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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

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Edited version of your written advice

Authorisation Number: 1051327518051

Date of advice: 16 January 2018

Ruling

Subject: GST and sale of subdivided land

Question

Will the sale of subdivided land be a taxable supply under section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

No.

Relevant facts and circumstances

Relevant legislative provisions

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

A New Tax System (Goods and Services Tax) Act 1999 – section 9-20

Reasons for decision

You are liable to remit GST on any taxable supplies you make.

You make a taxable supply if you make the supply for consideration; the supply is made in the course or furtherance of an enterprise that you carry on; the supply is connected with the Indirect Tax Zone; and you are registered or required to be registered.

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

The supply of subdivided vacant land is not GST-free or input taxed under any provision of the GST Act.

You will make the supply of subdivided vacant land for consideration and the supply is connected with the Indirect Tax Zone. However, it is necessary to ascertain whether your supply will be made in the course or furtherance of an enterprise that you carry on and whether you will be required to be registered for GST.

Carrying on an enterprise

Enterprise is defined in subsection 9-20(1) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), which states:

An enterprise is an activity, or series of activities, done;

Miscellaneous Taxation Ruling MT 2006/1: The New Tax System: the meaning of an entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number (MT 2006/1) provides guidance on the meaning of ‘entity’ and ‘enterprise’ for the purposes of the A New Tax System (Australian Business Number) Act 1999 (ABN Act)

Goods and Services Tax Determination GSTD 2006/6 provides that the principles in MT 2006/1 have equal application to the meaning of ‘entity’ and ‘enterprise’ for the purposes of the GST Act.

You have not previously been engaged in property development activities. The proposed development activities by you may be considered as an isolated or one-off transaction. However, 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. Therefore, the scale of the development activities proposed by you should be considered to determine whether it will be an isolated or one-off transaction.

Isolated transactions and sales of real property

Paragraphs 262-302 of MT 2006/1 refer to isolated transactions and sales of real property. Paragraphs 262 and 263 of MT 2006/1 state:

Paragraphs 264 and 265 of MT 2006/1 refer to factors that indicate whether the activities undertaken are an adventure or concern in the nature of trade and state:

In applying the ATO’s view to the property development activities we note the following:

The above analysis indicates that the activities undertaken by you and the other taxpayer would not amount to an enterprise of property development. We consider that the sale of the subdivided land would be the mere realisation of a capital asset and not made in the course or furtherance of an enterprise.

Therefore, based on the facts provided, the sale of the subdivided lot of land will not be a taxable supply as the sale will not satisfy all of the requirements of a taxable supply under section 9-5 of the GST Act


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