The case involves heritage farmland originally purchased for $1.6m that sold 7 years later for $4.25m and the GST debt that the ATO is
now pursuing on the sale.
In 2013, the taxpayer purchased Sutton Farms in Western Australia – 1.47 hectares consisting of an uninhabitable
homestead, large barn and quarters.
Over the course of 7 years, the taxpayer rezoned the property, obtaining conditional subdivision approval to subdivide the property into
four lots with plans for a further subdivision into approximately 15 lots, as well as undertaking sewerage, water and electrical
works. The work was supported by a $1m loan from a bank and a further $1.5m from his brother-in-law.
While the property was never used for this purpose, the taxpayer’s stated intention was to use the property as their home, gift the
subdivided lots to his daughter and son for use as their own respective residences, and use the last subdivided lot as a memorial dedicated
to another child who had passed away.
Without being subdivided, the property was eventually sold at a profit as a single lot in 2020 for $4.25m.
When the ATO audited the transaction and issued an assessment notice for GST on the sale transaction, the taxpayer objected. The taxpayer’s
argument was that Sutton Farms was intended to be used as a family home and the subdivision application had no commercial purpose.
Therefore, GST should not apply as the sale was not made in the course of an enterprise. However, there were a number of factors and
inconsistencies working against the taxpayer’s argument:
The problem for the taxpayer is that although he did not develop the property in the way he originally intended and ended up selling the
property as one lot, through the ownership period he acted as if the project was a commercial venture with a stated commercial outcome.
Determining the tax treatment of a property transaction can sometimes be a difficult exercise and there are a number of factors that need to
be considered. This will often include the intention or purpose of the taxpayer when acquiring a property. However, merely stating your
intention isn’t enough, it needs to be supported by objective evidence.
Determining tax treatment can be complex.
Seek advice before diving into property deals.
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