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Ruling

Subject: Property Development

Questions

Will the anticipated profit realised from the sale of the property be assessable income pursuant to section 6-5 or section 15-15 of the ITAA 1997

Answer: No

Will the anticipated profit realised from the sale of the property be assessable income pursuant to section 25A of the ITAA 1936?

Answer: No

Will the property be subject to the trading stock provisions contained in Division 70 of the ITAA 1997?

Answer: No

Will any capital gain realised from the sale of the property be a disregarded gain under section 104-10(5) of the ITAA 1997?

Answer: Yes

This ruling applies for the following period

Year ended 30 June 2013

Year ended 30 June 2014

Year ended 30 June 2015

Year ended 30 June 2016

The scheme commenced on

1 July 1980

Relevant facts and circumstances

In 1980's the Trust acquired a property (the Property).

During 2008 to 2009 road works were drafted at a nearby intersection to the Property. The Trustees believed that the road works would have a materially detrimental impact on the value and future use of the property.

The Trustees engaged the services a specialist property advisory company focused on residential development and investment.

The consultants advised that the best way to protect the Trustee's interests in the Property was to proceed in preparing a development application and submitting it to the council for their approval.

The Trustees do not intend on undertaking any of the subdivision work necessary to make use of the development application approvals. They plan to sell the Property with development application approval. It is anticipated that the purchaser of the Property would be a property development company with the requisite skills, experience and funding to undertake the actual subdivision and sale of the individual housing lots.

The Trustees anticipate that when you dispose of the Property, the sale proceeds will exceed the original cost of the Property.

The Trustees have no history of being engaged in the business of property development.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 6-5

Income Tax Assessment Act 1997 Section 102-5

Income Tax Assessment Act 1936 section 25A

Income Tax Assessment Act 1997 section 104-10(5)

Income Tax Assessment Act 1997 Division 70

Income Tax Assessment Act 1997 Part 3-1

Reasons for decision

There are three ways profits from a land sub-division can be treated for taxation purposes:

(1) As ordinary income under section 6-5 of the ITAA 1997, on revenue account, as a result of carrying on a business of property development, involving the sale of land as trading stock.

(2) As ordinary income under section 6-5 of the ITAA 1997, on revenue account, as a result of an isolated business transaction entered into by a non-business taxpayer or outside the ordinary course of business of a taxpayer carrying on a business, which is the commercial exploitation of an asset acquired for a profit making purpose.

(3) As statutory income under the capital gains tax (CGT) legislation, (sections 10-5 and 102-5 of the ITAA 1997), on the basis that a mere realisation of a capital asset has occurred.

The proceeds from the mere realisation of an asset are not ordinary income, even though the realisation is carried out in an enterprising way so as to secure the best price. However, an isolated business transaction entered into with a view to making a profit may give rise to income according to ordinary concepts. This would also apply if a capital asset is ventured in an undertaking or scheme which involves more than the mere realisation of the asset.

Profit arising from the sale of property acquired prior to 20 September 1985 is assessable under the provisions of section 25A of the Income Tax Assessment Act 1936 (ITAA 1936) if the property was acquired for the purpose of profit making by sale. Profits arising from a profit-making undertaking or plan may also be assessable under section 15-15 of the ITAA 1997.

Carrying on a business of property development

The Commissioners view on whether a taxpayer is carrying on a business is found in Taxation Ruling TR 97/11 which uses the following indicators to determine whether a taxpayer is carrying on a business:

· whether the activity has a significant commercial purpose or character

· whether there is 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 such that it is directed at making a profit

· the size, scale and permanency of the activity

· whether the activity is better described as a hobby, a form of recreation or a sporting activity.

Isolated business transactions

The Commissioners view on whether profits from isolated transactions are assessable as ordinary income is found in Taxation Ruling TR 92/3. The term 'isolated transactions' refers to:

· those transactions outside the ordinary course of business of a taxpayer carrying on a business

· those transactions entered into by non-business taxpayers.

TR 92/3 states profits on an isolated transaction will be ordinary income when:

· the intention or purpose of a taxpayer in entering into the transaction was to make a profit or gain

· the transaction was entered into, and the profit was made in the course of carrying on a business operation or commercial transaction.

For a one-off land subdivision to be considered to be of a business or commercial nature, it is usually necessary that a taxpayer has the purpose of profit-making at the time of acquiring the property.

Trading Stock

If a taxpayer is considered to be carrying on a business of property development or conducting an isolated business transaction, land and property may be considered trading stock under section 70-10(a) of the ITAA 1997. Any proceeds from sale are then treated as ordinary income, and the business enterprise may be required to register for GST. This could happen even for a one-off transaction.

Application to the current circumstances

Based on the facts provided, the proposed sale of the property would not be considered to be income for the purposes of section 6-5 of the ITAA 1997. The Trustees are not considered to be carrying on a business of subdividing and/or selling the land. They will not undertake the subdivision and only sought planning approval in the hope to maximise their returns from the sale of the property which had been used commercially by the Trustees or related entities for 30 years. The Trustees relied upon expert advice in relation to the proposed sale and it has at no time expressed any desire to become involved in the development process.

The proposed sale of the property is also not considered to be income under the provisions of section 25A of the ITAA 1936 or section 15-15 of the ITAA 1997. The land was not acquired for the purposes of profit making by sale as demonstrated by the continued use of the property for commercial purposes. As such the property will not be subject to the trading stock provisions contained in Division 70 of the ITAA 1997.

The proposed sale is more akin to the mere realisation of a capital asset in the most advantageous form. The land will be sold in one parcel and the sale was only instigated by surrounding road works which would have had a detrimental affect on the businesses conducted on the property.

Capital gains tax (CGT)

A capital gain or capital loss which you make is disregarded if you acquired the CGT asset prior to 20 September 1985 under paragraph 104-10(5)(a) of the ITAA 1997. Therefore the proceeds from the sale of the property will be disregarded.

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