Edited version of your private ruling

Authorisation Number: 1012038254907

This edited version of your ruling will be published in the public register of private binding rulings after 28 days from the issue date of the ruling. The attached private rulings fact sheet has more information.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet.

Ruling

Subject: GST and Grants of Money and Real Property

Issue 1: Does the provision of assistance constitute taxable supplies?

1.1 Is the provision of assistance by you of vacant land, on which there are no improvements, a GST-free supply for GST purposes?

Answer: Yes, a supply of vacant land on which there are no improvements will be a GST-free supply if the supply satisfies the requirements of Subdivision 38N - Grants of land by government. If the requirements are not met it will be a taxable supply,

1.2 Is the provision of assistance by you of vacant land, on which there are improvements, a taxable supply for GST purposes?

Answer: Yes, a supply of vacant land on which there are improvements will be a taxable supply. However, the margin scheme under Division 75 of the GST Act may apply.

1.3 Is the provision of assistance by you of residential premises a taxable supply for GST purposes?

Answer: No, supplies of residential premises will be input taxed under Subdivisions 40-B or 40-C of the GST Act unless the premises satisfy the criteria for new residential premises.

1.4 Is the provision of assistance by you of new residential premises a taxable supply for GST purposes?

Answer: Yes, a supply of new residential premises will be a taxable supply. However, the margin scheme under Division 75 of the GST Act may apply.

1.5 Is the provision of assistance by you of monetary assistance, a taxable supply for GST purposes?

Answer: Yes, the provision of monetary assistance to a Provider who enters into an agreement to meet specific obligations will be consideration for a taxable supply if the provider is registered for GST.

Issue 2: Do the obligations of the Provider, in relation to the assistance, give rise to a taxable supply by the Provider for GST purposes?

Answer: Yes, by entering into the obligation, a registered Provider will make a taxable supply.

Issue 3: What is the value of the consideration provided to the Department by the Provider in respect of its acquisitions of the property and/or monetary assistance?

Answer: The value of the consideration provided by the Provider is the GST inclusive market value of the supply. The provision of monetary assistance is consideration for the supply by the Provider in entering into an obligation to provide discounted residential accommodation under the terms of your agreement.

Issue 4: What is the value of the consideration provided to the Provider by the Department in respect of its acquisitions of the obligations?

Answer: We consider that, in most circumstances, the goods, services or other things being exchanged are of equal market value. The market value of the real property supplied to the Provider is the GST inclusive market value of the obligations entered into or agreed.

Issue 5: Regardless of whether it provides consideration that is also either a taxable or input taxed supply, is the Department entitled to an input tax credit in relation to its acquisition of the Provider's obligations?

Answer: Yes, provided you satisfy the provisions of section 11-5 of the GST Act, you will be entitled to an input tax credit in relation to your acquisitions of the Provider's obligations where the Provider is registered for GST.

Issue 6: Are supplies of accommodation by the providers taxable supplies, input taxed or GST-free?

Answer: A supply of residential accommodation will not be a taxable supply. The supply will be input taxed under section 40-35 of the GST Act unless it is GST-free under section 38-250 of the GST Act. If the supply is accommodation in commercial residential premises, the supply will be taxable but special rules under Division 87 may reduce the amount of GST payable.

Issue 7: If the Provider has a relevant creditable purpose and it provides consideration in the form of obligations, is the Provider entitled to an input tax credit in relation to its acquisitions of each of the following questions?

Answer: Yes, if the Provider has a creditable purpose, the Provider will be entitled to an input tax credit in relation to its acquisitions of taxable supplies of land or new residential premises that were not subject to the margin scheme.

7.1 Is the Provider entitled to an input tax credit in relation to its acquisitions of taxable supplies of land or new residential premises that is not subject to the margin scheme?

Answer: Yes, a Provider will be entitled to an input tax credit in relation to their acquisitions of taxable supplies of land or new residential premises that are not subject to the margin scheme.

7.2 Is the Provider entitled to an input tax credit in relation to its acquisitions of input taxed supplies of residential premises?

Answer: No, a Provider will not be entitled to an input tax credit in relation to their acquisitions of input taxed supplies of residential premises.

7.3 Is the Provider entitled to an input tax credit in relation to its acquisitions of an amount of monetary assistance?

Answer: No, a Provider will not be entitled to an input tax credit in relation to the monetary assistance.

Relevant facts and circumstances

You are a government entity as defined by section 41 of the GST Act.

You are registered for goods and services tax (GST) and have been since 1 July 2000.

Assistance from you to the provider in each case can be in the form of cash grants, loans or transfers of real property.

You would like to confirm the GST implications of these arrangements for both your own and the provider's perspective, so that you and the providers can appropriately manage their tax obligations.

Agreements are used when you transfer real property or provide funds for the purchase of land, construction of new buildings, or major upgrades of existing buildings.

Under Clause X of the Standard Terms, you agree to provide assistance in the form of vacant land, property or grants of monetary assistance ('the Assistance').

Under Clause X of the Standard Terms, the Provider enters into strict obligations in relation to its spending of the monetary assistance, the use of the property and the operation of the housing development.

The Assistance

The nature of the assistance you provide may differ depending on the particular circumstances of the housing project being undertaken.

You may supply to the Provider:

1. Vacant land on which there are no improvements

2. Vacant land on which there are improvements

3. Residential premises

4. A completed residential development including new residential premises that have not previously been sold

5. Monetary assistance.

Providers

In return for your assistance, the Provider's enter into obligations under the 'Agreement' to provide residential accommodation in accordance with the agreed arrangements.

The obligations of the Provider have been outlined to you.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 Division 9

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

A New Tax System (Goods and Services Tax) Act 1999 Section 9-10

A New Tax System (Goods and Services Tax) Act 1999 Section 9-15

A New Tax System (Goods and Services Tax) Act 1999 Subsection 9-30(1)

A New Tax System (Goods and Services Tax) Act 1999 Subsection 9-30(3)

A New Tax System (Goods and Services Tax) Act 1999 Section 9-70

A New Tax System (Goods and Services Tax) Act 1999 Section 9-75

A New Tax System (Goods and Services Tax) Act 1999 Division 11

A New Tax System (Goods and Services Tax) Act 1999 Section 11-5

A New Tax System (Goods and Services Tax) Act 1999 Section 11-10

A New Tax System (Goods and Services Tax) Act 1999 Section 11-15

A New Tax System (Goods and Services Tax) Act 1999 Section 11-20

A New Tax System (Goods and Services Tax) Act 1999 Division 38

A New Tax System (Goods and Services Tax) Act 1999 Section 38-250

A New Tax System (Goods and Services Tax) Act 1999 Subdivision 38N

A New Tax System (Goods and Services Tax) Act 1999 Section 38-445

A New Tax System (Goods and Services Tax) Act 1999 Division 40

A New Tax System (Goods and Services Tax) Act 1999 Subdivisions 40-B

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

A New Tax System (Goods and Services Tax) Act 1999 Subdivisions 40-C

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

A New Tax System (Goods and Services Tax) Act 1999 Section 40-70

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

A New Tax System (Goods and Services Tax) Act 1999 Division 75

A New Tax System (Goods and Services Tax) Act 1999 Sections 75-5

A New Tax System (Goods and Services Tax) Act 1999 Subsection 75-5(3)

A New Tax System (Goods and Services Tax) Act 1999 Section 75-10

A New Tax System (Goods and Services Tax) Act 1999 Section 75-20

A New Tax System (Goods and Services Tax) Act 1999 Division 87

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

Reasons for decision

Issue 1: Does the provision of assistance constitute taxable supplies?

Under section 9-5 of the GST Act, 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; and

(c) The supply is connected with Australia; and

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

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

In return for Provider's entering into obligations, you are making supplies of assistance in the form of:

1. Vacant land on which there are no improvements

2. Vacant land on which there are improvements

3. Residential premises

4. New residential premises that have not previously been sold

5. Monetary assistance.

Consideration is defined in section 195-1 to mean 'any consideration, within the meaning given by section 9-15, in connection with the supply'. Section 9-15 of the GST Act provides that consideration includes any payment, or any act or forbearance, in connection with, in response to or for the inducement of, a supply of anything. It follows there must be a sufficient nexus between a particular payment and a particular supply for the payment to be consideration for that supply.

With reference to the above principles, Goods and Services Tax Ruling GSTR 2001/6 GST: non-monetary consideration, confirms there are two elements to the definition of consideration. The first is the payment by one entity to another. The second is the nexus that must be established between the payment and a supply. We consider each of these requirements is satisfied in this instance.

In the arrangements that are the subject of this Application, the Providers do not provide monetary consideration for the real property they acquire from the Department. Rather, they enter into a number of strict obligations in relation to the use of the property and the management of the relevant housing project. We consider the acceptance of these obligations is an 'act or forbearance' which amounts to consideration for GST purposes, thus satisfying the first test.

In relation to the second test, we consider there is clear nexus between the supply of real property by the Department, and the obligations entered into the by the Provider. Simply put, the supply of real property by the Department is wholly conditional upon the Provider's agreement to develop the property and undertake the housing project according to the Department's specifications. There is a clear nexus between the obligations of the Provider in relation to the housing project, and the Department's transfer of property (which would not occur in the absence of these obligations).

By entering into strict obligations in relation to the spending of the monetary assistance or the use of the real property, the Providers are providing consideration in connection with, or in response to, the supplies. The supplies are made for consideration.

It is agreed that the supplies of the provision of assistance will satisfy criteria (b), (c), and (d) because the supplies will be made in the course or furtherance of your enterprise, the supplies of real property will be in Australia and supplies of monetary assistance will be provided in Australia, and you are registered for GST..

The issue to be considered is whether the supplies are GST-free or input taxed.

Subsection 9-30(1) of the GST Act provides that a supply, or a right to receive a supply, is GST-free if it is GST-free under Division 38 of the GST Act. Similarly, under subsection 9-30(2) of the GST Act a supply is input taxed if it is input taxed under Division 40 of the GST Act.

1.1 Is the provision of assistance by you of vacant land, on which there are no improvements, a GST-free supply for GST purposes?

The supply of a freehold interest in land or by way of a long-term lease (as defined in section 195-1 of the GST Act) will be GST-free under section 38-445 of the GST Act. However, the supply is not GST-free if, since 1 July 2000, the land has already been the subject of a supply that is GST-free under this section.

Provided the requirements of section 38-445 of the GST Act are satisfied, the supply of vacant land on which there are no improvements will be GST-free.

Supplies by you of vacant land on which there are no improvements will be taxable supplies unless the supply satisfies the requirements of Subdivision 38N - Grants of land by government.

1.2 Is the provision of assistance by you of vacant land, on which there are improvements, a taxable supply for GST purposes?

Supplies by you of vacant land on which there are improvements will not be GST-free under Division 38 of the GST Act. Neither are there any provisions under Division 40 of the GST Act that would permit the supply to be input taxed.

Supplies of vacant land, on which there are improvements, will be taxable supplies. However, Division 75 of the GST Act allows you to use the margin scheme to bring within the GST system your taxable supplies of freehold interests in land, of stratum units or granting or selling long-term leases, provided you and the acquirer (Provider) agree in writing that the margin scheme is to apply. The agreement must be made before the supply is completed at settlement.

The margin scheme will not apply, because of subsection 75-5(2) of the GST Act, if you acquired the entire freehold interest, stratum unit or long-term lease through a supply that was ineligible for the margin scheme. A supply is ineligible for the margin scheme if it is ineligible under subsection 75-5(3) of the GST Act.

Subsection 75-5(3) states:

A supply is ineligible for the margin scheme if:

(a) it is a *taxable supply on which the GST was worked out without applying the *margin scheme; or

(b) it is a supply of a thing you acquired by *inheriting it from a deceased person, and the deceased person had acquired all of it through a supply that was ineligible for the margin scheme; or

(c) it is a supply in relation to which all of the following apply:

(i) you were a *member of a *GST group at the time you acquired the interest, unit or lease in question;

(ii) the entity from whom you acquired it was a member of the GST group at that time;

(iii) the last supply of the interest, unit or lease by an entity who was not (at the time of that supply) a member of the GST group to an entity who was (at that time) such a member was a supply that was ineligible for the margin scheme; or

(d) it is a supply in relation to which both of the following apply:

(i) you acquired the interest, unit or lease from the *joint venture operator of a *GST joint venture at a time when you were a *participant in the joint venture;

(ii) the joint venture operator had acquired the interest, unit or lease through a supply that was ineligible for the margin scheme; or

(e) it is a supply in relation to which all of the following apply:

(i) you acquired the interest, unit or lease from an entity as, or as part of, a *supply of a going concern to you that was *GST-free under Subdivision 38-J;

(ii) the entity was *registered or *required to be registered, at the time of the acquisition;

(iii) the entity had acquired the entire interest, unit or lease through a taxable supply on which the GST was worked out without applying the margin scheme; or

(f) it is a supply in relation to which all of the following apply:

(i) you acquired the interest, unit or lease from an entity as, or as part of, a supply to you that was GST-free under Subdivision 38-O;

(ii) the entity was registered or required to be registered, at the time of the acquisition;

(iii) the entity had acquired the entire interest, unit or lease through a taxable supply on which the GST was worked out without applying the margin scheme; or

(g) it is a supply in relation to which all of the following apply:

(i) you acquired the interest, unit or lease from an entity who was your *associate, and who was registered or required to be registered, at the time of the acquisition;

(ii) the acquisition from your associate was without *consideration;

(iii) the supply by your associate was not a taxable supply;

(iv) your associate made the supply in the course or furtherance of an *enterprise that your associate *carried on;

(v) your associate had acquired the entire interest, unit or lease through a taxable supply on which the GST was worked out without applying the margin scheme.

Section 75-10 of the GST Act deals with how you calculate the margin and the amount of GST payable on the supplies. Item 4 of subsection 75-10(3) of the GST Act, in particular, applies to land on which there were no improvements as at 1 July 2000.

Under Section 75-20 of the GST Act an acquisition under the margin scheme is not a creditable acquisition and the purchaser will not be entitled to input tax credits under Division 11 of the GST Act.

Further details in relation to the Margin scheme are available in our publication GST and the margin scheme NAT 15145, which is available on our website.

Supplies of vacant land, on which there are improvements, will be taxable supplies. However, the margin scheme may apply if you satisfy the qualifications under sections 75-5 of the GST Act.

1.3 Is the provision of assistance by you of residential premises a taxable supply for GST purposes?

Supplies by you of residential premises will not be GST-free under Division 38 of the GST Act. However, the supplies may be input taxed under Subdivisions 40-B or 40-C of the GST Act where the supplies satisfy the requirements of those provisions.

Section 40-35 of the GST Act provides that a supply of residential premises by way of lease (other than a long-term lease), hire or licence (including a renewal or extension of a lease, hire or licence) is input taxed.

Under section 40-65 of the GST Act a supply of real property by way of sale is input taxed, but only to the extent that the property is residential premises to be used predominantly for residential accommodation (regardless of the term of occupation).

Similarly, under section 40-70 of the GST Act a supply of real property by way of long term lease is input taxed.

The sale is not input taxed to the extent that the residential premises are new residential premises other than those used for residential accommodation before 2 December 1998. New residential premises have the meaning given by section 40-75 of the GST Act (see section 195-1 Definitions).

Residential premises are new residential premises if they have not previously been sold as residential premises or have not previously been the subject of a long-term lease. Residential premises are new residential premises if they have been created through substantial renovations of a building, or have been built, or contain a building that has been built, to replace demolished premises on the same land.

However, the premises are not new residential premises if, for the period of at least 5 years since the new residential premises were created, the premises have only been used for making supplies that are input taxed under section 40-35 of the GST Act.

GST Ruling GSTR 2000/20 examines the meaning of 'residential premises' and 'commercial residential premises' for the purposes of Subdivision 40-B (Residential rent), Subdivision 40-C (Residential premises) and Division 87 (Long-term accommodation in commercial residential premises) of the GST Act. Draft Ruling GSTR 2011/D2, which was issued on 5 August 2011, is consistent with the above for purposes of this ruling.

Supplies of residential premises will be input taxed under Subdivisions 40-B or 40-C of the GST Act unless the premises satisfy the criteria for new residential premises.

1.4 Is the provision of assistance by you of new residential premises a taxable supply for GST purposes?

As noted above, residential premises are new residential premises if they have not previously been sold as residential premises or have not previously been the subject of a long-term lease. Residential premises are new residential premises if they have been created through substantial renovations of a building, or have been built, or contain a building that has been built, to replace demolished premises on the same land.

Residential premises are no longer new residential premises if they have been continuously rented for five years after first becoming new residential premises. They may still be considered new residential premises however, even if they have been rented out continuously for five years, where they have been held for a dual purpose. Dual purpose occurs where the premises are being marketed for sale whilst being rented out as an input taxed supply. That is because they have not have been held 'solely' for making input taxed supplies for at least five years.

Goods and Services Tax Ruling GSTR 2003/3 explains the meaning of 'what is a 'sale' for the purposes of section 40-65 and when real property is new residential premises pursuant to section 40-75 of the GST Act'. This ruling is being reviewed as a result of the decision by the Full Federal Court of Australia in Commissioner of Taxation v Gloxinia Investments Ltd atf Gloxinia Unit Trust [2010] FCAFC 46; 2010 ATC 20-182; 75 ATR 806.

However, we can confirm that newly constructed premises will satisfy the definition of 'new residential premises'.

1.5 Is the provision of assistance by you of monetary assistance a taxable supply for GST purposes?

Goods and Services Tax Ruling GSTR 2000/11 GST: grants of financial assistance (GSTR 2000/11) deals with the application of the GST to grants of financial assistance and funding.

The GST treatment of grants depends primarily on whether the grant represents consideration that has the relevant connection with a taxable supply.

As noted above, by entering into obligations in relation to the grant of monetary assistance, the Providers are making a supply (a detailed explanation is provided below under issue 2). If the Providers are registered for GST and satisfy the requirements of section 9-5 of the GST Act, the supply will be a taxable supply.

If the Providers are not registered for GST, nor required to be registered, the supply by way of entering into an obligation, will not be a taxable supply.

The provision of monetary assistance to a Provider who enters into an agreement to meet specific obligations will be consideration for a taxable supply if the Provider is registered for GST.

Issue 2: Do the obligations of the Provider, in relation to the assistance, give rise to a taxable supply by the Provider for GST purposes?

Section 9-5 of the GST Act provides that a registered Provider will make a taxable supply if they make a supply for consideration, in the course or furtherance of an enterprise they carry on and the supply is connected with Australia.

Goods and Services Tax Ruling GSTR 2000/11 GST: grants of financial assistance (GSTR 2000/11), which deals with the application of the GST to grants of financial assistance and funding, provides at paragraph 15:

Essentially, a supply is something which passes from one entity to another. The supply may be one of particular goods, services or something else which is reflected in an agreement by one party to do something for another.

Under section 9-10(2)(g) of the GST Act a supply includes an entry into an obligation to do anything. As noted above, under section 9-15 of the GST Act consideration includes any payment, or any act or forbearance, in connection with, in response to or for the inducement of, a supply of anything.

GSTR 2000/11 recognises that a supply of a right or obligation must be binding on the parties. Paragraph 34 provides examples of arrangements that indicate an agreement binds the parties.

In relation to grants of property, of GSTR 2000/11 states at paragraphs 37 and 38:

Grants in kind are supplies

37. Where a grant is provided in a form that falls outside the definition of money, such as a grant of property or other goods, the grant itself will be a supply. As grants in kind may be made in return for another supply, there may be a 'supply' by grantor and grantee to each other.

38. Where both supplies are taxable supplies, each party will be liable to GST on the supply it makes. The amount of GST is based on the GST inclusive market value of the consideration, which is the market value of the consideration without any discount for GST payable on the other supply. …

Where a grant of property is made in exchange for the grantee entering into an obligation there is a nexus between the supplies and consideration for both parties. Paragraphs 86 and 86 of GSTR 2000/11 states:

Nexus where grantee supplies obligations

85. Many grants are paid in exchange for the grantee's entry into an obligation to the grantor to do something with the grant. The grant is sufficiently connected with the supply of such an obligation if the obligation is something which goes to the purpose for which the grant is made.

86. Conditions that a grantee may enter into include a requirement to use the granted funds in a particular manner, such as to deliver specified services to the community in furtherance of an objective of the grants program. Provided that the grant is made for the purpose of those services being delivered, the acceptance by the grantee of an obligation to fulfil such conditions will establish a supply to the grantor in connection with the grant.

In the circumstances of the obligations of the Provider, in relation to the assistance provided by you, the entering into the obligation will give rise to a taxable supply by the Provider for GST purposes.

Issue 3: What is the value of the consideration provided to the Department by the Provider in respect of its acquisitions of the property and/or monetary assistance?

Goods and Services Tax Ruling GSTR 2001/6 GST: non-monetary consideration (GSTR 2001/6) explains how the GST applies if part or all of the consideration for a supply is not expressed as an amount of money. The ruling recognises that something that is non-monetary consideration can itself be a taxable supply. The Ruling describes when this can happen and gives guidelines for identifying what the consideration is for such a supply

When you grant real property in exchange for the Provider entering into an obligation, there is an exchange of supplies and each supply represents non-monetary consideration for the other. As noted above, the amount of GST is based on the GST inclusive market value of the consideration.

Section 9-70 of the GST Act provides that the amount of GST on a taxable supply is 10% of the value of the taxable supply; price being the GST inclusive consideration. Subsection 9-75(1) provides that the price is the sum of the monetary consideration and the non-monetary consideration.

Where you provide real property in exchange for the Provider entering into obligations, the market value of the agreement to the obligations is the value of the real property being supplied.

Accordingly, the price or the consideration provided is the sum of any monetary consideration and the non-monetary consideration.

The provision of monetary assistance is consideration for the supply by the Provider in entering into an obligation to provide discounted residential accommodation under the terms of your agreement.

Issue 4: What is the value of the consideration provided to the Provider by the Department in respect of its acquisitions of the obligations?

We consider that, in most circumstances, when the parties to a transaction are acting at arm's length, the goods, services or other things being exchanged are of equal market value. This value can be determined by using a reasonable valuation method that is agreed to by you and the other party. However, this method must produce a reasonable GST inclusive market value of the things exchanged (refer to paragraph 19 of GSTR 2001/6).

Sections 9-70 and 9-75 of the GST Act provide that the consideration for a taxable supply is the GST inclusive market value of the consideration received. The consideration being the sum of the monetary and non-monetary consideration received.

The market value of the real property supplied to the Provider is the GST inclusive market value of the obligations entered. We expect this will be equal to the GST inclusive market value of the property supplied.

Issue 5: Regardless of whether it provides consideration that is also either a taxable or input taxed supply, is the Department entitled to an input tax credit in relation to its acquisition of the Provider's obligations?

Section 11-20 of the GST Act provides that you are entitled to the input tax credit for any creditable acquisition that you make.

Under section 11-5 of the GST Act you make a creditable acquisition if:

(a) you acquire anything solely or partly for a *creditable purpose; and

(b) the supply of the thing to you is a *taxable supply; and

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

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

(* denotes a term defined in section 195-1 ot the GST Act)

To be entitled to claim input tax credits all of the above requirements must be satisfied.

Section 11-10 of the GST Act gives the meaning of 'acquisition' and provides that an acquisition is any form of acquisition whatsoever. An acquisition includes, amongst other things, an acquisition of a right to require another person to do anything. Your acquisition of the agreement of Providers to enter into obligations is an acquisition for GST purposes.

Section 11-10 of the GST Act provides that you acquire a thing for a creditable purpose to the extent that you acquire it in carrying your enterprise. Your acquisition of the agreement of Providers relates to the achievement of your aims.

A registered Provider will make a taxable supply to you when they enter into the obligations. You provide consideration for the supply by way of the vacant land or premises that you supply to the Providers. You are also registered for GST.

Because you satisfy the provisions of section 11-5 of the GST Act, you will be entitled to an input tax credit in relation to your acquisitions of the Provider's obligations where the Provider is registered for GST.

Issue 6: Are supplies of accommodation by the providers taxable supplies, input taxed or GST-free?

Generally, supplies of residential accommodation in residential premises are input taxed under section 40-35 of the GST Act.

However, a supply of residential accommodation by an endorsed charitable institution is GST-free under section 38-250 of the GST Act where it is made for consideration which is less than either:

· 75% of the GST inclusive market value of the supply (subparagraph 38-250(1)(b)(i) of the GST Act); or

· 75% of the cost to the supplier of providing the accommodation (subparagraph 38-250(2)(b)(i) of the GST Act).

Under subsection 9-30(3) of the GST Act, where a supply would be both GST-free and input taxed, the supply is GST-free unless the provision under which it is input taxed requires the supplier to have chosen for its supplies of that kind to be input taxed and the supplier has so chosen.

A supply of residential accommodation will not be a taxable supply. The supply will be input taxed under section 40-35 of the GST Act unless it is GST-free under section 38-250 of the GST Act.

The supply of accommodation in commercial residential premises is a taxable supply however special rules under Division 87 may reduce the amount of GST payable.

Issue 7: If the Provider has a relevant creditable purpose and it provides consideration in the form of obligations, is the Provider entitled to an input tax credit in relation to its acquisitions of each of the following questions?

Yes, if the Provider has a creditable purpose, the Provider will be entitled to an input tax credit in relation to its acquisitions of taxable supplies of land or new residential premises that were not subject to the margin scheme.

Under section 11-15 of the GST Act you acquire a thing for a creditable purpose to the extent that you acquire it in carrying on your enterprise. However, you do not acquire the thing for a creditable purpose to the extent that the acquisition relates to making supplies that would be input taxed or is of a private or domestic nature.

The Provider will have a creditable purpose if it is an endorsed charitable institution making GST-free supplies of accommodation under section 38-250 of the GST Act.

7.1 Is the Provider entitled to an input tax credit in relation to its acquisitions of taxable supplies of land or new residential premises that is not subject to the margin scheme?

You are entitled to an input tax credit under section 11-20 of the GST Act if you make a creditable acquisition if you meet the requirements of 11-5 of the GST Act.:

As noted above, it is only endorsed charitable institutions that are making GST-free supplies of accommodation that will have the requisite creditable purpose.

The supplies of land or new residential premises must be taxable supplies to the Provider. The Provider provides consideration through either a payment to you or by entering into an agreement to accept certain obligations.

These particular Providers are entitled to an input tax credit in relation to their acquisitions of taxable supplies of land or new residential premises that are not subject to the margin scheme.

7.2 Is the Provider entitled to an input tax credit in relation to its acquisitions of input taxed supplies of residential premises?

No. It is a requirement of section 11-5 of the GST Act that the supply of the thing to you is a taxable supply. An input taxed supply of residential premises is not a taxable supply (refer to Section 9-5 of the GST Act).

Because the conditions of section 11-5 of the GST Act are not satisfied, the Provider will not be entitled to input tax credits in relation to their acquisitions of input taxed supply of residential premises.

7.3 Is the Provider entitled to an input tax credit in relation to its acquisitions of

an amount of monetary assistance?

The monetary assistance is consideration for a taxable supply by the Provider; namely entering into an agreement to accept certain obligations.

The Provider is liable to pay GST on this supply. There is no entitlement to an input tax credit.