Edited version of your written advice

Authorisation Number: 1051468640583

Date of advice: 20 December 2018

Ruling

Subject: GST and new residential premises

Question 1

Will your supply of individual apartments from your complex located in Australia (the Complex) be a taxable supply pursuant to section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

Yes.

Question 2

Will your supply of multiple apartments in the Complex together be a taxable supply pursuant to section 9-5 of the GST Act?

Answer

Yes.

Question 3

Are you able to sell the Complex as a GST-free going concern pursuant to section 38-325 of the GST Act?

Answer

Yes, where all the requirements of section 38-325 of the GST Act are satisfied.

Relevant facts and circumstances

You, Entity A are registered for GST.

In mmyyyy you began negotiations with the owner of a property located in Australia (the Complex) in order to buy the Complex to use in your short term accommodation business. The property contained a multiple storey building that was originally constructed for specified commercial purposes and used as such until yyyy. It was then converted for use as offices and used for this purpose up to the time you acquired it.

On ddmmyyyy you engaged an architectural firm to seek approval from the relevant Authority for a planning permit to change the use of the building to residential and or visitor accommodation. Approval was provided on ddmmyyy.

On ddmmyyyy the contract for the purchase of the Property was completed and on ddmmyyyy transfer registered with Land Titles Office.

From mmyyyy until mmyyyy you undertook the necessary renovations to convert the office block into X apartments. Under the renovations you created X one bedroom apartments, X two bedroom apartments and X three bedroom apartment.

All apartments feature full sized fridges, full ovens, dishwashers, laundry, bathrooms, lounge areas and are individually heated/cooled. Two apartments have outside decks. Rooms were replastered, rewired and re-plumbed with fire rating between each apartment being the requirement for stand-alone residential classification.

The building complex has a foyer which is furnished with a couch, some artwork and plants. There is a cleaning room on each floor and the building also has X car bays.

Your property is listed on a website. This website is owned by Entity B. Entity B is also the trustee for the Entity A. The name of the Website is the trading name of the Trustee and we will use the name the Manager or trustee to refer to Entity B in this ruling depending on the context.

The website the Manager operates provides that the guests are provided a number of services. Additional undercover parking is available offsite with advance booking (additional cost). The Managers office is located off-site and guests pick up keys and return keys to this offsite office.

Other details of your operations:

● Gross rental income is returned by you.

● For each apartment you receive a monthly rental statement from the Manager.

● With respect to guests, online bookings invoices are automatically generated by the Manager and ‘walk-in’ guests are also provided with an invoice by the Manager.

The apartments were strata titled and were available to rent to guests from ddmmyyyy for short term accommodation.

We will refer to the renovated property as the ‘Complex’ in this ruling.

Management agreement

Entity B has been appointed as manager of the Complex in a separate capacity to its trustee capacity and is registered for GST.

You have advised that you intended that the arrangement between you and the Manager would be one of agency where Entity B was your agent.

You entered into ‘The Agreement for the operation of the business with the Manager on ddmmyyyy. This agreement lasted until ddmmyyyy.

In mmyyyy you entered into a new property management agreement with the Manager. The new agreement mirrors the earlier agreement for the purposes of this ruling.

Entity B is described as the Management Company in this agreement and is called by its trading name in both agreements.

The Agreement includes the following clauses set out below in summary.

Definitions

● Apartment(s) mean the individual units that are allocated to this agreement for the purpose of accommodating short-term visitors.

● Body Corporate means the body corporate established on registration of the Strata Plan.

● Common Areas means that part of the land comprised in the Strata Plan that is common for the purposes of the body corporate.

● Short-term means a length of stay of no more than 30 consecutive nights.

Agreement for Management of Apartment(s)

● The Owner/s agree for entity B to manage the apartments for the purposes of short-term accommodation whilst ensuring the apartments remain free from encumbrances, but subject to the terms of this agreement.

● The rental of the apartments will be the sole responsibility of Entity B and they will determine the nightly rental after taking into consideration market demand and competitor pricing.

● Entity B are solely responsible for all guest interactions including check-in, check-out, reservation enquiries and liaison during their stay.

● Entity B maintains full control over marketing, brand websites and media. Owners are not authorised to create separate brands, websites or undertake their own marketing activity without the permission of Entity B.

● The owners have the right to occupy their apartments subject to availability.

● The agreed term for the rights to manage the apartment shall be until ddmmyyyy

● By signing this contract, owners agree that they will not enter the apartments without seeking approval from Entity B.

Income to Owners(s) and GST

● Rental income collected by Entity B will be paid by Electronic Funds Transfer to the Owners or the owners nominated bank account within 21 days of the end of the month in which income has been received and the guests have stayed.

● Entity B reserves the right to hold back any income to cover expenses or costs incurred by Entity B on the owners behalf.

Risk and Insurance

● The Apartments will be at the risk of the owner and the owner will be responsible for insuring the apartments against wilful damage, fire, theft and personal injury and other events the owner wishes to cover.

Rates, Taxes and Other Outgoings

● The owner(s) are solely responsible for any ongoing ownership costs which could include but not necessarily limited to council rates, body corporate fees, land tax and adequate insurance cover (including short term rental cover).

● All utilities including electricity water and gas if applicable are the responsibility of the owner(s). Entity B accepts no responsibility should these utilities be unavailable for guests and any subsequent loss of income. Any costs incurred by Entity B in relocating guests due to circumstances where Entity B deem the apartments uninhabitable may be passed on to the owner(s).

● The owner(s) are responsible for the costs and provision of phone with free local calls and broadband internet services free for guests use.

Building use including Body Corporate Rules and Regulations

● Short term rental of the apartment(s) must carry with it the right to use the common areas and in particular the ground floor entry to enable access to the apartment(s).

● By allowing Entity B to manage the apartment(s) for short term rental, it is the responsibility of the owner(s) of the apartment(s) to ensure they abide by all body corporate by-laws as applicable.

● It is the responsibility of the owner(s) to ensure that the apartment(s) is authorised for short term rental and all legal requirements around this use are in place. If any signage is required, this needs to be approved by the relevant authority.

● If car parking and/or additional storage facilities are attached to the title of the apartments these need to be made available to Entity B.

Marketing Levy and Marketing Fund

● A levy of X% of gross income is placed on the apartments for the purposes of marketing the apartments to grow sales. This fund is made up of contributions from all owners apartments and matched by Entity B.

● Entity B will manage this fund in accordance with an annual marketing plan which may include, but vary from year to year, such initiatives as brochure production, ongoing website development, advertising, familiarisations, travel shows, social media activity and online distribution. At times Entity B will need to implement marketing initiatives outside the scope of the original plan.

Condition and Fitout of Apartment(s)

● The owners must ensure that the condition of the apartments at the commencement of the agreement is to a satisfactory standard and that all equipment and fittings are in good and safe working order.

● Entity B will ensure that the condition of the apartments does not deteriorate beyond normal wear and tear in accordance with the level of occupancy.

● The owners are responsible for the fit-out and furnishing costs of the apartments to a standard suitable for short term rental in the 5 star market. Entity B reserves the right to have input into fit-out to ensure the apartments fit with the standard, market demands and operational efficiencies required.

Ongoing Cleaning and Maintenance or Apartments

● Entity B will arrange on behalf of the owner a minimum of one annual clean of the exterior windows by a professional window cleaner and professional carpet cleaning as required and invoice these costs back to the owner.

● Entity B shall be responsible for general maintenance and will advise the owner of any repairs exceeding $500 before proceeding.

● Entity B shall be responsible for servicing and cleaning the apartment(s) to a high standard including ensuring consumables are stocked, linen cleaned and replaced and furniture and fittings maintained.

Schedule A

● Income and payment terms:

● Entity B agrees to pay the owners all rental income received for the apartments each month less a X% commission.

● A separate cleaning fee is charged out on a cost recovery basis.

In summary you are responsible for:

● Fit out of apartments.

● Replacement of furniture.

● Insurance.

● Rates, taxes and all outgoings including utilities.

● Cost and provision of phone (free local calls for guests) and broadband internet services (free for guests).

In summary Entity B is responsible for:

● Setting the rates of accommodation.

● Managing the marketing fund in accordance with the marketing plan.

● Ensuring the apartments do not deteriorate beyond normal wear and tear in accordance with the level of occupancy.

● An annual professional clean of the windows on your behalf.

● Cleaning of the apartments after each stay and during stays where applicable.

● General maintenance and will advise owners of any repairs exceeding $500.

● Ensuring consumables are kept stocked.

Entity B advertises accommodation in your Complex on its own website and it also uses other websites.

You are currently advertising the whole Complex for sale however you will consider all offers and you may sell individual apartments.

Where you sell an individual apartment you will supply it with vacant possession.

Where you sell the whole Complex you expect the sale to be of a fully furnished building and you expect to sell the property as a GST free going concern. You have no details of the sale as yet. It is expected that where an investor buys a unit or multiple units Entity B will be able to continue to provide management services.

Relevant legislative provisions

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

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 38-325

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 40-65

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 40-75

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 195-1

Reasons for decision

In this reasoning, please note:

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

● all legislative terms of the GST Act marked with an asterisk are defined in section 195-1 of the GST Act

● all reference materials referred to are available on the Australian Taxation Office (ATO) website ato.gov.au

You have entered into a management agreement (the Agreement) with Entity B. The Agreement is described as a property management agreement, with you agreeing that Entity B manages the apartments for the purposes of short-term accommodation. Your intention under the agreement between you and Entity B is that they would be your agent.

Goods and Services Tax Ruling GSTR 2000/37 Goods and services tax: agency relationships and the application of the law provides the following commentary on agency at paragraphs 10, 11, 12, 28 and example 6:

10. An entity may be authorised by another party to do something on that party's behalf. Generally, the authorised entity is called an agent. The party who authorises the agent to act on their behalf is called the principal.^...

11. For commercial law purposes, an agent is a person who is authorised, either expressly or impliedly, by a principal to act for that principal so as to create or affect legal relations between the principal and third parties.^...

12. The principal is bound by the acts of an agent as a result of the authority given to the agent. In cases of actual authority, the relationship between a principal and an agent is a consensual one so that no party can claim to be a principal's agent unless both parties consent to the creation of the agency.^...

^…

Factors that indicate an agency relationship

28. In most cases, any relevant documentation about the business relationship, the description used by the parties and the conduct of the parties establish the existence of an agency relationship. Therefore, the following factors may show that you are an agent under an agency relationship, although no single factor (by itself) is determinative:

● any description of you as an agent, having authority to act for another party, in an agreement (expressed or implied) between you and the other party;

● any exercise of the authority that you are given to enter into legal relations with a third party;

● whether you bear any significant commercial risk;

● whether you act in your own name;

● whether you are remunerated for your services by way of commissions and whether you are entitled to keep any part of your remuneration secret from another party; and

● whether you decide the price of things that you might sell to third parties.

No single factor (by itself) is determinative and it is necessary to consider the arrangement as a whole.

We note that there are a number of factors present that would suggest that Entity B is not an agent under an agency relationship including:

● Acting in their own name.

● Setting the price of the accommodation.

However, on balance, we accept that there is an agency relationship because:

● The intention of The Agreement is Entity B is to act as your agent.

● You bear the commercial risk.

● Entity B is remunerated by commission and operates on a cost recovery for other services they provide.

Therefore you are the supplier of the accommodation through Entity B as your agent.

Question 1

Will your supply of individual apartments from the Complex be a taxable supply pursuant to section 9-5 of the GST Act?

GST is payable on taxable supplies.

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

(a) you make the supply for consideration

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

(c) the supply is connected with the indirect tax zone (Australia), 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.

You will meet the requirements of paragraphs 9-5(a) to 9-5(d) and therefore the sales of the individual apartments or the whole complex will be taxable unless they are input taxed or GST-free.

Input taxed GST treatment for sales of residential premises

Paragraph 40-65 provides that a sale of real property is input taxed only to the extent that the property is residential premises to be used predominantly for residential accommodation regardless of the term of occupation.

However the sale is not input taxed to the extent that the residential premises are:

● commercial residential premises or

● new residential premises other than those used for residential accommodation before 2 December 1998.

‘Residential premises’ is defined, in part, in section 195-1 as land or a building that:

● is occupied as a residence or for residential accommodation, or

● is intended to be occupied, and is capable of being occupied, as a residence or for residential accommodation

(regardless of the term of the occupation or intended occupation).

The apartments you have created by renovating the Complex meet the definition of residential premises and therefore will be input taxed unless they are commercial residential premises or new residential premises.

Commercial residential premises

‘Commercial residential premises' are defined in section 195-1, in part, to mean:

(a) a hotel, motel, inn, hostel or boarding house

(b) …

(f) anything similar to residential premises described in paragraphs (a) to (e).

The definition of ‘commercial residential premises’ encompasses similar establishments or establishments that exhibit characteristics that place them on a similar footing to hotels, motels, inns, hostels and boarding houses. The ATO view on how GST applies to supplies of commercial residential premises and supplies of accommodation in commercial residential premises is set out in Goods and Services Tax Ruling GSTR 2012/6 Goods and services tax: commercial residential premises.

The terms hotel, motel, inn, hostel and boarding house are not defined in the GST Act and take their ordinary meaning. The following meanings sourced from the Macquarie Dictionary 5th Edition (Macquarie), the Oxford English Dictionary 2nd and 3rd editions (OED) and the Shorter Oxford English Dictionary 5th Edition (SOED) are relevant in interpreting paragraph (a) of the definition:

Hotel

● a building in which accommodation and food, and alcoholic drinks are available. (Macquarie)

● building or establishment where travellers or tourists are provided with overnight accommodation, meals and other services. (OED)

● an establishment, esp. of a comfortable or luxurious kind, where paying visitors are provided with accommodation, meals and other services. (SOED)

Motel

● a roadside hotel which provides accommodation for travellers in self-contained, serviced units, with parking for their vehicles. (Macquarie)

● a hotel catering primarily for motorists; spec . on comprising self-contained accommodation with adjacent parking space. (OED)

Inn

● a small hotel that provides lodging, food, etc., for travellers and others. (Macquarie)

● a public house providing accommodation, refreshments, etc., for payment, esp. for travellers. Now also, a public house serving alcoholic liquor for consumption on the premises, whether providing accommodation or not. (SOED)

Hostel

● a supervised place of accommodation, usually supplying board and lodging, provided at a comparatively low cost, as one for students, nurses, etc. (Macquarie)

● a public house of lodging and entertainment for strangers and travellers; an inn, a hotel. (OED)

● a house of residence for students at a university or on a course, esp. at a non-residential college, or for some other special class of people. (SOED)

Boarding House

● a dwelling in which lodging is provided to paying residents who share common facilities such as a kitchen, laundry, living room, etc. (Macquarie)

● a dwelling, usually a private house, in which board and lodging are provided for payment. (Macquarie)

● a house offering board and lodging for paying guests. (SOED)

In their ordinary meanings, these terms share the common attribute of providing accommodation to guests. Paragraph (f) of the definition of commercial residential premises extends the scope of the definition to premises that are ‘similar’ to the class of establishments described in paragraphs (a) to (e).

Premises that are ‘similar’ to establishments that are commercial residential premises must have sufficient characteristics in common with the class of premises described.

We consider that the Complex as whole does not meet (a) to (e) of the definition of commercial residential premises however the question then is whether the premises are similar to a hotel, motel, inn, hostel or boarding house for the purposes of paragraph (f). That is, whether the premises have a sufficient likeness or resemblance to any of these types of establishments. These tests necessarily raise questions of fact involving matters of impression and degree.

Paragraph 12 of GSTR 2012/6 sets out the common characteristics of operating hotels, motels, inns, hostels and boarding houses that are relevant, though not necessarily determinative, to characterising premises as commercial residential premises. Your premises exhibit all of these characteristics to some extent:

● Commercial intention.

● Multiple occupancy.

● Holding out to the public.

● Accommodation is the main purpose.

● Central management.

● Management offers accommodation in its own right.

● Provision of, or arrangement for, services.

● Occupants have status as guests.

The features of hotels, motels, inns, hostels and boarding houses are set out in paragraphs 13 to 40 of GSTR 2012/6 and we consider that based on an examination of these features and the description of your Complex that it is operated in a similar manner to a hotel.

Paragraphs 14 to 25 of GSTR 2012/6 provide the features normally found in a hotel. In considering these features the following is noted:

● Hotels provide accommodation for a commercial purpose. In this case, whilst your activities are conducted on a relatively small scale, we consider your activities are conducted for a commercial purpose.

● Hotels have the capacity to supply accommodation for multiple occupancies. Such is the situation in your case.

● Hotels usually offer meals to guests and they usually have a kitchen where meals are prepared for guests. The premises usually include a restaurant or dining room for guests. In this case the Complex does not have a commercial kitchen or dining area. Meals including breakfast are not offered to the guests. The Complex units all contain fully equipped kitchen and dining areas for guests to prepare and consume meals.

● The guest rooms in a hotel are invariably furnished, and always include a bed, and some living area, and usually an adjoining bathroom such is the case in this instance.

● A hotel usually supplies linen and towels. In this case linen and towels are provided to guests.

● Rooms/apartments in hotels are usually cleaned and serviced by staff on a daily basis, with the costs of these services being included in the tariff. In this case the units receive a light daily cleaning as well as being cleaned at the end of each guests’ stay.

● Predominantly, the guests of hotels are travellers who ordinarily have their principal place of residence elsewhere, and who need or desire accommodation while away for business or pleasure. Again, such is the case in regard to the occupants of the Complex given their typical length of stay.

● Guests of hotels do not usually enjoy an exclusive right to occupy any particular part of the premises in the same way as a tenant to whom a house or apartment is let. Nor does a guest of a hotel usually let a room for a term. The guest is usually charged at a daily rate multiplied by the number of days of occupancy. In this case, guests book accommodation based on a daily rate.

● Hotels usually have a reception desk to handle the requirements of both management and guests, particularly when guests check in or check out of the establishment. In this case the Complex does not contain a reception area. Check-in check out is handled off-site.

● Hotels do not normally provide shared accommodation to guests in the sense of having a number of unrelated guests sharing a kitchen and living facilities. In this case all units are fully self-contained. Guests are not required to share kitchen and living facilities with other unrelated guests.

● A hotel is centrally managed by the operator, typically having at least one person present, or offsite but readily accessible, to manage the accommodation and arrange or provide services. As discussed above, the Complex does not have anyone on-site.

● Accommodation in a hotel is supplied by the operator of the hotel in its own right and not in the capacity of agent for a third party. In this case we have already established above that you, as owner of the Complex, supply the accommodation to guests in your own right. Sullivan Cove Apartments provides accommodation to guests of the Complex in their capacity as your agent.

Paragraph 41 of GSTR 2012/6 sets out some of the features of premises that are not commercial residential premises and where the accommodation would generally be treated as in input taxed supply of accommodation in residential premises:

41. Ultimately, whether premises are commercial residential premises is a matter of overall impression involving the weighing up of all relevant factors. While not an exhaustive list, factors that may indicate that premises are not a hotel, motel, inn, hostel, boarding house or similar premises include:

(a) the operator and occupant agree for accommodation to be supplied for a periodic term (which may be for a period of months or years at a time), such as in a residential lease;

(b) the operator and occupant document the condition of the premises under a written contract before the accommodation is initially supplied and when the occupant ceases to occupy premises;

(c) the operator has the right to impose a cleaning fee on the occupant when the occupant ceases to occupy the premises;

(d) the occupant is permitted, subject to the terms of the lease or licence, to alter the part of the premises occupied by the occupant, such as by attaching hanging devices on a wall;

(e) the occupant is permitted, subject to the terms of the lease or licence, to keep pets in the premises;

(f) the occupant must separately arrange and pay for the connection of a telephone, electricity, or gas service;

(g) the occupant is responsible for the cleaning and minor maintenance of the premises, such as changing light bulbs in their room;

(h) the premises are unfurnished; …

In your case these features are generally not present:

● Short term accommodation is supplied rather than accommodation for a periodic term of months or years at a time as in a residential lease.

● Cleaning and utilities are included under a single tariff.

● The apartments are furnished.

We therefore consider that the Complex as a whole was operated in a similar manner to that of a hotel despite only having limited services and therefore was commercial residential premises.

The supply of a single apartment will be an input taxed supply of residential premises unless the residential premises are new residential premises.

New residential premises

Section 40-75 outlines when residential premise are new residential premises. Subsection 40-75(1) states:

(1) *Residential premises are new residential premises if they:

(a) have not previously been sold as residential premises (other than *commercial residential premises) and have not previously been the subject of a *long-term lease; or

(b) have been created through *substantial renovations of a building; or

(c) have been built, or contain a building that has been built, to replace demolished premises on the same land.

Paragraphs (b) and (c) have effect subject to paragraph (a).

Note 1: For example, residential premises will be new residential premises if they are created as described in paragraph (b) or (c) to replace earlier premises that had ceased to be new residential premises because of paragraph (a).

Note 2: However, premises that are new residential premises because of paragraph (b) or (c) will cease to be new residential premises once they are sold, or supplied by way of long-term lease, as residential premises (see paragraph (a)).

Note 3: Premises created because of the registration of, for example, a strata title plan, or a plan to subdivide land, may not become new residential premises (see subsection (2AA)).

Subsection 40-75(2) provides an exception to section 40-75. Subsection 40-75(2) states:

(2) However, the *residential premises are not new residential premises if, for the period of at least 5 years since:

(a) if paragraph (1)(a) applies (and neither paragraph (1)(b) nor paragraph (1)(c) applies) – the premises first became residential premises; or

(b) if paragraph (1)(b) applies – the premises were last *substantially renovated; or

(c) if paragraph (1)(c) applies – the premises were last built;

the premises have only been used for making supplies that are *input taxed because of paragraph 40-35(1)(a).

Relevantly, paragraph 40-75(2)(a) provides that where new residential premises are created and sold they are new residential premises unless they have been used to make only input taxed supplies for a period of 5 years or more.

In your case the premises were used to make taxable supplies of accommodation in commercial residential premises from ddmmyyyy until the current time. Although accommodation has been supplied for more than 5 years, the supplies made from the Complex were not input taxed supplies but taxable supplies of accommodation in commercial residential premises.

Therefore the sale of individual apartments will be a taxable supply of new residential premises.

Question 2

Will your supply of multiple apartments in the Complex together be a taxable supply pursuant to section 9-5 of the GST Act?

For the reasons set out in Question 1 your supply of one or more apartments will not be input taxed and therefore will be a taxable supply.

Question 3

Are you able to sell the Complex as a GST-free going concern pursuant to section 38-325 of the GST Act?

You have advised that you wanted to sell the Complex as a GST-free going concern however you have not entered into any sale contract as yet.

Subsection 38-325(1) provides that the supply of a going concern is GST-free if:

(a) the supply is for consideration; and

(b) the recipient is registered or required to be registered; and

(c) the supplier and the recipient have agreed in writing that the supply is of a going concern.

For your proposed sale, you will satisfy the requirements of subsection 38-325(1) if you:

● sell the Complex for consideration

● the Purchaser is registered for GST at the time of settlement, and

● you have agreed in writing with the Purchaser that the supply is of a going concern.

Therefore, where your supply of the Complex meets the additional requirements of subsection 38-325(2) it will be a GST-free supply of a going concern.

Subsection 38-325(2) defines a supply of a going concern as a supply under an arrangement under which:

(a) the supplier supplies to the recipient all of the things that are necessary for the continued operation of an enterprise; and

(b) the supplier carries on, or will carry on, the enterprise until the day of the supply (whether or not as part of a larger enterprise carried on by the supplier).

It follows from requirements (a) and (b) above that these requirements need to be satisfied in relation to an identified enterprise.

Goods and Services Tax Ruling GSTR 2002/5 Goods and services tax: when is a ‘supply of a going concern’ GST-free? provides the ATO view about what constitutes a ‘supply of a going concern’ for the purposes of section 38-325.

We consider that the identified enterprise in your case is the accommodation business. You will need to supply to the recipient all things necessary to continue this enterprise.

You will satisfy paragraph 38-325(2)(a) where you supply the Complex with the all things necessary to operate the accommodation enterprise.

Paragraph 38-325(2)(b) includes the further requirement that the supplier carries on, or will carry on, the enterprise until the day of the supply.

You will satisfy paragraph 38-325(b) where you are actively operating the enterprise until the day of supply.

As such, if you proceed with the sale of the Complex as outlined above your supply of the enterprise (including all things necessary to conduct the enterprise) will satisfy all the requirement of section 38-325 and your supply will be the GST-free supply of a going concern.

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