Edited version of private advice

Authorisation Number: 1052124511648

Date of advice: 30 May 2023

Ruling

Subject: GST and sale of property

Question

Is the sale of the property by you in the indirect tax zone, a taxable supply under section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (the GST Act)?

Answer

No.

This ruling applies for the following period(s)

1 March 20XX to 30 December 20XX

The scheme commences on

29 March 20XX

Relevant facts and circumstances

You are not registered for GST.

Individual 1 purchased the property in mm/yyyy.

The property is xx,xxxm².

Individual 2 was admitted as an owner on dd/mm/yyyy.

The property is owned by you as tenants in common, in equal shares.

You do not own any other property.

The premises on the Property has been used as your principal residence since purchase.

You intended to set up an operation on the property. You initially constructed some buildings, however you did not complete the set up due to the cost of construction.

You have not conducted any business from the property.

You entered into a call option to sell the property on xx/mm/yyyy.

Schedules attached to call option deed:

•         Schedule 1 - Sale contract

Sale contract is unsigned

Purchaser details are blank.

Price of property: $x,xxx,xxx.

•         Schedule 2 - notice of exercise of call option

•         Schedule 3 -Nomination notice

Relevant legislative provisions

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

A New Tax System (Goods and Services Tax) Act 1999 section 9-40

A New Tax System (Goods and Services Tax) Act 1999 section 23-5

A New Tax System (Goods and Services Tax) Act 1999 section 195-1

Reasons for decision

In this ruling,

• unless otherwise stated, all legislative references are to the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)
• all legislative terms of the GST Act marked with an asterisk are defined in section 195-1 of the GST Act.
• all reference materials, published by the Australian Taxation Office (ATO), that are referred to are available on the ATO website ato.gov.au

Liability for GST on a taxable supply

Section 9-40 provides that you must pay the GST payable on any taxable supply that you make.

Taxable supply

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.

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

Your supply will be taxable where all the requirements of section 9-5 are satisfied.

In this case, your supply of the property will satisfy subsections 9-5(a) and 9-5(c) as the supply will be:

• made for consideration, and
• connected with the indirect tax zone (as the property is located in Australia).

We must therefore determine whether your supply of the property will be made in the course or furtherance of an enterprise that you carry on and whether you are required to be registered.

Section 9-20 provides that the term 'enterprise' includes, among other things, 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.

Based on the information provided, we have determined that you are not carrying on an enterprise pursuant to section 9-20.

Accordingly, as all the requirements of section 9-5 will not be met, it is not necessary to consider whether or not you are required to be registered for GST.

Conclusion

Your supply of the property will not be a taxable supply and is not subject to GST.