Edited version of your written advice

Authorisation Number: 1051359701126

Date of advice: 12 April 2018

Ruling

Subject: GST and purchase, development and sale of property

Question 1

Do your activities related to the subdivision and subsequent sale of the subdivided lots situated at a specified location (the Property) constitute an ‘enterprise’ as defined in paragraph 9-20(1)(b) of the A New Tax Systems (Goods And Services Tax) Act 1999?

Answer

Yes

Question 2

Are you required to register for GST from the date of purchase of the property?

Answer

No

Question 3

Are you required to register for GST from the nominated date of change of intention (approximately dd/mm/yyyy)?

Answer

No

Question 4

Are you entitled to an input tax credit in regard to your acquisition of the Property?

Answer

No

Question 5

Are you entitled to input tax credits for expenses incurred related to the property development activities prior to dd/mm/yyyy?

Answer

No

Question 6

Are you entitled to input tax credits for expenses incurred related to the property development activities from dd/mm/yyyy?

Answer

No, you are entitled to input tax credits for expenses incurred related to the property development activities from dd/mm/yyyy.

Question 7

Are you making a taxable supply when you sell the subdivided lots?

Answer

Yes

Question 8

Are you able to reduce your GST liability in regard to the sales of the subdivided lots through any other mechanism available under the GST legislation?

Answer

No

This ruling applies for the following period:

1 July 2013 – 30 June 2019

The scheme commences on:

1 July 2013

Relevant facts and circumstances

Individual 1 & Individual 2 & Individual 3 (You) are registered for GST effective from dd/mm/yyyy.

In yyyy, you entered into a contract to purchase property situated at a specified location (the Property).

The Vendor was Company X.

Company X was registered for GST as at the time of settlement and was required to remit 1/11^th of the sale price (the GST payable in regard to the sale of the Property) to the Australian Taxation Office. The sale of the Property was not treated as the sale of a going concern or the sale of farmland.

Date of settlement was in yyyy.

Mr X was one of the directors of Company X.

Mr X and Individual 3 are the parents of Individual 1 and Individual 2

You purchased the Property for the purposes of a lifestyle retreat/hobby farm.

No farming activity was undertaken on the Property with the exception of purchasing a tractor and maintaining the Property. The Property has been used extensively by Individual 1, Individual 2 and Individual 3, and extended families and friends, for weekend and holiday escapes from their city lifestyles.

In yyyy, Individual 1 advised Individual 2 and Individual 3 that they had made the decision to start a family and to leave full time employment. As a result they had not been able to contribute to the mortgage payments and expressed that they wanted to sell the Property and/or receive a return on their share in the Property.

Real estate agent/s were approached for a valuation of the Property.

The Property was not put on the market after obtaining the valuations from the local real estate agent/s who had advised the market value of the Property.

An agent advised that the return on the sale of the Property would be better if the Property was sold as subdivided lots if the development costs could be covered because the subdivided lots would be easier to sell given that they would be of a smaller acreage and bank loans would be easier to obtain by potential buyers.

A decision was made to subdivide the Property into x proposed lots, with x lots to be sold (the Sale Lots) and Individual 2 and Individual 3 retaining one of the lots.

A valuation has been obtained in regard to the lot to be retained with Individual 2 and Individual 3 to provide consideration equal to market value for the lot.

In late yyyy, consultants were engaged in relation to the subdivision of the Property.

In mm/yyyy, a quotation was received for the installation of overhead mains to the Property.

You received a letter from the consultants including the following fee proposals to undertake survey works which did not include set out of the road, or any fees/monies or contributions payable to Council for relevant development certificates:

In early yyyy, the Council issued an estimate which outlined the cost for a Development certificate.

A quote for the erection of approximately x metres of fencing was received.

In mm/yyyy, you obtained a quote in excess of $x to undertake the following activities in relation to the subdivision of the Property:

● supply and install all drainage pipes

● supply top coat of road base on top of subgrade

● concrete dish drain

● traffic control

● road widening

● remove soils, trees, etc

● sediment control, and

● use material from road cut as subgrade.

In mm/yyyy an application for a subdivision certificate was lodged with the Council.

In mm/yyyy, an estimate for preliminary advertising costs was received.

In mm/yyyy, the subdivision certificate was issued by the Council.

The Property will be subdivided into x lots, ranging in size from x acres x acres, with x of the subdivided lots to be sold by a real estate agent (the Project) in accordance with the development application.

The subdivision activities will include construction of x kilometres of road, fencing, power installation to all blocks and land clearing.

The subdivision activities commenced in mid to late yyyy, with the sales of the subdivided lots expected to occur in the yyyy-yy and yyyy-yy income years.

Individual 1, Individual 2 and Individual 3 will take an active part in the negotiations and management of the subdivision activities including management and liaising with consultants, contractors, council, agents and legal advisors.

Neither Individual 1, Individual 2 nor Individual 3 have had any previous involvement either directly or indirectly in any subdivision or development of any real estate or properties.

Neither Individual 2, Individual 3 nor any related entities intend to undertake any similar activities in the future.

The Project will be funded by Individual 1, Individual 2 and Individual 3, with proceeds from assets having been sold, or will be sold. Additionally, savings will be accessed and monies sourced from Mr X’s superannuation fund will be used for the commencement of the subdivision process. A loan may be sourced to complete the development if required, however at this point no loan application has been made, nor needed to commence the subdivision process.

Relevant legislative provisions

A New Tax System (Goods and Services Tax Act) 1999

Section 7-5

Section 7-10

Section 7-15

Section 9-5

Section 9-20

Paragraph 9-20(1)(a)

Paragraph 9-20(1)(b)

Paragraph 9-20(2)(b)

Section 11-5

Paragraph 11-5(d)

Section 11-20

Section 23-5

Section 23-10

Division 72

Section 72-5

Section 75-10

Subsection 72-70(1)

Subsection 75(1)

Subsection 75(2)

Subsection 75(3)

Paragraph 75-5(3)(a)

Division 129

Subdivision 129-B

Paragraph 129-5(1)(a)

Subsection 129-20(1)

Division 132

Division 137

Division 188

Section 188-10

Reasons for decision

Note: In this reasoning, unless otherwise stated,

● all legislative references are to the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)

● reference material(s) referred to are available on the Australian Taxation Office (ATO) website www.ato.gov.au

Question 1

Do your activities related to the subdivision and subsequent sale of the subdivided lots situated at a specified location (the Property) constitute an ‘enterprise’ as defined in paragraph 9-20(1)(b) of the A New Tax Systems (Goods And Services Tax) Act 1999?

Yes.

The term ‘enterprise’ is defined for GST purposes in section 9-20 and includes, among other things, an activity or series of activities done in the form of a business (paragraph 9-20(1)(a)) or done in the form of an adventure or concern in the nature of trade (paragraph 9-20(1)(b)). The phrase ‘carry on’ in the context of an enterprise includes doing anything in the course of the commencement or termination of the enterprise.

Miscellaneous Taxation Ruling MT 2006/1 (MT 2006/1) provides the Tax Office view on the meaning of 'enterprise' for the purposes of entitlement to an Australian Business Number (ABN). Goods and Services Tax Determination GSTD 2006/6 provides that the discussion in MT 2006/1 equally applies to the term 'enterprise' as used in the GST Act and can be relied on for GST purposes.

It is the Commissioner’s view that activities related to the Property are not those of an entity carrying on a business of developing and selling property.

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’ where:

● a business would encompass trade engaged in, on a regular or continuous 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.

Paragraph 244 of MT 2006/1 explains that an adventure or concern in the nature of trade includes a commercial activity that does not amount to a business but which has the characteristics of a business deal. It refers to ‘the badges of trade’ and outlines a number of factors that may be taken into account when determining whether assets have the characteristics of ‘trade’ and held for income producing purposes, or held as an investment asset or for personal enjoyment.

Paragraphs 258 and 259 of MT 2006/1 provide guidance on the distinction between trading/revenue assets and investment/capital assets providing the following:

● Assets can be categorised as trading/revenue assets or capital/ investment assets. Assets purchased with the intention of holding them for a reasonable period of time, to be held as income producing assets or to be held for the pleasure or enjoyment of the person, are more likely not to be purchased for trading purposes.

● Examples of capital/investment assets are rental properties, business plant and machinery, the family home, family cars and other private assets. The mere disposal of capital/investment assets does not amount to trade.

Assets can change their character from a capital/investment asset to a trading/revenue asset, or vice versa, but cannot have a dual character at the same time.

While an activity such as the selling of an asset may not of itself amount to an enterprise, account should be taken of the other activities leading up to the sale to determine if an enterprise is carried on.

Paragraph 262 of MT 2006/1 acknowledges that the question of whether an entity is carrying on an enterprise often arises where there are ‘one-offs’ or isolated real property transactions. Paragraph 263 continues stating that the issue to be decided is whether the activities being conducted are an enterprise in that they are of a revenue nature as they are considered to be activities of carrying on a business or an adventure or concern in the nature of trade (profit making undertaking or scheme) as opposed to the mere realisation of a capital asset.

The cases of Statham & Anor v. Federal Commissioner of Taxation (Statham) and Casimaty v. FC of T (Casimaty) established a number of factors in determining whether activities are a business or an adventure or concern in the nature of trade with reference to real property transactions including:

● there is a change of purpose for which the land is held

● additional land is acquired to be added to the original parcel of land

● the parcel of land is brought into account as a business asset

● there is a coherent plan for the subdivision of the land

● there is a business organisation – for example a manager, office and letterhead

● borrowed funds financed the acquisition or subdivision

● interest on money borrowed to defray subdivisional costs was claimed as a business expense

● there is a level of development of the land beyond that necessary to secure council approval for the subdivision, and

● buildings have been erected on the land.

No single factor will be determinative of whether the activity or activities will constitute either a business or an adventure or concern in the nature of trade.

The following discussion is centred on applying the facts of this case to the above indicators of a business and factors in determining whether activities are a business or an adventure or concern in the nature of trade with reference to the indicators established in Statham and Casimaty in the context of real property transactions.

In this case the Property was originally acquired in yyyy for the purposes of a lifestyle retreat/hobby farm for use by extended families and friends. Following discussions between the co-owners of the Property and agents in yyyy, there was a conscious decision to hold the Property for the purpose of subdivision with a view to profit from the sales of the subdivided lots.

Furthermore, there was a coherent plan to carry out the subdivision as evidenced by the engagement of land development consultants and the obtaining of quotes for works including surveying, installation of overhead mains electricity, erection of fencing, supply and installation of drainage pipes, and roadworks.

The subdivision will be funded by Individual 1, Individual 2 and Individual 3, with proceeds from assets having been sold, or to be sold. Additionally, savings will be accessed and monies sourced from Mr X’s superannuation fund will be used for the commencement of the subdivision process. A loan may be sourced to complete the development if required, however at this point no loan application has been made, nor needed to commence the subdivision process.

Given the above, we consider that your activities in connection with the subdivision of your Property and subsequent sale of the vacant subdivided lots are a series of activities done in the form of an adventure or concern in the nature of trade. Consequently, such activities constitute an ‘enterprise’ as defined in section 9-20.

Question 2

Are you required to register for GST from the date of purchase of the property?

No.

Section 23-5 provides that you are required to be registered for GST if you are carrying on an enterprise and your GST turnover meets the registration turnover threshold (currently $75,000).

You purchased the Property in yyyy at which time you acquired the Property for the purposes of a lifestyle retreat/hobby farm for use by extended families and friends. Paragraph 9-20(2)(b) provides that an ‘enterprise’ does not include an activity, or series of activities, done as a private recreational pursuit or hobby. As such, you are not considered to be carrying on an enterprise at the time you purchased the Property. Therefore you are not required to register for GST as at that date.

GST Turnover

The meaning of GST turnover is contained in Division 188. Section 188-10 provides that your GST turnover will meet the registration turnover threshold if:

a) your current GST turnover is at or above the threshold ($75,000) and the Commissioner is not satisfied that your projected GST turnover is below $75,000, or

b) your projected GST turnover is at or above $75,000.

Your ‘current GST turnover’ is the sum of your turnover for the current month and the previous 11 months.

Your ‘projected GST turnover’ is the sum of your turnover for the current month and the next 11 months.

In this case the turnover in regard to the Property will be generated from the sales of the subdivided lots with the sales of such lots not expected to occur in the yyyy-yy and yyyy-yy income years. As such your turnover for mm/yyyy and the 11 months following the month settlement occurred (concluding in mm/yyyy) would not meet the registration turnover threshold.

Given the above you are not required to be registered for GST from the date of the purchase of the Property.

Question 3

Are you required to register for GST from the nominated date of change of intention (approximately dd/mm/yyyy)?

No.

Further to the criteria to be satisfied requiring an entity to register for GST discussed above, section 23-10 provides that an entity may choose to register for GST if they are carrying on an enterprise (regardless of whether their GST turnover is at, above or below the registration turnover threshold.

The term ‘carrying on’ is defined in section 195-1 to include doing anything in the course of the commencement or termination of an enterprise. The question of when an enterprise commences is discussed in MT 2006/1. Paragraphs 122 provides that activities done by an entity that are part of a process of beginning or bringing into existence an enterprise are activities in carrying on an enterprise.

Paragraph 123 of MT 2006/1 continues stating:

123. In the Commissioner's view the term, 'doing anything in the course of the commencement....of an enterprise' describes the kind of activities undertaken. The ultimate outcome of the activities and whether or not an ongoing enterprise eventuates is not a determinative factor. An entity has to determine its entitlement to an ABN from the time of its first activities.

Paragraph 124 of MT 2006/1 further provides that if the activities have the character of those ordinarily undertaken to commence an enterprise they will be accepted as falling within the statutory definition. This leads to a broad range of preliminary activities being accepted as an enterprise.

In this case, sometime in mid-yyyy (between mm and mm/yyyy) a decision was made to subdivide the Property into x lots, with x lots to be sold (the Sale Lots) and Individual 2 and Individual 3 retaining one of the lots. In mm/mmyyyy you engaged a consultancy firm in relation to the subdivision of the Property. Following this you obtained a number of quotes for works including surveying, installation of overhead mains electricity, erection of fencing, supply and installation of drainage pipes, and roadworks.

The Australian Business Register shows that you are registered for GST effective from dd/mm/yyyy however your private ruling application states that you have taken steps to register for GST effective from dd/mm/yyyy. Given the timeline of events, we accept that you carried on an enterprise from this date (dd/mm/yyyy).

As you carried on an enterprise since dd/mm/yyyy, you would be required to be registered for GST as at that date where you GST turnover was at or above the GST registration turnover threshold for the period dd/mm/yyyy and concluding dd/mm/yyyy. In the situation your GST registration turnover does not meet the threshold for this period, you may choose to voluntarily register for GST pursuant to section 23-10.

Question 4

Are you entitled to an input tax credit in regard to your acquisition of the Property?

No.

Section 11-20 states that you are entitled to an input tax credit (ITC) for any creditable acquisition that you make.

One of the requirements of making a creditable acquisition is that you are registered or required to be registered (paragraph 11-5(d)).

As at the date of settlement of your purchase of the Property you were not registered for GST, and as discussed above, you were not required to be registered for GST. Consequently, the purchase of the Property was not a creditable acquisition and you are not entitled to an ITC in regard to the purchase.

Question 5

Are you entitled to input tax credits for expenses incurred related to the property development activities prior to dd/mm/yyyy?

No. See reasoning for Question 4 above.

Question 6

Are you entitled to input tax credits for expenses incurred related to the property development activities from dd/mm/yyyy?

No, you are entitled to input tax credits for expenses incurred related to the property development activities from dd/mm/yyyy.

As discussed above, section 11-20 states that you are entitled to an input tax credit (ITC) for any creditable acquisition that you make. Section 11-5 provides that you make a creditable acquisition if all of the following criteria are satisfied:

(a) you acquire anything solely or partly for a creditable purpose (i.e. to the extent you acquire the thing in carrying on your enterprise except to the extent the acquisition relates to making input taxed supplies or is of a private or domestic nature)

(b) the supply to you was a taxable supply

(c) you provide, or are liable to provide, consideration for the supply

(d) you are registered or required to be registered.

As discussed above, it is taken that you commenced conducting activities in the course of an enterprise from dd/mm/yyyy.

You registered for GST effective from dd/mm/yyyy. Your GST registration date has been confirmed as being correct as discussed in a phone conversation with your tax representative.

In regard to the period dd/mm/yyyy to dd/mm/yyyy, whilst you made acquisitions in the course of carrying on your enterprise, you were not registered or required to be registered for GST. As such, during this period you are not entitled to input tax credits for expenses incurred related to the property development activities.

In regard to the period from dd/mm/yyyy onwards, criteria (a) and (d) above are satisfied. As such, you are entitled to input tax credits for expenses incurred related to the property development activities from dd/mm/yyyy provided both:

● the supply to you was a taxable supply, and

● you provide, or are liable to provide, consideration for the supply.

Question 7

Are you making a taxable supply when you sell the subdivided lots?

Yes.

Section 9-5 provides that you make a taxable supply if:

(a) you make the supply for consideration; and

(b) the supply is made in the course or furtherance of an enterprise that you carry on; and

(c) the supply is connected with the indirect tax zone; and

(d) you are registered, or required to be registered for GST.

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

In this case the sales of the subdivided lots are expected to occur in the yyyy-yy and yyyy-yy income years. The Property will be subdivided into x lots with x lots to be sold (the Sale Lots) and Individual 2 and Individual 3 keeping one of the lots (Retained Lot).

Sale Lots

If the supplies of the Sale Lots satisfy the criteria in section 9-5 above, the supply of the Sale Lots will be a taxable supply.

Retained Lot

As discussed above, where the criteria of section 9-5 are satisfied, the supply of the lots will be a taxable supply pursuant to section 9-5.

However Division 72 provides that supplies to associates without consideration, or for inadequate consideration, are brought within the GST system and properly valued for GST purposes.

Section 72-5 provides that the fact that a supply to an associate is without consideration does not stop the supply being a taxable supply if:

● your associate is not registered or required to be registered for GST, or

● your associate acquires the thing supplied otherwise than solely for a creditable purpose.

In such situations, section 72-10 provides that the value of the taxable supply is the GST exclusive market value of the supply.

Subsection 72-70(1) provides if you make a taxable supply to your associate for consideration that is less than the GST inclusive market value, the value of the taxable supply is the GST exclusive market value of the supply.

However subsection 72-70(1) does not apply if:

● your associate is registered or required to be registered for GST, or

● your associate acquires the thing supplied solely for a creditable purpose.

This issue is discussed in paragraphs 136 to 139 of Goods and Services Ruling GSTR 2004/6 Goods and services tax: tax law partnerships and co-owners of property.

In this case, Individual 2 and Individual 3 will be providing consideration equal to market value as determined by a valuation for the lot to be retained. As such, Division 72 will not apply and the ‘sale’ of the lot by the tax law partnership of Individual 1, Individual 2 and Individual 3 to Individual 2 and Individual 3 will be a taxable supply where the criteria of section 9-5 are satisfied.

Question 8

Are you able to reduce your GST liability in regard to the sales of the subdivided lots through any other mechanism available under the GST legislation?

No

Division 75

Subsection 75-5(1) provides that the margin scheme applies in working out the amount of GST on a taxable supply of real property that you make by selling a freehold interest in land where you and the recipient have agreed in writing that the margin scheme is to apply.

Subsection75-5(2) provides that the margin scheme does not apply if you acquired the entire freehold interest through a supply that was ineligible for the margin scheme.

Subsection 75-5(3) provides that a supply is ineligible for the margin scheme if, amongst other things, it is a taxable supply on which the GST was worked out without applying the margin scheme.

In this case the supply of the Property to you was a taxable supply on which the GST was worked out without applying the margin scheme as evidenced by the supplier’s (Company X) requirement to remit 1/11^th of the sale price in regard to your purchase of the Property. As such, Company X’s supply to you was ineligible for the margin scheme (paragraph 75-5(3)(a)).

Therefore, you acquired the Property through a supply that was ineligible for the margin scheme. As such, pursuant to subsection 75-5(2), you are not able to apply the margin scheme as the supply to you was a taxable supply that was ineligible for the margin scheme.

Division 129

Chapter 2 sets out the basic rules. Section 7-1 provides that:

● GST is payable on taxable supplies and taxable importations

● entitlements to input tax credits arise on creditable acquisitions and creditable importations.

Section 7-5 provides that amounts of GST and amounts of input tax credits are set off against each other to produce a net amount for a tax period (which may be altered to take account of adjustments).

Section 7-10 provides that every entity that is registered, or required to be registered, has tax periods applying to it.

Section 7-15 then provides that the amount assessed as being the net amount for a tax period is the amount the entity must pay, or to which they are refunded, in respect of the period.

The basic rules of the GST Act are set up on the basis of tax periods. It is our view that if an entity is not registered for GST, and is not required to be registered, then:

● the entity does not have a tax period applying to it, and

● cannot be assessed on a net amount for a tax period.

In this case, you acquired the Property at a time when you were not registered, or required to be registered. On those facts, our view is that the effect of section 7-10 is that you do not have a tax period to which the acquisition is attributable, and are incapable of making a creditable acquisition in respect of the Property which would be used in the calculation of a net amount in respect of that period.

Division 129 provides for an adjustment for an acquisition or importation where there is a difference between the actual use and the planned use of the thing for a creditable purpose.

Paragraph 129-5(1)(a) provides that an adjustment can arise under Division 129 for an acquisition, even if it is not a creditable acquisition; in respect of any adjustment period for the acquisition.

Subsection 129-20(1) provides that an adjustment period for an acquisition is a tax period applying to you that starts at least 12 months after the end of the tax period to which the acquisition is attributable (or would be attributable if it were a creditable acquisition) and ends on 30 June in any year; or if none of the tax periods applying to you in a particular year ends on 30 June - closer to 30 June than any of the other tax periods applying to you in that year.

It is our view that Division 129 does not change, override or modify the basic rule under section 7-10 that only entities that are registered or are required to be registered for GST can have tax periods applying to them. We do not consider that Division 129 and Subdivision 129-B in particular, creates or allows for a tax period where one does not exist under the basic rules.

This position was affirmed in GOL-HUT v Commissioner of Taxation [2013] AATA 199 where PE Hack said at [25]:

‘…In my view Division 129, on its proper construction, cannot have any application to an entity that was neither registered nor required to be registered. Most obviously, an adjustment period is, as the Commissioner submits, a subset of a tax period. Section 129-25 of the Act operates only where an entity has a tax period applying to it, by operation of the Act, because it is registered or required to be registered. It cannot create a tax period independent of the operation of the Act.’

Accordingly, if an entity is not registered, there is no creditable acquisition, no tax period or net amount applying to it, and as such there can be no adjustment period.

Given the above, Division 129 does not apply to allow a decreasing adjustment as a result of becoming registered for GST and subsequently changing the use of the previously acquired Property.

Division 132

Division 132 applies to allow you a decreasing adjustment if you:

● make a taxable supply by way of sale, and

● were not entitled to a full input tax credit on the acquisition or later application of the thing because the acquisition or application related to making financial supplies or was of a private or domestic nature.

The application of Division 132 is discussed in Goods and Services Tax Ruling (GSTR 2004/8) Goods and services tax: when does an entity have a decreasing adjustment under Division 132?

Paragraph 39 of GSTR 2004/8 states in part that ‘… you do not have a decreasing adjustment if you acquired a thing before you were registered or required to be registered’.

In this case, you acquired the Property prior to becoming registered for GST or being required to register for GST. Furthermore, at the time you acquired the Property you were not entitled or eligible to register for GST as you were not carrying on an enterprise at that time. As such, you are not entitled to an adjustment pursuant to Division 132.

Division 137

Division 137 provides for a decreasing adjustment if:

● an entity becomes registered or required to be registered

● at that time the entity holds stock for the purpose of sale or exchange, or for use as raw materials, in carrying on the enterprise, and

● the entity had acquired the stock solely or partly for a creditable purpose.

An entity will acquire a thing for a creditable purpose if they make the acquisition, either solely or in part, in carrying on their enterprise. However, the entity will not acquire the thing for a creditable purpose to the extent the acquisition is of a private or domestic nature.

As discussed previously, you were not carrying on an enterprise at the time you purchased the Property in yyyy. Furthermore, you acquired the Property solely for private purposes.

Therefore, as all of the above criteria are not satisfied, you are not entitled to a decreasing adjustment pursuant to Division 137.

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