Edited version of private advice

Authorisation Number: 1052013492603

Date of advice: 29 July 2022

Ruling

Subject: GST and property development

Question 1

Are you, in your capacity as trustee for the bankrupt estate liable to pay GST under section 58-10 of the A New Tax System (Goods and Services Tax) Act 1999 when you sold the property?

Answer

No, as the sale is not a taxable supply, you are not liable to pay GST.

Question 2

Are you, in your capacity as trustee for the bankrupt estate liable to pay GST under section 58-10 of the A New Tax System (Goods and Services Tax) Act 1999 when you transferred the property to the person?

Answer

Yes, the transfer is a taxable supply and you are liable to pay the GST.

Question 3

Are you required to give the Commissioner a GST return under section 58-50 of the A New Tax System (Goods and Services Tax) Act 1999 for tax periods applying to the bankrupt prior to your appointment as trustee for the bankrupt estate?

Answer

Yes, the Commissioner directs you to provide GST returns for the tax periods applying to the bankrupt that include the period from 1 July 20XX to another period.

Question 4

Are you, in your capacity as trustee for the bankrupt estate entitled to input tax credits under section 58-10 of the A New Tax System (Goods and Services Tax) Act 1999 for creditable acquisitions made by the bankrupt prior to your appointment?

Answer

You are entitled to the input tax credits for unclaimed input tax credits on creditable acquisitions made by the bankrupt which were first attributable to tax periods on or after 1 July 20XX.

This ruling applies for the following periods:

Tax periods ending on or after 30 June 20XX

The scheme commences on:

13 May 20XX

Relevant facts and circumstances

The bankrupt and a person purchased the property. The bankrupt made an oral agreement agreed with the person where the person would:

•         jointly with the bankrupt borrow funds to complete the purchase

•         be recorded on the title as a joint owner; and

•         receive an undeveloped unit.

The sale to the bankrupt and the person was an input taxed supply.

The planned development of the property involved creating several premises, one to be retained by the bankrupt, one to be retained by the person and the remaining ones were to be sold. It is understood that the bankrupt intended the first premises to be their principal residence. It is also understood that the person also intended their property to be their principal premises although the construction of this premises was to be undertaken by the person and not the bankrupt.

No written partnership or joint venture agreement was entered into between the bankrupt and the person however, they agreed that their respective interests in the property would be proportional to the amounts contributed to the development.

The bankrupt undertook development of the property as a sole trader with the person considered to be a 'silent partner' or investor. The bankrupt engaged an architect and various third parties to carry out the development works. The unit that was to become the person's was undeveloped except where required to ensure that the unit was secured.

The bankrupt was registered for GST. No activity statements were lodged by the bankrupt between a period and another period and no input tax credits in relation to the development of the property have been claimed by the bankrupt.

The bankrupt was not in the business of property development and undertook these activities as a 'one-off' project. The bankrupt used the property as their principal residence from a period for several years.

The bankrupt was declared bankrupt and the trustee authorised works to be carried out in order to continue the development toward completion.

It is estimated that the unclaimed input tax credits totals approximately an amount which could be available for distribution to creditors of the bankrupt estate.

Relevant legislative provisions

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

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) paragraph 9-10(2)(d)

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) paragraph 9-20(2)(b)

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

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 29-10

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 40-65

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 58-5

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 58-10

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 58-10

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 58-50

A New Tax System (Goods and Services Tax) Act 1999 (GST Act) section 93-5

Bankruptcy Act 1966 section 58

Bankruptcy Act 1966 section 116

Taxation Administration Act 1953 section 105-55 of Schedule 1

Reasons for decision

Question 1

Summary

The sale of the property is not made in the course or furtherance of an enterprise as it is a private residence. Therefore, the sale is not a taxable supply and is not subject to GST.

Detailed reasoning

Generally, section 58-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) provides that any supply, acquisition or importation by a person in their capacity as the representative of an incapacitated entity will be treated as a supply, acquisition or importation of the incapacitated entity. This ensures that the GST consequences that arise from a supply, acquisition or importation of the representative are the same as the consequences that would have arisen as if they were a supply, acquisition or importation of the incapacitated entity.

Section 58-10 of the GST Act then ensures that the representative of an incapacitated entity is liable for any amount of GST, is entitled to any input tax credit, and has any adjustment that the incapacitated entity would ordinarily be liable for, or entitled to. However, this only applies to the extent that the making of the supply, acquisition or importation is within the scope of the representative's responsibility or authority for managing the incapacitated entity's affairs.

The operation of Division 58 of the GST Act means that activities that you undertake, in your capacity as trustee for the bankrupt estate are deemed to be activities undertaken by the bankrupt however any GST liabilities and entitlements remain with you.

You are liable for GST on the sale of the property if the sale was a taxable supply under section 9-5 of the GST Act. A supply of real property is a taxable supply if:

•         the supply is for consideration (ie payment); and

•         the supply is made in the course or furtherance of an enterprise; and

•         the supply is connected with the indirect tax zone (Australia); and

•         the supplier is registered for GST (or required to be registered); and

•         the supply is neither GST-free nor input taxed.

The sale of the property St was made for consideration and the supply is connected with the indirect tax zone because the property is located in Australia.

Section 58-20 of the GST Act requires the representative of an incapacitated entity to be registered for GST (in their capacity as representative) if the incapacitated entity is registered or required to be registered. The bankrupt purchased the property for the purpose of developing and renovating the property, subdividing it and selling at least some of the resulting properties. These activities are an enterprise for GST purposes and the bankrupt was registered for GST. As such, you, in your capacity as trustee for the bankrupt estate are required to be registered and, in fact are registered for GST.

Although the GST Act doesn't contain a general exemption from GST for a primary residence, the sale will not be subject to GST if it is not made in the course or furtherance of an enterprise. Paragraph 9-20(2)(b) of the GST Act excludes any activities that are done 'as a private recreational pursuit' from the meaning of 'enterprise'. As mentioned above, the activities undertaken by a representative of an incapacitated entity are deemed to be activities of the incapacitated entity. Essentially, this means that the GST consequences that arise for the representative are the same as the consequences that would have arisen if the activities were undertaken by the incapacitated entity. Therefore, even though you, in your capacity as trustee for the bankrupt estate did not sell the property as a private recreational pursuit, it must be considered whether or not it would have been had the development been completed and then sold by the bankrupt.

The bankrupt used the property as their principal residence a number of years and, at the time they began the development project, intended to retain the property in which to reside. In providing guidance on whether or not an entity is entitled to an Australian Business Number, the Miscellaneous Taxation Ruling, The New Tax System: the meaning of entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number (MT 2006/1) discusses a range of activities that may be considered an enterprise for ABN (and equally GST) purposes. In discussing 'an adventure or concern in the nature of trade', paragraph 244 of MT 2006/1 states:

244. ... the sale of the family home, car and other private assets are not, in the absence of other factors, adventures or concerns in the nature of trade. The fact that the asset is sold at a profit does not, of itself, result in the activity being commercial in nature.

Although the term 'private recreational pursuit' is not defined in the GST Act, paragraph 366 of MT 2006/1 notes New Zealand courts have found the nature of a private recreational pursuit or hobby to be 'in essence, a private pastime or pursuit carried on for the personal refreshment, pleasure or recreation of the person (or persons) concerned'. The purchase, refurbishment and development of a primary residence fits this explanation.

Consequently, the activities undertaken by the bankrupt in relation to the refurbishment of the property were activities of a private or domestic nature and are therefore, excluded from activities that are done in the course or furtherance of an enterprise. In a similar manner, the sale of a person's principal residence is also normally an activity that is of a private or domestic nature. Therefore, the sale of the property is not done in the course or furtherance of an enterprise and is not a taxable supply under section 9-5 of the GST Act.

As the sale is not a taxable supply, you do not have any GST liability under section 58-10 of the GST Act.

Question 2

Summary

The transfer of the property is a supply which meets the requirements of a taxable supply and the representative of the incapacitated entity is liable to pay the GST.

Detailed reasoning

As mentioned above, any supply made by a person in their capacity as the representative of an incapacitated entity is treated as a supply of the incapacitated entity and the representative is liable for any amount of GST that is payable. Therefore, if the transfer of the property to a person is a taxable supply under section 9-5 of the GST Act, you, in your capacity as trustee for the bankrupt estate will be liable to pay the GST. As discussed above, the transfer will be a taxable supply if:

•         the transfer is a supply; and

•         the transfer is for consideration (ie payment); and

•         the transfer is made in the course or furtherance of an enterprise; and

•         the transfer is connected with the indirect tax zone (Australia); and

•         you are registered for GST (or required to be registered); and

•         the transfer is neither GST-free nor input taxed.

Critical is consideration of whether the transfer of the property to the person is a supply made by you, in your capacity as trustee for the bankrupt estate.

The arrangement entered into between the bankrupt and the person was that the bankrupt would develop the property, construct several premises and divide the property into several separate titles with the person being allocated one. The person received his proportion of the proceeds of the development by accepting the transfer in specie of a property which contained an incomplete premises. The person paid an amount of money to you in relation to the settlement of the property transfer.

Paragraph 9-10(2)(d) of the GST Act states that the 'grant, assignment or surrender of real property' is a supply and this is explained from paragraph 46 of the Goods and Services Tax Ruling, Goods and services tax: partitioning of land (GSTR 2009/2):

46. Under a partition by agreement, the transfer or conveyance by each co-owner of their respective interest in the land to be taken by the other co-owners in severalty is a supply as defined in subsection 9-10(1).

47. The term 'supply' is broadly defined in subsection 9-10(1) as 'any form of supply whatsoever'. This wide definition of the term includes the transfer or conveyance of an interest in or right over land by a co-owner.

48. To effect a partition under an agreement, all the co-owners agree to divide the land and to mutually transfer or convey their respective interests in the parts to be taken and enjoyed in severalty by the other. Each transfer or conveyance is a supply.

For the purposes of GSTR 2009/2, the term 'partition', refers to either the division of land and the transfer of the divided parts between the co-owners; or if land is already divided and held by the co-owners, the transfer of the divided parts between the co-owners, so that one or more co-owners become the owner in severalty of a specific part of the land.

The arrangement entered into between the bankrupt and the person has resulted in a supply of real property to the person. That is, the bankrupt and the person jointly owned the entirety of the property, the portion of that property which was owned by the bankrupt subsequently vested in the trustee and, then the portion of that which relates to the property has been transferred to the person.

As the transfer of the property is a supply, the transfer will be subject to GST if the other elements of a taxable supply under section 9-5 are satisfied. As discussed previously, the actions of the representative of an incapacitated entity are deemed to be those of the incapacitated entity for the purposes of the GST Act. This broadly means that the activities of a bankrupt and those of the trustee in bankruptcy should be considered together when considering whether a supply is made in the course or furtherance of an enterprise.

Although the development of the premises at the property was not part of the activities undertaken (or intended) by the bankrupt, the creation of the property through subdivision of the main property was always part of those development activities. As such, the transfer of the property to the person is a supply made in the course of the development enterprise.

The consideration for the supply of partitioned land is discussed in GSTR 2009/2 which, states:

86. The Commissioner considers that, under a partition by agreement or where a court orders the co-owners to effect a partition, each co-owner makes a supply of land for consideration. In the absence of an owelty payment, the consideration received is entirely non-monetary in that each co-owner gives up their interests in parts of the land in return for the same from other co-owners.

...

93. The consideration for a co-owner transferring their interest in land to the other co-owners is the transfer or conveyance made by the other co-owners of their respective interests in another part of the land to the first co-owner. The transfer or conveyance by the other co-owners together with any owelty money paid or payable is consideration received by the first co-owner for the supply of their interest to the others.

...

97. The value of the consideration is the sum of the GST inclusive market value of all the other co-owners' interests in the part of the land acquired by a co-owner plus any owelty money received in respect of the partition.

As discussed at paragraph 30 of GSTR 2009/2, the person made an owelty payment at the time of settlement:

30. After partition, the proportions of land received by each co-owner may not correspond with the entitlements or interests in the land of the co-owners prior to its division. Even if the portions received by the co-owners are equal in size they may not be precisely equal in value. In these cases, the co-owner(s) in receipt of the greater portion of land or with the greater value may pay compensation (usually a sum of money, called 'owelty' or 'equality' money) to the other co-owner(s) to take account of any differences in the value of the portions of the land they receive.

Therefore, the consideration provided by the person for the supply of the property is the total of the value of the interests that the person 'gave up' plus the payment amount. As the amount is based on the reasonable market values of the properties and the contributions to the developments made by all the parties, it is reasonable to conclude that the value given up by the person is equal to the value they received (minus the payment).

There is no general exemption from GST for the supply of a person's intended primary residence. As discussed above, the sale of a person's primary residence may not be a taxable supply because the sale is not in the course or furtherance of that person's enterprise. Although section 40-65 of the GST Act provides that the supply of residential premises is input taxed, this only applies to premises that are capable of being occupied as residential premises. The premises located at the property was not part of the development project undertaken by the bankrupt and was not complete such that it could be occupied. As such, the property is not residential premises and is not input taxed.

There are no relevant provisions within the GST Act which would make the supply of the property to the person GST-free.

As the property is located within Australia and you, in your capacity as trustee for the bankrupt estate are registered for GST, all of the requirements of a taxable supply under section 9-5 are met and the transfer of the property to the person is subject to GST.

Generally, section 58-10 of the GST Act provides that you, in your capacity as trustee for the bankrupt estate are liable for the GST on any taxable supplies made in the course of your appointment. Although section 58-5 of the GST Act deems your supplies to be those of the bankrupt, section 58-10 ensures that the liability remains with you (in most circumstances). Section 58-10 of the GST Act states:

58-10 Circumstances in which representatives have GST-related liabilities and entitlements

General rule

(1)   A *representative of an *incapacitated entity:

(a)   is liable to pay any GST that the incapacitated entity would, but for this section or section 48-40, be liable to pay on a *taxable supply or a *taxable importation; and

(b)   is entitled to any input tax credit that the incapacitated entity would, but for this section or section 48-45, be entitled to for a *creditable acquisition or a *creditable importation; and

(c)   has any *adjustment that the incapacitated entity would, but for this section or section 48-50, have;

to the extent that the making of the supply, importation or acquisition to which the GST, input tax credit or adjustment relates is within the scope of the representative's responsibility or authority for managing the incapacitated entity's affairs.

As the transfer of the property to the person was done in the course of your appointment, it is a supply made that is within the scope of your responsibility and authority for managing the bankrupt estate. Consequently, you are liable under section 58-10 of the GST Act to pay the GST on the transfer of the property to the person.

Question 3

Summary

You are required to lodge GST returns in relation to the tax periods applying to the bankrupt from a person to another period. The GST returns must be given to the Commissioner within 28 days after the date of issue of this letter.

Detailed reasoning

Section 58-50 of the GST Act allows the Commissioner to direct the representative of an incapacitated entity to lodge GST returns (activity statements) relating to the incapacitated entity for periods prior to the appointment of that representative in some circumstances. Subsection 58-50(1) of the GST Act states:

(1)  A *representative of an *incapacitated entity must give to the Commissioner a *GST return for a tax period applying to the incapacitated entity if:

(a)  the incapacitated entity has failed to give to the Commissioner a GST return for a tax period; and

(b)  the Commissioner, in writing, directs the representative to give to the Commissioner a GST return.

The bankrupt has not lodged GST returns for tax periods between a period and another period. As such, the Commissioner is able to direct you, in your capacity as trustee for the bankrupt estate to provide GST returns for any of these periods. However, subsection 58-50(4) of the GST Act provides a non-exhaustive list of matters that must be taken into consideration when the Commissioner decides to issue a direction to provide GST returns that relate to the incapacitated entity, it states:

(4)  Without limiting the matters that the Commissioner may take into account in deciding whether to give a direction under paragraph (1)(b), the Commissioner must take into account:

(a)  the likelihood of a dividend to unsecured creditors of the *incapacitated entity being declared, and the likely amounts of any such dividend; and

(b)  the likelihood that, if the Commissioner were given the *GST return, it would reveal a liability to pay an amount to the Commissioner under the *GST law; and

(c)   the availability of books and records that would make it possible to prepare the GST return; and

(d)  the likelihood that the cost to the *representative of preparing the GST return would be covered by the incapacitated entity's assets without resulting in an unreasonable impact on the other creditors of the incapacitated entity.

In considering circumstances of your appointment as trustee for the bankrupt estate, it is understood that a dividend will or is likely to be declared and that you have the required documentation to reasonably easily provide those GST returns without incurring significant additional costs in your administration of the bankrupt estate.

Although, paragraph 58-50(4)(b) of the GST Act indicates that one of the factors that may be taken into consideration is the likelihood that an addition GST liability may be identified. In this case, it is understood that this is quite unlikely as the GST liabilities arose upon the sale of the properties. However, this is only one of a range of considerations that the Commissioner may take into account when deciding whether or not to direct you to provide the GST returns. When considering the entire circumstances, it is very likely that there will be an overall benefit to the creditors of the bankrupt estate when the Commissioner directs you to lodge GST returns in relation to the tax periods applying to the bankrupt from a period to another period.

Although the bankrupt had not lodged GST returns between a period and another period, the Commissioner is not directing you to lodge returns for tax periods prior to 1 July 20XX. This is because, as explained below, the lodgement of those GST returns will not result in additional credits to be available for distribution to the creditors.

Paragraph 58-50(3)(b) of the GST Act states that the GST returns must be given to the Commissioner within the specified timeframe which, in this case is 28 days after the date of issue of this direction.

Question 4

Summary

You are entitled to input tax credits for acquisitions in relation to the tax periods applying to the bankrupt from 1 July 20XX to another period.

You are not entitled to input tax credits for acquisitions that are attributable to tax periods ending on or before 30 June 20XX.

Detailed reasoning

Generally, subsection 58-10(1) of the GST Act provides that a representative of an incapacitated entity is entitled to any input tax credit that the incapacitated entity would normally be entitled to for a creditable acquisition to the extent that the making of the acquisition to which the input tax credit relates is within the scope of the representative's responsibility or authority for managing the incapacitated entity's affairs. An acquisition is a creditable acquisition under section 11-5 of the GST Act if:

•         it is made solely or partly for a creditable purpose; and

•         the supply was a taxable supply; and

•         the recipient provides, or is liable to provide consideration (ie payment); and

•         the recipient is registered, or required to be registered for GST.

Even though the bankrupt made acquisitions in relation to the development of the property, prior to the date of bankruptcy, the acquisitions are 'within the scope' of the trustees' 'responsibility or authority for managing the [bankrupt's] affairs' because those acquisitions have been integrated into the property that has vested in the trustee.

The input tax credits which relate to periods prior to bankruptcy vests in the trustee in accordance with section 58 of the Bankruptcy Act 1966 and is property that is divisible among creditors within section 116 of the Bankruptcy Act.

The operation of Division 58 means that generally, you, in your capacity as trustee for the bankrupt estate are entitled to the input tax credits (that have not already been claimed) for acquisitions made in relation to the development of the property to the extent that those acquisitions:

•         were taxable supplies; and

•         relate to specified properties;

•         have been paid for.

There is no entitlement to input tax credits for any acquisitions that relate to a property because the definition of 'creditable purpose' specifically excludes acquisitions that are of a private or domestic nature and, as discussed above, the sale of that property was not a taxable supply because it was of a private or domestic nature. Where an acquisition relates to that property and another property, a reasonable apportionment will be required.

As the laws in relation to time limits on refunds of GST credits has changed over time, it is necessary to consider periods prior to 1 July 20XX separately. For input tax credits that are attributable to periods before 1 July 20XX, former section 105-55 of Schedule 1 to the Taxation Administration Act 1953 (TAA) stated:

105-55 Time limit on refunds etc. from the Commissioner

(1)   You are not entitled to a refund, other payment or credit to which this subsection applies in respect of a *tax period or importation unless:

(a)   within 4 years after:

(i)    the end of the tax period; or

(ii)   the importation;

as the case requires, you notify the Commissioner (in a *GST return or otherwise) that you are entitled to the refund, other payment or credit; or

(b)   within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund, other payment or credit; or

(c)   ...

(2)   Subsection (1) applies to:

(a)   a refund in relation to a *net amount or *net fuel amount in respect of a particular *tax period; or

(b)   ...

As neither the bankrupt, nor the trustee in bankruptcy notified the Commissioner within four years after the end of the relevant tax periods of an entitlement to unclaimed input tax credits, those input tax credits cease to be available because the former section 105-55 of Schedule 1 to the TAA specifically refers to tax periods. Nothing in Division 58 alters the requirement for a taxpayer to notify the Commissioner of an entitlement to unclaimed input tax credits.

Section 105-55 of Schedule 1 to the TAA was later repealed by the Indirect Tax Laws Amendment (Assessment) Act 2012 and Division 93 of the GST Act now applies to refunds that relate to tax periods starting on or after 1 July 20XX.

Generally, under Division 93 of the GST Act, an entity loses its entitlement to an input tax credit if it is not taken into account in an assessment during the period of four years from when it could have been first attributed. Subsection 93-5(1) of the GST Act states:

93-5 Time limit on entitlements to input tax credits

(1)   You cease to be entitled to an input tax credit for a *creditable acquisition to the extent that the input tax credit has not been taken into account, in an *assessment of a *net amount of yours, during the period of 4 years after the day on which you were required to give to the Commissioner a *GST return for the tax period to which the input tax credit would be attributable under subsection 29-10(1) or (2).

As discussed above, in the context of a trustee in bankruptcy, section 58-5 of the GST Act provides that the actions of a trustee in bankruptcy are taken to be the actions of the bankrupt. The intention of subsections 58-5(1) and (2) of the GST Act is to ensure that the GST consequences that arise for the trustee are the same as the consequences that would have arisen if they were supplies, acquisitions or importations or related acts or omissions of the bankrupt. This effectively means that the trustee and the bankrupt are treated as the same entity when determining whether the trustee in bankruptcy is impacted by the four-year rule in Division 93 of the GST Act.

Section 29-10 provides that an input tax credit is normally attributable to the first tax period in which either any of the consideration is provided for the acquisition or an invoice is issued relating to the acquisition. The four-year period ends four years after the day on which you were required to give to the Commissioner a GST return for the tax period to which the input tax credit would be attributable under subsections 29-10(1) or (2). Generally, subsection 31-10(1) of the GST Act provides that a GST return is due on or before the 21st day of the month following the end of that tax period or 'within such further period as the Commissioner allows'.

A direction under section 58-50 of the GST Act to provide GST returns that relate to tax periods of the incapacitated entity also states the timeframe within which the GST returns must be provided. Subsection 58-50(3) of the GST Act states:

(3)   The *GST return by the *representative:

(a)   must be in accordance with the requirements of Division 31 as they would apply in relation to the *incapacitated entity except to the extent that the direction under paragraph (1)(b) modifies those requirements; and

(b)   must be given to the Commissioner within the period specified in the direction.

As stated above, you are required to provide the GST returns relating to the tax periods applying to the bankrupt from 1 July 20XX to a period within 28 days from the date of this letter. As such, the four-year period under section 93-5 ends four years and 28 days after the date of this letter.

In the decision of the Administrative Appeals Tribunal in Rosebridge Nominees Pty Ltd (in liq) v FC of T [2019] AATA 426 on 19 March 2019, senior member G Lazanas concluded that the four-year period is effectively reset when the Commissioner gives a direction under section 58-50 of the GST Act. In her judgement, she explains:

51. I accept, however, that if the Commissioner had directed the liquidator to give GST returns within a further period (because of a s 58-50(1)(b) direction or under s 31-8 or s 31-20 of the GST Act), then that later date would substitute as the due date of the GST returns and importantly, the four year time limit would start to run after that due date for the purposes of s 93-5 of the GST Act. It follows that I agree with Rosebridge's argument in principle, with respect to the interaction of ss 58-50 and 93-5(1) of the GST Act. This is because the point of reference in s 93-5(1) is "4 years after the day on which you were required to give to the Commissioner a GST return for the tax period to which the input tax credit would be attributable". Relevantly, the day on which a taxpayer is required to give to the Commissioner a GST return can be the day the Commissioner directs the representative of the incapacitated entity. This approach is supported by s 58-50(3)(a) which expressly contemplates the modification of the requirements set out in Division 31 regarding the lodgement of GST returns (see [46] above). Additionally, s 58-50(7), which is set out at [46] above, also provides contextual support.

52. Although it is strictly unnecessary to make any further decision in the absence of any direction by the Commissioner, in my view it is helpful to observe that a different result would likely ensue as to the interaction of s 58-50 of the GST Act with the former s 36 of the TAA and s 105-50 of Schedule 1 to the TAA. This is because the four year time limits in those sections apply from the end of the respective tax periods to which the ITCs would be attributable under s 29-10(1) of the GST Act. In other words, the former time limits did not operate on the due dates of the GST returns. Therefore, even if the Commissioner had extended the due dates of GST returns for tax periods ending before 1 July 20XX, the time limits for claiming ITCs and GST refunds would still apply four years from the end of the respective tax periods.

Consequently, you, in your capacity as trustee of the bankrupt estate are entitled to the input tax credits that have not been previously claimed by the bankrupt for creditable acquisitions made from 1 July 20XX.