ATO Interpretative Decision

ATO ID 2003/170

Income Tax

Income: entry payment by retirement village resident - repayment within 12 months contingent on finding new resident
FOI status: may be released
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Status of this decision: Decision Current
CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 amount paid by a resident upon entry to a retirement village included under section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) in the assessable income of the taxpayer, the retirement village operator, when the amount is fully repayable within 12 months of the resident's departure or earlier if a new resident is found?

Decision

No. The amount paid by a resident upon entry to a retirement village is not included under section 6-5 of the ITAA 1997 in the assessable income of the taxpayer, the retirement village operator, as the amount is fully repayable within 12 months whether a new resident is found or not and is therefore treated as a loan.

Facts

The taxpayer operates a retirement village.

Upon entry to the village the resident signed a resident's agreement with the taxpayer.

The resident's agreement provides that:

·
the resident has a right of occupancy on the payment of the amount.
·
the amount which is referred to as a 'premium' is fully repayable free of interest if the taxpayer leaves the retirement village.
·
the amount is to be repaid after the expiry of 12 months or within 25 days of the receipt by the taxpayer of a new amount for the departing residents occupancy right.

Reasons for Decision

Subsection 6-5(2) of the ITAA 1997 provides that the assessable income of a resident taxpayer includes ordinary income derived directly or indirectly from all sources during the income year.

Taxation Ruling TR 2002/14 gives the Commissioner's view on the treatment of income for retirement village operators.

In some circumstances an amount paid to a retirement village operator for a right to occupy a unit will be treated as an assessable lease premium (paragraph 25 of TR 2002/14).

However, in other circumstances the amount is fully repayable to the resident on termination of the lease or right to occupy. In this case the amount payable by the resident is treated as a loan (paragraph 27 of TR 2002/14). Paragraph 28 of TR 2002/14 states that the receipt and repayment of the loan made by the residents are on capital account.

As the resident's agreement specifies that the amount is fully refundable, if the resident leaves the village, the amount paid by the resident can be characterised as a loan.

However paragraph 29 of TR 2002/14 goes on to explain that a loan amount, even though it may be described as an 'interest-free loan' or a 'security deposit', may be regarded as a lease premium and therefore included in assessable income under subsection 6-5(2) of the ITAA 1997 if the repayment of the loan is contingent upon a new resident being found.

In this case the repayment of the loan is, for the initial 12 month period, contingent upon a new resident being found. However the loan is required to be repaid at the expiry of 12 months regardless of whether a new resident has been found. In these circumstances the amount is not considered to lose it's character as a loan and will not be treated as a lease premium.

Accordingly the amount paid by residents is treated as a loan and is not included in the retirement village operator's assessable income under subsection 6-5(2) of the ITAA 1997.

Date of decision:  11 March 2003

Year of income:  Year ended 30 June 2003 Year ended 30 June 2004 Year ended 30 June 2005

Legislative References:
Income Tax Assessment Act 1997
   section 6-5
   subsection 6-5(2)

Related Public Rulings (including Determinations)
Taxation Ruling TR 2002/14

Keywords
Lease incentives
Retirement villages

Siebel/TDMS Reference Number:  3192240

Business Line:  Private Groups and High Wealth Individuals

Date of publication:  28 March 2003
Date reviewed:  18 September 2014

ISSN: 1445-2782

history
  Date: Version:
You are here 11 March 2003 Original statement
  15 January 2016 Updated statement