Edited version of your written advice

Authorisation Number: 1012817207168

Ruling

Subject: Assessable income vs capital gains

Question 1

Will the proceeds received from the sale of the subdivided properties be considered ordinary assessable income under section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

No.

Question 2

Will the proceeds received from the sale of subdivided properties be taxed under the capital gains tax (CGT) provisions of the ITAA 1997?

Answer

Yes.

This ruling applies for the following periods:

Year ending 30 June 2015.

Year ending 30 June 2016.

Year ending 30 June 2017.

The scheme commenced on:

1 July 20XX.

Relevant facts and circumstances

You and another taxpayer are the owners of a property which is situated a certain number of kilometres from a town in State A.

The property was purchased a number of years ago for a certain amount.

The property is a certain number of acres in area. The land is vacant with the exception of one house.

Your intention at the time of purchase of the property was to rent the house on the property and use the remaining number of acres to carry out personal pursuits.

The zoning of the land on acquisition did not allow for the land to be subdivided.

The land has been re-zoned to allow the subdivision of the property into acreage lots, meaning that the block has the potential to be subdivided into a number of acreage blocks and the existing house will remain on a smaller acreage block.

You have commenced to fence and connect supplies to the property.

The expected cost of services is a certain amount per block and expected proceeds per block will be greater than the purchase cost of the total acreage.

The marketing has been undertaken by local real estate agents.

You and the other taxpayer undertake your investment activities as a separate entity, which does not include land subdivision activities.

The intended subdivision will be a one of project as you do not have any other assets capable of subdivision and neither you or the other taxpayer have ever undertaken a subdivision project in the past.

The nature and scale of the operation is quite small without the requirement for heavy subdivision costs that would be associated with an intense residential subdivision.

You have commenced selling the blocks, but due to market conditions, all blocks may not be disposed of for a few years.

You and the other taxpayer operate a business as your full-time occupation and have done so for a number of years.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5.

Income Tax Assessment Act 1997 section 104-10.

Income Tax Assessment Act 1997 paragraph 108-5(2)(a).

Income Tax Assessment Act 1997 section 110-25.

Income Tax Assessment Act 1997 section 115-10.

Income Tax Assessment Act 1997 section 995-1.

Reasons for decision

Question 1

Section 6-5 of the ITAA 1997 states that if you are an Australian resident, your assessable income includes all income derived directly or indirectly from all sources, whether in or out of Australia, during the income year.

Profits from the sale of property can be assessable under section 6-5 of the ITAA 1997 in the following ways:

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

(b) As ordinary income under section 6-5 of the ITAA 1997 as a result of an isolated business transaction which, although outside the ordinary course of business of a taxpayer, is entered into for the commercial exploitation of an asset acquired for a profit making purpose, that is, the profit is derived in the course of carrying out a business operation or commercial transaction.

Carrying on a business

Section 995-1 of the ITAA 1997 defines 'business' as 'including any profession, trade, employment, vocation or calling, but not occupation as an employee'.

The question of whether a business is being carried on is a question of fact and degree.

You have stated that this subdivision will be a one of project as you do not have any other asset capable of subdivision and further that you have never undertaken a subdivision project in the past. Therefore, it is considered that this subdivision is not being carried on as a business.

Isolated transactions

Taxation Ruling TR 92/3 discusses profits on isolated transactions and the application of the principles outlined in the decision of the Full High Court of Australia in FCT v. Myer Emporium Ltd (1987) 163 CLR 199; 87 ATC 4363; (1987) 18 ATR 693. This ruling states that profits on isolated transactions may be income.

Profit from an isolated transaction will be ordinary income where:

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

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

If a transaction or operation involves the sale of property, it is usually, but not always, necessary that the taxpayer has the purpose of profit-making at the time of acquiring the property.

TR 92/3 lists the factors to be considered when looking at whether an isolated transaction amounts to a business operation or commercial transaction:

Profits on the sale of subdivided land can therefore be income according to ordinary concepts within section 6-5 of the ITAA 1997 if the taxpayer's subdivisional activities have become a separate business operation or commercial transaction, or an isolated profit making venture.

In applying the factors listed in TR 92/3 to your circumstances, we accept that you are not carrying on a business of property development. However, it needs to be determined whether any profit from the sale of the subdivided land can be said to be the result of an isolated transaction.

You have stated that at the time of purchase of the property that your intention was to obtain rental income from the house and use the land for personal pastoral pursuits. Further, at the time of purchase, the land zoning did not allow for subdivision. You have also advised that you have never been involved in land development previously and that you have no other property capable of being subdivided. Your involvement in the land subdivision will only be the connection basic supplies to the subdivided blocks and fencing.

A consideration of the above factors leads to the overall impression that the subdivision of your property is not business or commercial in nature. The subdivision constitutes the realisation of a capital asset. Your share of any profit from the sale of the subdivided lots will therefore not be a profit from an isolated transaction under the guidelines of TR 92/3.

Any profit from the sale of the subdivided land that is not the result of carrying on a business of property development or as a result of an isolated transaction, will not be assessable as ordinary income under section 6-5 of the ITAA 1997.

Question 2

The sale of the subdivided lots will be subject to the CGT provisions in Parts 3-1 and 3-3 of the ITAA 1997.

The relevant CGT asset in this case will be your interest in the subdivided lots to be sold, which is a CGT asset under paragraph 108-5(2)(a) of the ITAA 1997. The date you acquired your interest in the subdivided lots is the date you acquired your interest in the original parcel of land, and the cost base of the original land is divided between the subdivided lots on a reasonable basis.

Subdividing land does not result in a CGT event if you retain ownership of the subdivided lots and you therefore do not make a capital gain or a capital loss at the time of the subdivision. CGT event A1 under section 104-10 of the ITAA 1997, relating to the disposal of a CGT asset, will happen when you dispose of your interest in each of the subdivided lots.

You will make a capital gain on each subdivided block where the capital proceeds from the disposal of that lot is more than the cost base for that same lot. You will make a capital loss if the capital proceeds are less than the reduced cost base of each lot.

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