Edited version of your written advice

Authorisation Number: 1051428908002

Date of advice: 13 September 2018

Ruling

Subject: GST and supplies of accommodation

Question 1

Are you making taxable supplies when you provide supplies of short-term accommodation at various locations in apartments that you manage as agent of the apartment owner?

Answer

No

Question 2

Are you making taxable supplies when you provide supplies of short-term accommodation at various locations in apartments that you lease from apartment owners and subsequently sub-lease to guests?

Answer

Property 1 - No

Property 2 - No

Property 3 - No (not applicable).

This ruling applies for the following period(s)

1 July 2018 – 30 June 2022

The scheme commences on

1 July 2018

Relevant facts and circumstances

You are not registered for GST.

Currently a related entity, ABC Pty Ltd (ABC) provides short-term residential accommodation in self-contained apartments that it either manages or leases (with rights to sub-lease) at various locations.

Property 1

ABC manage three apartments owned by a common Director (Individual A) and lease/sub-lease a further 20 apartments for the purpose of short-term accommodation to guests.

Property 1 has a total of approximately 140 apartments.

Property 2

ABC manages two apartments owned by Individual A and lease/sub-lease a further one apartment for the purpose of short-term accommodation to guests.

Property 2 has a total of approximately 40 apartments.

Property 3

ABC manages one apartment owned by Individual A for the purpose of short-term accommodation to guests.

Property 3 has a total of approximately 40 apartments.

The properties above are residential apartment complexes that:

● do not have common dining room facilities

● do not have common kitchen facilities

● do not have an in-house restaurant or bar

● do not have a concierge or reception area

● do not have any type of food, drink or room service

● do not have swimming pool, spa or gym facilities (although guests of Property 2 have access to pool and gym facilities in a neighbouring apartment complex)

In regard to the apartments managed by ABC, ABC let the apartments to guests as agent for Individual A. ABC does not act as an agent for any other apartment owners for the purpose of letting apartments to guests in the above locations.

In regard to the apartments ABC lease from apartment owners and sub-lease/sub-let to guests, the lease agreement is entered into between the apartment owner (lessor) and ABC (lessee).

ABC are one of numerous managers/operators/agents that provide accommodation in the above locations. There are also a number of apartments in the complexes that are owner occupied.

All apartments let to guests by ABC in their capacity as agent, and those apartments ABC lease from other apartment owners and subsequently sub-lease to guests, are fully furnished and contain bedroom, bathroom, kitchen and living facilities.

Guests are provided with the following services:

● free use of Unlimited NBN Internet Wifi

● free use of Fetch

● access to Netflix (guests required to bring their own account)

● free welcome breakfast package (first day only)

● free use of a motor vehicle (with basement car parking space)

● linen and towels

● infant cots and car seats if requested

ABC own the vehicles that are provided to guests for their use.

Guests are provided with contact details (welcome letter and business card) in case of emergencies or reporting faults).

ABC enter into contractual arrangements with service providers (ISP in regard to Internet/WiFi access, Fetch subscriptions, electricity, gas and water).

ABC is responsible for or arranges for cleaning of the apartments and the washing of linen and towels on a guest’s departure. Guests are responsible for laundering linen and towels during their stay.

Guests self-check-in by collecting the apartment keys from a lock box on site. The lock box is located outside a small office of ABC at the Property 1 complex. The office is manned primarily to collect any deliveries and guests can collect keys from the office when open.

It is intended that you will assume 50% of the activities of ABC described above and are querying the GST treatment of your supplies once this occurs.

You will not assume any of the management services provided by ABC in regard to apartments owned by Individual A.

You will enter into new lease agreements with 50% of the apartment owners in respect to the apartments currently leased by ABC and sub-leased to guests.

Contracts between ABC and service providers (utilities, Fetch, ISP) will be cancelled and you will enter into new arrangements in respect to the services to apartments you will lease (and sub-lease).

Ownership of the motor vehicles provided to guests will remain with ABC however will still be available to guests of apartment you will lease.

Relevant legislative provisions

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

Section 9-5

Section 9-40

Section 40-35

Paragraph 40-35(1)(a)

Subsection 40-35(2)

Section 195-1

Reasons for decision

Note: In this reasoning, unless otherwise stated,

● all legislative references are to the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)

● reference material(s) referred to are available on the Australian Taxation Office (ATO) website www.ato.gov.au

Question 1

Are you making taxable supplies when you provide supplies of short-term accommodation at various locations in apartments that you manage as agent of the apartment owner?

No, you have advised that you will not assume any of the management services supplied by ABC in regard to apartments owned by Individual A.

Question 2

Are you making taxable supplies when you provide supplies of short-term accommodation at various locations in apartments that you lease from apartment owners and subsequently sub-lease to guests?

Section 9-40 provides that you are liable for GST on any taxable supplies that you make.

Section 9-5 provides 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 the indirect tax zone; and

(d) you are 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 issue in this case is whether supplies of accommodation in apartments that you lease from the owners and subsequently sub-lease to short-term guests are input taxed.

In this case we will only consider your supplies of accommodation at the Property 1 and Property 2 locations.

You advised that you will not assume any of the management services provided in regard to apartments owned by Individual A. Given the facts you will not be supplying accommodation to guests at Property 3.

Under paragraph 40-35(1)(a), a supply of residential premises by way of lease, hire or licence (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) is input taxed.

Under subsection 40-35(2), the supply is input taxed only to the extent the premises are to be used predominately for residential accommodation (regardless of the term of occupation).

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 occupied, and is capable of being occupied as a residence or for residential accommodation (regardless of the term of occupation or intended occupation).

Goods and Services Tax Ruling GSTR 2012/5 Goods and services tax: residential premises (GSTR 2012/5) outlines the characteristics of residential premises.

Paragraph 9 of GSTR 2012/5 explains that the requirement in section 40-35 that premises be ‘residential premises to be used predominately for residential accommodation’ is to be interpreted as a single test that looks to the physical characteristics of the property to determine the premises’ suitability and capability for residential accommodation. Further, paragraph 15 of GSTR 2012/5 states that to satisfy the definition of residential premises, premises must provide shelter and basic living facilities.

The apartments in question will satisfy the definition of ‘residential premises’ as the apartments are self-contained providing shelter and basic living facilities such as bedroom, bathroom, kitchen and living areas.

As such, the next issue to consider is whether your supplies fall within the exclusions in paragraph 40-35(1)(a) of being a supply of accommodation in commercial residential premises that you own or control.

The term ‘commercial residential premises’ is defined in section 195-1 to include, amongst other things:

(a) a hotel, motel, inn, hostel or boarding house; or

(b) …

…

(f) anything similar to residential premises described in paragraphs (a) to (e).

However, it does not include premises to the extent that they are used to provide accommodation to students in connection with an *education institution that is not a *school.

Goods and Services Tax Ruling GSTR 2012/6 Goods and services tax: commercial residential premises sets out the ATO view on how GST applies to supplies of commercial residential premises and supplies of accommodation in commercial residential premises.

The terms hotel, motel, inn, hostel and boarding house are not defined in the GST Act and take their ordinary meaning. The Macquarie Dictionary 5^th Edition provides the following definitions:

Hotel a building in which accommodation and food, and alcoholic drinks are available

Motel a roadside hotel which provides accommodation for travellers in self-contained, serviced units, with parking for their vehicles.

Inn a small hotel that provides lodging, food etc., for travellers and others

Hostel a supervised place of accommodation, usually supplying board and lodging provided at a comparatively low cost, as one for students, nurses, etc.

Boarding house a dwelling in which lodging is provided to paying residents who share common facilities such as a kitchen, laundry, living room, etc.

a dwelling, usually a private house, in which board and lodging are provided for payment

In their ordinary meanings, these terms share the common attribute of providing accommodation to guests. Paragraph (f) of the definition of commercial residential premises extends the scope of the definition to premises that are ‘similar’ to the class of establishments described in paragraphs (a) to (e).

Premises that are ‘similar’ to establishments that are commercial residential premises must have sufficient characteristics in common with the class of premises described.

Paragraph 12 of GSTR 2012/6 lists the following eight characteristics that are considered to be common to operating hotels, motels, inns, hostels and boarding houses:

● commercial intention

● multiple occupancy

● holding out to the public

● accommodation is the main purpose

● central management

● management offers accommodation in its own right

● provision of, or arrangement for, services, and

● occupants have the status of guests.

Property 1

You will be providing supplies of accommodation to guests that, to some extent, exhibit all of the above features of an operating hotel, motel, inn, hostel and boarding house.

You will be supplying accommodation to guests in approximately 10 apartments in a complex containing a total of approximately 140 apartments (approximately 7%).

In this case, we consider that the premises in question bears the closest resemblance to a ‘hotel’ or ‘motel’ than other types premises defined as commercial residential premises in section 195-1.

Features typically specific to hotels, motels and inns are contained in paragraphs 13 to 25 of GSTR 2012/6. The following discussion focuses on the features described in GSTR 2012/6 and those illustrated in respect to your supplies at Property 1.

A motel is a particular type of hotel that primarily caters to the needs of motorists seeking roadside accommodation. In this case you will provide accommodation in a self-contained residential apartment with access to a basement car parking space.

Hotels provide accommodation for a commercial purpose and have capacity to supply the accommodation on a multiple occupancy basis (paragraph 14 and 15 of GSTR 2012/6). Rooms are invariably furnished, and always include a bed, and some living area, and usually an adjoining bathroom. In some cases, hotel rooms may also have a kitchenette for self-catering (paragraph 17 of GSTR 2012/6). Also guests are predominately travellers who ordinarily have their principal place of residence elsewhere, and who need or desire accommodation while away for business or pleasure (paragraph 19 of GSTR 2012/6). Such is the situation in this case.

Paragraph 16 of GSTR 2012/6 states that a motel does not necessarily have a dining room for guests to however, but guests of the motel may still be provided meals. In this case you do not provide meals to guests although you do provide a welcome breakfast package to guests on the first day of their stay.

Paragraph 18 of GSTR 2012/6 discusses that linen and towels are usually supplied with apartments usually cleaned and serviced by staff on a daily basis, with the costs of these services being included in the tariff. In this case, cleaning of the apartments is not done on a daily basis. Cleaning is done following a guest’s departure.

A guest of a hotel usually let a room or apartment for a term. The guest is usually charged at a daily rate multiplied by the number of days of occupancy. However, it is not essential that all guests in a hotel stay for a short period (paragraph 20 of GSTR 2012/6). In this case your supply of accommodation will typically be on a short-term basis with tariffs calculated on a daily basis.

Hotels usually have a reception desk to handle the requirements of both management and guests, particularly when guests check in or check out of the establishment (paragraph 21 of GSTR 2012/6). In this case guests self-check-in by collecting the apartment keys from a lock box on site. The lock box is located outside a small office of ABC. The office is manned primarily to collect any deliveries and guests can collect keys from the office when open.

Hotels do not normally provide shared accommodation to guests in the sense of having a number of unrelated guests sharing a kitchen and living facilities (paragraph 22 of GSTR 2012/6). In this case the apartments are self-contained with guests having their own kitchen and living facilities.

Paragraphs 23 and 24 of GSTR 2012/6 discuss that such premises are centrally managed by the operator, typically having at least one person present, or offsite but readily accessible, to manage the accommodation and arrange or provide services. Furthermore accommodation is supplied by the operator in its own right and not in the capacity of agent for a third party. In this case, guests are provided with contact details (welcome letter and business card) in case of emergencies or reporting faults. You lease apartments from the apartment owners and subsequently sub-lease those apartments to the guests in your own right.

Paragraph 25 of GSTR 2012/6 provides that when determining whether premises are, or are similar to, a hotel, motel or inn, it is necessary to consider the premises in its entirety. It is not sufficient to only consider the features of part of the premises, such as an individual room, in which accommodation is provided.

Paragraph 95 of GSTR 2012/6 discusses (in the context of separately strata titled apartments) that in addition to living accommodation areas, premises that are commercial residential premises include commercial infrastructure to support the commercial operation of the premises. This infrastructure may include (but is not limited to) reception areas, dining and bar areas, meeting/function areas, kitchens, laundry facilities, storage areas and car parks and is used to provide services to occupants of the premises. In considering whether the premises are ‘a hotel, motel, inn, hostel, boarding house or similar, such premises would contain some or all of the commercial infrastructure mentioned above to some degree.

This issue is further discussed at paragraph 197 of GSTR 2012/6 with reference to South Steyne Hotel Pty Ltd v. Federal Commissioner of Taxation [2009] FCAFC 155 where Emmett J at [26] made the following observation:

A hotel, motel, inn, hostel or boarding house consists of more than the rooms or apartments that are occupied by guests. It must also of necessity include common areas such as reception areas, dining areas, car parks and the like, such as were the subject of the management lot. The supply that consisted only of the rooms or apartments or accommodation units in a hotel complex is not, without those other areas, the supply of commercial residential premises. The management lot is an essential part of the Sebel Hotel.

In this case the operation of your business contains a number of the features of a hotel or motel as discussed above with reference to paragraphs 13 to 25 of GSTR 2012/6. However, we consider that the premises lack the required supporting commercial infrastructure to fall within the exclusion in paragraph 40-35(1)(a) of supplying accommodation in commercial residential premises that you own or control.

As such, your supply of accommodation at the Property 1 premises will be an input taxed supply of residential premises pursuant to section 40-35.

Property 2

In this case you will be supplying accommodation to guests in one apartment in a complex containing a total of approximately 40 apartments (approximately 7%).

Similarly to the discussion above, we consider that the Property 2 premises lack the required supporting commercial infrastructure to fall within the exclusion in paragraph 40-35(1)(a) of supplying accommodation in commercial residential premises that you own or control.

Furthermore, as previously discussed one of the characteristics common to operating hotels, motels, inns, hostels and boarding houses is the capacity to provide accommodation to on a multiple occupancy basis (i.e. to multiple, unrelated guests or residents at once in separate rooms, or in a dormitory).

This issue is discussed in paragraphs 156 to 158 of GSTR 2012/6 with reference to a number of judicial decisions:

156. Hotels have the capacity to supply accommodation for multiple occupancies. In South Steyne Hotel Pty Ltd v. Federal Commissioner of Taxation (South Steyne), Stone J considered whether a supply of an apartment in a complex was a supply of 'anything similar to' a hotel, motel, inn, hostel or boarding house under paragraph (f) of the definition. Her Honour commented:

The definitions of motels, inns, hostels and boarding houses indicate that, in common with hotels, they provide accommodation, although of varying types. In addition to providing accommodation they also have in common that, large or small, they provide for multiple occupancies. The terms are not used where only one apartment, room or other space is provided.

157. On appeal to the Full Federal Court, Emmett J noted in South Steyne Hotel Pty Ltd v. Federal Commissioner of Taxation (South Steyne FFC):

28.... The term hotel or motel would not be used, as a matter of ordinary English, where a single apartment, room or other space is supplied.

29. The fact that the use and occupation by guests of an apartment in the Sebel Hotel may be similar to the use and occupation by guests of a room in a hotel or motel does not make an individual apartment similar to a hotel or motel. It might be appropriate to describe an individual apartment as being similar to part of a hotel, namely a hotel room. It is not an ordinary use of English to describe a single or individual apartment as being similar to a hotel or motel.

Given the above, your supply of accommodation at the Property 2 premises will be an input taxed supply of residential premises pursuant to section 40-35.