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Edited version of your written advice
Authorisation Number: 1012835890450
Date of advice: 8 July 2015
Ruling
Subject: GST and sale of residential property
Question
Are you, as Trustee for Sale, liable for Goods and Services Tax (GST) in relation to your supply of the Property?
Answer
No, your supply of the premises will be input taxed pursuant to section 40-35 of the A New Tax System (Goods and Services Tax) Act 1999.
Relevant facts and circumstances
You accept appointments as a Trustee for Sale from inter alia, the Supreme Court of XXXX and the Family Court of Australia.
On DDMMYYYY, you were appointed as Trustee for Sale by the Family Court of Australia, for the sale of the Property. This appointment was pursuant to family court proceedings which had commenced in YYYY, regarding property settlement between Party A and Party B, who at the time of your appointment were the registered owners of the Property which, for a number of years had been their principal place of residence. You became registered as Statutory Trustee for Sale on DDMMYYYY.
At the time of the making of the Order on DDMMYYYY, there was in occupation of the Property, as residence, Party C.
The Property was originally built in YYYY.
On DDMMYYYY, Party A and Party B became the registered owners of the Property (as tenants in common). The Property was acquired as their family home and principal place of residence
In YYYY, Family Court proceedings commenced in relation to a property dispute between Party A and Party B.
On DDMMYYYY, a judge of the Family Court of Australia ordered that the property be sold.
On DDMMYYYY a judge of the Family Court of Australia, ordered that you be appointed as Trustee for Sale of the Property and that the Property vest in you for the purposes of sale.
Following your appointment as Trustee for Sale, you appointed a real estate agent, advertised the property for sale and called for Expressions of Interest.
You entered into a Contract of Sale with the purchaser on DDMMYYYY.
In relation to the Property, neither the registered proprietors nor you as Trustee for Sale have carried on any development activities and no development consent is being transferred to the Purchaser.
Since the purchase of the property in YYYY, there has not been any substantial renovation of any of the buildings on the property nor does the property contain a building that has been built to replace demolished premises on the same land as those terms are referred to in section 40-75 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act).
You have not (in your capacity as Trustee for Sale of the Property) registered for GST.
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 Section 9-40
A New Tax System (Goods and Services Tax) Act 1999 Section 40-35
Reasons for decision
Under section 9-40, you are liable for GST on any taxable supplies that you make.
Under section 9-5, 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 an indirect tax zone; 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.
Section 40-35 states:
(1) A supply of premises that he is by the way of lease, hire or licence (including a renewal or extension of the lease, hire or licence) is input taxed if:
(a) the supply is of *residential premises (other than a supply of *commercial residential premises or a supply of accommodation in commercial residential premises provided to an individual by the entity that owns or controls the commercial residential premises); or
(b) the supply is of *commercial accommodation and Division 87 (which is about long-term accommodation in commercial premises) would apply to the supply but for a choice made by the supplier under section 87 - 25.
On the facts supplied, the Property is a residential premise that is not commercial residential premises. Therefore, your supply of the premises will not be a taxable supply and you will not be liable for GST on that supply.