Edited version of private advice

Authorisation Number: 1052053425506

Date of advice: 23 November 2022

Ruling

Subject: CGT - deceased estate

Issue 1 - Income Tax

Question 1

Is the entirety of the existing lot a 'dwelling' per the definition in section 118-115 of the Income Tax Assessment Act 1997 (ITAA 1997)?

a)    That is, the existence of the development approval for the lot does not change the character of the existing lot, and

b)    That is, the adjacent land, together with the land under the dwelling, up to 2 hectares limit, forms part of the dwelling under section 118-120 of the ITAA1997.

Answer

Yes.

Question 2

If the Answer to Question 1 is Yes:

a)    Is the total cost base of all the lots equal to the market value of the Property at the deceased's date of death under Item 3 of subsection 128-15(4) of the ITAA 1997?

b)    Is the deemed acquisition date of the Property deceased's acquisition date in accordance with Item 3 of subsection 115-30(1) of the ITAA 1997?

Answer

a)    Yes.

b)    No.

Question 3

If the Answer to Question 1 and 2 is Yes, will the cost base of the subdivided lots, after completion of the subdivision works, be apportioned based on the relative market value of the lots.

Answer

Yes.

Question 4

Will the proceeds from the disposal of the subdivided blocks be assessable income according to ordinary concepts under section 6-5 of the ITAA 1997?

Answer

No.

Question 5

If the answer to question 4 is No, will the proceeds from the sale of the subdivided blocks of land be from carrying on a business and assessable as ordinary income with the blocks of land being considered as trading stock under section 70-30 of the ITAA 1997?

Answer

No.

Question 6

If the answer to questions 4 and 5 is No, will the proceeds from the disposal of the subdivided blocks be subject to the capital gains tax (CGT) provisions in Parts 3-1 and 3-3 of the ITAA 1997?

Answer

Yes.

Question 7

If the answer to question 6 is Yes, can the Estate use the discount method in Division 115 of the ITAA 1997 to calculate the capital gain in relation to the disposal of the interests in the subdivided blocks, if they are sold more than 12 months from the deemed acquisition date per section 115-30 of the ITAA97?

Answer

Yes.

Question 8

Will the main residence exemption be available on the sale of the existing house and lot on which it sits if sold within 2 years of deceased's date of death?

Answer

Yes.

Question 9

If the answer to question 8 is Yes, will the Commissioner exercise his discretion to extend the period in which the main residence is to be sold after two years of the deceased's death, due to time delays caused in administering the Estate due to Covid-19 and delays in securing contractors / trades persons.

Answer

No.

Issue 2 - Goods and Services Tax

Question 1

Will the sales of the proposed subdivided vacant lots located at the Property be a taxable supply under section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

No.

Question 2

If the sales of the proposed subdivided vacant lots are taxable supplies, will the consideration from the disposal of the subdivided lots be excluded from the Taxpayer's projected GST turnover under section 188-25 of the GST Act on the basis that it is a capital asset?

Answer

Not applicable.

Question 3

If the sales of the proposed subdivided vacant lots are taxable supplies, will the Taxpayer be eligible to apply the margin scheme to calculate GST on the sale of the subdivided lots under section 75-5 of the GST Act?

Answer

Not applicable.

Question 4

Is the Taxpayer required to register for GST 12 months prior to the settlement date of the sale of the subdivided vacant lots?

Answer

No.

Question 5

Will the sale of the proposed subdivided lot that contains the existing residence (Lot X) located at the Property be an input taxed supply of residential premises under section 40-65 of the GST Act?

Answer

Yes.

This ruling applies for the following periods:

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

After 20 September 1985, the deceased and their spouse acquired the Property as joint tenants. The Property is currently of a size of over 2 hectares, however, some of the land will be required to be provided to the relevant city council as part of the subdivision and extension of the Cul-de-Sac Road for access for the vacant lots.

The Property contains a residential dwelling comprising of X bedrooms, X bathrooms, a kitchen, dining room, lounge room, formal lounge room and a garage. The Property also has a rumpus room, storage rooms, a tennis court, a free-standing single garage and a fenced paddock.

For the relevant years, the Property was the joint main residence of the deceased and their spouse.

On XX XX 20XX, the spouse passed away and the deceased became the sole owner of the Property, which continued to be used as their main residence.

Apart from the Property, at the time of their passing the deceased owned a number of investment (rental) properties (units and houses) which they purchased for the purposes of deriving rental income.

On XX XX 20XX, the deceased put the Property to auction with a third-party real estate, however as it failed to reach the reserve price, the Property was not sold. After this it was never put up for sale again and continued to be the deceased's main residence until their date of death.

In 20XX, the deceased was diagnosed with serious sickness.

The deceased passed away on XX XX 20XX and the Property passed to their Estate ("the Estate").

At all times, including up to their date of death, the deceased was a tax resident of Australia and was not an excluded foreign resident.

The Property was the deceased's only main residence during their ownership period of the land.

The Trustee for the Estate (you or the Taxpayer) is not registered for GST.

Neither the deceased nor their spouse was ever registered for GST in any capacity.

The deceased was never involved in property development.

Under the last will and testament of the deceased, the whole of their Estate was to be held on trust for their 4 children.

Since the Property was acquired after 20 September 1985 and up to the current development:

•         No applications or submissions had previously been made to the relevant city council by the deceased and their spouse to rezone or subdivide the land, prior to April 20XX.

•         No improvements were made to the land by the deceased and the spouse that did not relate solely to their use of the Property for private and domestic purposes as their residence (i.e. tennis courts, landscaping, etc.).

•         The Property has never been leased or rented to anyone else, or been used for any business purpose or for generating income. It has been used solely as the deceased's and the spouse's main residence.

Timeline for the land development

In 20XX, following their health diagnosis, the deceased sought to enhance the value of the Property and maximise their children's inheritances. The deceased contacted a third-party surveyor to submit a development application for a proposed subdivision of the Property into a number of lots, with Lot X to be retained as their main residence and 3 vacant lots.

The surveyor engaged a third-party consultant to be the project manager for the development application process.

On XX XX 20XX, the Development Application was submitted to the city council to subdivide the Property into a number of lots with work to be undertaken to the Property for the subdivision, including:

•         The extension of an existing road to connect a cul-de-sac to 2 of the lots, with the existing access to the Property servicing the main residence and one other vacant lot.

•         Connection of the main residence and other lots to main sewerage (and removal of existing septic system), along with connection of the vacant lots to main water, drainage, power and NBN.

•         Demolition of tennis courts and outbuildings on Lot X and removal of some vegetation / landscaping on Lots X to X in order to subdivide a number of lots.

On XX XX 20XX, the Development Application was approved, with consent operates for a period of 5 years. Some of the land will be required to be provided to the relevant council as part of the subdivision and extension of the cul-de-sac road for access for the vacant lots.

All work undertaken in obtaining the development approval was done by the third parties engaged by the deceased. The deceased did not engage with any parties to progress the subdivision work prior to their passing.

On XX XX 20XX, the deceased passed away.

In XX 20XX, the executors of the Estate sought advice from Solicitor A regarding the Will of the deceased. Solicitor A began collating information and the documents needed to prepare an application for the granting of probate, including assessment of the value of the assets of the estate.

The executors and beneficiaries of the Estate sought independent legal and financial advice from solicitors, accountants and real estate agents regarding the feasibility of continuing with a subdivision development at the Property.

The executors of the Estate were advised by solicitors in XX 20XX that the executors could possibly continue the next phase of the Subdivision development at the Property "once probate was granted". The Estate would be the entity applying for the design and construction of a subdivision at the Property after the granting of probate.

Due to delays and costs projected by Solicitor A in preparing documents for probate, the executors sought other legal advice from a new solicitor regarding the granting of probate of the Estate.

On XX XX 20XX, a tender was sought from Company A for a subdivision development at the Property on behalf of the executors of the Estate.

On XX XX 20XX, probate was filed in State A Supreme Court by the new solicitor and the probate was granted after X months. Probate documents were 'resealed' for the application of granting of probate in State B. Probate was granted in State B on XX XX 20XX.

On XX XX 20XX, a tender was received from Company A for a subdivision development at the Property on behalf of the executors of the Estate.

On XX XX 20XX, an initial meeting was held with Company B by 2 beneficiaries as on-site discussion for submission of a tender for a subdivision development of the Property on behalf of the executors of the Estate.

On XX XX 20XX, a tender was submitted Company B as a Construction Proposal from Company B for a subdivision development of the Property. Estimated budget price for the subdivision was $XXX and the completion date to be XX 20XX. The Construction Proposal provided with the application showed that the work to be undertaken are only those needed for the purpose of getting the Development Application approval.

On XX XX 20XX, a family meeting was held to discuss the subdivision proposal. The executors sought further advice from accountant and from local Real Estate Agents regarding the financial considerations of completing a subdivision development of the Property.

On XX XX 20XX, Company B submitted a contract agreement to proceed with Phase 1 (Design phase) of the Property.

On XX XX 20XX - a contract was signed by the executors of the Estate with Company B for the subdivision development (design phase). Company B commenced work towards the design of the subdivision consistent with the original Development application with the relevant city council.

From XX 20XX to XX 20XX, work has been undertaken towards the completion of the design phase of the subdivision development and the granting of the Property Subdivision Works Certificate, which must be obtained prior to commencement of any subdivision works in according to the Notice of Decision for the Development Application.

You intend to proceed to the construction stage later in 20XX under a new contract.

You are not intending to construct houses on the 3 vacant lots.

You propose to dispose of some of the rental properties owned by the deceased. The Estate do not expect that it will need to obtain finance to complete these development works.

Reason for the delay

Delays due to Covid-19 illnesses, enforced lockdowns and travel restrictions, including being restricted to the area and not allowed to visit the Property for months.

The area was under lockdown restrictions from XX to XX 20XX that made it impossible to obtain tenders for the subdivision development for months and restriction on attending the Property.

There were multiple delays for the meetings and site inspections due to relevant stakeholders contracting Covid-19, such as Project Manager, representative from different government departments, solicitors, bank officer and the executors.

There were delays in granting probate in both State A and State B.

There were protracted discussions with neighbours about permission to gain access to their properties for the design and construction of a sewer line (the construction of a sewer line is a requirement of the relevant city council and water company for the subdivision construction).

There were delays in getting the formal written permission from the neighbours regarding discussions with neighbours, Company B, water company and other relevant stakeholders regarding the proposed sewer line construction for the development.

Development was delayed due to the shortage of materials and labour in the market.

The Property was impacted by the storm in 20XX, development work (such as Geotechnical survey, soil sampling and construction) was delayed due to the wet weather.

There were delays in getting the tax advice from Australian Taxation Office (ATO).

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 995-1

Income Tax Assessment Act 1997 section 70-30

Income Tax Assessment Act 1997 section 104-10

Income Tax Assessment Act 1997 section 112-25

Income Tax Assessment Act 1997 Division 115

Income Tax Assessment Act 1997 section 115-30

Income Tax Assessment Act 1997 section 118-20

Income Tax Assessment Act 1997 section 118-25

Income Tax Assessment Act 1997 section 118-115

Income Tax Assessment Act 1997 section 118-120

Income Tax Assessment Act 1997 section 118-165

Income Tax Assessment Act 1997 section 118-195

Income Tax Assessment Act 1997 section 128-15

Income Tax Assessment Act 1997 section 128-20

Income Tax Assessment Act Part 3-1

Income Tax Assessment Act Part 3-3

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

A New Tax System (Goods and Services Tax) Act 1999 Section 9-40

A New Tax System (Goods and Services Tax) Act 1999 Section 23-5

A New Tax System (Goods and Services Tax) Act 1999 Section 40-35

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

A New Tax System (Goods and Services Tax) Act 1999 Section 188-10

A New Tax System (Goods and Services Tax) Act 1999 Section 188-15

A New Tax System (Goods and Services Tax) Act 1999 Section 188-20

A New Tax System (Goods and Services Tax) Act 1999 Section 188-25

Taxation Administration Act 1953 Schedule 1 Section 14-250

Taxation Administration Act 1953 Schedule 1 Section 14-255

Taxation Administration Act 1953 Schedule 1 Section 260-140

Further issues for you to consider

We have limited our private ruling to the questions raised in your application. There may be related issues that you should consider, including:

•         Capital Gain calculation for each beneficiary

•         Apportionment of the cost of the Property to the subdivided blocks.

You may apply for another private ruling on these or any other matters.

Reasons for decision

Issue 1 - Income Tax

CGT - deceased estate - land subdivision - main residence

Question 1

Summary

Yes. The entirety of the existing lot is a dwelling per the definition in section 118-115 of the ITAA 1997. The existence of the Development Approval for the Property does not change the character of the Property. The adjacent land, together with the land under the dwelling, up to 2 hectares limit, forms part of the dwelling under section 118-120 of the ITAA 1997.

Detailed reasoning

Dwelling

The meaning of 'dwelling' is defined in section 118-115 of the ITAA 1997. A 'dwelling' includes:

•         a unit of accommodation that is a building or is contained in a building and consists wholly or mainly of residential accommodation; and

•         a unit of accommodation that is a caravan, houseboat or other mobile home; and

•         any land immediately under the unit of accommodation.

Adjacent land

Section 118-120 of the ITAA 1997 extends the definition of dwelling to adjacent land up to a maximum of 2 hectares. Subsection 118-120(2) provides that land adjacent to a dwelling is its adjacent land to the extent that the land was used primarily for private or domestic purposes in association with the dwelling. The maximum area of adjacent land covered by the main residence exemption is 2 hectares, less the area of land immediately under the dwelling (subsection 118-120(3)).

It is important to note, however, that the exemption does not apply to a CGT event that happens in relation to land or structure if the event does not also happen in relation to the dwelling or ownership interest in it under section 118-165 of the ITAA 1997. Therefore, if any part of adjacent land or an associated garage, storeroom or other structure is disposed of separately from the rest of the dwelling, the main residence exemption does not apply to that disposal.

Application to your circumstances

In your case, the dwelling was the deceased's main residence during their ownership up to their date of death and was not then being used for the purpose of producing assessable income. The development approval for the lot does not change the character of the Property. If the land adjacent to the dwelling was used by the deceased primarily for private and domestic purposes in association of the dwelling, a maximum of 2 hectares of land adjacent to the dwelling (including the area of the land on which the dwelling was built) forms part of the dwelling under section 118-120 of the ITAA 1997.

Question 2

Summary

a)    Yes. You are taken to have acquired the main residence at the market value on the date of the deceased's death as per Item 3 of subsection 128-15(4) of the ITAA 1997.

b)    No. For the purposes of Division 128 of the ITAA 1997, the deemed acquisition date of the Property is the date of the deceased's death in accordance with subsection 128-15(2) of the ITAA 1997.

CGT and dwellings acquired from deceased estates

Section 128-20 of the ITAA 1997 explains that where a taxpayer dies, there are no CGT implications where an asset passes to the legal personal representative (LPR) or beneficiary, but CGT may apply when the asset is subsequently disposed of.

Under subsection 128-15(2) of the ITAA 1997, where a CGT asset of the deceased devolves to the deceased's LPR or passes to a beneficiary, the asset is taken to have been acquired on the day the deceased died.

Subsection 128-15(4) of the ITAA 1997 provides a table which sets out the modifications to the first element of the cost base, or reduced cost base, of the CGT asset in the hands of the LPR or beneficiary of a deceased estate.

Item 1 of the table states that for a CGT asset the deceased acquired on or after 20 September 1985, the first element of the asset's cost base, or reduced cost base, is the deceased's cost base of the asset on the day they died.

Item 3 of the table further provides that where a dwelling that was the deceased's main residence just before they died, and was not then being used for the purpose of producing assessable income, the first element of the asset's cost base, or reduced cost base is the market value of the dwelling on the deceased's date of death.

Application to your circumstances

In your case, the dwelling was acquired by the deceased after 20 September 1985, it was the deceased's main residence just before their death, and was not then being used for the purpose of producing assessable income. When you dispose of the dwelling, the first element of the cost base or reduced cost base will be substituted with the market value of the dwelling at the date of the deceased's death under subsection 128-15(4) of the ITAA 1997.

As discussed under Question 1, the definition of dwelling is extended by section 118-120 of the ITAA 1997 to include land adjacent to the dwelling up to a maximum of 2 hectares, to the extent that the land is primarily for private or domestic purposes in association with the dwelling. Consequently, when determining the cost base of the Property, you would need to take into account the 2 hectare limit for the main residence exemption.

You are taken to have acquired the Property on the day the deceased died, at the market value on the deceased's date of death as per Item 3 of subsection 128-15(2) and 128-15(4) of the ITAA 1997.

Question 3

Summary

Yes. The cost base of the subdivided lots, after completion of the subdivision works, be apportioned based on the relative market value of the lots.

Land in excess of two hectares

Tax Determination TD 1999/67 Income tax: capital gains: if your land (including land on which your dwelling is situated) exceeds 2 hectares, can you select which 2 hectares the main residence exemption in Subdivision 118-B applies to and, if so, how do you calculate any capital gain or capital loss you make on the remainder of your land? (TD 1999/67)applies when calculating the capital gain or capital loss where a property exceeds 2 hectares.

If your selected area of land can be separately valued, you calculate your capital gain or capital loss by apportioning the cost base or reduced cost base between the dwelling and 2 hectares and the land in excess of 2 hectares, on the basis of the valuation. If your selected area of land (in excess of 2 hectares) cannot be separately valued, your capital gain or loss on the remainder of your land may be calculated by apportioning the capital proceeds and the cost base or reduced cost base (if applicable) on an area basis.

Subdivision of land

If you subdivide a block of land, each block that results is registered with a separate title. For CGT purposes, the original land parcel is divided into 2 or more separate assets. Subdividing land does not result in a CGT event if you retain ownership of the subdivided blocks. Therefore, you do not make a capital gain or a capital loss at the time of the subdivision.

However, you may make a capital gain or capital loss when you sell the subdivided blocks. The date you acquired the subdivided blocks is the date you acquired the original parcel of land and the cost base of the original land is divided between the subdivided blocks on a reasonable basis.

Cost base on subdivision of land

The cost base of a CGT asset is generally the cost of the original asset when a taxpayer bought it. However, it also includes certain other costs associated with acquiring, holding and disposing of the asset.

In working out the cost base of the subdivided blocks, subsection 112-25(3) of the ITAA 1997 provides that each element of the cost base of the original asset is worked out at the time of the split and apportioned in a 'reasonable way' to each element of the new asset's cost base.

Taxation Determination TD 97/3 Income tax: capital gains: if a parcel of land acquired after 19 September 1985 is subdivided into lots ('blocks'), do Parts 3-1 and 3-3 of the Income Tax Assessment Act 1997 treat a disposal of a block of the subdivided land as the disposal of part of an asset (the original land parcel) or the disposal of an asset in its own right (the subdivided block)? (TD 97/3) states that the Commissioner will accept any approach that is appropriate in the circumstances of each particular case, for example, on an area basis or relative market value basis.

A reasonable apportionment of the original cost of the land itself can usually be achieved on an area basis if all the land is of similar size and market value or on a relative market value basis if this is not the case.

Expenditure forming part of the cost base of the asset is not apportioned if that amount is wholly attributable to a particular asset. For example, if a dwelling existed on an original block of land before it was subdivided into 2 blocks, the cost of the dwelling would only be included in the cost base of the block on which the dwelling stood.

The costs of subdivision should also be apportioned between the blocks. If the blocks are of unequal market value the Commissioner considers that costs such as survey, legal fees and application fees associated with the subdivision should be apportioned in accordance with relative market value of the blocks. However, any costs solely related to one block should be attributed to that block (for example, the costs of construction and costs of connecting electricity and water to the block should be attributed solely to that block).

Application to your circumstances

In your case, the Property was divided into a number of lots, with Lot X retained as the main residence and 3 vacant lots. Each element of the cost base of the original land is worked out at the time of the split and apportioned in a 'reasonable way' to each element of the new lots' cost base. The cost of the dwelling would only be included in the cost base of the block on which the dwelling stood. The costs of subdivision should also be apportioned between the blocks.

Question 4, 5, and 6

Summary

The proceeds from the sale of the subdivided properties are not assessable as ordinary income under section 6-5 of the ITAA 1997 as you will not derive the proceeds in the course of conducting a business as understood for tax purposes, or from engaging in an isolated profit-making scheme with a commercial purpose.

Rather, the proceeds from the sale of the subdivided blocks are attributable to the mere realisation of the capital assets.

Taxation treatment of property sales

Generally, an amount received in relation to subdividing land would be assessable either as:

•         ordinary income under section 6-5 of the ITAA 1997 as business income,

•         ordinary income under section 6-5 of the ITAA 1997 as an isolated commercial transaction with a view to a profit, or

•         statutory income under the capital gains tax (CGT) provisions contained in Part 3-1 of the ITAA 1997 as a mere realisation of a capital asset.

Ordinary income

Subsection 6-5(2) of the ITAA 1997 provides that the assessable income of an Australian resident includes ordinary income derived directly or indirectly from all sources, whether in or out of Australia, during the income year.

Carrying on a business of property development

Section 995-1 of the ITAA 1997 states the term business includes any profession, trade, employment, vocation or calling, but does not include occupation as an employee.

Taxation Ruling TR 97/11 Income tax: am I carrying on a business of primary production? outlines some factors that indicate whether or not a business of primary production is being carried on. These factors equally apply to other types of businesses. The question of whether a business is being carried on is a question of fact and degree. In determining whether a taxpayer is carrying on a business, no one indicator will be decisive. The indicators should be considered in conjunction with the other factors.

In the Commissioner's view, the factors that are considered important in determining the question of business activity are:

•         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.

Profits from an isolated transaction

In FC of T v The Myer Emporium (1987) 163 CLR 199; 87 ATC 4363; (1987) 18 ATR 693 (Myer Emporium), the Full High Court expressed the view that profits made by a taxpayer who enters into an isolated transaction with a profit making purpose can be assessable income.

Taxation Ruling TR 92/3 Income tax: whether profits on isolated transactions are income (TR 92/3) considers the assessability of profits on isolated transactions in light of the principles outlined in Myer Emporium. According to Paragraph 1 of TR 92/3, the term isolated transactions refers to:

a)    those transactions outside the ordinary course of business of a taxpayer carrying on a business, and

b)    those transactions entered into by non-business taxpayers.

TR 92/3 provides guidance in determining whether profits from isolated transactions are income and therefore assessable.

A profit from an isolated transaction will generally be income when:

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

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

TR 92/3 lists the following factors which are relevant in determining whether an isolated transaction amounts to a business operation or commercial transaction:

a)    the nature of the entity undertaking the operation or transaction

b)    the nature and scale of other activities undertaken by the taxpayer

c)    the amount of money involved in the operation or transaction and the magnitude of the profit sought or obtained

d)    the nature, scale and complexity of the operation or transaction

e)    the manner in which the operation or transaction was entered into or carried out

f)     the nature of any connection between the relevant taxpayer and any other party to the operation or transaction

g)    if the transaction involves the acquisition and disposal of property, the nature of that property; and

h)    the timing of the transaction and the various steps in the transaction.

No single factor will be determinative rather it will be a combination of factors that will lead to a conclusion as to the character of the activities.

Mere realisation

Paragraph 36 of TR 92/3 states that the courts have often said that a profit on the mere realisation of an investment is not income, even if the taxpayer goes about the realisation in an enterprising way. The expression 'mere realisation' is used to contradistinguish a business operation or a commercial transaction carrying out a profit-making scheme'.

Therefore, if the sale of the land is not considered to be an isolated commercial transaction, it will be treated as the mere realisation of a capital asset, with the proceeds or profit of the sale on capital account and assessed under the CGT rules.

Capital gains tax

A capital gain or a capital loss may arise if a CGT event happens to a CGT asset you own. Land, or an interest in land, is a CGT asset.

CGT event A1 happens if you dispose of a CGT asset (subsection 104-10(1) of the ITAA 1997).

Trading stock

Division 70 of the ITAA 1997 deals with the tax treatment of trading stock. The term 'trading stock' is defined very widely to include anything produced, manufactured or acquired, that is held for manufacture, sale or exchange in the ordinary course of business (section 70-10 of the ITAA 1997). This definition includes land.

TD 92/124 Income tax: property development: in what circumstances is land treated as 'trading stock'? (TD 92/124) provides that land is treated as trading stock for income tax purposes if it is held for the purpose of resale and the landowner embarks on a definite and continuous cycle of operations designed to lead to the sale of the land. It is not necessary that the acquisition of land be repetitive; a single acquisition of land for the purpose of development, subdivision and sale by a business commenced for that purpose would lead to the land being treated as trading stock.

The purpose of landholding can alter. Where land was originally acquired as a capital asset but is later ventured into a property development business it will become trading stock of the taxpayer. Section 70-30 of the ITAA 1997 applies where an item which is already owned by the taxpayer (but is not held as trading stock) starts being held as trading stock.

Application to your circumstances

In your case, the Property was originally purchased by the deceased and their spouse after 20 September 1985 with the intention to use it as a residence. The Property was used as their main residence during their ownership period.

The Property was put on the market in 20XX but the sale fell through.

Due to the poor health of the deceased, they started to engage third parties to obtain a development approval to subdivide the Property but did not engage any third parties to progress the subdivision work before their death. The Property remained their main residence until their death in 20XX.

You as the trustee of the deceased estate continued with the subdivision. You are not engaging in a business activity in relation to the subdivision and sale of the land based on the factors outlined in TR 97/11 that 'indicate whether or not a business is being carried on.'

•         Your involvement in the actual land development and sale activities will be entirely passive.

•         This is the first time you or the deceased (the deceased) have been involved in land subdivision. It is noted that neither the deceased nor their Estate, has previously carried on an enterprise of buying, selling or developing land.

•         The Development Application was submitted and approved before the deceased passed away.

•         In terms of your involvement with the land development and sale, there is no 'regularity' or 'repetition of activities' associated with someone in business. Your involvement in the process will be limited to dealing with the Company B who will be appointed to deal with the day-to-day requirements related to the subdivision.

•         You have never sought to make a profit from the land subdivision and sale in a commercial sense. Rather, you are merely realising an interest in a capital asset inherited by the beneficiaries of the Estate.

•         The size and scale of the land subdivision activity is only what is required to effect the sale of the land in accordance with council stipulations, and will not be unusually complex or involved.

Based on the information provided and the above factors, we do not consider that any proceeds from your subdivision of the Property and sale of the subdivide blocks are derived in the course of carrying on a business.

Based on the application of factors listed in TR 92/3, you are not engaged in an isolated profit-making scheme in relation to the subdivision and sale of the subdivided blocks:

You did not originally acquire your interests in the Property with an intention to make a profit on resale, the Property devolves to you following the death of the deceased. You as the trustee of the deceased estate progressed further with the Property's subdivision by engaging a developer to undertake the subdivision development.

Your involvement in the subdivision will be limited to high-level decision making only. All works on the Property will not go beyond minimum mandated council stipulations and the development is anticipated to take a couple of years to complete.

Based on the information provided, there is nothing to suggest that the subdivision of the Property was the beginning of a continuing business of property development. Your activities do not display the indicators of a business, being transactions entered into on a continuous and repetitive basis. Therefore, it is the Commissioner's view that the activities in relation to the subdivision are not those of an entity carrying on a business of buying, subdividing and selling subdivided land.

Making an assessment based on the factors set out in TR 92/3, it is the Commissioner's view that the subdivision of the Property and the future sale of the subdivided blocks of land will not be considered commercial in nature. On balance, you are not engaged in a profit-making undertaking, instead disposing of an inherited property under the subdivided process.

Therefore, as you are not carrying on a business, and the subdivision activities are not an isolated profit-making transaction, the subdivision and sale will be a mere realisation of the Property. Any profit arising from the sale of the subdivided blocks will be accounted under the capital gains tax provisions in Part 3-1 and Part 3-3 of the ITAA 1997.

Question 7

Summary

Yes. You can use the discount method in Division 115 of the ITAA 1997 to calculate the capital gain in relation to the disposal of the interests in the subdivided blocks if they are sold more than 12 months from the deemed acquisition date per subsection 115-30(1) of the ITAA 1997.

Discount capital gains

Section 115-25 of the ITAA 1997 provides that an asset must be acquired at least 12 months before the relevant CGT event in order to be a discount capital gain.

For the purposes of determining whether the asset has been held for 12 months to qualify for the CGT general discount under Division 115 of the ITAA 1997, for a CGT asset the acquirer acquired as the LPR or passed to a beneficiary of the deceased, except if it was a pre-CGT asset immediately before the deceased's death, the LPR or the beneficiary is deemed to have acquired the asset on the date that the deceased acquired the asset as per Item 3 and Item 4 of subsection 115-30(1) of the ITAA 1997.

Application to your circumstances

As the Property was acquired by the deceased after 20 September 1985, for the purpose of Division 115 of the ITAA 1997, you as the LPR of the deceased estate, are deemed to have acquired the Property when the deceased acquired the asset when the deceased acquired the asset as per Item 3 and 4 of subsection 115-30(1) of the ITAA 1997. If you meet the conditions contained in Division 115 of the ITAA 1997, the 50% CGT discount can be applied to any gain made on the disposal of the post-CGT ownership interests in the subdivided lots.

Question 8

Summary

Yes. The main residence exemption will be available on the sale of the Lot X with the existing house situated on it, if sold within 2 years of the deceased's date of death.

CGT and dwellings acquired from deceased estates

Section 128-20 of the ITAA 1997 provides that where a taxpayer dies, there are no CGT implications where an asset passes to the legal personal representative or beneficiary, but CGT may apply when the asset is subsequently disposed of.

Subsection 118-195(1) of the ITAA 1997 allows a trustee of a deceased estate to disregard a capital gain or loss made from the disposal of a dwelling if:

•         the property was acquired by the deceased on or after 20 September 1985; and

•         the dwelling was the deceased's main residence just before the deceased's death; and

•         was not then being used for the purpose of producing assessable income; and

•         your ownership interest ends within 2 years of the deceased's death.

The main residence exemption does not apply to a CGT event that happens in relation to adjacent land if the event does not happen in relation to the dwelling or your ownership interest in it.

Subdivision of land

Subdivision itself is not a CGT event. If you subdivide a block of land, the CGT provisions treat the subdivided blocks as though they were always separate assets, as each is registered with a separate title.

Application to your circumstances

We have considered the following when determining whether the capital gain made on the disposal of the Property can be disregarded:

•         the deceased, acquired the Property after 20 September 1985.

•         the deceased resided at the Property until their death in 20XX.

•         The Property had not been used to produce assessable income either prior to or after the deceased's passing.

•         If the Property is sold within 2 years of the deceased's death, your ownership interest in the Property, as the trustee of the deceased estate, will end within 2 years of the deceased's death.

Therefore, if the conditions in section 118-195 of the ITAA 1997 have been met, you as the trustee of the deceased estate can disregard any capital gain made on the sale of the dwelling.

After the subdivision, the CGT provisions treat the subdivided blocks as though they were always separate assets, as each is registered with a separate title. Lot X was retained as main residence with the dwelling and other lots are vacant lots. Therefore, Lot X will be treated as main residence and the main residence exemption applies if it is sold within 2 years of the deceased's date of death.

The other vacant subdivided lots will not be sold with the dwelling, the main residence and adjacent land exemption will not be applicable.

Question 9

Summary

No. Having considered your circumstances and the relevant factors the Commissioner will not allow an extension of time.

Section 118-195 of the ITAA 1997 states that a capital gain or capital loss made on a dwelling acquired from a deceased estate may be disregarded if:

•         The property was acquired by the deceased estate before 20 September 1985; or the property was acquired by the deceased on or after 20 September 1985 and the dwelling was the deceased's main residence just before the deceased's death and was not being used for the purpose of producing assessable income; and

•         Your ownership interest ends within 2 years of the deceased's death (the Commissioner has discretion to extend this period in certain circumstances).

Practical Compliance Guideline PCG 2019/5 The Commissioner's discretion to extend the two-year period to dispose of dwelling acquired from a deceased estate (PCG 2019/5) outlines the factors that the Commissioner will consider when determining whether to exercise his discretion to extend the 2-year period under section 118-195 of the ITAA 1997. Generally, the Commissioner will allow a longer period where the sale of the dwelling could not be settled within 2 years of the deceased's death due to reasons beyond your control that existed for a sizeable portion of the first 2 years and there are no significant factors that weigh against the allowing of an extension.

Paragraph 16 of PCG 2019/5 makes it clear that factors that weigh against the Commissioner exercising his discretion to extend the 2-year period to dispose of a dwelling acquired from a deceased estate include those listed in paragraph 13 of PCG 2019/5. Relevantly, inconvenience on the part of the executor to organise the sale of the property, and unexplained periods of inactivity by the executor in attending to the administration of the estate are such factors.

In considering whether to extend the 2-year period all the factors both in favour and against the granting of the Commissioner's discretion must be considered.

Application to your circumstances

In your circumstance, the disposal is mainly delayed by:

•         Probate was granted XX months after the deceased's death, from circumstances around impact from Covid 19 and court orders from 2 states.

•         Subdivision construction delays due to Covid 19 illness, travel restriction and flood damage to the Property.

Although the above reasons were outside of the control of the trustee, they are not the factors that significantly affect the overall delay in disposing of the Property. The most significant factor in delaying the sale was your decision to continue with the subdivision development of the Property, which was entirely within your control. The construction has not started at the time of the deceased's death in April 20XX, while the Development Application was approved in XX 20XX. It is your decision to start the construction of the subdivision. You have not considered placing the Property on the market after the passing of the deceased.

We have considered all your circumstances but, as there was a significant period of delay that was not out of your control, the Commissioner will not exercise the discretion to grant an extension of time to dispose of the Property.

Issue 2 - Goods and Services Tax

GST and the sale of residential premises

GST and the sale of subdivided vacant land

For the following questions,

•         unless otherwise stated, 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, published by the Australian Taxation Office (ATO), that are referred to are available on the ATO website ato.gov.au

Question 1

Will the sales of the proposed subdivided vacant lots located at the Property be a taxable supply under section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Detailed reasoning

Section 9-40 of the GST Act provides that you are liable for GST on any taxable supplies that you make.

Section 9-5 of the GST Act 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 (Australia); and

(d)   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.

For the sale of the subdivided vacant lots located at the Property to be a taxable supply, all the requirements in section 9-5 of the GST Act must be satisfied.

In your case, you will supply the subdivided vacant lots for consideration. The supplies will be connected with the indirect tax zone. However, you are not registered for GST.

The primary issue to be resolved is whether the supply of the proposed subdivided vacant lots will be made in the course or furtherance of an enterprise you carry on (paragraph 9-5(b) of the GST Act). If so, a further issue to be considered is whether you are required to be registered for GST (paragraph 9-5(d) of the GST Act).

Enterprise

Subsection 9-20(1) of the GST Act provides, amongst other things, that an enterprise is an activity, or series of activities, done:

(a)   in the form of a business; or

(b)   in the form of an adventure or concern in the nature of trade.

Miscellaneous Taxation Ruling MT 2006/1 The New Tax System: the meaning of entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number (MT 2006/1) provides guidelines on the meaning of carrying on an enterprise.

Paragraph 1 of Goods and Services Tax Determination GSTD 2006/6 Goods and services tax: does MT 2006/1 have equal application to the meaning of 'entity' and 'enterprise' for the purposes of the A New Tax System (Goods and Services Tax) Act 1999? (GSTD 2006/6) provides that the guidelines in MT 2006/1 are considered to apply equally to the term 'enterprise' as used in the GST Act and can be relied upon for GST purposes.

Paragraph 159 of MT 2006/1 discusses how to determine the extent to which an activity or a series of activities amounts to an enterprise:

159. Whether or not an activity, or series of activities, amounts to an enterprise is a question of fact and degree having regard to all of the circumstances of the case.

Furthermore, paragraph 160 of MT 2006/1 discusses the need to identify all the relevant activities in order to determine the existence of an enterprise:

160. It is important that the relevant activity or series of activities are identified in order to determine whether an enterprise is being carried on. This is because one activity may not amount to an enterprise but that activity taken into account with other activities may form an enterprise. All activities need to be taken into account including activities from the commencement to the termination of the enterprise. For further information on commencement and termination activities, see paragraphs 120 to 148 of this Ruling.

In your case, the relevant activities are the development activities associated with the subdivision and preparation of the vacant lots for sale. These activities were started by the deceased prior to his death, and continued with the trustee of the estate, once appointed.

These activities will now be examined in light of the relevant types of enterprises listed under section 9-20 of the GST Act, described above. We consider the other types of enterprises listed under section 9-20 of the GST Act are not applicable on these facts.

In the form of a business

Paragraphs 177 to 179 of MT 2006/1 discuss the main indicators of carrying on a business, and state:

Indicators of a business

177. To determine whether an activity, or series of activities, amounts to a business, the activity needs to be considered against the indicators of a business established by case law.

178. TR 97/11 discusses the main indicators of carrying on a business. Based on that discussion some indicators are:

•        a significant commercial activity

•         a purpose and intention of the taxpayer to engage in commercial activity

•         an intention to make a profit from the activity

•         the activity is or will be profitable

•         the recurrent or regular nature of the activity

•         the activity is carried on in a similar manner to that of other businesses in the same or similar trade

•         activity is systematic, organised and carried on in a businesslike manner and records are kept

•         the activities are of a reasonable size and scale

•         a business plan exists

•         commercial sales of product; and

•         the entity has relevant knowledge or skill.

179. There is no single test to determine whether a business is being carried on. Paragraph 12 of TR 97/11 states that 'whilst each case might turn on its own particular facts, the determination of the question is generally the result of a process of weighing all the relevant indicators'. TR 97/11 can be referred to for a fuller discussion on whether a particular activity constitutes the carrying on of a business.

Given the facts provided, we consider that the activities you have undertaken do not display the salient indicator of a business, which are transactions entered into on a continuous and repetitive basis.

Furthermore your activities do not appear to be carried out in a systematic, organised, and businesslike manner, nor do you appear to have the intention to engage in commercial activity. This based on the fact that you are doing the minimum required to obtain the Development Application approval. You intend to sell a number of lots as vacant land to realise the capital value of the land. This demonstrates you do not have the intention to maximise the potential profit you could generate from the sale of the lots.

For the above reasons, we do not consider the activities you have undertaken constitute activities done in the form of a business.

In the form of an adventure or concern in the nature of trade

We now consider whether your activities will be in the form of an adventure or concern in the nature of trade (paragraph 9-20(1)(b) of the GST Act).

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':

234. Ordinarily, the term 'business' would encompass trade engaged in, on a regular or continuous basis. However, an adventure or concern in the nature of trade may be an isolated or one-off transaction that does not amount to a business but which has the characteristics of a business deal.

The commercial nature of a transaction or scheme is significant in determining whether the activities are done in the form of an adventure or concern in the nature of trade. This is further explained in paragraph 237 of MT 2006/1:

237. The term 'profit making undertaking or scheme' like the term 'an adventure or concern in the nature of trade' concerns transactions of a commercial nature which are entered into for profit-making, but are not part of the activities of an on-going business. Both terms require the features of a business deal, see McClelland v. Federal Commissioner of Taxation, in which Lord Donovan, delivering the opinion of the majority, said:

It seems to their Lordships that an 'undertaking or scheme' to produce this result must - at any rate where the transaction is one of acquisition and resale - exhibit features which give it the character of a business deal. It is true that the word 'business' does not appear in the section; but given the premise that the profit produced has to be income in its character their Lordships think the notion of business is implicit in the words 'undertaking or scheme'.

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. Such transactions are of a revenue nature. However, the sale of the family home, car and other private assets are not, in the absence of other factors, adventures or concerns in the nature of trade. The fact that the asset is sold at a profit does not, of itself, result in the activity being commercial in nature.

Paragraph 245 of MT 2006/1 refers to 'the badges of trade' with paragraphs 247 to 257 discussing the various 'badges of trade' 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.

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.

Paragraphs 258 and 259 of MT 2006/1 contain guidance on the distinction between trading/revenue assets and investment/capital assets. They provide 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.

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.

Paragraph 266 of MT 2006/1 provides in part that 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 and there may also be other relevant factors that need to be weighed up as part of the process of reaching an overall conclusion.

The following example from MT 2006/1 explains further on the ATO view in relation to isolated transactions and sales of real property including the disposal of land on which your home is situated.

291. Ursula and Gerald live on a 2.5 hectare lot that they have owned for 30 years.

292. They decide to sell part of the land and apply to subdivide the land into two 1.25 hectare lots. The survey and subdivision are approved. They retain the subdivided lot containing their house and the other is sold.

293. Ursula and Gerald are not carrying on an enterprise and are not entitled to an ABN in respect of the subdivision as the subdivision and sale are a way of disposing of some of the land on which their home is situated. It is the mere realisation of a capital asset.

Application to your circumstances

The deceased and their spouse's original purpose for purchasing the residential property after 20 September 1985 was for use as their principal place of residence.

The Property was not acquired as a trading asset for the primary purpose of resale and the Property has never been used for income producing purposes.

No improvements or other changes have been made to the Property since it was acquired after 20 September 1985, apart from those in connection with its use as the deceased and their spouse main residence.

The deceased engaged third parties in obtaining the development approval for the Property but did not progress the subdivision prior to their death. The Property remained their main residence until their death.

You did not originally acquire your interests in the land with an intention to make a profit on resale as you acquired the land following the death of the deceased. You as trustee of the deceased estate continued to engage the developer on the land subdivision.

You have engaged Company B and will pay them a fixed fee for their services to undertake the subdivision works to realise the value of the Property. After the payment of all the costs (i.e. the fixed fee to Company B, council charges, and agent & solicitors fees) the net proceeds from the sale of the Property will be divided equally between the children of the deceased in accordance with the terms of the deceased's will.

You have not and do not intend to borrow funds to finance the subdivision works.

No buildings have been erected on the vacant lots, and only work that is required by the relevant council to get the subdivision approved will be undertaken before the subdivided lots are sold.

•         The work is based on the requirements of the relevant council to secure approval for subdivision and there has not been (and will not be) any additional construction works beyond what the relevant council has set out as being the bare minimum work required to obtain the subdivision approval.

•         No structures will be constructed on the land for resale purposes.

As in Example 33 of MT 2006/1, you have not demonstrated a level of development beyond that necessary to secure council approval for the subdivision.

For the above reasons, we consider your relevant activities in relation to the Property do not amount to an adventure or concern in the nature of a trade.

Given your relevant activities in relation to the Property are neither in the form of a business, nor in the course or furtherance of an adventure or concern in the nature of a trade, you are not carrying on an enterprise under section 9-20 of the GST Act in relation to the subdivision and the proposed sale of a number of lots as vacant land.

We consider your activities of subdividing and disposing of land on which the deceased's previous home was situated to be a mere realisation of a capital asset.

In addition, we note that section 23-5 of the GST Act provides that an entity is required to be registered for GST if it is carrying on an enterprise and its GST turnover meets the registration turnover threshold. The current registration turnover threshold is $75,000 for businesses (and $150,000 for non-profit entities). In your case, you are not carrying on an enterprise and therefore you are not required to be registered for GST.

Conclusion

On the basis of the facts provided, you are not carrying on an enterprise, nor are you registered or required to be registered for GST. Your sale of the subdivided vacant lots will not be a taxable supply.

Question 2

If the sales of the proposed subdivided vacant lots are taxable supplies, will the consideration from the disposal of the subdivided lots be excluded from the Taxpayer's projected GST turnover under section 188-25 of the GST Act on the basis that it is a capital asset?

Detailed reasoning

Not applicable.

As discussed under Question 1 above, the Taxpayer's sale of the subdivided vacant lots will not be a taxable supply under section 9-5 of the GST Act and GST will not be payable on the sale of the lots.

Question 3

If the sales of the proposed subdivided vacant lots are taxable supplies, will the Taxpayer be eligible to apply the margin scheme to calculate GST on the sale of the subdivided lots under section 75-5 of the GST Act?

Detailed reasoning

Not applicable.

If you make a taxable supply of real property, the GST payable under the basic rule in section 9-70 of the GST Act is 1/11 of the price. Subsection 75-10(1) of the GST Act provides that if a taxable supply of real property is under the margin scheme, the amount of GST on the supply is 1/11 of the margin for the supply.

You can only apply the margin scheme if the sale is a taxable supply.

As discussed under Question 1 above, the sale of the subdivided vacant lots will not be a taxable supply under section 9-5 of the GST Act.

Question 4

Is the Taxpayer required to register for GST 12 months prior to the settlement date of the sale of the subdivided vacant lots?

Detailed reasoning

As discussed under Question 1 above, the Taxpayer is not carrying on an enterprise and is therefore not required to be registered for GST.

Question 5

Will the sale of the proposed subdivided lot that contains the existing residence (Lot X) located at the Property be an input taxed supply of residential premises under section 40-65 of the GST Act?

Detailed reasoning

As discussed under Question 1 above, section 9-5 of the GST Act provides that a supply is not a taxable supply to the extent that it is input taxed.

The primary issue to be resolved with respect to the proposed Lot X (containing the existing residence) is whether the sale of the property is an input taxed supply and if so, to what extent the supply is input taxed.

Division 40 of the GST Act provides that if a supply is input taxed, then:

•         no GST is payable on the supply

•         there is no entitlement to an input tax credit for anything acquired or imported to make the supply.

Subsection 40-65(1) of the GST Act provides that a sale of real property is input taxed, but only to the extent that the property is residential premises to be used predominately for residential accommodation (regardless of the term of occupation).

However, subsection 40-65(2) of the GST Act states that the sale of real property is not input taxed to the extent that the residential premises are:

(a)  commercial residential premises; or

(b)  new residential premises other than those used for residential accommodation (regardless of the term of occupation) before 2 December 1998.

Based on the information supplied, the characteristics of the Property and how the premises have been used do not meet the requirements of commercial residential premises as defined in section 195-1 of the GST Act, or the requirements of new residential premises as defined in section 40-75 of the GST Act.

Residential premises

The term 'residential premises' is defined in section 195-1 of the GST Act to mean land or a building that:

(a)  is occupied as a residence or for residential accommodation; or

(b)  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) and includes a floating home.

Goods and Services Tax Ruling GSTR 2012/5 Goods and services tax: residential premises (GSTR 2012/5) outlines the characteristics of residential premises.

Paragraph 9 of GSTR 2012/5 explains the requirement that the residential premises are to be used predominately for residential accommodation in section 40-65 of the GST Act is to be interpreted as a single test that looks to the physical characteristics of the property to determine the premises' suitability and capability for residential accommodation. Paragraph 15 of GSTR 2012/5 continues by stating that to satisfy the definition of residential premises, premises must provide shelter and basic living facilities.

Paragraph 20 of GSTR 2012/5 provides that premises must be fit for human habitation in order to be suitable for, and capable of, being occupied as a residence or for residential accommodation. An objective consideration of the relevant facts and circumstances determines whether residential premises are fit for human habitation.

In this case, the proposed Lot X (containing the existing residence) has the physical characteristics of a residential dwelling consisting of X bedrooms, X bathrooms, a kitchen, dining room, a lounge, a formal lounge and a car garage on approximately XX hectares of land.

Despite currently being vacant, the premises is intended to be occupied, and is capable of being occupied as a residence or for residential accommodation.

The next issue to consider is to what extent the Taxpayer's supply of the property is 'residential premises' to be used predominately for residential accommodation and therefore input taxed for GST purposes.

Land supplied with a building

Paragraph 46 of GSTR 2012/5 states:

46. There is no specific restriction, in the definition of residential premises, on the area of land that can be included with a building. The extent to which land forms part of residential premises to be used predominantly for residential accommodation is a question of fact and degree in each case. A relevant factor in determining this is the extent to which the physical characteristics of the land and building as a whole indicate that the land is to be enjoyed in conjunction with the residential building. The use of the land is not a determining factor in deciding if the land forms part of the residential premises.

In the absence of any facts or information to the contrary, we consider the entire proposed Lot X (containing the existing residence) is to be used and enjoyed in conjunction with the residential dwelling.

Conclusion

The proposed Lot X (containing the existing residence) satisfies the definition of 'residential premises' for the purposes of section 195-1 of the GST Act. Therefore, the sale of Lot X will be an input taxed supply pursuant to section 40-65 of the GST Act.

The sale of Lot X will not be a taxable supply as defined by section 9-5 of the GST Act.

ATO view documents

Goods and Services Tax Ruling GSTR 2001/7 Goods and services tax: meaning of GST turnover, including the effect of section 188-25 on projected GST turnover

Miscellaneous Taxation Ruling MT 2006/1 The New Tax System: the meaning of entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number

Goods and Services Tax Determination GSTD 2006/6 Goods and services tax: does MT 2006/1 have equal application to the meaning of 'entity' and 'enterprise' for the purposes of the A New Tax System (Goods and Services Tax) Act 1999?

Goods and Services Tax Ruling GSTR 2012/5 Goods and services tax: residential premises

Law Companion Ruling LCR 2018/4 Purchaser's obligation to pay an amount for GST on taxable supplies of certain real property

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