Mr K acquired a building to develop into five apartments with one to be Mr K’s home and the others for short term holiday letting to supplement the income from Mr K’s GST registered Architecture practice. The development exceeds budget and the bank requires Mr K to sell the four holiday apartments.
Is the sale of holiday apartments subject to GST or income tax?
The fundamental concepts of ‘enterprise’, ‘profit making scheme’ and ‘business’ and their inter-relationship remain problematic and regularly result in disputes with the ATO.
Further clarity in and technical commentary regarding MT 2006/1: carrying on an enterprise is necessary to provide greater certainty for taxpayers and practitioners on the scope and relationship of these fundamental concepts.
Legislative references are to the A New Tax System (Goods and Services Tax) Act 1999 (GSTA 1999) and the Income Tax Assessment Act 1997 (ITAA 1997).
‘An enterprise is an activity, or series of activities, done:
(a) in the form of a business;
(b) in the form of an adventure or concern in the nature of trade; or
(c) on a regular or continuous basis in the form of a lease, licence or other grant of interest in property’ (sec. 9-20 GSTA 1999).
An enterprise is GST registerable and supplies in the course of the enterprise may be subject to GST.
‘business’ includes any profession, trade, employment, vocation or calling, but does not include occupation as an employee’ (sec. 195-1 GSTA 1999; sec. 995-1 ITAA 1997 definition of ‘business’).
Profits made in the ordinary course of a business constitute taxable assessable income. Profits made from a transaction otherwise than in the course of a business entered into with the purpose of making a profit (‘profit making scheme’) constitute taxable assessable income (FCT v Myer Emporium  HCA 18).
Enterprise and business distinction
Determining the enterprise is relevant to most GST registration, accounting, scope and nexus etc. Business is relevant for small business entity accounting (sec. 29-40 GSTA 1999), GST-free subdivision of farmland (sec. 38-475 GSTA 1999), second hand goods (sec. 66-40 GSTA 1999), etc.
Determining enterprise is relevant for income tax small-medium enterprise disposal of shares (sec. 128TG ITAA 1997), exempt agricultural enterprise payments (sec. 53-10 ITAA 1997) or designated infrastructure projects (sec. 415-20 ITAA 1997). Business is relevant for general business deduction (sec. 8-1(b) ITAA 1997), trading stock (sec. 70-10 ITAA 1997), CGT small business concessions (sec. 152-40 ITAA 1997) etc.
An enterprise ‘in the form of a business’ may not qualify for certain treatments that require the activities to constitute a ‘business’.
The difficulties in applying the tests across GST and income tax are demonstrated where a primary production activity may be subject to GST ‘in the form of a business’ and to exempt agricultural enterprise payments, but not be carry on business for the GST-free subdivision of farm land exemption or primary production business averaging.
While these issues do not confront Mr K, they demonstrate the complexity of the relationship of these fundamental concepts.
Scope of enterprise
Determining the scope of the activities that constitute the enterprise can significantly affect how and which provisions apply.
MT 2006/1 states that a single undertaking or act may constitute an enterprise (at ) and one or more activities within a series of activities may be an enterprise without other activities or all activities constituting an enterprise (at ).
Determining if ‘…supplies are not made in connection with an enterprise…’ for the GST registration turnover threshold (sec. 188-15(1)(c) GSTA 1999) or if ‘…all of the things that are necessary for the continued operation of the enterprise’ have been supplied under the going concern exemption (sec. 38-325 GSTA 1999; GSTR 2002/5) can be controversial.
Mr K has the complex task of determining if the development activities or sale constitutes an enterprise or part of the GST architecture enterprise so is subject to GST and whether the sale of the holiday apartments is an enterprise for the going concern exemption.
Reasonable tax practitioners and ATO case officers can and do have different views.
In the form of a business
MT 2006/1 states ‘…in the form of a business’ extends to activities not otherwise within the ordinary meaning of business (at [170A]) having regard to the degree of commercial purpose and character, intention and objective profitability, repetition, regularity and extent of engagement; similarity to industry or business standards, systems, organisation and processes, size and scale and industry knowledge and skill (at ).
Examples include active holding companies (at ), mutual organisations (at ), non-profit organisations (at ), or body corporates (at ) that do not have traditional profit motives.
The extent to which the absence of other business indicia are relevant is not explored and does not need to be explored if ‘in the form of an adventure or concern in the nature of trade’ is interpreted broadly since it overlaps business like activities with a profit motive.
Mr K is not carrying on a business of property development within the ordinary meaning because the size, scale, repetition, systems and processes etc are modest (FCT v Whitfords Beach P/L  HCA 8; Casimaty v FCT  FCA 1388; Stevenson v FCT  FCA 224).
In the form of an adventure or concern in the nature of trade
The ATO equates ‘in the form of an adventure or concern in the nature of trade’ to a ‘profit making scheme’ in an attempt to align the tests for GST and income tax.
MT 2006/1 states ‘…in the form of an adventure or concern in the nature of trade’ while potentially broader in a practical sense is confined to isolated profit making schemes within the TR 92/3 (at ,  ) having regard to the subject matter, form and quantity of the realisation, period of ownership, frequency and number of similar transactions, degree of supplementary work on or in connection to realisation, circumstances responsible for and motivation of the realization (at  - ).
The GST and the CGT divisions of the ATO do not necessarily treat the same project as a profit making scheme. Even where the ATO accepts or does not dispute that a property development is not a business or profit making scheme, the GST division may pursue GST on the basis that the property development is a profit making scheme enterprise.
With appropriate escalation in the ATO, the GST and CGT treatment are usually aligned on the basis there is no profit making scheme. A taxpayer can waste much time and money in simply having the GST and CGT divisions consult to form a consistent view.
While the ATO administratively confines ‘in the form of an adventure or concern in the nature of trade’ to profit making scheme to the benefit of taxpayers, the administrative treatment may be incorrect.
‘An adventure or concern in the nature of trade’ likely equates to the badges of trade based on the interpretation of UK provisions (HMRC Ruling IM 125).
The 9 badges of trade:
the subject matter of the realisation;
the length of period of ownership;
the frequency or number of similar transactions by the same person;
supplementary work on or in connection with the property realised;
the circumstances that were responsible for the realisation;
the source of finance;
existence of similar trading transactions or interests; and
method of acquisition.
If this is the correct test, then it need not align with the Australian profit making scheme tests generally or within the interpretation in TR 92/3.
Under a ‘business operations’ transaction a profit-making intention would be assumed for an Australian profit making scheme. However, under a ‘commercial transaction’ outside the ordinary business operations a profit making intention must be establish at the time of entering into the transaction and the taxpayer must have intended to make a profit in relation to the particular transaction by which the profit was in fact made and not simply in a temporal sense (Westfield Ltd v FCT  FCA 86).
TR 92/3 contends that:
the profit making intent need only be established at the time the sale transaction is entered into; and
it need not be established that the profit arose in the manner initially intended.
Although MT 2006/1 considers that ‘in the form of’ in a practical sense is limited to isolated profit making schemes within the TR 92/3 that may only be because the ATO has a broader interpretation of profit making scheme in TR 92/3 than is supported by case law.
Potentially, ‘in the form’ of an adventure or concern in the nature of trade for GST may accord with TR 92/3 and be broader than profit making scheme for income tax purposes as expressed by Westfield Ltd v FCT.
The reasoning in MT 2006/1 may require amendment.
As a result, Mr K’s property development may be an enterprise and subject to GST, but not a profit making scheme for income tax purposes (e.g. because at the time of acquiring the property he had no intention to sell for a profit and the sale occurred under direction from the bank and not in the manner initially intended).
In the form of a lease, licence or other grant of an interest in property
For completeness, MT 2006/1 states ‘…in the form of a lease, licence or other grant of an interest in property’ while potentially broader in a practical sense cannot expand the concept of lease, licence or other grant of an interest in property’ (at ).
In respect of the ‘grant of an interest in property’
‘Grant’ refers to a creation of an interest out of another estate but is apt for conveying a freehold (not relevant because of the construction of the section).
‘Interest in property’ would limit grants such as transferable development rights and rent charges which are not interests in land (Uniting Church in Australia Property Trust (NSW) v Immer (No 145) P/L (1991) 24 NSWLR 510 at 511; Clem Smith Nominees P/L v Farrelly (1978) 20 SASR 227 at 231).
Common grants of interest in property include transfer and lease back of fixtures, profits-a-prendre and legal easements (Eastern Nitrogen Ltd v FCT  FCA 1536;  FCA 2001;  HCA Trans 300; Re Ellenborough Park  Ch 131 at 140).
A grant being an interest in land is at law required by deed. An instrument not being a deed may create an equitable easement or equitable profits-a-prendre (sec. 23B & 23C Conveyancing Act 1999 (NSW)). An option to grant an easement creates an equitable easement (Gas & Fuel Corporations of Victoria v Barba  VR 755; (1976) 136 CLR 120).
Arguably, these equitable interests in land are not ‘grants’. Contrary to the ATO’s statement, ‘in the form of…other grant of an interest in property’ may operate in respect of these equitable interests. If they do not, then there may be a GST planning opportunity for equitable profits-a-prendre etc to be given without constituting an enterprise. This would appear contrary to tax policy.
If during the property development Mr K ‘granted’ any legal or equitable easements or options to easements, it is unclear whether the grant would be an enterprise or an activity within the scope of an enterprise.