Edited version of your written advice

Authorisation Number: 1051438393951

Date of advice: 18 October 2018

Ruling

Subject: Carrying on an enterprise for GST purposes and carrying on a business for Income Tax purposes.

Question 1

Whether “the Trust” was carrying on an enterprise or enterprises for the purposes of the GST Act and, if so, what that enterprise was or what those enterprises were?

Question 2

Whether the Trust is required to be registered for the purposes of the GST Act?

Question 3

If the answer to 2 above is yes, will The Trust be entitled to input tax credits under the GST Act?

Combined Answers for Questions 1, 2 and 3

Yes, the Trust was carrying on an enterprise or enterprises as per section 9-20 of the GST Act.

The Trust is required to be registered for GST, pursuant to Division 23 of the GST Act.

The Trust may also be entitled to claim input tax credits pursuant to sub section 11-5 of the GST Act.

Question 4

Will the proceeds from the sale of the properties be subject to capital gains tax (CGT) under Parts 3-1 and 3-3 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer 4

No

Question 5

Will the proceeds from the sale of the properties be assessable as ordinary income under section 6-5 of the ITAA 1997?

Answer 5

Yes

This ruling applies for the following periods: Not applicable

The scheme commences on: Not applicable

Relevant facts and circumstances

Background

The Trustee was formed by deed dated XX/XX/20XX that was made between Person A as Settlor and Company AA as Trustee.

The Trust is part of a group of entities that are involved in the business of building project homes.

The other members of this group comprise: XYZ Investment Trust and ABC Investment Trust.

The form of The Trust is a discretionary trust but as its name suggests it was formed to carry on activities in the form of investments. The ABN register states that The Trust is: “Discretionary Investment Trust”.

Person B is the sole director of The Trustee Company BB Investment Pty Ltd.

Person B is the controller of The Trust.

Person B and Person B’s spouse are beneficiaries of The Trust and have received distributions from The Trust.

The Trust, and its controller, Person B have the following relationships:

a. XX Holdings Pty Ltd – The Trust is a 1/3 shareholder in XX Holdings Pty Ltd. Person B is a director of XX Holdings Pty Ltd.

b. XX Homes Pty Ltd – is a subsidiary of XX Holdings Pty Ltd. Person B is a director and employee of XX Homes Pty Ltd.

c. XX Building Pty Ltd – is a 1/3 shareholder in XX Holdings Pty Ltd as trustee for the XYZ Investment Trust. This entity relates to Person B’s father. Person B is not a director or shareholder of this entity.

d. XX Admin Pty Ltd - This is a dormant company of which Person B is a director.

The investments

The investments of The Trust comprised:

1. no/street/suburb/State A;

2. no/street/suburb/State A; and

3. XXXX fully paid ordinary shares in XX Holdings Pty Ltd.

The issued shares of XX Holdings Pty Ltd comprise of XXXXX fully paid ordinary shares. The shares are held by The Trust (see 3 above), ABC Investments Pty Ltd as trustee of the ABC Investment Trust (XXXX) and XX Building Pty Ltd as trustee of the XYZ Investment Trust (XXXX).

Investment 1: no/street/suburb/State A

This property was acquired by The Trust for a purchase price of $xxx under a contract entered into in mth/20XX. The property was vacant land when acquired.

After the acquisition of the land, a dwelling was erected by The Trust on it. The construction was completed in xx/20XX. The construction costs relating to this were $XXX.

The property was leased to XX Homes Pty Ltd for use by that company as a display home in the course of the carrying on of its business.

As a result of the decision explained below as to the activities of The Trust, the display home was sold for $XXX under a contract dated date/mth/20XX which was completed on date/mth/20XX. The contract for sale was subject to existing tenancies.

Investment 2: no/street/suburb/State A

This property was acquired by The Trust for a purchase price of $xxx under a contract entered into in mth/20XX. The property was vacant land when it was acquired.

After the acquisition of the land, a dwelling was erected by The Trust on it. The construction was completed in mth/20XX. The construction costs relating to this were $XXX.

The property was leased to XX Homes Pty Ltd for use by that company as a display home in the course of the carrying on of its business.

As a result of the decision explained below as to the activities of The Trust, the display home was sold for $XXX under a contract which was completed on date/mth/20XX. The contract for sale was subject to existing tenancies.

Person B has been employed for xx years at XX Homes and has relevant experience on site, in operations, marketing, sales, finance and management.

Investment 3: Shares in XX Holdings Pty Ltd

These shares in this company were acquired fully paid when the company was incorporated on date/mth/20XX.

Funding

The Trust’s investments were funded by bank borrowings which were for a term of xx years.

Reason for sales of properties

The reason why The Trust sold the two properties referred to above was due to a combination of reasons:

1. Person B (director) is intending to relocate outside of Australia in the near future and has moved to sell off investments in Australia.

2. The Trusts and the group decided on a change in funding model and capital was required for The Trusts. There was no intention either when the land was acquired, or the dwellings were constructed that the properties would be sold.

In early 20XX, Person B purchased a block of land in yyy which was subsequently sold in the year ended 30 June 20XX for a little over what it cost.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 Section 9-20

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

A New Tax System (Goods and Services Tax) Act 1999 Division 23

A New Tax System (Goods and Services Tax) Act 1999 Division 129

A New Tax System (Goods and Services Tax) Act 1999 Division 188

Income Tax Assessment Act 1997 Section 6-5

Income Tax Assessment Act 1997 Section 70-10

Income Tax Assessment Act 1997 Section 70-30

Income Tax Assessment Act 1997 Section 102-5

Income Tax Assessment Act 1997 Section 104-10

Income Tax Assessment Act 1997 Subsection 104-10(5)

Income Tax Assessment Act 1997 Subsection 995-1(1)

Reasons for decision

Summary for GST Questions: 1, 2 and 3.

Yes, the XXX Investment Trust (“The Trust”) was carrying on an enterprise or enterprises pursuant to section 9-20 of the GST Act.

The Trust is required to be registered for GST, pursuant to Division 23 of the GST Act.

The Trust may also be entitled to claim input tax credits pursuant to sub section 11-5 of the GST Act.

Detailed reasoning for GST Questions: 1, 2 and 3

Enterprise

The term “enterprise” is a defined term under Division 195-1 of the GST Act.

Division 195-1 of the GST Act states that “enterprise has the meaning given by section 9-20 of the GST Act.

“An enterprise is an activity, or series of activities, done:

(a) in the form of a * business ; or

(b) in the form of an adventure or concern in the nature of trade; or

(c) on a regular or continuous basis, in the form of a lease, licence or other grant of an interest in property; or

(g) by the Commonwealth, a State or a Territory, or by a body corporate, or corporation sole, established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or

Of particular note is the word “or” and the provisions spanning subsections 9-20 (1) (a) to 9-20 (1) (h) of the GST Act. The word OR is defined in the Macquarie Dictionary as: “to connect words, phrases, or clauses representing alternatives and to connect alternative terms for the same thing, or different ways of expressing the same concept.”

If you satisfy the requirements any one of the eight subsections of 9-20 (1) of the GST Act, you are carrying on an enterprise.

In summary, as you have stated in your contentions, that you satisfy the requirements of section 9-20(1) (c), in the form of a lease, you are therefore carrying on an enterprise.

Application of the facts to your circumstances

The two properties at nos/streets/suburbs/State A were both leased to a related entity XX Holdings Pty Ltd as display homes. It can be assumed that due to your contention stating the existence of a lease between The Trust and XX Holdings Pty Ltd, the type of enterprise being carried on was a leasing enterprise, pursuant to section 40-35 of the GST Act. A supply of a lease is input taxed when it is a supply of residential premises, as it is in this case. However, the leasing enterprise ceased when both properties were sold.

Residential premises include houses, units and flats that are occupied or can be occupied as residences. It does not include vacant land. Residential premises are new when any of the following apply:

● they have not been sold as residential premises before.

● they have been created through substantial renovations.

● new buildings replace demolished buildings on the same land.

However, residential premises are generally no longer new residential premises if they have been continuously rented for five years after first becoming new residential premises. In this case, both properties sold were not rented out for five years and were sold within the first five years.

When relating the factual enquiry to GST law for this matter, Division 129 of the GST Act must be considered. Division 129 of the GST Act will apply to the two properties sold as per the five year rule. Originally the enterprise was an input-taxed leasing enterprise. However as there has been a change in creditable purpose, within the 5 year limit and the dominant supply and enterprise becomes a taxable supply carried on as part of a business of a property developer, pursuant to sub section 9-20(1)(a) of the GST Act.

The net effect being that the sales of both properties are subject to section 9-5 of the GST Act and that GST is required to be charged on the sale of both properties.

However, you may also consider applying Division 75 of the GST Act whereby you use the GST margin scheme to bring within the GST system your taxable supplies, if you meet the necessary agreement in writing that the margin scheme is to apply.

GST Registration

Pursuant to Division 188 of the GST Act, input taxed supplies are not included in the calculation of current and or the projected GST turnover tests. Therefore, for the period you were carrying on a leasing enterprise of display homes, you do not meet the GST registration turnover threshold requiring you to be registered for GST, subject to Division 23 of the GST Act.

However, when Division 129 of the GST Act is considered whereby there is a change in the enterprise you are carrying, a change in creditable purpose comes into consideration and you are then determined to be carrying on an enterprise pursuant to section 9-20 (1) (a) of the GST Act. As such, the sales of both properties are deemed to be taxable supplies and Division 23 of the GST Act, then needs to be revisited. As you are not a non-profit body, upon application of the facts you have been determined to exceed the GST registration threshold pursuant to section 23-15 of the GST Act and then you are required to be registered for GST Act pursuant to section 23-5 of the GST Act.

Entitlement to input tax credits

For the period you were carrying on a leasing enterprise of display homes, section 11-15(2)(a) requires, the precise identification of the relevant acquisition and a factual inquiry into the relationship between that acquisition and the making of supplies that would be input taxed. An acquisition will not be for a creditable purpose to the extent that the facts disclose that the acquisition relates to the making by the enterprise of supplies that would be input taxed. However, in this case apportionment, as a result of the factual enquiry, between an input taxed and taxable supply is not required.

As is the case here the Rio Tinto Services Limited v FC of T matter, is of particular relevance, as

an acquisition which relates wholly to the making of supplies that would be input taxed (in the form of leasing display homes) is not to be apportioned merely because that supply may also serve some broader commercial objective of the supplier. An acquisition for purposes, related to an input taxed supply of a lease of display homes, are not distinct and severable or do not relate to different supplies but which comes wholly within the blocking provision is excluded from the definition of creditable purpose.

However, when Division 129 of the GST Act is considered, according to the facts a change in creditable purpose comes into consideration and you are carrying on an enterprise of property development pursuant to section 9-20 (1) (a) of the GST Act, the blocking provision of 11-15 (2) (a) no longer applies, in order to deny you of your input tax credit claims for a GST purpose.

Pursuant to section 11-5 of the GST Act you may now become entitled to input tax credits for your creditable acquisitions for your property development enterprise.

However, you will need to consider the effect of Division 27 of the ITAA 1997, which sets out the effect of the GST in working out income tax deductions. Generally speaking, input tax credits, GST and adjustments under the GST Act are disregarded. In particular, s 27-5 of ITAA 1997 (Input tax credits and decreasing adjustments) and sub section 27-10(1) of ITAA 1997 may lead to you making certain increasing adjustments that arise under Division 129 of the GST Act.

Detailed reasoning Income Tax Questions 4 and 5

There are three ways profits from property sales can be treated for taxation purposes:

1. As ordinary income under section 6-5 of the ITAA, on revenue account, as a result of carrying on a business of property development, involving the sale of land as trading stock; or

2. As ordinary income under section 6-5 of the ITAA, on revenue account, as a result of an isolated business transaction entered into by a non-business taxpayer, or outside the ordinary course of business of a taxpayer carrying on a business, which is the commercial exploitation of an asset acquired for a profit making purpose; or

3. As statutory income under the capital gains tax legislation.

Carrying on a business

Subsection 995-1(1) of the ITAA 1997 defines ‘business’ as ‘including any profession, trade, employment, vocation or calling, but not occupation as an employee’.

The principles in Taxation Ruling TR 97/11 Income tax: am I carrying on a business of primary production provide guidance on whether a taxpayer is carrying on a business and can be applied in various contexts. The question of whether you are carrying on a business is a question of fact and degree. There are no rigid rules for determining whether the activity amounts to the carrying on of a business. The facts of each case must be examined. In Martin v FC of T (1953) 90 CLR 470 at 474; 5 AITR 548 at 551, Webb J said:

The test is both subjective and objective; it is made by regarding the nature and extent of the activities under review, as well as the purpose of the individual engaging in them, and, as counsel for the taxpayer put it, the determination is eventually based on the large or general impression gained.

However, the courts have developed a series of indicators that can be applied to your circumstances to determine whether The Trust is carrying on a business.

Taxation Ruling TR 97/11 outlines the factors that need to be considered to determine if someone is carrying on a business. It was stressed in the ruling that no one indicator is decisive and there is often a significant overlap of these indicators. So the question of whether a business is being carried on is determined in an objective manner based on the weighing up of all the relevant facts and circumstances of each case. The factors are as follows:

● Whether the activity has a significant commercial purpose or character;

● Whether the taxpayer has more than just an intention to engage in business;

● Whether the taxpayer has a purpose of profit as well as a prospect of profit from the activity;

● Whether there is repetition and regularity of the activity;

● Whether the activity is of the same kind and carried on in a similar manner to that of the ordinary trade in that line of business;

● Whether the activity is planned, organised and carried on in a businesslike manner such that it is directed at making a profit;

● The size, scale and permanency of the activity;

● Whether the activity is better described as a hobby, a form of recreation or a sporting activity.

The relevant intention or purpose of the taxpayer (of making a profit or gain) is the taxpayer’s intention or purpose discerned from an objective consideration of the facts and circumstances of the case. Generally, in cases where a person’s subjective purpose or intention is a relevant issue, the person’s evidence as to their subjective purpose or intention can be considered but it must be tested closely, and received with the greatest caution.

It is not necessary that the intention or purpose of profit-making be the sole or dominant intention or purpose for entering into the transaction. It is sufficient if profit-making is a significant purpose. In transactions or operations that involve the sale of property, it is usually, but not always, necessary that the taxpayer has the purpose of profit-making at the time of acquisition.

The Commissioner considers that for a transaction to be characterised as a business operation or a commercial transaction, it is sufficient if the transaction is business or commercial in character. In general, a transaction has the character of a business operation or commercial transaction if the transaction or operation would constitute the carrying on of a business in its own right.

Trading Stock

70-10 of the ITAA 1997 provides that trading stock includes anything produced, manufactured or acquired that is held for purposes of manufacture, sale or exchange in the ordinary course of a business.

Taxation Determination TD 92/124 states that land will be treated as trading stock for income tax purposes if it is held for the purpose of resale and a business activity which involves dealing in land has commenced. Where such a business exists, the proceeds from the sale will be assessable under section 6-5 of the ITAA.

Isolated transactions

Under section 6-5 of the ITAA 1997, your assessable income includes the ordinary income you derived directly or indirectly from all sources, during the income year.

According to Taxation Ruling 92/3 Income tax: whether profits on isolated transactions are income explains the term 'isolated transactions' refers to:

(a) those transactions outside the ordinary course of business of a taxpayer carrying on a business; and

(b) those transactions entered into by non-business taxpayers.

Taxation Ruling TR 92/3 explains a profit from an isolated transaction is generally income when both of the following elements are present:

(a) the intention or purpose of the taxpayer in entering into the transaction was to make a profit or gain; and

(b) the transaction was entered into, and the profit was made, in the course of carrying on a business or in carrying out a business operation or commercial transaction.

The relevant intention or purpose of the taxpayer (of making a profit or gain) is not the subjective intention or purpose of the taxpayer. Rather, it is the taxpayer's intention or purpose discerned from an objective consideration of the facts and circumstances of the case.

In determining whether profits or gains made from the disposal of real property are made in the ordinary course of business, one must establish if a taxpayer is carrying on a business and what the nature of the business is.

Application to your situation

Taking all of the facts into consideration, and on weighing the various factors, it is considered that The Trust is considered to be carrying on a business of property development, or alternatively, to have entered into a profit-making scheme or undertaking.

In this case the natural persons who can be said to control The Trust is Person B (the ‘controlling minds’). Person B is also a director of XX Homes Pty Ltd which is a subsidiary entity of XX Holding Pty Ltd in which The Trust is a 1/3 shareholder. Person B has operated a business which is focussed on the construction and development of residential accommodation. This concludes Person B would have considerable expertise in the construction and development of residential properties through his involvement in the XX Homes Pty Ltd.

Although the development, construction, leasing and subsequent sale of the property, which came to be known as the XX Homes, might be regarded as an isolated transaction, the activities also need to be considered in a wider context. It is evident from the facts that Person B has a long history of property residential development, notwithstanding that each project may be ‘owned’ by a different entity which is controlled by Person B and associates of Person B and The Trust. The residential premises sold by The Trust were constructed within display home centres.

Person B and entities associated with Person B have had a history of development construction and sale of residential, with Person B having at least xx years’ experience in the industry and business of development and construction. When the indicia of a business, which are discussed in Taxation Ruling TR 97/11 (see above), are applied to the activities, it must be concluded that a business has been carried on and that the development and sale of properties is not an isolated event. The disposal of the properties may be considered an ordinary incident of a broader business carried on by the connected entities, of which The Trust is involved.

Significant commercial purpose or character and intention to engage in business

Paragraph 29 of TR 97/11 provides that a way of establishing that there is a significant commercial purpose or character is to compare the activities with those of a taxpayer who is carrying on a similar activity that is a business.

You have provided that The Trust purchased lots at suburb/State A for $XXX and suburb/State A for $XXX from a developer for the purpose of building a display home on both lots. Both lots are contained in a display home village. The Trust engaged an associated entity, XX Homes Pty Ltd to build a display home on each lot. XX Homes Pty Ltd is a professional construction company, which applied for and received approval for development applications from the relevant authorities for its development of the display homes.

The construction costs for the suburb/State A property were $XXX and the construction costs for the suburb/State A property were $XXX. It is considered that substantial expenditure was incurred in order to construct the dwellings along. The risk undertaken by securing of finance for the project and Person B’s experience in constructing dwellings, provide further support of the commercial nature of the activities.

The construction of a dwelling, internal fencing or other improvements on land lends weight to an intention to carry on a business of land development and improvement, rather than the mere realisation of an asset.

The projects were funded initially by separate loans which were combined on date/mth/20XX with a XXX Loan. The funds obtained to finance the property development indicate that a substantial amount has been expended on the construction of the new residential property. The borrowing of funds to finance the construction is relevant to consider whether the activities have a commercial flavour.

The term of the XXX Loan was xx years, however the actions to the sell the properties within 12 months of construction being completed is contrary to the intention to hold the properties long term and supports the transaction is commercial in nature.

Additionally, it is contended that the properties were sold, partly for the reason that The Trust and the group decided on a change in funding model and capital was required. This provides further evidence that The Trust is involved in a broader business of property construction and development, along with the associated entities.

Purpose of profit and prospect of profit

The activities in respect of the construction of the residential buildings on the land have been planned and carried out in a businesslike manner and there is a coherent plan for the property development. The Trust had a coherent plan to construct property on vacant land that will considerably increase the value of the property and result in a profit. The nature of the lots changed significantly from two vacant lots, to two newly constructed dwellings on separate titles.

Whilst the stated intention was for The Trust to hold the properties as long term investments The Trust’s circumstances after the completion of construction of the properties changed which led to the properties sale.

While The Trust did not carry out the activities of the project directly, the manner in which a related entity was engaged to carry out the development in its ordinary course of business has the nature of a commercial transaction and the activities are considered to amount to the carrying out of a profit making undertaking. The development is not simple and uninvolved, and is considered to amount to more than a mere realisation of a capital asset to its best advantage.

The suburb/State A property was sold for $XXX whilst the suburb/State A property sold for $XXX. The net proceeds from the two properties will be approximately $XXX. Based on these figures, the activities could be said to have purpose of profit, as they were sold within 12 months of construction being completed. As a result the Commissioner considers The Trust has a purpose of profit and a prospect of profit in engaging in this activity. Additionally it is considered that the sale of these properties would be in the ordinary course of a broader business of carried on by The Trust and its related entities.

Repetition and regularity

Paragraph 55 of TR 97/11 provides that it is often a feature of a business that similar sorts of activities are repeated on a regular basis. The repetition of activities by the same person over a period of time on a regular basis helps to determine whether there is the 'carrying on' of a business. Importantly, the Full Federal Court in Grollo Nominees held that where an entity is part of a wider group of entities, it is not correct to treat the activities of a single member of the group in isolation to the activities of the wider group. The actions of the controlling mind and the wider group are also relevant.

Although The Trust contends this is a one-off development this does not lead to the conclusion that The Trust is not carrying on a business. Rather, the activities of its controlling mind (i.e. the sole director, Person B) must also be considered. The Trust is part of XX Homes Pty Ltd, who is active in the property development/construction industry. The group has been involved and is continuously engaged in several property development ventures of significant commercial character.

Evidently, Person B and entities associated with Person B have had a long history of residential property development and construction. Therefore, the construction and sale of the two properties in the present case is not an isolated event. Rather, the activities of Person B’s wider group suggest that there is an element of repetition and regularity in the activities. Therefore the sale of the two properties supports that The Trust’s activities demonstrate repetition and regularity.

Carried on in a similar manner to that of the ordinary trade and planned, organised, carried on in a businesslike manner

Under paragraph 63 of TR 97/11 an activity is more likely to be a business when it is carried on in a manner similar to that in which other participants in the same industry carry on their activities.

The Trust has purchased two lots and engaged a related entity to commence construction of two display homes.

These actions demonstrate that The Trust has engaged in business and the activity is planned, organised and carried on in a businesslike manner.

Expenses incurred by The Trust for the property development are expenses typically incurred in property development. As a director of a related entity in a building and construction company, Person B also has extensive experience in the property and construction industry.

Evidently, per paragraph 65 of TR 97/11, The Trust’s activities in the present case are in distinct contrast to a keen amateur with no knowledge or experience and who does not seek advice or conduct research. Therefore, the above factors suggest that the activities of The Trust are of the same kind and carried on in a similar way to that of the ordinary trade in the property development and construction business.

The Commissioner contends that the development is to be carried on in a manner similar to other display home developers. Additionally, the Commissioner contends there was a change of purpose in relation to the use of both properties and this is a positive indicator of carrying on a business of property development.

Size, scale and permanency of the activity

Paragraph 77 of TR 97/11 states that the larger the scale of the activity the more likely it will be that the taxpayer is carrying on a business. The size or scale of the activity is not a determinative test, and a person may carry on a business in a small way. However, if the scale of the activities result in more than is required for your own domestic needs combined with an intention to profit from the activities and a reasonable expectation of doing so, a business may be carried on despite the scale

The two lots were purchased for a combined value of approximately $XXX. The total development and construction cost of both properties was $XXX. The properties sold for a combined value of $XXX. The net profit from the activity is estimated at $XXX.

Although the two lots alone do not amount to significant size and scale alone, when considered more broadly with respect to the broader business activities of the related entities and Person B it indicates otherwise. It is considered that these activities would contribute to the overall size, scale and permanency of the building activities along with the related entities.

Hobby, form of recreation or sporting activity

Paragraph 87 of TR 97/11 considers that money derived from the pursuit of a hobby is not regarded as income and therefore is not assessable.

The Commissioner considers that your activities are not a hobby or a form of recreation and this indicator is not relevant.

Conclusion

Person B and entities associated with Person B have a history of development construction and sale of residential properties. When the indicia of a business, which are discussed in TR 97/11, are considered in relation to activities, it is evident that the sale of the properties is in the course of carrying on a business of property development. The disposal of the property is an ordinary incident. Income from the sale of the properties is as much a relevant consideration as the income stream derived from those properties.

In this case, the Trust is considered to be carrying on a business of property development and any profit from the sale of two properties at suburbs/State A will be assessable as ordinary income under section 6-5 of the ITAA 1997. The properties will be considered trading stock, and any capital gain or loss made at the time of sale will be disregarded under sub-section 118-25(1)(a).

Alternatively, whilst CGT event A1 will occur on the disposal of the two properties, the disposal of each lot will be viewed as an isolated transaction. Any profit from the sale will be assessable as ordinary income under section 6-5 of the ITAA 1997 as an isolated transaction. Any capital gain arising from each CGT event will be reduced to the extent any profit is also assessable under section 6-5 of the ITAA 1997.