ATO Interpretative Decision
ATO ID 2009/19
Goods and Services Tax
GST and sale of vacant land used in connection with input taxed supplies and property development activitiesFOI status: may be released
-
With effect from 1 July 2015, the term 'Australia' is replaced in nearly all instances within the GST, Luxury Car Tax and Wine Equalisation Tax legislation with the term 'indirect tax zone' by the Treasury Legislation Amendment (Repeal Day) Act 2015. The scope of the new term, however, remains the same as the repealed definition of 'Australia' used in those Acts. For readability and other reasons, where the term 'Australia' is used in this document, it is referring to the 'indirect tax zone' as defined in subsection 195-1 of the GST Act.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is the entity, a residential property owner, making an input taxed supply under subsection 9-30(4) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) when, as part of its property development activities, the entity sells its property as vacant land after having demolished a house on the land that it had used together with the land solely to make input taxed supplies by way of lease?
Decision
No, the entity is not making input taxed supplies under subsection 9-30(4) of the GST Act when it sells its property as vacant land in these circumstances.
Facts
The entity is a residential property owner and is registered for GST. The entity carries on an enterprise of leasing and selling residential premises, and developing property. As part of its property development activities, it regularly acquires properties to demolish the existing houses and to sell the properties as vacant land (whether subdivided or not) or to construct new houses for sale or lease.
The entity owns a property that was residential premises for the purposes of the GST Act. Since acquiring the property many years ago, the entity had used it solely to make supplies by way of lease that are input taxed under section 40-35 of the GST Act.
The entity's property is located in an area that has undergone extensive redevelopment where a lot of the older houses have been replaced by the construction of new houses. There has been an increasing demand for vacant residential land in the area which meant land prices have risen significantly. The entity is able to generate a higher financial return by selling its property rather than continue to use it for leasing. The entity terminated the residential lease so that it could sell the property unencumbered.
The entity took advantage of the opportunity created by the increased demand for vacant land by undertaking significant works in demolishing and removing the house to improve the value of the property for sale as vacant land. The entity incurred significant costs in undertaking the works but was able to have the house demolished and removed at a lower cost than potential purchasers were likely to achieve. This is because of its expertise as a property developer and the economies of scale it could achieve in regularly demolishing houses as part of its enterprise.
The entity sells the property as vacant land.
The sale is for consideration, is made in the course or furtherance of the entity's enterprise and is connected with Australia. The sale is not an input taxed supply or a GST-free supply under any other provision of the GST Act.
Reasons for Decision
Subsection 9-30(4) of the GST Act states:
A supply is taken to be a supply that is *input taxed if it is a supply of anything (other than *new residential premises) that you have used solely in connection with your supplies that are input taxed but are not *financial supplies.
In considering the application of subsection 9-30(4) of the GST Act to the supply of the vacant land it is necessary to identify the uses to which the entity has put the land and whether these uses are solely in connection with the entity's input taxed supplies (other than financial supplies). This requires that the land, whether by itself or as part of the residential premises, has not been used in any way other than in connection with the entity's input taxed supplies.
The Commissioner's view is that 'used' has a broad meaning in the context of subsection 9-30(4) of the GST Act (see the interpretation of 'use' in other statutory contexts in Council of the City of Newcastle v. Royal Newcastle Hospital (1959) 100 CLR 1; Ryde Municipal Council v. Macquarie University (1978) 139 CLR 633; and Lennard v. Jessica Estates Pty Ltd [2008] NSWCA 121).
The Macquarie Dictionary, 2005, 4th edn, The Macquarie Library Pty Ltd, NSW, defines 'use' as including 'to employ for some purpose'. In considering whether land has been used solely in connection with input taxed supplies, it is important to consider throughout the period of ownership by the entity:
- •
- how the land has been exploited or enjoyed (for example, private use by the entity, business use by the entity, or leasing to a third party)
- •
- what the entity has done to change or develop the land, and whether those things can be said to be connected to input taxed supplies, and
- •
- what the entity's purpose has been in holding the land (for example, if the land is dormant for a period of time, whether the purpose of holding the land is to achieve profits through appreciation in the capital value).
It is necessary to look at the surrounding circumstances to determine if the entity's activities can be said to be connected with the entity's input taxed supplies, or whether they instead should be regarded as having a separate purpose.
In this case, the facts indicate that the entity was no longer using the land solely in connection with its input taxed supplies of residential leasing when it undertook works to demolish the house. There are two factors which together lead to this conclusion:
- •
- the demolition of the house involves significant physical work to the land, and
- •
- in the context of the entity's broader activities of demolishing houses and selling vacant land, the demolition of the house in this instance is not merely incidental to the entity's residential leasing activities. It is a separate use of the land designed to enhance the profit from the sale of the land.
As the entity's use of the land has not been solely in connection with its input taxed supplies, the sale of the vacant land is not taken to be an input taxed supply under subsection 9-30(4) of the GST Act.
The sale of the vacant land is a taxable supply as it satisfies all the requirements of a taxable supply under section 9-5 of the GST Act.
Date of decision: 25 March 2009
Legislative References:
A New Tax System (Goods and Services Tax) Act 1999
section 9-5
subsection 9-30(4)
section 40-35
Case References:
Council of the City of Newcastle v. Royal Newcastle Hospital
(1959) 100 CLR 1
(1978) 139 CLR 633 Lennard v. Jessica Estates Pty Ltd
[2008] NSWCA 121
Related Public Rulings (including Determinations)
Goods and Services Tax Ruling GSTR 2003/3
ATO ID 2009/18
ATO ID 2009/20
Other References:
The Macquarie Dictionary, 2005, 4th edn, The Macquarie Library Pty Ltd, NSW
Keywords
Goods and services tax
GST property & construction
GST residential premises
GST sale of real property
GST supply
Input taxed supplies
ISSN: 1445-2782