Edited version of private advice

Authorisation Number: 1051835870793

Date of advice: 20 May 2021

Ruling

Subject: Carrying on a business of letting rental properties

Question

Are you carrying on a business of letting rental properties under section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

No.

This ruling applies for the following periods:

Year ended DD MM YYYY

The scheme commences on:

DD MM YYYY

Relevant facts and circumstances

You purchased a property (the property).

The property was available for and rented.

The property was used as your main residence.

Whilst the property was used as your main residence, you conducted the following renovations to the property:

•         Replaced the kitchen.

•         Repainted the property.

•         Recarpeted the property.

•         Replaced the windows including blinds.

•         Replaced the front door.

•         Replaced the courtyard pavers.

•         Engaged a landscape architect to install a maintenance free garden and automatic watering system.

•         Replaced the tiling, vanity, shower door, exhaust fan, toilet and fittings in the ensuite.

•         Installed a wall, replaced the fireplace, mounted a television and installed an ethanol heater in the living/lounge room.

•         Replaced the vanity, tiling, mirrors, taps and toilet in the powder room.

The property was available for and rented.

Since the property was available for and rented, you have rented the property using hosting platforms.

When booking the property, there is a minimum stay of x night and a maximum stay of x month.

Guests can check themselves in and out of the property using a key box or if requested, you can meet the guests upon arrival to check them in.

You spend an average of XX hours per week performing the following activities:

•         You manage a calendar for bookings as the hosting platforms do not always synchronize.

•         You liaise with the hosting platforms regarding bookings, queries and payment.

•         You employ the services of cleaners who clean the property after each stay.

•         You employ the services of a laundry business who provide linen for each new guest.

•         You purchase and restock consumables including shampoo, body wash, laundry powder, tea, coffee, seasonal fruit and basic kitchen supplies.

•         You provide general maintenance including gardening, rubbish removal and recycling tasks.

•         If requested, you travel to check guests in.

•         You inspect the property after each stay to ensure no damage or theft has occurred and to check if any maintenance is required

•         You reserve the right to set the nightly rate/tariff.

•         You reserve the right to provide refunds.

•         Guests are encouraged to communicate through the hosting platforms however if the matter is urgent, guests can contact you directly.

Since you have had the property available for and rented using hosting platforms, you have conducted the following renovations:

•         Replaced the bath with a walk-in shower, tiling and repainted the bathroom.

•         Replaced the washing machine.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5(1)

Income Tax Assessment Act 1997 section 995-1

Reasons for decision

Summary

Based on the information, you are not carrying on a business of letting properties. You are in receipt of ordinary income (passive income) in exchange for letting one rental property and not for the services you provide.

Detailed reasoning

Subsection 6-5(1) of the ITAA 1997 states that your assessable income includes income according to ordinary concepts. This 'ordinary income' includes amongst other things, income from salary and wages and business operations.

Ordinary income has generally been held to include three categories, namely:

•         income from rendering personal services,

•         income from property and

•         income from 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 issue of whether individuals are carrying on a business of letting property has been considered in a number of cases, some of which are discussed below.

In Cripps v. FC of T 99 ATC 2428; (1999) 43 ATR 1202 (Cripps case), the taxpayer and his wife purchased, as joint tenants, 14 townhouses which they rented out. They also purchased a property which was used initially as a holiday home but was later periodically rented out. A further property was purchased for residential purposes. After a failed attempt to sell it, it was also rented out. The Administrative Appeals Tribunal (AAT) found that the taxpayer and his wife were mere passive investors and were not in the business of deriving income from rental properties. They rejected the taxpayer's argument that he had greater involvement with his 16 properties.

In 11 CTBR (OS) Case 24 (Case 24), the taxpayer's income included rent from 3 properties. The taxpayer employed a manager and an accountant - he was principally a letting clerk with authority to refuse tenants. He collected and banked rents, attended to repairs and supervised them, and controlled the caretaker and cleaners. He kept books in connection with rent and repairs, and rates and other outgoings. The taxpayer said he personally carried out the principal part of the management of his rent-producing properties and directed policy, attended to the financial arrangements and made decisions regarding repairs. The taxpayer claimed that he was carrying on a business. In holding that he was not carrying on a business, a majority of the members of the Board of Review said:

Reasons for Decision Page 2 Of 5

It is obvious that some measure of supervision and management must ordinarily be exercised by a property owner who lets offices, &c., and that does not amount to the carrying on of a business, the fact that he employs others to assist him, either in the letting of the properties or in the preparation of the accounts relating to his rents and outgoings, will not make any difference. For the foregoing reasons we are unable to uphold the claim that the taxpayer is engaged in a 'business as property owner'....

In 15 CTBR (OS) Case 26, (Case 26) the taxpayer derived income substantially from her joint ownership of a block of flats (containing 22 living units) with her sister-in-law. A swimming pool was shared with a neighbouring block of flats owned by the taxpayer's husband and his brother. A garden was maintained and a staff of 1 caretaker and 1 cleaner employed on both buildings with casual labour as required. The building was erected and financed by F & Co., the husbands of the joint owners, in the course of their business as building contractors. The general supervision of letting, rent collecting, servicing and maintenance was carried out by the owners or by F & Co. on their behalf. No charge was made by F & Co. for the extensive assistance given in the supervision of the flats. It was held that a business was not being carried on by the owners of the block of flats.

On the other hand, Case G10 75 ATC 33 (Case G10), the taxpayer owned 2 properties of which 6 units were let as holiday flats for short term rental. The taxpayer, with assistance from his wife, managed and maintained the flats. Services included providing furniture, blankets, crockery, cutlery, pots and pans, hiring linen and laundering of blankets and bedspreads. The taxpayer also showed visiting inquirers over the premises, attended to the cleaning of the flats on a daily basis, mowing and trimming of lawns, and various other repairs and maintenance. The taxpayer's task in managing the flats was a seven day a week activity. The Board of Review held that the activity constituted the carrying on of a business.

Taxation Ruling TR 97/11 Income Tax: am I carrying on a business of primary production? provides the Commissioners view of the factors used to determine if a taxpayer is in business for tax purposes. Its principles are not restricted to questions of whether a primary production business is being carried on.

Paragraph 13 of TR 97/11 states that the courts have held that the following indicators are relevant in determining whether a business is or is not being carried on:

•         whether the activity has a significant commercial purpose or character

•         whether the taxpayer has more than just an intention to engage in business

•         whether the taxpayer has a purpose of profit as well as a prospect of profit from the activity

•         whether there is regularity and repetition of the activity

•         whether the activity is of the same kind and carried on in a similar manner to that of ordinary trade in that line of business

•         whether the activity is planned, organised and carried on in a businesslike manner such that it is described as making a profit

•         the size, scale and permanency of the activity, and

•         whether the activity is better described as a hobby, a form of recreation or sporting activity.

No single indicator is decisive (Evans v. FC of T 89 ATC 4540; (1989) 20 ATR 922). The indicators must be considered in combination and as a whole and whether a business is being carried on depends on the 'large or general impression gained' (Martin v. FC of T (1953) 90 CLR 470 at 474; 5 AITR 548 at 551) from looking at all the indicators, and whether these factors provide the operations with a 'commercial flavour' (Ferguson v. FC of T (1979) 37 FLR 310 at 325; 79 ATC 4261 at 4271; (1979) 9 ATR 873 at 884). However, the weighting to be given to each indicator may vary from case to case.

In Rental Properties guide 2020 the Commissioner sets out 2 examples that discuss the issue of whether or not the owner of one or more rental properties can be said to be carrying on a business.

Example 3 on page 5 of Rental Properties 2020 outlines a situation in which the owners are not carrying on a rental property business.

Example 3: Co-Owners Who Are Not Carrying on A Rental Property Business

The Tobin's own, as joint tenants, 2 units and a house from which they acquire rental income. The Tobin's occasionally inspected the properties and also interview prospective tenants. Mr Tobin performs most repairs and maintenance on the properties himself, although he generally relies on the tenants to let him know what is required. The Tobin's do any cleaning or maintenance that is required when tenants move out. Arrangements have been made with the tenants for the weekly rent to be paid into an account at their local bank. Although the Tobin's devote some of their time to rental income activities, their main sources of income are their respective full-time jobs.

The Tobin's are not partners carrying on a rental property business - they are only co-owners of several rental properties.

Example 4 on page 5 of Rental Properties 2020 outlines a situation in which the owners are carrying on a rental property business.

Example 4: Is It A Rental Property Business?

The D'Souza's own a number of rental properties, either as joint tenants or tenants in common. They own 8 houses and 3 apartment blocks - each block comprising 6 residential units - a total of 26 properties. The D'Souza's actively manage all of the properties. They devote a significant amount of time - an average of 25 hours per week - to these activities. They undertake all financial planning and decision making in relation to the properties. They interview all prospective tenants and conduct all of the rent collection. They carry out regular property inspections and attend to all of the everyday maintenance and repairs themselves or organise for them to be done on their behalf. Apart from income Mr D'Souza earns from shares, they have no other sources of income.

The D'Souza's are carrying on a rental property business. This is demonstrated by:

•         the significant size and scale of the rental property activities;

•         the number of hours the D'Souza's spend on the activities;

•         the D'Souza's extensive personal involvement in the activities; and

•         the business-like manner in which the activities are planned, organised and carried on.

As shown in the above cases and the views of the Commissioner listed above, the indicators with the greatest weighting are the scale or volume of operations and the repetition and regularity of the activities.

Application to Your Circumstances

Normally the receipt of income from the letting of property to a tenant(s) does not amount to the carrying on of a business. A person, who simply owns an investment property or several investment properties, either alone or with other co-owners, is usually regarded as an investor who is not carrying on a rental property business. This is because of the limited scope of the rental property activities and the limited degree to which an owner actively participates in rental property activities. A conclusion that an individual is carrying on a business of letting property would depend largely upon the scale of operations and the repetition and regularity of your activities.

Your case can be distinguished from Cripps case as in that case the scale, being 16 properties, was greater than the properties currently held by you. Despite the fact that 16 properties were rented the AAT found that the taxpayers were mere passive investors and not in the business of deriving income from rental properties.

Similarly, in Case 26, despite the scale of operations of 26 units, the AAT found a business was not being carried on by the owners of the block of flats. Again, the quantity of rental units is in excess of the properties you own.

Your circumstances are not similar to Example 4 in the Rental Property Guide 2018 as outlined above. The additional activities you undertake are not considered day-to-day business activities. Further your situation differs from the facts in Example 4 in that you only manage 1 property, and the example has 26 properties that are managed.

Generally, where the property owners grant exclusive possession of the property to the residents the relationship between the 2 parties is 1 of tenant and landlord, and the activity is more likely to be passive investment rather than a business. Similarly, activities constituting the mere maintenance of an asset and the mere collection of income do not indicate the existence of a business of renting premises.

As you have one property which you have rented on a long and short term basis, you are not undertaking activities to the extent of those undertaken by the taxpayer in Case G10, who was actively involved with 6 holiday let units on a daily basis, and undertaking most of the activities arising in relation to the units himself, with the assistance of his wife.

Given the number of properties owned and the day to day activities of other property owners who are considered to be carrying on a business of letting properties it could not be concluded that the scale of your operation and the level of repetition and regularity of your investment activity is the same.

After weighing up the relative business indicators and objective facts surrounding this case it is considered that you are not carrying on a business of letting properties, your rental property activities are better described as leasing a residential property to receive passive income. The income is not derived from the services you provide but from the letting of the 1 property.

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