Edited version of your private advice

Authorisation Number: 1013061011284

Date of advice: 28 July 2016

Ruling

Subject: GST supply of going concern

Question

Is the supply made by you to the Purchaser of Property pursuant to a contract of sale of real estate (Contract) a GST-free supply of a going concern within the meaning of section 38-325 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

Yes, the supply made by you to the Purchaser of the Property pursuant to the Contract is a GST-free supply of a going concern within the meaning of section 38-325 of the GST Act.

Relevant facts and circumstances

You are registered for GST. You are responsible for the construction, development and management of X around Australia.

You are the vendor of Property situated at X to the Purchaser for $X.

The Contract describes you and Purchaser, provides the address of the Property and states that the purchase price is $X.

Clause X of the Special Conditions states that the Property is sold subject to the Tenancies.

A new lease was entered into before the completion of the sale contract between you and X as lessee commencing X. Other tenants also commenced on this date. Vacancies were actively marketed.

Clause X of the Special Conditions deals with GST.

● Clause X:

The Vendor and the Purchaser agree that each supply made by the Vendor under this Contract shall separately and together be the supply of a going concern

● Clause X:

The Vendor warrants that:

(a) it will carry on the enterprise constituted by the Property until Completion; and

(b) it is, subject to a ruling to the contrary, supplying all things necessary for the continued operation of the enterprise constituted by the Property.

● Clause X:

The Purchaser represents and warrants that it is registered for GST and that it will be registered for GST at Completion.

● Clause X:

The Vendor may apply to the Commissioner for a private ruling to confirm whether or not a supply or supplies made by the Vendor under this Contract are separately or together the GST-free supply of a going concern.

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 38-325

Reasons for decision

All legislative references are to the GST Act.

Taxable Supply

Under section 9-5, an entity makes a taxable supply if:

● it makes a supply for consideration; and

● the supply is in the course or furtherance of an enterprise that it carries on; and

● the supply is connected with the indirect tax zone; and

● the entity is registered or required to be registered for GST.

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

The supply will satisfy the positive limbs of section 9-5 and raises the issue of whether the supply will be a GST-free supply of a going concern.

GST-free supply

The supply will be a GST-free supply of a going concern where the requirements of section 38-325 are met.

Goods and Services Tax Ruling GSTR 2002/5 (GSTR 2002/5) discusses a ‘supply of a going concern’ for the purposes of section 38-325 and when the ‘supply of a going concern’ is GST-free.

For a supply to be a GST-free supply of a going concern under section 38-325:

Supply of a going concern

(1) The * supply of a going concern is GST-free if:

(a) the supply is for * consideration; and

(b) the * recipient is * registered or * required to be registered; and

(c) the supplier and the recipient have agreed in writing that the supply is of a going concern.

(2) A supply of a going concern is a supply under an arrangement under which:

(a) the supplier supplies to the * recipient all of the things that are necessary for the continued operation of an * enterprise; and

(b) the supplier carries on, or will carry on, the enterprise until the day of the supply (whether or not as a part of a larger enterprise carried on by the supplier).

Supply under an arrangement

The term ‘supply under an arrangement’ includes a supply under a single contract or supplies under multiple contracts which comprise a single arrangement. The supplier and the recipient may identify the arrangement and the supplies under the arrangement in the written agreement which is required under paragraph 38-325(1)(c) or in any other written agreement that relates to the arrangement entered into on or prior to the day of the supply.

However, an arrangement between a supplier and a recipient is characterised not merely by the description which both parties give to the arrangement, but by objectively examining all of the transactions entered into and the circumstances in which the transactions are made. (Refer to paragraphs 19 and 20 of GSTR 2002/5).

The Contract provides for the supply of the leasing enterprise on the Property and all that this entailed therefore the Contract constitutes an arrangement.

Supplier supplies all things necessary for the continued operation of an enterprise

Paragraphs 38-325(a) and (b) require the conditions to be satisfied in relation to an ‘identified enterprise’. The term ‘enterprise’ is defined in section 9-20 and includes an activity or series of activities done in the form of a business, or in the form of an adventure or concern in the nature of trade, or on a regular or continuous basis, in the form of a lease, licence, or other grant of an interest in property.

You conduct the leasing activity in relation to the Property and your enterprise is continuous and uninterrupted. This is the ‘identified enterprise’.

Where the enterprise is identified, a supplier needs to supply all of the things that are necessary for the continued operation of an enterprise when the supplier supplies those things which will put the recipient in a position to carry on the enterprise, if it chooses (Paragraph 30 of GSTR 2002/5).

In this case you will supply to the Purchaser the leasing enterprise consisting of the land and will assign the Leases to the Purchaser. It is our view that all the things necessary for the continued operation of the enterprise will be supplied under the arrangement.

Supplier carries on the enterprise until the day of the supply

Under paragraph 38-325(2)(b), a supply under an arrangement will only be the supply of a going concern where the enterprise is carried on, or will be carried on, by the supplier until the day of the supply. All of the activities of the enterprise must be active and operating on the day of the supply.

The activities must be capable of continuing after the transfer to new ownership (refer to paragraph 141 of GSTR 2002/5). The day of supply is determined in each case by reference to the terms of the particular contract, if applicable, and the nature of the supply. It is the date on which the recipient assumes effective control and possession of the enterprise carried on by the supplier (refer to paragraph 161 of GSTR 2002/5).

The day of supply occurs when you have done everything to satisfy your obligations under the Contract and the Purchaser has assumed effective control and possession of the Property. Pursuant to the Contract, you will carry on the enterprise of leasing the Property until the Settlement Date.

Supply for consideration

Paragraph 38-325(1)(a) requires that the supply is made for consideration. The consideration for the supply is agreed as set out in the Contract therefore the supply will be made for consideration.

Recipient registered for GST

Paragraph 38-325(1)(b) requires that the recipient is registered or required to be registered for GST. As the Purchaser represents and warrants that it is registered for GST (Clause X), it is considered that this requirement will be met.

Agreed in writing

Under paragraph 38-325(1)(c), the supplier and the recipient must agree in writing that the supply is of a going concern.

The term ‘agreed in writing’ means that the supplier and the recipient make a mutual declaration in such form that clearly evidences that they agree that the supply is a ‘supply of a going concern’ (refer paragraph 181 of GSTR 2002/5).

The Contract sets out the conditions that must be met for the sale of the leasing enterprise of the Property to be affected. The Contract sets out the requirements related to the GST Act. We consider that you and Purchaser agree in writing that the supply of the leasing enterprise of the Property will be the supply of a going concern.

Conclusion

Taking all the above facts into consideration, it is agreed that the sale of the Property by you to the Purchaser will meet the requirements of a GST-free supply for the purposes of section 38-325 of the GST Act.