Private ruling: GST and sale of properties
Date of advice: 15 July 2020
Published: August 2020

Ruling: Q1: Is the sale of the properties located in Australia made by the Trusteesa taxable sale under section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)? | A1: No , the sale of the properties located in Australia made by the Trustees is not a taxable sale under section 9-5 of the GST Act. Relevant facts You were appointed Trustees for sale of the properties pursuant to an order of the Supreme Court of NSW under Section 66G of the Conveyancing Act 1919 (NSW). The Statutory Trust is not registered for GST. The Trustees became registered as joint tenants of the Properties. The Properties were leased before the Court Order was issued and continue to be leased after the Court Order. The rental revenue received by the Trustees was first paid into the managing agent's account and then transferred to one of the Trustees' Trust Account who is a solicitor. In 20XX, in order to ready the properties for sale, the Properties ceased operating as boarding houses and were vacated. No revenue has been received from that date. A contract was exchanged between the Trustees and a purchaser for the sale of the Properties. The Properties were sold as houses with vacant possession We have received a copy of the exchanged sale contract.


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 23-5 | A New Tax System (Goods and Services Tax) Act 1999 section 188-15 | A New Tax System (Goods and Services Tax) Act 1999 section 188-20 | A New Tax System (Goods and Services Tax) Act 1999 section 188-25

Reasons for decision: Summary: Note : Where the term 'Australia' is used in this document, it is referring to the 'indirect tax zone' as defined in section 195-1 of the GST Act. | Detailed Reasoning - Detailed reasoning: GST is payable on a taxable supply. A supply is a taxable supply under section 9-5 of the GST Act if: a) The supply is made for consideration; and b) The supply is made in the course of an enterprise that you carry on; and c) The supply is connected with Australia; and d) The supplier is registered for GST or required to be registered for GST. However, the supply is not a taxable supply where the supply is GST-free or input taxed. Based on the information given the sale of the Properties made by the Trustees of the Trust satisfies paragraphs (a) to (c) in section 9-5 of the GST Act as: a) the sale of the Properties is for consideration; and b) The sale of the Properties is made in the course of the rental enterprise that the Trustees of the Trust carry on since the Properties were the assets used to derive rental income; and c) The sale of the Properties is connected with Australia since the Properties are in Australia. Currently the Statutory Trust is not registered for GST. We will now consider whether the Trust is required to register for GST for the purpose of paragraph (d) of the GST Act. | Detailed Reasoning - Is the Trust required to register for GST?: Under section 23-5 of the GST Act you are required to register for GST if you are carrying on an enterprise and your annual turnover is AU$75,000 or more (AU$150,000 for non-profit organisation). According to Miscellaneous Taxation Ruling MT 2006/1 certain type of assets, such as rental properties, business plant and machinery, the family home, family cars and other assets are considered as investment assets. These assets are purchased with the intention of being held for a reasonable period of time, as income-producing assets or for the pleasure or enjoyment of the person. The mere disposal of these investment and private assets does not amount to trade. Assets can change their character from investment to trade, however these assets cannot be held at the same time for both purposes. Further section 188-25 of the GST Act excludes certain supplies made when working out your projected GST turnover. Section 188-25 requires you to disregard the following when calculating your projected GST turnover: o ceasing to carry on an enterprise; or o substantially and permanently reducing the size or scale of an enterprise. Goods and Services Tax Ruling GSTR 2001/7: meaning of GST turnover including the effect of section 188-25 on projected GST turnover provides the following example regarding ceasing to carry on an enterprise Example 1: Ceasing to carry on an enterprise 48. James, a grazier, aged seventy, decides to retire from his farm. He holds a clearing sale and sells all his livestock, machinery and implements to various buyers. He receives $80,000 from the sale that will be included in his current GST turnover. He is not registered for GST, as his GST turnover from selling livestock is usually around $35,000. 49. If James has a GST turnover of $75,000 or more, he is required to be registered for GST. Although he normally would have sold some of this livestock in his day to day operations, the whole herd has been sold at this time solely as a consequence of ceasing to carry on his enterprise. The effect of subparagraph 188-25(b)(i) is that the $80,000 is excluded from his projected GST turnover. 50. An objective assessment of James' projected GST turnover is below $75,000 taking into account his age and the permanent nature of his decision. His current GST turnover is above $75,000 but because his projected GST turnover is below $75,000, his GST turnover does not meet the registration turnover threshold. Thus, James is not required to register for GST. From the facts given, the Properties to be sold were capital assets from which the Trustees of the Trust derive income and the Trust is not registered for GST. When the Trustees sell the capital assets, the turnover of the sale will not be included in the Trust's projected annual turnover under section 188-25 of the GST Act since the rental enterprise will cease when the assets are sold. Accordingly, the Trust is not required to be registered for GST when the Trustees sell the Properties to the purchaser. Paragraph (d) in section 9-5 of the GST Act is not satisfied. In this instance the Trustees' sale of the Properties to the purchaser is not a taxable sale under section 9-5 of the GST Act. The sale is outside the scope of GST .

any supply made, or likely to be made, by you by way of transfer of ownership of a capital asset of yours; and | any supply made, or likely to be made, by you solely as a consequence of: