Private ruling: GST and residential premises
Published: October 2014

Ruling: Q1: Will your supplies of residential premises, by way of assignment of a long term lease from you to third party purchasers, be input taxed supplies? | A1: Yes.

Relevant facts and circumstances: You are registered for GST. You entered into a Deed of Put and Call Option (Option Deed) to acquire land. Upon either party exercising their rights under the Option Deed, the Land would be sold to you under the Contract for Sale that was attached to the Option Deed. Your intention at the time of entering the Option Deed was to undertake a residential development on the Land, however in order for this to occur, the use of Land had to be varied to permit the use of the Land for residential purposes. Subsequent to entering into the Option Deed, you set about the process of obtaining the requisite approvals in order to commence the residential development on the Land. In fulfilling your obligations under the Option Deed, as at 27 January 2011, you had incurred costs greater than $200,000 (GST exclusive) in relation to the acquisition and development of the Land. Development Applications were lodged for (amongst other things) the construction of multi-unit dwellings consisting of 1, 2 and 3 bedroom units, car parking and landscaping. The Development Applications were approved which permitted a variation to the Lease to permit multi-unit housing on the Land. You exercised your rights under the Option Deed to acquire the Land. You entered the Contract for Sale for the acquisition of the Land. A Lease was issued over the Land to the party nominated as the Seller under the Option Deed. Settlement of the Land acquisition occurred. The previous Lease over the Land was surrendered and a new Lease was granted to you. Upon completion of the development, an application will be made to register a units plan (ie strata title plan). This private ruling application relates only to supplies of residential premises that are made by you. In the event that the supplies residential premises are correctly classified as input taxed supplies, you will review and amend any prior GST returns that have been lodged in relation to the development of the Property to ensure that all acquisitions are treated as not being creditable acquisitions.

Relevant legislative provisions: A New Tax System (Goods and Services Tax) Act 1999 Section 40-65, | A New Tax System (Goods and Services Tax) Act 1999 Section 40-75, | A New Tax System (Goods and Services Tax) Act 1999 Subsection 40-75(2B) and | A New Tax System (Goods and Services Tax) Act 1999 Subsection 40-75(2C).

Reasons for decision: Summary: 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 terms marked by an *asterisk are defined terms in the GST Act • all reference materials, published by the Australian Taxation Office (ATO), that are referred to are available on ato.gov.au | Detailed Reasoning - Supply of property: Goods and services tax (GST) is payable on taxable supplies. Section 9-5 states: You make a taxable supply if: (a) you make a 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 Australia; 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. You will be supplying residential units for consideration. The supplies will be made in the course of your enterprise. The supplies are connected with Australia and you are registered for GST. Consequently, your supplies will be taxable, unless they are GST-free or input taxed. In your circumstances, there is no provision in the GST Act whereby your supplies will be GST-free. Therefore, the only remaining issue to be determined is whether your supplies are input taxed. Under subsection 40-65(1), a sale of real property to be used predominately for residential accommodation (residential premises) is input taxed. However, subsection 40-65(2) states that the sale is not input taxed to the extent that the residential premises are: (a) *commercial residential premises, or (b) *new residential premises other than those used for residential accommodation (regardless of the term of occupation) before 2 December 1998 Input taxed means that there is no GST payable on the supply and there is no entitlement to an input tax credit for anything that is acquired to make the supply. The definition of residential premises in section 195-1 refers to land or a building that is occupied as a residence or for residential accommodation, or is intended to be, and is capable of being, occupied as a residence or for residential accommodation (regardless of the term of occupation or intended occupation). Based on the submitted information, the units in question are residential premises and are not commercial residential premises. In addition, the residential premises have not been used for residential accommodation before 2 December 1998, because they were constructed after this date. | Detailed Reasoning - The meaning of new residential premises under section 40-75: The term 'new residential premises' has the meaning given by section 40-75, which in part states: | Detailed Reasoning - 40-75 Meaning of new residential premises: When premises are new residential premises (1) *Residential premises are new residential premises if they: (a) have not previously been sold as residential premises (other than *commercial residential premises) and have not previously been the subject of a *long-term lease; (b) …; or (c) …. Paragraphs (b) and (c) have effect subject to paragraph (a). Consistent with the Full Federal Court's reasoning in Commissioner of Taxation v Gloxinia Investments Ltd [2010] FCAFC 46 ( Gloxinia ), the grant of each of the individual unit title leases (for a term in excess of 50 years) upon approval and registration of a units plan will constitute a supply of residential premises by way of long term lease. Therefore, having regard to the terms of paragraph 40-75(1)(a) in isolation, any subsequent supply of the individual residential units, by way of assignment of the unit title leases, would be an input taxed supply of residential premises. That is, the individual residential unit would have previously been the subject of a long term lease (by virtue of the grant of the unit title leases) and would no longer be new residential premises. | Detailed Reasoning - New subsections 40-75(2B) and 40-75(2C): However, following the Federal Court's decision in Gloxinia, section 40-75 of the GST Act was amended by Tax Laws Amendment (2011 Measures No. 9) Act 2012 ("the Amending Act") to include subsections 40-75(2B) and 40-75(2C). The effect of subsections 40-75(2B) and 40-75(2C) is to disregard certain sales and supplies of residential premises when determining if the premises have been sold or have been subject to a long term lease for the purposes of paragraph 40-75(1)(a). Firstly, paragraph 40-75(2B)(a) requires the premises from which the residential premises were created to have earlier been supplied to the recipient of the wholesale supply, or their associates. In this case paragraph 40-75(2B)(a) is satisfied because the land 1 from which the residential premises were created have previously been supplied to you when you received the grant of the lease. Secondly, paragraph 40-75(2B)(b) requires that an arrangement (including an agreement) be made between the supplier of the earlier supply, or their associate, and the recipient of that earlier supply, or their associate. Here, paragraph 40-75(2B)(b) is satisfied as there is an arrangement between the government body (the supplier of the earlier supply) and you (the recipient of that earlier supply). Lastly, paragraph 40-75(2B)(c) requires that under the arrangement the wholesale supply of the residential premises is conditional upon specified building or renovation work being undertaken by you (the recipient of the earlier supply). The wholesale supply in this case is the granting of the individual strata lot leases by the government body to the entity. The arrangement between you and the government body includes the development approval and the lease, which sets out the requirements for the type of development including the specified building works. The specified building works are also governed by the statutory requirements covering the construction of residential premises under which the development approval has been given and the lease granted by the government body. The arrangement also includes the lodging of the strata leasehold plan and granting of the individual strata lot leases. This is because the intent of the parties in entering into the development was for the construction and sale of individual residential premises to home owners and investors, and the sale of the individual residential units can only occur following the lodgement of a strata leasehold plan and the subsequent grant of the individual strata lot leases. Whilst the new section 40-75(2B) applies in relation to supplies of residential premises occurring on or after 27 January 2011, there is an exception whereby certain arrangements which were entered into before 27 January 2011 will not be subject to section 40-75(2B). The exception is contained at item 12 of Schedule 4 to the Amending Act. | Detailed Reasoning - Application of the exception to section 40-75(2B): The circumstances of this case are such that it is considered that the work undertaken by you in obtaining the variation to the use of Land to allow for the proposed medium density residential premises, are part of the overall arrangement between you and the government body. There was significant interaction between you and the government body regarding the development arrangement prior to 27 January 2011. Accordingly, the item 12 to the Amending Act exception for the wholesale supply is satisfied as: • The premises from which the residential premises were created were previously supplied to you by the government body by way of the grant of the new lease. • You were commercially committed to the arrangement prior to 27 January 2011 as you had incurred direct costs greater than $200,000 (GST exclusive) in relation to acquisition and development of the land. • The arrangement also includes the development approval setting out the specified building works and the new lease. The registration of the units plan is the wholesale supply and that was conditional on the terms of the development approval and new lease being satisfied. • You advised that in the event that the supplies are correctly classified as input taxed supplies, you will review and amend any prior GST returns that have been lodged in relation to the development of the Property to ensure that all acquisitions are treated as not being creditable acquisitions. Subject to you amending the GST returns, you have satisfied all the preceding conditions to the exception to section 40-75(2B). Accordingly, the premises are not new residential premises. Any supplies of the residential premises by you will be input taxed supplies. | Detailed Reasoning - Subsection 40-75(2C): Under subsection 40-75(2C), a supply of the newly constructed residential premises is disregarded as a sale or supply for the purposes of applying paragraph 40-75(1)(a) if it is made because a property sub-division plan relating to the premises was lodged for registration (however described) by the recipient of the supply or their associate. In this case, the strata leasehold plan is a property sub-division plan as defined in section 195-1 and the granting of the individual strata lot leases would therefore be captured by subsection 40-75(2C). The transitional provision exception to subsection 40-75(2C) provided by item 13 of Schedule 4 to the Amending Act does not apply, but regard must be had to the overall intent and operation of all the transitional provisions relating to these legislative amendments. Accordingly, although both subsections 40-75(2B) and 40-75(2C) apply to this supply, in accordance with ATO ID 2014/19 subsection 40-75(2C) does not prevail to prevent the exception provided by the transitional provision of item 12. Therefore, the subsequent supply by the entity of the residential units to home owners and investors will be input taxed supplies. In conclusion, your supplies of residential premises by way of assignment of a long term lease from you to third party purchasers will be input taxed supplies of residential premises. 1 Note 1 of subsection 40-75(2B) provides that the premises referred to in paragraph 40-75(2B)(a) includes vacant land.