ATO Interpretative Decision

ATO ID 2006/226 (Withdrawn)

Superannuation

Self managed superannuation funds: business real property used in not for profit business
FOI status: may be released
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Does a real property meet the definition of 'business real property' under section 66 of the Superannuation Industry (Supervision) Act 1993 (SISA) where the property is used by a not for profit business?

Decision

Yes. A property used by a not for profit business will satisfy the definition of 'business real property' under section 66 of the SISA when the entity satisfies the ordinary indicators of a 'business'.

Facts

The not for profit entity is a training organisation providing commercial training products and services to the community.

The entity satisfies the ordinary indicators of a 'business':

•
it has a business plan
•
it maintains records
•
it is registered with the State Department of Fair Trading
•
it pays market rates for the rent of the premises
•
it employs staff on a permanent basis and remunerates their services at market rates
•
it has been operating for over 10 years, and
•
it carries on its main activity in the same manner and provides the same products and services as other companies and training organisations in the industry.

The training organisation is a not for profit Registered Training Organisation.

The entity is a viable and ongoing concern. It is not a loss-making entity and generates enough income to meet its costs. It usually makes a small profit retained within the entity.

Reasons for Decision

'Business' as defined under subsection 66(5) of the SISA includes:

... any profession, trade, employment, vocation or calling carried on for the purposes of profit, including:

(a)
the carrying on of primary production; and
(b)
the provision of professional services

but does not include occupation as an employee.

The definition of 'business' under subsection 66(5) of the SISA is an inclusive one and enlarges the ordinary meaning of the term.

A set of indicators has been developed over the years by case law to evidence the carrying on of a 'business' in its normal and ordinary meaning (Ferguson v. FC of T 79 ATC 4261 (1979) 9 ATR 873). Some of these indicators include:

•
significant commercial purpose or character of the activity
•
whether the entity has more than just an intention to engage in business
•
purpose of profit as well as a prospect of profit from the activity
•
repetition and regularity of the activity
•
whether the activity is of the same kind and carried on in a similar manner to that of the ordinary trade in that line of business
•
whether the activity is planned, organised and carried on in a businesslike manner
•
the size, scale and permanency of the activity, and
•
whether the activity is better described as a hobby or recreation.

No one factor is the key determinant and the absence of any particular factor is not fatal to an activity receiving classification as a 'business' (Evans v. FC of T 89 ATC 4540; (1989) 20 ATR 922). The Tax Office has adopted these indicators in Taxation Ruling TR 97/11.

'Business real property' under subsection 66(5) of the SISA includes, amongst other interests, any freehold or leasehold interest of the entity in real property; where the real property is used wholly and exclusively in one or more businesses (whether carried on by the entity or not), excluding any interest held in the capacity of beneficiary of a trust estate.

In the case of a not for profit entity where its main purpose is something other than to produce profit, if the activity otherwise satisfies the ordinary indicators of a 'business', such a not for profit entity may be classified as a 'business' for the purposes of subsection 66(5) of the SISA.

As such, real property used by a not for profit business satisfies the definition of 'business real property' under subsection 66(5) of the SISA.

Date of decision:  25 July 2006

Year of income:  Year ended 30 June 2006

Legislative References:
Superannuation Industry (Supervision) Act 1993
   section 66
   subsection 66(5)

Case References:
Ferguson v. FC of T
   79 ATC 4261
   (1979) 9 ATR 873

Evans v. FC of T
   89 ATC 4540
   (1989) 20 ATR 922

Related Public Rulings (including Determinations)
Taxation Ruling TR 97/11

Keywords
Carrying on a business
Self managed superannuation funds
SMSF acquisition of assets
SMSF business real property
SMSF investments

Business Line:  Superannuation

Date of publication:  18 August 2006

ISSN: 1445-2782

history
  Date: Version:
  25 July 2006 Original statement
You are here 8 May 2009 Archived

Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).