Private ruling: sale of properties as going concerns
Date of advice: 15 January 2016
Published: March 2016

Ruling: Q1: Is the supply made by the Vendor to the Purchaser of the Shopping Centre pursuant to the Shopping Centre Contract 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)? | A1: Yes, the supply made by the Vendor to the Purchaser of the Shopping Centre pursuant to the Shopping Centre Contract is a GST-free supply of a going concern within the meaning of section 38-325 of the GST Act. | Q2: Is the supply made by the Vendor to the Purchaser of the Home Improvement Centre pursuant to the Home Improvement Centre Contract (HIC Contract) a GST-free supply of a going concern within the meaning of section 38-325 of the GST Act? | A2: Yes, the supply made by the Vendor to the Purchaser of the Home Improvement Centre pursuant to the HIC Contract is a GST-free supply of a going concern within the meaning of section 38-325 of the GST Act.

Relevant facts and circumstances: This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling. Shopping Centre: The Items Schedule in the Shopping Centre Contract describes the Vendor and Purchaser, describes the land sold, states that the land is sold as freehold and states that the purchase price is $[ ] million. The Special Conditions oblige the Vendor and the Purchaser to complete the Shopping Centre Contract on the Completion Date and state that the Completion Date is [ ] days after the later of either [ ] days after the Contract Date, the date the Vendor gives notice to the Purchaser that a separate title for the Shopping Centre has issued, the date the Vendor gives notice to the Purchaser that the New Leases (defined as the Supermarket Lease (defined below) plus leases of [ ] specialty shops) have been registered, [ ] Business Days after the date the Vendor notifies the Purchaser of the outcome of this GST ruling or the date any Condition Precedent is satisfied. The Special Conditions make the Shopping Centre Contract subject to the creation of a separate title for the Shopping Centre by a date which is [ ] months after the Contract Date and allow the Purchaser to terminate the Shopping Centre Contract if such a separate title is not created by that date. The Special Conditions state that the Shopping Centre is sold subject to the Tenancies and define 'Tenancy' as a lease, sublease or other occupancy right of the Property described in the Tenancy Schedule and a New Tenancy or agreement to grant a New Tenancy (defined as a lease, licence or other occupancy right in respect of the Shopping Centre granted after the date of the Shopping Centre Contract). 'Tenancy Schedule' is defined as the details set out in the Centre Attachments which set out details of Tenancies in respect of both the Supermarket Lease (between the Vendor and X Ltd with a lease start date of [ ] 20XX) and [ ] specialty shops (each of which has a lease start date of [ ] 20XX). The Special Conditions define 'Supermarket Lease' as the lease between the Vendor and X Ltd on the terms and conditions in a Schedule to the Shopping Centre Contract, i.e. commencing on [ ] 20XX for a term of [ ] years with eight options to renew for periods of [ ] years. The Special Conditions state that on Completion the Vendor is deemed to have assigned to the Purchaser and the Purchaser is deemed to have taken an assignment of the Tenancies and the benefit of any guarantees or indemnities which relate to the Tenancies. The Special Conditions require the Vendor to transfer to the Purchaser all funds representing deposits, bonds, promotional or marketing levies and sinking fund contributions made by a tenant and held by a Vendor and oblige the Vendor to comply with the Vendor's obligations in relation to the Tenancies until Completion. Clause [ ] of the Special Conditions deals with GST. Clause [ ] states: The Vendor and the Purchaser agree that each supply made by the Vendor under this Contract shall together be the supply of a going concern. Clause [ ] states: The Purchaser represents and warrants that it is registered for GST and that it will be registered for GST at Completion. Clause [ ] states: (a) The Vendor may apply to the Commissioner for a GST Private Ruling within [ ] days of the date of this Contract to confirm whether or not a supply or supplies made by the Vendor under this Contract are separately or together the GST-free supply of a going concern. (b) Except where the Vendor notifies the Purchaser in writing, the parties agree that if the Vendor elects to apply for a GST Private Ruling, Completion shall not proceed until the GST Private Ruling referred to in Special Condition [ ] is obtained from the Commissioner. (c) For the avoidance of doubt, unless the Vendor notifies the Purchaser in writing before Completion, Special Condition [ ] will nevertheless apply if the Vendor does not elect to apply for a private ruling. Clause [ ] states: The Vendor warrants to the Purchaser that: (a) for the purpose of section 38-325 of the GST Law, this Contract provides for the supply of all of the things necessary for the continued operation of the enterprise being supplied by the Vendor; and (b) the Vendor will carry on the enterprise until the Completion Date. Home Improvement Centre: The Items Schedule in the HIC Contract identifies the Vendor and the Purchaser, describes the land sold, states that the land is sold as freehold and states that the Purchase Price is $[ ] million. The Items Schedule refers to the Special Conditions for the Date of Completion. The Special Conditions state that the Vendor and Purchaser must complete the HIC Contract on the Completion Date which is defined as the date [ ] days after the later of the date that is [ ] days after the Contract Date, the date the Vendor gives notice to the Purchaser that a separate indefeasible title for the Home Improvement Centre has issued, the date the Vendor gives notice to the Purchaser that the New Leases have been registered, [ ] Business Days after the Vendor notifies the Purchaser of the outcome of any GST ruling applied for or the date any Condition Precedent is satisfied. The Special Conditions make the HIC Contract subject to the creation of a separate indefeasible title for the Home Improvement Centre by the date which is [ ] months after the Contract Date and state that the Purchaser may cancel the HIC Contract if a separate title has not been created by the specified date. The Special Conditions state that the Home Improvement Centre is sold subject to the Tenancies and define 'Tenancy' as a lease, sublease or occupancy right described in the Tenancy Schedule and a New Tenancy or an agreement to grant a New Tenancy. 'Tenancy Schedule' is defined as the details set out in the Attachments, one of which sets out the details of the Tenancy in respect of the Home Improvement Centre (which has a start date of [ ] 20XX). The Special Conditions define 'Lease' as the lease between the Vendor (as Landlord) and Y Pty Ltd (as Tenant) of the whole of the Home Improvement Centre on the terms set out in a Schedule to the HIC Contract, i.e. commencing [ ] 20XX and expiring [ ] 20YY. The Special Conditions state that on Completion the Vendor is deemed to have assigned to the Purchaser and the Purchaser is deemed to have taken an assignment of the Tenancies and the benefit of any guarantees or indemnities which relate to the Tenancies. The Special Conditions require the Vendor to transfer to the Purchaser all funds representing deposits, bonds, promotional or marketing levies and sinking fund contributions made by a tenant and held by the Vendor and oblige the Vendor to comply with the Vendor's obligations in relation to the Tenancies until Completion. Clause [ ] of the Special Conditions deals with GST. Clause [ ] states: The Vendor and the Purchaser agree that each supply made by the Vendor under this Contract shall together be the supply of a going concern. Clause [ ] states: The Purchaser represents and warrants that it is registered for GST and that it will be registered for GST at Completion. Clause [ ] states: (a) The Vendor may apply to the Commissioner for a GST Private Ruling within [ ] days of the date of this Contract to confirm whether or not a supply or supplies made by the Vendor under this Contract are separately or together the GST-free supply of a going concern. (b) Except where the Vendor notifies the Purchaser in writing, the parties agree that if the Vendor elects to apply for a GST Private Ruling, Completion shall not proceed until the GST Private Ruling referred to in Special Condition [ ] is obtained from the Commissioner. (c) For the avoidance of doubt, unless the Vendor notifies the Purchaser in writing before Completion, Special Condition [ ] will nevertheless apply if the Vendor does not elect to apply for a private ruling. Clause [ ] states: The Vendor warrants to the Purchaser that: (a) for the purpose of section 38-325 of the GST Law, this Contract provides for the supply of all of the things necessary for the continued operation of the enterprise being supplied by the Vendor; and (b) the Vendor will carry on the enterprise until the Completion Date.

Relevant legislative provisions: A New Tax System (Goods and Services Tax) Act 1999 section 38-325.

Reasons for decision: Summary: For the purposes of subsection 38-325(2) of the GST Act we consider that the identified enterprise in relation to the Vendor is leasing of the Shopping Centre. We consider that the requirements of paragraphs 38-325(2)(a) and (b) of the GST Act will be satisfied in relation to the identified enterprise at the Completion Date. We also consider that the requirements of subsection 38-325(1) of the GST Act will be satisfied. | Detailed Reasoning - Detailed reasoning: Paragraph 9-30(1)(a) of the GST Act provides that a supply is GST-free if it is GST-free under Division 38 of the GST Act. Division 38 of the GST Act includes section 38-325 which states: (1) The *supply of a going concern is GST-free if: (a) the supply is for *consideration; and (b) the *recipient is *registered or *required to be registered; and (c) the supplier and the recipient have agreed in writing that the supply is of a going concern. (2) A supply of a going concern is a supply under an arrangement under which: (a) the supplier supplies to the *recipient all of the things that are necessary for the continued operation of an *enterprise; and (b) the supplier carries on, or will carry on, the enterprise until the day of the supply (whether or not as a part of a larger enterprise carried on by the supplier). (* denotes a term defined in section 195-1 of the GST Act) Goods and Services Tax Ruling GSTR 2002/5 (GSTR2002/5) discusses a supply of a going concern for the purposes of section 38-325 of the GST Act and when the supply of a going concern is GST-free. Below we first consider whether the requirements in subsection 38-325(2) of the GST Act are met and then address the requirements in subsection 38-325(1) of the GST Act. Subsection 38-325(2)- identified enterprise: GSTR 2002/5 provides that subsection 38-325(2) of the GST Act requires the identification of an enterprise that is being carried on by the supplier and that the supplier must supply all of the things that are necessary for the continued operation of the identified enterprise. In addition the supplier must carry on the identified enterprise until the day of the supply, whether or not as part of a larger enterprise. In a discussion of the 'identified enterprise' for the purposes of subsection 38-325(2) of the GST Act, paragraph 22 of GSTR 2002/5 refers to the definition of 'enterprise' in section 9-20 of the GST Act which provides that an enterprise includes, among other things, an activity or series of activities done on a regular or continuous basis, in the form of a lease, licence or other grant of an interest in property (paragraph 9-20(1)(c) of the GST Act). Paragraphs 23 and 24 of GSTR 2002/5 respectively provide that the activity of leasing can be the subject of the supply of a going concern and that an entity which owns a shopping complex that has been fully tenanted for many years is carrying on an enterprise of leasing. In the present case the Special Conditions in the Shopping Centre Contract state that the Property is sold subject to the Tenancies and 'Tenancy' is defined in the Special Conditions to include a lease, sublease or other occupancy right of the Property as described in the Tenancy Schedule. 'Tenancy Schedule' is defined as the details in an Attachment to a Schedule to the Shopping Centre Contract and those details refer to the leases of the supermarket and the specialty shops in the Shopping Centre. On that basis we are satisfied that there is a leasing enterprise which is the identified enterprise for the purpose of applying section 38-325 of the GST Act. Paragraph 38-325(2)(a): Paragraph 38-325(2)(a) of the GST Act requires that the supplier supplies to the recipient all of the things that are necessary for the continued operation of the identified enterprise. Paragraphs 150 and 151 of GSTR 2002/5 state: 150. A supplier is unable to supply all of the things that are necessary for the continued operation of an enterprise unless the relevant enterprise is not only being 'carried on', but is also operating. Where an enterprise engaged in an activity ceases to carry on that activity and the assets are in the course of being sold off, the enterprise is being 'carried on', but is not operating. 151. The activity of leasing a building which has previously been leased to a tenant remains an 'enterprise' of leasing for the purposes of section 9-20 during the period of temporary vacancy when a new tenant is being actively sought by the building owner. However, where a building has not previously been leased to a tenant, but is being actively marketed, an 'enterprise of leasing' is not operating until the activity of leasing actually commences. The activity of leasing commences when at least one tenant enters into an agreement to lease or occupies the building. Paragraphs 31 and 32 of Goods and Services Tax Ruling GSTR 2005/5 (GSTR 2005/5) state: 31. Paragraph 150 of GSTR 2002/5 explains that a supplier is unable to supply all of the things necessary for the continued operation of an enterprise unless the enterprise is operating. The term 'operation of an enterprise' is different to that of 'carrying on an enterprise'. As defined in section 195-1, 'carrying on' an enterprise includes doing anything in the course of the commencement or termination of an enterprise while operation of an enterprise requires something more than this. The activity must be one which can properly be described as a business or undertaking capable of being handed over to the transferee in such a state that it may be carried on by the transferee if it so wishes. The particular business or undertaking must remain active and operating at the time of supply. 32. The Commissioner considers that for GST purposes whether the supplier continues to operate the enterprise is determined having regard to the substance of the matter rather than its form. Hence, a provision in the sale agreement to that effect is not conclusive. As noted above, the Special Conditions in the Shopping Centre Contract state that the Property is sold subject to the Tenancies and the details of Tenancies in the Attachment to a Schedule to the Shopping Centre Contract indicate that the lease of the supermarket commenced on [ ] 20XX and the leases of the specialty stores commenced on [ ] 20XX. We therefore consider that the leasing enterprise will be operating at the Completion Date of the Shopping Centre Contract. The Special Conditions oblige the Vendor, on Completion, to deliver to the Purchaser the Tenancy Documents, the Service Agreements, all books and records relating to the Property held by the Vendor or the Vendor's property manager, any security deposit or bank guarantee held by the Vendor in respect of any Tenancy, the balance of the Property Fund for the Property and all keys. The Special Conditions also oblige the Vendor to assign to the Purchaser the benefit of plant and equipment warranties and guarantees with effect from Completion. The Special Conditions also deem the Vendor to have assigned the Tenancies (and the benefit of related guarantees and indemnities) to the Purchaser on Completion and oblige the Vendor to transfer to the Purchaser all funds representing deposits, bonds, promotional or marketing levies, sinking fund contributions and similar payments made by a Tenant and held by the Vendor. Taking into account all of these Special Conditions in the Shopping Centre Contract, we consider that the Vendor will supply to the Purchaser all of the things that are necessary for the continued operation of the leasing enterprise. Paragraph 38-325(2)(b): Paragraph 38-325(2)(b) of the GST Act requires that the supplier carries on, or will carry on, the enterprise until the day of supply (whether or not as a part of a larger enterprise carried on by the supplier). Paragraphs 141 and 142 of GSTR 2002/5 provide that all of the activities of the enterprise must be active and operating on the day of the supply and must be capable of continuing after the transfer to new ownership and that a supply will not be a supply of a going concern where, on the day of the supply, the activity carried on by the enterprise has ceased. Paragraph 161 of GSTR 2002/5 provides that the day of the supply is determined in each case by reference to the terms of the contract and is the date on which the recipient assumes effective control and possession of the enterprise carried on by the supplier. In the present, case we consider that the day of the supply will be the Completion Date as defined in the Special Conditions. Pursuant to the Special Conditions the Vendor warrants that it will carry on the enterprise until Completion. However paragraph 21 of GSTR 2005/5 provides that whether the supplier continues to operate the enterprise is determined having regard to the substance of the matter rather than its form and a provision in the sale agreement to that effect is not conclusive. As noted above, paragraphs 150 and 151 of GSTR 2002/5 confirm that a leasing enterprise is both being carried on and operating as soon as the leasing activity commences, i.e. as soon as the tenant either enters into an agreement to lease or occupies the building. In the present case, based on the lease start dates in respect of the leases of the supermarket and the specialty shops stated in the Attachment in the Schedule to the Shopping Centre Contract, we are satisfied that the leasing enterprise will be carried on by the Vendor until the Completion Date. For the reasons set out above we consider that the supply of the Property by the Vendor will be a supply under an arrangement that satisfies the requirements of subsection 38-325(2) of the GST Act. Requirements in subsection 38-325(1) Paragraph 38-325(1)(a) requires that the supply of a going concern is for consideration. The Items Schedule in the Shopping Centre Contract indicates that the Property will be sold for $[ ] million. Paragraph 38-325(1)(b) of the GST Act requires that the recipient is registered for GST or required to be so registered. Paragraph 186 of GSTR 2002/5 provides that the effective date of registration of the recipient must be on or before the day of the supply. We have confirmed that the Vendor was registered for GST with effect from [ ] and is currently GST registered. We have also confirmed that the Purchaser registered for GST with effect from [ ] and is currently GST registered. Paragraph 38-325(1)(c) requires that the supplier and recipient have agreed in writing that the supply is of a going concern. Paragraph 181 of GSTR 2002/5 provides that 'agreed in writing' means that the supplier and the recipient have made a mutual declaration in such form that clearly evidences that they agree that the supply is a supply of a going concern. Clause [ ] of the Special Conditions in the Shopping Centre Contract satisfies this requirement. | Summary: For the purposes of subsection 38-325(2) of the GST Act we consider that the identified enterprise in relation to the Vendor is leasing of the Home Improvement Centre pursuant to the Lease. We consider that the requirements of paragraphs 38-325(2)(a) and (b) of the GST Act will be satisfied in relation to the identified enterprise at the Completion Date. We also consider that the requirements of subsection 38-325(1) of the GST Act will be satisfied. | Detailed Reasoning - Detailed reasoning: Paragraph 9-30(1)(a) of the GST Act states that a supply is GST-free if it is GST-free under Division 38 of the GST Act. Division 38 of the GST Act includes section 38-325 which states: (1) The *supply of a going concern is GST-free if: (a) the supply is for *consideration; and (b) the *recipient is *registered or *required to be registered; and (c) the supplier and the recipient have agreed in writing that the supply is of a going concern. (2) A supply of a going concern is a supply under an arrangement under which: (a) the supplier supplies to the *recipient all of the things that are necessary for the continued operation of an *enterprise; and (b) the supplier carries on, or will carry on, the enterprise until the day of the supply (whether or not as a part of a larger enterprise carried on by the supplier). (* denotes a term defined in section 195-1 of the GST Act) GSTR 2002/5 discusses a supply of a going concern for the purposes of section 38-325 of the GST Act and when the supply of a going concern is GST-free. Below we first consider whether the requirements in subsection 38-325(2) of the GST Act are met and then address the requirements in subsection 38-325(1) of the GST Act. Subsection 38-325(2) - identified enterprise: Paragraph 29 of GSTR 2002/5 provides that subsection 38-325(2) of the GST Act requires the identification of an enterprise that is being carried on by the supplier and that the supplier must supply all of the things that are necessary for the continued operation of the identified enterprise. In addition the supplier must carry on the identified enterprise until the day of the supply, whether or not as part of a larger enterprise. In a discussion of the 'identified enterprise' for the purposes of subsection 38-325(2) of the GST Act, paragraph 22 of GSTR 2002/5 refers to the definition of 'enterprise' in section 9-20 of the GST Act which provides that an enterprise includes, among other things, an activity or series of activities done on a regular or continuous basis, in the form of a lease, licence or other grant of an interest in property (paragraph 9-20(1)(c) of the GST Act). Paragraphs 23 and 24 of GSTR 2002/5 respectively provide that the activity of leasing can be the subject of the supply of a going concern and that an entity which owns a fully-tenanted retail shopping complex is carrying on an enterprise of leasing. In the present case the Special Conditions in the HIC Contract state that the Property is sold subject to the Tenancies and 'Tenancy' is defined in the Special Conditions to include a lease, sublease or other occupancy right of the Property as described in the Tenancy Schedule. 'Tenancy Schedule' is defined as the details in an Attachment to a Schedule to the HIC Contract and those details refer to the Lease. A copy of the Lease attached to the HIC Contract indicates that the Lease commenced on [ ] 20XX. On that basis we are satisfied that there is a leasing enterprise which is the identified enterprise for the purpose of applying section 38-325 of the GST Act. Paragraph 38-325(2)(a): Paragraph 38-325(2)(a) of the GST Act requires that the supplier supplies to the recipient all of the things that are necessary for the continued operation of the identified enterprise. Paragraphs 150 and 151 of GSTR 2002/5 state: 150. A supplier is unable to supply all of the things that are necessary for the continued operation of an enterprise unless the relevant enterprise is not only being 'carried on', but is also operating. Where an enterprise engaged in an activity ceases to carry on that activity and the assets are in the course of being sold off, the enterprise is being 'carried on', but is not operating. 151. The activity of leasing a building which has previously been leased to a tenant remains an 'enterprise' of leasing for the purposes of section 9-20 during the period of temporary vacancy when a new tenant is being actively sought by the building owner. However, where a building has not previously been leased to a tenant, but is being actively marketed, an 'enterprise of leasing' is not operating until the activity of leasing actually commences. The activity of leasing commences when at least one tenant enters into an agreement to lease or occupies the building. Paragraphs 31 and 32 of GSTR 2005/5 state: 31. Paragraph 150 of GSTR 2002/5 explains that a supplier is unable to supply all of the things necessary for the continued operation of an enterprise unless the enterprise is operating. The term 'operation of an enterprise' is different to that of 'carrying on an enterprise'. As defined in section 195-1, 'carrying on' an enterprise includes doing anything in the course of the commencement or termination of an enterprise while operation of an enterprise requires something more than this. The activity must be one which can properly be described as a business or undertaking capable of being handed over to the transferee in such a state that it may be carried on by the transferee if it so wishes. The particular business or undertaking must remain active and operating at the time of supply. 32. The Commissioner considers that for GST purposes whether the supplier continues to operate the enterprise is determined having regard to the substance of the matter rather than its form. Hence, a provision in the sale agreement to that effect is not conclusive. As noted above, the Special Conditions in the HIC Contract state that the Property is sold subject to the Lease and the copy of the Lease attached to the HIC Contract indicates that the Lease commenced on [ ] 20XX. We therefore consider that the leasing enterprise will be operating at the Completion Date of the HIC Contract. The Special Conditions oblige the Vendor, on Completion, to deliver to the Purchaser the Tenancy Documents, Service Agreements, all books and records relating to the Property held by the Property Manager, any security deposit or bank guarantee held in respect of a Tenancy, the balance of the Property Fund for the Property and all keys in the Vendor's possession. The Special Conditions also require the Vendor (with effect from Completion) to assign to the Purchaser the benefit of Plant and Equipment Warranties and Guarantees. The Special Conditions also deem the Vendor to have assigned the Tenancies to the Purchaser on Completion and require the Vendor to transfer to the Purchaser all funds representing deposits, bonds, promotional or marketing levies, sinking fund contributions and similar payments held by the Vendor. Taking into account all of these Special Conditions in the HIC Contract, we consider that the Vendor will supply to the Purchaser all of the things that are necessary for the continued operation of the leasing enterprise. Paragraph 38-325(2)(b): Paragraph 38-325(2)(b) of the GST Act requires that the supplier carries on, or will carry on, the enterprise until the day of supply (whether or not as a part of a larger enterprise carried on by the supplier). Paragraphs 141 and 142 of GSTR 2002/5 provide that all of the activities of the enterprise must be active and operating on the day of the supply and must be capable of continuing after the transfer to new ownership and that a supply will not be a supply of a going concern where, on the day of the supply, the activity carried on by the enterprise has ceased. Paragraph 161 of GSTR 2002/5 provides that the day of the supply is determined in each case by reference to the terms of the contract and is the date on which the recipient assumes effective control and possession of the enterprise carried on by the supplier. In the present case, we consider that the day of the supply will be the Completion Date as defined in the Special Conditions. Pursuant to the Special Conditions the Vendor warrants that the Vendor will carry on the enterprise until Completion. However paragraph 21 of GSTR 2005/5 provides that whether the supplier continues to operate the enterprise is determined having regard to the substance of the matter rather than its form and a provision in the sale agreement to that effect is not conclusive. As noted above, paragraphs 150 and 151 of GSTR 2002/5 confirm that a leasing enterprise is both being carried on and operating as soon as the leasing activity commences, i.e. as soon as the tenant either enters into an agreement to lease or occupies the building. In the present case, based on the Commencement Date stated in the Lease, we are satisfied that the leasing enterprise will be carried on by the Vendor until the Completion Date. Consequently paragraph 38-325(2)(b) of the GST Act will be satisfied. For the reasons set out above we consider that the supply of the Property by the Vendor will be a supply under an arrangement that satisfies the requirements of subsection 38-325(2) of the GST Act. Requirements in subsection 38-325(1) Paragraph 38-325(1)(a) requires that the supply of a going concern is for consideration. The Items Schedule in the IHC Contract indicates that the Property will be sold for $[ ] million. Paragraph 38-325(1)(b) of the GST Act requires that the recipient is registered for GST or required to be so registered. Paragraph 186 of GSTR 2002/5 provides that the effective date of registration of the recipient must be on or before the day of the supply. We have confirmed that the Vendor was registered for GST with effect from [ ] and is currently GST registered. We have also confirmed that the Purchaser registered for GST with effect from [ ] and is currently GST registered. Paragraph 38-325(1)(c) requires that the supplier and recipient have agreed in writing that the supply is of a going concern. Paragraph 181 of GSTR 2002/5 provides that 'agreed in writing' means that the supplier and the recipient have made a mutual declaration in such form that clearly evidences that they agree that the supply is a supply of a going concern. The Special Conditions in the HIC Contract satisfy this requirement.