to which that definition refers is also supported by the fact that the definition of "taxable Australian real property" specifically includes a lease of land. The specific inclusion was made because the technical meaning of "real property" does not extend to leasehold interests."
Hespe J contended that the issue for determination is whether the rights conferred on ElectraNet as lessee of the leased assets were ‘real property’ or a ‘lease of land’, noting that the definition of land encompasses a leasehold interest in land.
In concluding that ElecraNet's rights under the transmission network leases did not constitute real property situated in Australia, Hespe J made the following statements:
"Items affixed to land do not become, merely because of their affixation, “fixtures” in the technical sense: TEC Desert at [38]. If the rights enjoyed by ElectraNet as lessee of the Leased Assets are to be characterised as “real property” or a “lease of land” it is by reference to the nature of the rights applicable to those assets rather than by recourse to general law principles applicable to tenant’s fixtures. Put another way, the Leased Assets affixed to land the subject of rights held by ElectraNet may have the character of real property if the rights held by ElectraNet have themselves the character of real property."
Hespe J further stated, “the enactment of s 30 of the Disposal Act both facilitated and made necessary the separation of the Land Lease and the Network Lease…The Commissioner’s contention was that s 30 of the Disposal Act did not have the effect of deeming electricity infrastructure to not be “real property”. That contention is not accepted. Whatever the metes and bounds are of the concept of “real property”, the term “real property” is used in law as a contradistinction to “personal property”. By deeming an item to be personal property, an item is deemed to be denied the character of “real property”."
What now?
Uncertainty for taxpayers regarding whether an asset is taxable Australian real property is not new. In July 2024 the Federal Government introduced a consultation paper which – among other measures – included a proposal to clarify and broaden the types of assets that foreign residents are subject to tax on.
Relevantly, the consultation paper referred to statutory severance legislation in different states and territories resulting in inconsistent CGT outcomes as a contributing factor for the proposed reform.
The consultation paper proposes broadening the scope of the foreign resident CGT base to ensure assets with a close economic connection to Australian land and/nor natural resources are appropriately captured within the tax law. The consultation paper includes as examples of types of assets with a close economic connection to Australian land and/or natural resources to include (among others) infrastructure and machinery installed on land in Australia including wind turbines, solar panels, batteries, transmission towers, transmission lines and substations.
In the 2025-2026 Federal Budget the Government announced a deferral of the proposed start date from 1 July 2025 to the later of 1 October 2025 or the first 1 January, 1 April, 1 July or 1 October after the amending Act receives Royal Assent.
No draft legislation has been released to date; however, this decision may reinvigorate Government consultation on this topic.
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