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Edited version of private advice
Authorisation Number: 1052188920896
Date of advice: 02 November 2023
Ruling
Subject: GST - property
Question
Will you, Entity A, make 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) when you sell the Property at <address>?
Answer
Yes, provided that the Property is still actively marketed for lease up until settlement, or a lease is in place at the time of settlement, and all of the other provisions under section 38-325 of the GST Act are satisfied at the time of settlement of the sale of the Property. The other provisions of section 38-325 that must be satisfied at the time of settlement are:
a) the sale of the Property must be made for consideration - that is, the sale price of the Property (paragraph 38-325(1)(a))
b) the purchaser of the Property is registered, or required to be registered for GST (paragraph 38-325(1)(b))
c) you and the purchaser have agreed in writing that the sale of the Property is a supply of a going concern.
This ruling applies for the following periods:
DDMMYYYY TO DDMMYYYY
The scheme commenced on:
DDMMYYYY
Relevant facts and circumstances
You, Entity A, are a complying superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993.
You are registered for GST and have been since DDMMYYYY.
On DDMMYYYY, you acquired a commercial office suite situated at <address> (the Property).
The purpose of your acquisition was an investment property and to generate rental income.
You have continuously leased the property to tenants from the time of acquisition until DDMMYYYY.
The last commercial tenancy agreement commenced on DDMMYYYY and expired on DDMMYYYY.
On DDMMYYYY, you entered into an exclusive agency agreement with Entity B to sell and lease the Property on your behalf. The arrangement with Entity B continued until DDMMYYYY but without success.
You subsequently engaged Entity C on DDMMYYYY to assist you in finding a suitable real estate agent to sell and lease the premises, however this did not eventuate. Entity D was engaged on DDMMYYYY to be your leasing agent for the Property, shortly followed by Entity E and Entity F on DDMMYYYY to be your selling agent for the Property.
On DDMMYYYY, you appointed Entity E and Entity F to be your non-exclusive leasing agent. The leasing and selling agency agreements with Entity D. Entity E and Entity F remain active.
The Property has not yet been sold but is currently being advertised on the websites of Entity E and Entity D, in addition to various real estate websites.
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 38-325