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Edited version of private advice

Authorisation Number: 1012644749397

Ruling

Subject: GST and sale of land

Question

Is goods and services tax (GST) payable when you sell your land at the specified address in Australia?

Advice/Answer

No. GST is not payable when you sell your land at the specified address in Australia.

Relevant facts and circumstances

You own a specified number of properties being blocks of land. You are the sole owner of these blocks of land:

Other than these blocks of land, you do not own any other land/real property.

Land A

Land B

Land C

You are registered for GST from 1 July 2000 to the current day in relation to your farming enterprise conducted on Land C. Your farming activities have always been that of cattle farming. You currently have y heads of cattle. The cattle are reared for beef.

Other than your farming activities, you did not carry on any other business activities previously and you are also not carrying on any other business activities currently.

Other than your farming activities, you were also previously in employment. You were employed for more than 20 years until mmyyyy. That is, for the last few years you were not in any employment. You are also currently not in any employment.

You are not entitled to government benefits and you have no other income other than from your farming business. This is the reason you wish to sell Land B.

You do not live on the farm. You have your residence at a specified address.

You answered 'no' to questions 9 and 10 on the Private ruling application form. That is, there has not been an audit on the issues you have raised in this ruling request and you have not previously sought an oral or written ruling for this issue. (The issue is whether GST is payable on your sale of the Maryborough Land). 

Relevant legislative provisions

The A New Tax System (Goods and Services Tax) Act 1999 section 9-5

The A New Tax System (Goods and Services Tax) Act 1999 Division 38

The A New Tax System (Goods and Services Tax) Act 1999 Division 40

Reasons for decision

Note: In this ruling, unless otherwise stated,

Section 9-5 provides for taxable supplies. The section states that an entity makes a taxable supply if all of the following requirements are satisfied:

However, the supply is not a taxable supply to the extent that it is GST-free or input taxed.

Where a supply is GST-free or input taxed it will mean that GST does not apply to the supply. That is, GST will not be payable on the supply.

In this case you are an entity (being an individual entity) and you are proposing to sell land B. Accordingly, we need to establish firstly whether, in selling the land, you will be making a GST-free supply or an input taxed supply, before we consider the requirements specified in paragraphs 9-5(a) to (d) above.

In applying the GST-free supply provisions in the GST Act to the facts of your case, we consider that in selling Land B, the GST-free provisions do not apply. Therefore, your sale of Land B is not a GST-free supply.

In applying the input taxed supply provisions in the GST Act to the facts of your case, we also consider that in selling Land B, the input taxed supply provisions do not apply. Therefore, when you sell Land B you are not making an input taxed supply.

As the supply of Land B is not GST-free or input taxed, we will consider if you will satisfy the provision of paragraphs 9-5(a) to (d).

We consider that when you sell Land B, the requirements specified in paragraphs 9-5(a) (c) and (d) will be satisfied. Whether paragraph 9-5(b) will be also be satisfied is to be further considered.

Paragraph 9-5(b) requires that when you sell Land B you are doing so in the course or furtherance of an enterprise that you carry on.

The only enterprise that you have carried on previously, and are carrying on currently, is that of beef cattle farming. This farming enterprise is on Land C.

As Land B is not used in your cattle farming enterprise, we consider its sale will not be made in the course or furtherance of the farming enterprise.

However, it is relevant to consider if selling Land B is in itself an enterprise of acquiring and selling of real property. Therefore, it is necessary to consider the meaning of the term 'enterprise' for the purposes of the GST Act.

'Enterprise' is defined in section 9-20 which provides, amongst other things, that an enterprise is an activity, or series of activities, done:

The question of whether an entity is carrying on an enterprise is examined in Miscellaneous Tax Ruling MT 2006/1 The New Tax System: the meaning of entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number (MT 2006/1). Paragraph 159 of MT 2006/1 states that whether or not an activity constitutes an enterprise is a question of fact and degree depending on the circumstances of each individual case.

Paragraph 234 of MT 2006/1 distinguishes between activities done in the form of a business and those done in the form of an adventure or concern in the nature of trade. A business encompasses trade engaged in on a regular basis. An adventure or concern in the nature of trade includes an isolated or one-off transaction that does not amount to a business but which has the characteristics of a business deal.

In your case, you have acquired blocks of land but have not sold any previously. You are now proposing to sell Land B and and eventually you would like to sell the other blocks of Land A. Accordingly, we need to determine whether your sale will be considered for GST purposes as an isolated or one-off transaction that is considered an enterprise.

MT 2006/1 explains:

Paragraph 265 of MT 2006/1 lists a number of factors which can be used to determine whether activities in relation to a sale of real property are done under a profit-making undertaking or scheme. If several of these factors are present it may be an indication that a business or an adventure or concern in the nature of trade is being carried on. These factors are as follows:

In your case:

In considering whether you are carrying on an enterprise of buying and selling land, we have taken the following into account:

Accordingly, we determine that when you sell Land B, you are not making the sale in the course or furtherance of an enterprise that you carry on and the requirement of a taxable supply specified in paragraph 9-5(b) will not be satisfied. This means, GST is not payable when you sell your land located at the specified address in Australia.


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