Decision impact statement
Tingari Village North Pty Ltd v Commissioner of Taxation
 AATA 233
2010 ATC 10-131
78 ATR 693
Venue: Administrative Appeals Tribunal
Venue Reference No: 2008/4646 & 2008/4647
Judge Name: DP Hack & DP Dr McPherson
Judgment date: 31 March 2010
Appeals on foot:
The taxpayer appealed to the Federal Court but subsequently filed a notice of discontinuance
Impacted AdviceRelevant Rulings/Determinations:
Small business 50% reduction
Small business retirement exemption
Main use to derive rent
Maximum net asset value test
Tax shortfall penalty
Lack of reasonable care
This case considered whether the taxpayer was entitled to small business capital gains relief under Division 152 of the Income Tax Assessment Act 1997 (ITAA 1997) in relation to the sale of a mobile home park; and whether the main use of the mobile home park was to 'derive rent' under paragraph 152-40(4)(e) of the ITAA 1997.
The decision under review was varied by reducing the penalty imposed in respect of the tax shortfall to 25%.
Brief summary of facts
1. The taxpayer was the owner and operator of the Tingari Village North Mobile Home Park ('the Park') in Terrigal, New South Wales.
2. The taxpayer acquired the land and improvements constituting the Park on 6 February 1996.
3. On 30 November 2005, the taxpayer sold the Park. In its income tax return for the 2006 income year, the taxpayer disclosed a net capital gain of $70,646 as a result of the sale of the Park. The taxpayer had claimed the small business 50% reduction under Subdivision 152-C of the ITAA 1997 and the small business retirement exemption under Subdivision 152-D of the ITAA 1997.
4. The Park contained 77 mobile home sites at the time of the sale. All but one of the sites were occupied by mobile (or "moveable") homes. The structures of the moveable homes were manufactured off the site before being transported and installed on steel bearers on a designated site in the Park. Each mobile home was fully self-contained, plumbed and connected to mains electricity.
5. Under the Residential Parks Act 1998 (NSW) a moveable dwelling on a residential site is not regarded as a fixture and the resident is able to sell it separately from the site. The site continues to be owned by the park owner.
6. The taxpayer entered into a site agreement with each of the residents of the Park. Each site agreement was in the form of the standard agreement contained in the Residential Parks Regulation 1999 (NSW).
Issues decided by the tribunal
The Tribunal decided that:
1. The site agreement entered into between the taxpayer and each resident of the Park conferred on the resident a right to exclusive possession of the site and thus amounted to a lease. Accordingly, the main use of the Park was to 'derive rent' (per paragraph 152-40(4)(e) of the ITAA 1997). The Park was therefore not an 'active asset' under section 152-40 of the ITAA 1997.
2. The taxpayer did not satisfy the maximum net asset value test in section 152-15 of the ITAA 1997. The sum of the net values of the CGT assets of the taxpayer and its 'connected entities' exceeded $5m.
3. The taxpayer was not entitled to small business relief under Division 152 of the ITAA 1997 in relation to the capital gain it made on the sale of the mobile home park.
4. An administrative penalty should be imposed at 25% (failure to take reasonable care) of the shortfall amount due to the taxpayer's misapplication of the maximum net asset value test. The commissioner had conceded this point prior to the hearing.
Tax Office view of Decision
The Tax Office agrees with the Tribunal's decision.
Implications on current Public Rulings & Determinations
The Tribunal's decision is consistent with Taxation Determination TD 2006/78.
Implications on Law Administration Practice Statements
Income Tax Assessment Act 1997 ("ITAA 1997")
Income Tax Assessment Act 1936 ("ITAA 1936")
Tax Administration Act 1953 ("TAA")
Residential Parks Act 1998 (NSW)
Sections 3, 4, 9, 10, 41, 62, 63, 127
Residential Parks Regulation 1999 (NSW)
Schedule 1, Schedule 2
Radaich v Smith
 HCA 45
101 CLR 209
Addiscombe Garden Estates Ltd v Crabbe
 Ch 513
 1 All ER 550
Amad v Grant
 HCA 9
74 CLR 327
Appah v Farncliffe Investments Ltd
 1 All ER 838
Aussie Traveller Pty Ltd v Marklea Pty Ltd
 1 Qd R 1
Bowen v Anderson
 1 QB 164
Bruton v London & Quadrant Housing Trust
 1 AC 406
CSD v Commonwealth Funds Management Ltd
(1993) 38 NSWLR 173
31 ATR 457
95 ATC 4756
Gandy v Jubber
(1865) 9 B & S 15
122 ER 914
Hamilton Enterprises Ltd v Croycom Pty Ltd
(1998) Q Con R 54 - 509
 ANZ ConvR 615
Lewis v Bell
(1985) 1 NSWLR 731
Mellows v Low
 1 KB 522
Progressive Mailing House Ltd v Tabali Pty Ltd
 HCA 14
157 CLR 17
57 ALR 609
Street v Mountford
 AC 809
United Scientific Holdings Ltd v Burnley Borough Council
 AC 904
 2 All ER 62
© Australian Taxation Office for the Commonwealth of Australia
You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).