Edited version of your private ruling

Authorisation Number: 1012483697798

Ruling

Subject: sale of residential premises

Question

Were/are your supplies of residential premises input taxed supplies?

Answer

No, they were/are taxable supplies of new residential premises.

Relevant facts and circumstances

You are registered for GST, reporting on a quarterly basis.

On ddmmyyyy, you purchased blocks of land from private buyers, for a combined price of $xx.

None of the contracts for sale required you to undertake any development of the land.

Later, a development application (DA) was lodged with the relevant Authority.

Later, the relevant Authority provided development approval for:

· the consolidation of the blocks and variation of the Crown lease to permit construction of new units;

· the demolition of the existing detached dwellings and outbuildings;

· the erection of a building containing residential apartments with basement car parking; and

· various other works.

· A Clause. provides that no building work in relation to this development application is to commence on the site until the new consolidated lease is registered with the appropriate Authority.

· Another Clause requires the surrender of the existing crown leases over the individual blocks of land and acceptance of a new Crown lease substantially in accordance with the form of lease appearing in the at attachments.

· The attachment (the Draft Lease) sets out that:

o the lessee will commence construction within 12 months of the date of commencement of the lease

o the lessee will, within 36 months from commencement of the lease or such further time as approved, have completed the approved development

o the land is to be used for the purpose of multi unit housing within specified limits.

On ddmmyyyy, the relevant authority on behalf of the Commonwealth granted you a consolidated Crown lease (the Lease) in respect of the consolidated block. A Clause required you to use the land for the purpose of multi unit housing within specified limits.

Following completion of the development, (after 27 January 2011) you lodged a Unit Plan for approval and registration. The Unit Plan was lodged and registered after 27 January 2011.

Upon registration of the units plan, the provisions of the Crown Lease (purpose clause, term etc.) were carried over in the Units Plan. The term of each individual unit lease was in all cases for a period in excess of 50 years.

In determining the extent of your entitlement to input tax credits for costs incurred, you proceeded on the assumption that the supply of the consequent leases would be taxable rather than input taxed. Accordingly, you have claimed input tax credits for acquisitions relating to the development. You advised that, subject to the ATO confirming that your supply of the consequent leases will be input taxed, you will amend your BASs to repay the input tax credits,

Some, but not all, of the properties have been sold as taxable supplies.

Relevant legislative provisions

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

A New Tax System (Goods and Services Tax) Act 1999 Subsection 40-70(1)

A New Tax System (Goods and Services Tax) Act 1999 Subsection 40-70(2)

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

A New Tax System (Goods and Services Tax) Act 1999 Section 40-75(1)

A New Tax System (Goods and Services Tax) Act 1999 Section 40-75(2)

A New Tax System (Goods and Services Tax) Act 1999 Section 40-75(2B)

A New Tax System (Goods and Services Tax) Act 1999 Section 40-75(2C)

Reasons for decision

In this ruling,

· unless otherwise stated, all legislative references are to the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)

· all reference materials, published by the Australian Taxation Office (ATO), that are referred to are available on the ATO website www.ato.gov.au

Goods and Services Tax (GST) is payable on taxable supplies. Section 9-5 states:

You make a taxable supply if:

(a) you make a 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 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.

Note: In this ruling all terms marked by *asterisk are a defined term in the GST Act.

Under subsection 40-70(1), a supply of residential premises by way of long term lease is input taxed. However subsection 40-70(2) provides that the supply is not input taxed to the extent that the residential premises are:

· commercial residential premises, or

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

Input taxed means that there is no GST payable on the supply and there is no entitlement to an input tax credit for anything that is acquired to make the supply.

The definition of residential premises in section 195-1 refers to land or a building that is occupied as a residence or for residential accommodation, or is intended to be, and is capable of being, occupied as a residence or for residential accommodation.

Based on the information submitted, the premises to be developed on the land, which are to be supplied by way of lease are residential premises, and are not commercial residential premises. In addition, the residential premises have not been used for residential accommodation before 2 December 1998 because they were constructed after this date. Therefore, we need to consider whether the retail supply of the premises will be new residential premises.

The term 'new residential premises' has the meaning given by section 40-75, which states:

40-75 Meaning of new residential premises

When premises are new residential premises

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

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

(b) …; or

(c) ….

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

The Full Federal Court's decision in Gloxinia

In Commissioner of Taxation v Gloxinia Investments (Trustee) [2010] FCAFC 46 (Gloxinia), the majority of the Full Federal Court held that a developer's sales of newly constructed residential premises, constructed under a particular arrangement with a land owner (sometimes referred to as a 'development lease' arrangement) were not taxable supplies of new residential premises. This was because for the purposes of paragraph 40-75(1)(a), at the time of their sale by the developer, the residential units in question had previously been the subject of a long term lease, by virtue of 99 year strata lot leases granted by the Council (the land owner) over each of the units. Therefore the sale of the units by the developer, by way of assignment of the developer's interest in the strata lot leases, were input taxed supplies of residential premises.

In Gloxinia, the terms of a pre-existing arrangement governing the terms of the redevelopment project, the Agreement for Lease ("AFL"), specifically provided for the grant of the strata lot leases by the Council subject to satisfactory completion of the development works and registration of the strata leasehold plan by the developer. That is, in accordance with the terms of the AFL, subject to the completion of the building works as specified in the AFL, the developer was entitled to the grant of the strata lot leases over each of the individual residential units and the Council was required to grant those strata lot leases to the developer.

New subsection 40-75(2B) and subsection 40-75(2C)

Following the Federal Court's decision in Gloxinia, the GST Act was amended to include subsections 40-75(2B) and 40-75(2C). The date from which new subsections 40-75(2B) and 40-75(2C) apply is determined with reference to the application provisions at items 11 to 13 of schedule 4 to Tax Laws Amendment (2011 Measures No. 9) Act 2012 (TLAB (2011 No 9) Act).

The effect of subsections 40-75(2B) and 40-75(2C) is to disregard certain sales and supplies of residential premises when determining if the premises have been sold or have been subject to a long term lease for the purposes of section 40-75(1)(a).

Sales of strata titled residential units constructed by you.

Upon completion of the residential development (after 27 January 2011), you applied for registration of unit titles. The unit title was registered after 27 January 2011. The term of the lease of each of the units exceeds 50 years.

When you sold some of the individual units, by assigning the strata leases, as referred to earlier, prima facie for the purposes of paragraph 40-75(1)(a), the residential premises would have been the subject of a long term lease. Similarly, when you sell the other unsold residential units, by way of assignment of the individual unit title leases to home buyers and investors, the residential units will have previously been the subject of a long term lease.

However, in determining whether or not your sales of the residential units will be taxable supplies of new residential premises or input taxed supplies of residential premises, it is necessary to consider whether or not subsection 40-75(2B) or subsection 40-75(2C) apply.

Subsection 40-75(2B)

Subsection 40-75(2B) of the GST Act states:

(2B) A supply (the wholesale supply) of the *residential premises is disregarded as a sale or supply for the purposes of applying paragraph (1)(a) if:

(a) the premises from which the residential premises were created had earlier been supplied to the *recipient of the wholesale supply or one or more of its *associates; and

(b) an arrangement (including an agreement) was made by:

(i) the supplier of the earlier supply, or one or more associates of the supplier; and

(ii) the recipient of the earlier supply, or one or more associates of the recipient; and

(c) under the arrangement, the wholesale supply was conditional on:

(i) specified building or renovation work being undertaken by the recipient of the earlier supply, or by one or more associates of the recipient; or

(ii) circumstances existing as specified in regulations made for the purposes of this subparagraph.

In summary, for the purposes of determining whether residential premises are new residential premises under paragraph 40-75(1)(a), subsection 40-75(2B) specifies that particular supplies ('wholesale supplies') of newly constructed residential premises are disregarded. That is, a wholesale supply of newly constructed residential premises will not exclude a subsequent sale of the premises being a taxable supply of new residential premises if the wholesale supply is made in accordance with the conditions set out in paragraphs 40-75(2B)(a), (b) and (c).

In the case of your sales or proposed sales, by way of assignment of individual long term leasehold interests, of the individual residential units, consistent with the Full Federal Court's decision in Gloxinia, the relevant 'wholesale supply' for the purposes of subsection 40-75(2B) will be the grant of the individual strata leases by the Government.

However, as noted above, the application of subsection 40-75(2B) is only invoked if paragraphs 40-75(2B)(a), (b) and (c) are satisfied.

In the case of your sales or proposed sales of the residential units, the premises from which the residential units are created have previously been supplied to you and paragraph (a) is satisfied. It may also be argued that paragraph 40-75(2B)(b) is satisfied because the Crown lease that was granted to you after 27 January 2011 constitutes an 'arrangement' for the purposes of that provision.

However, paragraph 40-75(2B)(c) is not satisfied. Even if the Crown lease granted to you constitutes an arrangement for the purposes of paragraph 40-75(2B)(b), that 'arrangement' does not provide as a condition of the arrangement that upon the undertaking of specified building works that you are entitled to a grant of the individual strata leases by the Government, or that the Government is compelled to make those 'wholesale supplies' to you.

It may be that as a consequence of the ordinary processes involved in developing and selling property that you will lodge a strata plan and be granted individual strata leases over the completed residential development. However, the grant of those individual strata lot leases will not be made in accordance with an arrangement between you and the Government or other land owner as contemplated by paragraph 40-75(2B)(b).

40-75(2B) doesn't apply therefore it is not necessary to consider the application provisions at item 12 of schedule 4 to Tax Laws Amendment (2011 Measures No. 9) Act 2012 (TLAB (2011 No 9) Act).

The abovementioned interpretation and application of paragraph 40-75(2B) is consistent with the stated intent set out in paragraph 6.26 of the Explanatory Memorandum to the Tax Laws Amendment (2011 Measures no. 9) Act 2012 (EM).

Paragraph 6.26 of the EM states:

The intention of new subsection 40-75(2B) is to ensure that certain sales of newly constructed residential premises by a developer to home buyers and investors will be taxable supplies of new residential premises even though there may have been an earlier `wholesale supply' of the premises. The earlier supply is disregarded for the purposes of determining whether or not residential premises are new residential premises if the residential premises have been constructed pursuant to a particular arrangement (including an agreement). The particular arrangement being an arrangement between a developer or builder and a land holder, whereby the developer or builder (or an associate of the developer or builder) becomes entitled to the freehold or long-term leasehold title in the premises conditional on specified building or renovation work being undertaken by the developer or builder.

In conclusion, in your case, when you registered a strata plan over the completed development and the Government granted individual long term leases of the completed residential units, subsection 40-75(2B) did not apply to cause the Government's supply of the newly constructed units to be disregarded for the purposes of applying paragraph 40-75(1)(a).

In other words, in the absence of subsection 40-75(2C), your sales by way of assignment of the individual strata leases, would not be taxable supplies of new residential premises by virtue of paragraph 40-75(1)(a) and subsection 40-75(2B) but would be input taxed supplies of residential premises.

However, as noted above, it is also necessary to consider the application of subsection 40-75(2C) which also provides for particular supplies of newly constructed residential premises made in other circumstances to be disregarded for the purposes of applying paragraph 40-75(1)(a).

Application of subsection 40-75(2C)

Subsection 40-75(2C) of the GST Act states:

(2C) A supply of the *residential premises is disregarded as a sale or supply for the purposes of applying paragraph (1)(a) if it is made because a *property subdivision plan relating to the premises was lodged for registration (however described) by the *recipient of the supply or the recipient's *associate.

Item 13 of Tax Laws Amendment (2011 Measures no. 9) Act 2012 provides:

Item 13 Exception - property subdivision plans lodged for registration before 27 January 2011  
Subsection 40-75(2C) of the A New Tax System (Goods and Services Tax) Act 1999 (as inserted by this Schedule) does not apply to a supply of residential premises on or after 27 January 2011 if the supply is made because a property subdivision plan relating to the premises was lodged for registration (however described) before 27 January 2011 by the recipient of the supply or the recipient's associate.

You have developed premises that are 'residential premises'. You supplied some residential units by way of an assignment of your interest in individual strata leases. A further x units remain unsold. The grant of the individual strata leases to you required you to lodge a 'units plan' (strata plan). Subject to approval and registration of that plan by the Government, long term strata leases of the residential premises were issued to you.

When you sold/sell the individual units, by assigning the strata leases, as referred to earlier, prima facie for the purposes of paragraph 40-75(1)(a) the residential premises would have been the subject of a long term lease. However, subsection 40-75(2C) operates to disregard a sale or supply for the purposes of applying 40-75(1)(a) if it is made because a property subdivision plan relating to the premises was lodged for registration (however described) by you.

Subsection 40-75(2C) is applicable in relation to supplies of residential premises on or after 27 January 2011, unless the property subdivision plan was lodged for registration before 27 January 2011 (Item 13 of Tax Laws Amendment (2011 Measures No. 9) Act 2012). In relation to your sale of completed units as part of the development, the strata plan (property subdivision plan) was lodged after 27 January 2011. Therefore subsection 40-75(2C) applies to your sales of residential units in the development.

That is, any grant of the individual strata leases by the Government will be disregarded for the purposes of applying subsection 40-75(1)(a). Therefore, when you sold the individual residential units, they were residential units that have not previously been sold or been the subject of a long term lease. By virtue of the operation of subsection 40-75(2C) your sales of the individual residential units were/will be taxable supplies of new residential premises.