Goods and services tax: how the margin scheme applies to a supply of real property made on or after 1 December 2005 that was acquired or held before 1 July 2000 

 

What this Ruling is about

1. This Ruling explains how the margin scheme applies to a supply of a freehold interest, stratum unit,¹ or long-term lease² (referred to in this Ruling collectively as 'real property') on or after 1 December 2005 that was acquired or held before 1 July 2000.

2. This Ruling also explains how the A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination MSV 2005/3 (MSV 2005/3) applies.

3. MSV 2005/3 was made under section 75-35 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act). A copy of it is attached at Schedule 1.

4. Section 75-35 of the GST Act provides for the Commissioner to determine, in writing, the requirements for making valuations for the purposes of Division 75 and that a valuation made in accordance with these requirements is an approved valuation.

5. MSV 2005/3 is about the requirements for making an approved valuation of real property. It applies to taxable supplies of real property made on or after 1 December 2005. It is a legislative instrument and has the force of law. Unlike public rulings which are binding only on the Commissioner, MSV 2005/3 is binding on both the Commissioner and suppliers.

6. The Ruling explains in particular:

(a)

  how valuations are to be made under MSV 2005/3 (paragraphs 70 to 85);

(b)

  what documentation is required by a professional valuer to satisfy MSV 2005/3 (paragraph 79); and

(c)

  when valuations are required to be made under Division 75 the GST Act (paragraphs 70 to 72).

7. The Ruling also discusses:

(a)

  when you can apply the margin scheme (paragraphs 24 to 36);

(b)

  when you supply or acquire or hold an interest, unit or lease (paragraphs 42 to 45);

(c)

  how the margin for a supply is calculated (paragraphs 46 to 47);

(d)

  the margin for the supply of real property acquired from a deceased estate (paragraphs 48 to 54);

(e)

  the margin for the supply of real property acquired from an associate (paragraphs 55 to 58);

(f)

  whether the consideration for a supply or an acquisition includes settlement adjustments (paragraph 59);

(g)

  the meaning of 'Commonwealth, a State or a Territory' for the purposes of items 2A and 4 in the table in subsection 75-10(3) (paragraphs 89 to 95);

(h)

  the meaning of 'land on which there are no improvements' and 'no improvements on the land' for the purposes of the table in subsection 75-10(3) and subsection 75-10(3A) (paragraphs 96 to 100);

(i)

  how the margin scheme applies to mixed supplies (paragraphs 101 to 103);

(j)

  increasing adjustments if part of your acquisition was ineligible for the margin scheme (paragraphs 106 to 129);

(k)

  working out the margin if not all the consideration has been paid (paragraphs 130 to 134);

(l)

  entitlement to input tax credits (paragraph 135);

(m)

  tax invoices (paragraph 136); and

(n)

  record keeping requirements (paragraph 137 to 139).

8. This Ruling does not deal in detail with subsection 75-10(2). Under subsection 75-10(2) the margin for the supply is calculated by reference to the consideration for the supplier's acquisition of the real property rather than by reference to a valuation. The consideration for the acquisition is addressed at paragraphs 48 to 68 in Goods and Services Tax Ruling GSTR 2006/8.³

9. It also does not deal in detail with taxable supplies of real property made before 1 December 2005. For supplies made before 1 December 2005 see Goods and Services Tax Ruling GSTR 2000/21.⁴ GSTR 2000/21 must be read subject to those amendments made by the Tax Laws Amendment (2005 Measures No. 2) Act 2005 (2005 Amendment Act).

10. Unless otherwise stated, all references in this Ruling are to the GST Act.

Date of effect

11. This Ruling, except for the legislative amendments made by the 2005 Amendment Act, and the valuation requirements contained in MSV 2005/3 and A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination MSV 2005/2 (MSV 2005/2), explains the Commissioner's view of the law as it applied from 1 July 2000.

12. The legislative amendments contained in the 2005 Amendment Act apply to supplies made on or after 17 March 2005, except for the amendments to section 75-5. The amendments to section 75-5 apply to supplies on or after 29 June 2005⁵ that are:

(a)

  made under contracts entered into on or after 29 June 2005; and

(b)

  are not made pursuant to rights or options granted before 29 June 2005.

13. The valuation requirements contained in MSV 2005/2 applies on or after 1 July 2005, whereas MSV 2005/3 applies on or after 1 December 2005.

14. You can rely upon this Ruling on and from its date of issue for the purposes of section 37 of the Taxation Administration Act 1953 . Goods and Services Tax Ruling GSTR 1999/1 explains the GST rulings system and our view of when you can rely on our interpretation of the law in GST public and private rulings.

15. If this Ruling conflicts with a previous private ruling that you have obtained, this public ruling prevails. However, if you have relied on a private ruling, you are protected in respect of what you have done up to the date of issue of this public ruling. This means that if you have underpaid an amount of GST, you are not liable for the shortfall prior to the date of issue of this later ruling. Similarly, you are not liable to repay an amount overpaid by the Commissioner as a refund.

Margin scheme rulings

16. There are three main public rulings dealing with the margin scheme. The following table summarises the major differences between these rulings and may assist the reader is ascertaining which ruling is relevant to their circumstances.

Background

17. If you make a taxable supply of real property, the GST payable under the basic rule in section 9-70 is 1/11th of the price.⁹ However, under subsection 75-5(1), if you make a taxable supply of real property by:

·

  selling a freehold interest in land;

·

  selling a stratum unit; or

·

  granting or selling a long-term lease,

you may apply the margin scheme, if you and the recipient have agreed in writing that the margin scheme is to apply.¹⁰

18. Under the margin scheme, the GST payable on the supply of real property is 1/11th of the margin for the supply. The margin for the supply is the amount by which the consideration¹¹ for the supply exceeds the consideration for the acquisition of the real property unless subsection 75-10(3)¹² or section 75-11 applies. Section 75-11 applies to supplies made on or after 17 March 2005.

19. The GST payable under the margin scheme is usually lower than when the GST is worked out under the basic rule in section 9-70. Because of this, the margin scheme is used particularly if the recipient of the supply is not entitled to an input tax credit for the acquisition. The most common example is residential land or residential premises supplied to private owners for their own use or for investment purposes. However, the supplier can calculate GST under the margin scheme for supplies of all types of real property¹³ including residential, commercial, retail and industrial property.

20. The Commissioner has previously issued GSTR 2000/21 which explained the A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination (No. 1) 2000 and the A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination (No. 2) 2000 . Additionally, the A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination MSV 2005/1 was made on 11 March 2005.

21. MSV 2005/3 replaces these determinations for supplies of real property made on or after 1 December 2005. GSTR 2000/21 and the legislative determinations attached to the Ruling¹⁴ now only apply to supplies of real property made before 1 December 2005.

22. MSV 2005/3 does not replace MSV 2005/2.

23. MSV 2005/2 extends the operation of the costs of completion valuation method¹⁵ to supplies made after 1 July 2005, where the contract for the supply was entered into before that date.

Ruling with Explanation

When can you apply the margin scheme?

24. Subsection 75-5(1) deals with applying the margin scheme. It was amended by the 2005 Amendment Act. At the same time, subsection 75-5(1A) was inserted into the GST Act.

25. Subsection 75-5(1A) and the amendment to subsection 75-5(1) apply to supplies that are:

(a)

  made under contracts entered into on or after 29 June 2005; and

(b)

  are not made pursuant to rights or options granted before 29 June 2005.

26. In all other circumstances, subsection 75-5(1) prior to its amendment 75-5(1) applies.

Amended subsection 75-5(1) and subsection 75-5(1A)

27. Subsection 75-5(1) provides that you may use the margin scheme if the supplier and the recipient have agreed in writing that the margin scheme is to apply. Subsection 75-5(1A) provides that the agreement must be made on or before making the supply, or within such further period as the Commissioner allows.¹⁶

28. The decision to allow or not allow a further period within which to make an agreement is a reviewable GST decision under item 37AA in the table in subsection 62(2) of the Taxation Administration Act 1953 .

Subsection 75-5(1) prior to amendment by the 2005 Amendment Act

29. Subsection 75-5(1), prior to its amendment, applies to supplies where the contract for the real property was entered into before 29 June 2005¹⁷. Similarly, if prior to 29 June 2005, the recipient of the supply had a right or option to purchase real property, then when the right or option is exercised, the supply of this property falls within subsection 75-5(1) prior to its amendment.¹⁸

30. It provides that the supplier 'may choose to apply the margin scheme in working out the amount of GST' if the supplier makes a taxable supply of real property. It does not expressly state when the choice to use the margin scheme needs to be made.

31. However, it is the Commissioner's view that, to be entitled to apply the margin scheme under subsection 75-5(1) prior to its amendment, the supplier must have chosen to apply the margin scheme at or before the time it makes the supply. If the choice is not made by that date, it is the Commissioner's view that it cannot be made at a later date.

32. Support for this view is found in the wording contained in Division 75. For example, the language of subsection 75-20(1) provides that an acquisition is not a creditable acquisition if the supply was a taxable supply under the margin scheme. This suggests that the choice to apply the margin scheme must have been made by the time the taxably supply was made for the supply to be a 'taxable supply under the margin scheme'.

33. Similarly, paragraph 75-25(1)(a) refers to 'a taxable supply of real property under the margin scheme' and subsection 75-30(1) refers to 'a supply of real property under the margin scheme'. These provisions appear to be founded on the assumption that it will be known that the supply is a supply under the margin scheme, which can only be the case if the supplier has chosen to apply the margin scheme by the time the supply is made.

34. However, in limited circumstances, the Commissioner allows GST to be calculated under subsection 75-5(1) prior to its amendment as if the choice to apply the margin scheme had been made by the time the supply is made.¹⁹

Conditional application of the margin scheme

35. Commonly, contracts specify that there is no GST payable on a supply, but that if the supply is taxable then the GST payable will be calculated under the margin scheme. In these circumstances, the Commissioner accepts that the requirements in paragraph 75-5(1A)(a) have been satisfied.

36. Similarly, where subsection 75-5(1) prior to its amendment applies, the supplier has made a choice to apply the margin scheme before the supply has been made.

What is the margin for the supply?

37. The margin for the supply is the difference between the consideration for the supply and the consideration²⁰ for the acquisition of the real property unless subsection 75-10(3) or section 75-11 applies.

Subsection 75-10(3)

38. Subsection 75-10(3) applies if an approved valuation has been made and:

·

  the circumstances in section 75-11 do not apply; and

·

  you acquired (or in some cases held) the real property before 1 July 2000; or

·

  you acquired the real property on or after 1 July 2000, but the supply to you:

(i)

  was GST-free under subsection 38-445(1A); and

(ii)

  related to a supply before 1 July 2000, by way of lease, that would have been GST-free under section 38-450 had it been made on or after 1 July 2000 (item 2A).

39. Under subsection 75-10(3), the margin for the supply is the difference between the consideration for the supply and the amount determined by the approved valuation. In the context of subdivisions, if land that is part of the original broadacres is used for public purposes, such as, roads, parklands or utilities ('lost land'), the valuation of the entire broadacres is apportioned to the total number of subdivided lots, so that the sum of the apportioned amounts equals the valuation for the broadacres (including the 'lost land').

40. When the margin scheme applies to the supply but there is no valuation, or a valuation is not an approved valuation under section 75-35, then the margin for the supply is calculated under subsection 75-10(2), provided section 75-11 does not apply.

Section 75-11

41. Section 75-11 applies if the real property was acquired from:

·

  a deceased estate and the deceased acquired it before 1 July 2000;²¹ or

·

  an associate.²²

When do you supply or acquire real property?

42. Most legal interests in Torrens title land are created or transferred only upon registration of the relevant instrument.

43. However, because of the practical difficulties of determining precisely when the instrument is registered or lodged for registration, that would arise if a literal interpretation of the law is to be taken, the Commissioner considers that Parliament would have intended that, in the context of GST, a less strict approach should apply.

44. For that reason, the Commissioner considers that for the sale of a freehold interest or stratum unit, the supply and the acquisition is made at settlement as this is when the purchaser (or the purchaser's agent) obtains:

·

  unconditional possession of a registrable instrument of transfer; or

·

  an instrument of transfer that would be registrable once stamped.

45. If the supply is made by way of sale or grant of a long-term lease, the lease is supplied and acquired when the recipient obtains a leasehold estate in the land. However, if registration of the lease or instrument of transfer is required under the State or Territory legislation applying when the lessee obtains the leasehold interest, the Commissioner considers that the lease is supplied and acquired when the recipient (or the recipient's agent) obtains:

·

  unconditional possession of a registrable lease or instrument of transfer of the lease; or

·

  a lease or an instrument of transfer of lease that would be registrable when it is stamped.

Again, as in the case of a sale of a freehold interest or a stratum unit, this is at settlement.

How is the margin calculated?

46. Unless subsection 75-10(3) or section 75-11 apply, the margin for the supply is calculated under subsection 75-10(2). Under subsection 75-10(2) the margin for the supply is the amount by which the consideration for the supply exceeds the consideration for its acquisition. The consideration for the acquisition is discussed in detail at paragraphs 48 to 68 in GSTR 2006/8.

47. If subsection 75-10(3) applies, the margin is the difference between the consideration for the supply and the valuation of the interest, unit or long-term lease at the relevant date. Subsection 75-10(3) applies if an approved valuation has been made and:

(a)

  the circumstances in section 75-11 do not apply; and

(b)

  you acquired (or in some cases held) the real property before 1 July 2000; or

(c)

  you acquired the real property on or after 1 July 2000, but the supply to you:

(i)

  was GST-free under subsection 38-445(1A); and

(ii)

  was related to a supply before 1 July 2000, by way of lease, that would have been GST-free under section 38-450 had it been made on or after 1 July 2000 (item 2A of the table in subsection 75-10(3).

Margin for the supply of real property acquired from a deceased estate

48. Subsections 75-11(3) and (4) address how the margin scheme applies when you supply real property that you acquired by inheriting it. Section 195-1 specifies the manner in which real property can be inherited. It states that you inherit a freehold interest in land, a stratum unit or a long-term lease if you become an owner of the interest, unit or lease:

(a)

  under the will of a deceased person, or that will as varied by a court order; or

(b)

  by operation of an intestacy law, or such a law as varied by a court order; or

(c)

  because it is appropriated to you by the legal personal representative of a deceased person in satisfaction of a pecuniary legacy or some other interest or share in the deceased person's estate; or

(d)

  under a deed of arrangement if:

(i)

  you entered into the deed to settle a claim to participate in the distribution of the deceased person's estate; and

(ii)

  any consideration given by you for the interest, unit or lease consisted only of the variation or waiver of a claim to one or more other assets that formed part of the estate.

49. Subsection 75-11(3) applies if the deceased acquired the real property before 1 July 2000, while subsection 75-11(4) applies if the deceased acquired the property on or after that date.²³ Both these subsections only apply if subsections 75-11(1) to (2B) do not apply (GST groups and GST joint ventures).

50. If you supply real property that you inherit, and the deceased acquired it before 1 July 2000, then paragraph 75-11(3)(ca) allows you to choose to use the consideration for the deceased's acquisition of the real property when calculating the margin for the supply. However, paragraph 75-11(3)(ca) can only apply if:

·

  you know the amount of the consideration for the deceased's acquisition of the property; and

·

  you choose to use this amount when calculating the margin for the supply.

51. Under paragraph 75-11(3)(ca) the margin for the supply is the amount by which consideration for the supply you make exceeds the consideration for the deceased's acquisition of the property.

52. If you do not know the consideration for the deceased's acquisition of the real property, or you do not choose to calculate the margin for the supply under paragraph 75-11(3)(ca), then the margin is calculated under paragraph 75-11(3)(d) or 75-11(3)(e).²⁴

Paragraph 75-11(3)(d)

53. Paragraph 75-11(3)(d) applies if, immediately before the time that you inherited the real property, the deceased was neither registered or required to be registered. If paragraph 75-11(3)(d) applies, the margin for the supply is the amount by which the consideration for the supply exceeds an approved valuation of the real property as at the latest of:

·

  1 July 2000;

·

  the day on which you inherited the real property; or

·

  the first day on which you were registered or required to be registered for GST.

54. It is evident from paragraph 6.29 of the Revised Explanatory Memorandum to the Tax Laws Amendment (2005 Measures No. 2) Bill 2005 that Parliament's intention is that the day on which you inherited the real property will ordinarily be the date of death of the deceased.²⁵ However, in some circumstances such as where a will is varied by a court order or the beneficiaries of the estate enter into a deed of arrangement, then the day on which you inherited the real property will be the date the court order or deed of arrangement becomes effective.

Margin for the supply of real property acquired from an associate

55. Subsection 75-11(7) deals with the supply of real property that you acquired from an associate.²⁶ It only applies when the other subsections in section 75-11 do not apply.

56. Paragraph 75-11(7)(c) applies if before 1 July 2000 you acquire real property from an entity who was your associate at the time. When you supply the real property, the margin for the supply under paragraph 75-11(7)(c) is the amount by which the consideration for the supply exceeds an approved valuation of the real property as at 1 July 2000.²⁷

57. Subsection 75-11(8) extends the application of subsection 75-11(7) to acquisitions through supplies made by the following:

·

  a GST branch;

·

  a non-profit sub-entity; and

·

  a government entity of a kind referred to in sections 72-95 or 72-100,

in the same way as Subdivision 72-D affects the operation of Division 72.

58. The effect of this is that subsection 75-11(7) applies not only to associates as defined in section 195-1 but also treats the following as if they were associates:

(a)

  a GST branch of an entity as if it were an associate of:

(i)

  that entity;

(ii)

  every other GST branch of that entity; and

(iii)

  any other associate of that entity;

(b)

  a non-profit sub-entity of an entity as if the non-profit sub-entity were an associate of:

(i)

  that entity;

(ii)

  every other non-profit sub-entity of that entity; and

(iii)

  any other associate of that entity;

(c)

  a government entity that is:

(i)

  a Department of State of the Commonwealth;

(ii)

  a Department of the Parliament;

(iii)

  an Executive Agency, or Statutory Agency, within the meaning of the Public Service Act 1999 ; or

(iv)

  an organisation, established by the Commonwealth, of a kind referred to in paragraph (e) of the definition of government entity in section 41 of the A New Tax System (Australian Business Number) Act 1999 ,

 as if the government entity were an associate of the Commonwealth, of every other government entity of a kind referred to in paragraph (i), (ii), (iii) or (iv) and of any other associate of the Commonwealth.

Consideration for the supply and settlement adjustments

59. The consideration for the supply and the consideration for the acquisition may be either monetary or non-monetary or both. The consideration for the supply or acquisition should take into account adjustments on settlement that are commonly made for rates, land tax and other outgoings. Goods and Services Tax Determination GSTD 2006/3²⁸ contains a detailed discussion on this topic.

Valuation dates

60. Valuations are required to work out the margin for supplies of real property under paragraph 75-10(3)(b) and in particular circumstances, under section 75-11. The table below sets out the valuation dates for the purposes of these provisions.

Note:

(a)

  a valuation must be made as at the date specified in column 3 of the table; and

(b)

  the valuation must comply with all requirements determined in writing by the Commissioner.

Time to make valuations

61. To work out the margin for the supply of real property, you require a valuation as at the valuation date. The valuation process itself does not have to be undertaken on that date.

62. The valuation must be made by the due date for lodgment of the supplier's Activity Statement for the tax period to which the GST on the supply is attributable.

63. However, if the Commissioner has allowed a further period under paragraph 75-5(1A)(b) for the supplier and the recipient to agree in writing that the margin scheme is to apply in working out the GST on the supply, the valuation must be made by the later of:

(i)

  six weeks from the further period that the Commissioner has allowed under paragraph 75-5(1A)(b); or

(ii)

  six weeks from the date of the Commissioner's decision to extend the further period under paragraph 75-5(1A)(b).

64. If the valuation is not undertaken within the time periods specified in paragraphs 62 and 63, the Commissioner may for good reason allow an additional period to obtain a valuation.²⁹

65. The time periods mentioned in paragraphs 62 to 64 for obtaining valuations do not affect the date by which the choice or agreement to apply the margin scheme must be made - see paragraphs 27 to 36.

What is the real property that you value?

66. If subsection 75-10(3) or any of the provisions of section 75-11 require you to obtain an approved valuation, the real property that you value is the interest, unit or lease that is in existence at the valuation date. This will not always be the real property that is supplied.

67. Often the real property that is supplied was not in existence at the valuation date. Examples of this are:

·

  land that is acquired as broadacres and is later subdivided and sold; and

·

  land on which strata units are built.

68. If the real property that is supplied was not in existence at the valuation date but was, for example, subdivided from the interest that was in existence at that date, the valuation must be made as follows:

(a)

  a valuation of the interest, unit or lease in existence at the valuation date is undertaken; and

(b)

  the valuation of that interest, unit or lease is then apportioned on any fair and reasonable basis, to ascertain the part of the valuation that relates to the interest, unit or lease that you supplied. It is not necessary for the apportionment to be undertaken by a professional valuer if the professional valuation method is used to value the real property.

69. This is diagrammatically represented below:

·

  At 1 July 2000 Lot 100 with an area of 100 hectares had a market value of $100,000. After 1 July 2000, Lot 100 was subdivided creating Lot 3 with an area of 25 hectares.

·

  The value of Lot 3 is the proportion of the valuation of the interest you acquired that is in existence as at 1 July 2000, that is, Lot 100. In the context of the diagram above, this proportion is $25,000 (1/4 of $100,000 on the assumption that the land is of approximately uniform value per square metre).

What valuation methods does the Commissioner accept for taxable supplies of real property made on or after 1 December 2005?

70. MSV 2005/3 prescribes the following valuation methods for taxable supplies of real property made on or after 1 December 2005:

(a)

  a valuation of the market value of the interest, unit or lease at the valuation date determined in writing by a professional valuer provided it is not contrary to professional standards recognised in Australia;³⁰

(b)

  adopting as the value the consideration in a contract for the sale of real property executed or exchanged before the valuation date by parties dealing at arm's length; and

(c)

  adopting as the valuation the most recent value as determined before the valuation date by or on behalf of a State or a Territory Government department as the unimproved value, the site value, or the capital value of the land, for rating or land tax purposes.

71. Under subsection 75-35(2), a valuation made in accordance with the requirements in MSV 2005/3 is an approved valuation.

72. If a valuation obtained in accordance with A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination (No. 1) 2000 or the A New Tax System (Goods and Services Tax) Margin Scheme Valuation Requirements Determination (No. 2) 2000 complies with the requirements of MSV 2005/3, it is an approved valuation under subsection 75-35(2). Consequently, there is no need to obtain a new valuation in these circumstances.

Method 1: valuation of the market value determined by a professional valuer

73. Under Method 1, the valuation is the market value of the interest, unit or lease that you held at the valuation date (or, if item 2A applies, the interest you later acquired) determined in writing by a professional valuer, provided it is not contrary to professional standards recognised in Australia.

74. The exception to the above is when item 4 in the table in paragraph 75-10(3)(b) applies and there are improvements on the land when the taxable supply is made. In these circumstances, the valuation is to be made as if there were no improvements on the land or premises at 1 July 2000.³¹

75. Item 4 applies if:

·

  the supply is made by the Commonwealth, a State or a Territory;

·

  the Commonwealth, a State or a Territory held the interest, unit or lease since before 1 July 2000; and

·

  at 1 July 2000 there were no improvements on the land or premises in question.

Professional valuers

76. A professional valuer³² is:

(a)

  a person registered or licensed to carry out real property valuations under a Commonwealth, State or Territory law;

(b)

  a person who carries on business as a valuer in a State or Territory where that person is not required to be licensed or registered to carry on a business as a valuer; or

(c)

  a member of the Australian Property Institute who is accredited as a Certified Practising Valuer.

77. You may use an in-house employee who is a professional valuer.

78. A supplier may engage a professional valuer to undertake the valuation or accept a valuation made by a professional valuer commissioned by another party, for example, a purchaser.

Documentation that a professional valuer is required to provide

79. The valuation must include a signed certificate which specifies:

(a)

  a full description of the property being valued;

(b)

  the applicable valuation date (refer to the table in paragraph 60);

(c)

  the date the valuer provides the valuation to the supplier;

(d)

  the market value of the property at the valuation date;

(e)

  the valuation approach and the valuation calculation; and

(f)

  the qualifications of the valuer.

Method 2: a valuation by adopting the consideration provided by a purchaser in a contract for the sale and purchase of real property

80. A valuation can be made by adopting as the valuation the consideration provided by a purchaser in a contract for the sale and purchase of real property executed or exchanged before the valuation date between parties dealing at arm's length.³³

Method 3: valuation by adopting value as determined by a State government or a Territory government

81. A valuation can be made by adopting as the value the most recent unimproved value, site value, or the capital value of the land for rating or taxing purposes made before the valuation date. This is determined by a valuation by a State or a Territory Government, or by a professional valuer on behalf of a State or a Territory Government.

82. The amount that may be adopted as the valuation as at the valuation date is the value shown in a notice of valuation or land tax notice of assessment or other similar document.

How to use the professional valuer's method when you have previously used the cost of completion method

83. For supplies made on or after 1 July 2005, you cannot use the cost of completion method to value the interest that you held at the valuation date, except in the limited circumstances covered by MSV 2005/2.³⁴Instead, a valuation must be made using either Method 1, 2 or 3.

84. If you use the professional valuer's method for taxable supplies made on or after 1 December 2005 and:

(a)

  before 1 December 2005 you commenced a development on land that you held at the valuation date;

(b)

  you had made taxable supplies of real property subdivided from this land before 1 December 2005 and had used the cost of completion valuation method for all of these supplies; and

(c)

  you make taxable supplies of real property subdivided from this land on or after 1 December 2005,

then a valuation of the entire interest you held at the valuation date must be made in accordance with one of the approved methods. The part of the valuation amount that relates to the supplies that you make on or after 1 December 2005 must be ascertained using any fair and reasonable basis of apportionment.

Example 1: using the professional valuer's method when cost of completion method previously used

85. James is a property developer who has been registered for GST since 1 July 2000. At 1 July 2000 he held a large tract of broadacre land, which he intended to sell as part of a multi-staged development. At 30 June 2005 he had sold four of the five stages of the development under the margin scheme, and had used the cost of completion method to value the land and used that value to work out the margin for these supplies. The fifth stage of the development will be sold on or after 1 July 2005. To calculate the margin for the supplies for the fifth stage of the development, the value of the entire tract of broadacre land held at 1 July 2000 (the valuation date) must first be ascertained. Then the part of the valuation that relates to the fifth stage of the development must be determined using any fair and reasonable basis .

How do you calculate the GST inclusive sale price and the margin?

86. For the purposes of Division 75 the GST inclusive sale price is the GST exclusive price plus the GST payable on the margin. The following example sets out how to calculate the GST inclusive price when initially only the GST exclusive price is known.

Example 2: where the GST exclusive price is known and a valuation as at the valuation date was obtained

87. The GST exclusive price is $96,364. A valuation was obtained for the purposes of the margin scheme as at the valuation date as $60,000. The GST inclusive price is calculated using the formula:

88. If the margin for the supply is calculated using the consideration for the acquisition, the same equation is used. However, V in the equation will be the consideration for the acquisition instead of the valuation at the valuation date.

Commonwealth, a State or a Territory

89. Whether a supply is made by the Commonwealth, a State or a Territory is relevant for establishing which item in the table contained in subsection 75-10(3) applies to the supply. The item in the table then establishes the valuation date.

90. If the Commonwealth, State or Territory supplies land on which there are no improvements, the supply is GST-free under subsection 38-445(1) provided the land has not been previously supplied as a GST-free supply under this section.

91. If the land was held before 1 July 2000 and there were improvements on the land as at 1 July 2000, then the Commonwealth, a State or a Territory can choose to apply the margin scheme to calculate the GST payable on the supply. Item 3 in the table in subsection 75-10(3) applies in these circumstances. However, item 4 in the table in subsection 75-10(3) applies if the land has no improvements as at 1 July 2000 but there are improvements subsequently made to the land before it is supplied. The valuation of the land at the date of supply is undertaken, as if there were no improvements on the land at the date of supply.³⁵

92. The Commissioner considers that for the purposes of items 2A and 4 the Commonwealth, a State or a Territory includes a department, agency or organisation of the type referred to in the definition of 'government entity' in section 195-1. For more information on the terms Commonwealth, a State or a Territory, see Goods and Services Tax Ruling GSTR 2006/5.³⁶

Supplies between Commonwealth, State or Territory entities

93. A supply between two Commonwealth, State or Territory departments or other government entities is a taxable supply if the requirements in section 9-5 (other than paragraph 9-5(b)) are satisfied.³⁷ That is so even if the supplier and recipient entities are each part of the Commonwealth or the same State or Territory.

94. Item 4 of subsection 75-10(3) can apply to a supply by a department or agency of the Commonwealth, a State or a Territory where the real property was vested in that department or agency after 1 July 2000.

95. Goods and Services Tax Determination GSTD 2006/4³⁸ provides more information about the operation of item 4 of the table in subsection 75-10(3) where real property is vested in Commonwealth, State or Territory entities.

'Land on which there are no improvements' and 'no improvements on the land'

96. The terms 'land on which there are no improvements' and 'no improvements on the land' are relevant to the application of items 2A and 4 in the table in subsection 75-10(3).

97. For item 2A, the relevant day for ascertaining whether there were no improvements on the land is when it was previously supplied by the Commonwealth, a State or a Territory under a lease that was GST-free under subsection 38-450(1). For item 4, there must have been no improvements on the land or premises at 1 July 2000.

98. Numerous cases, including several at the High Court of Australia³⁹ have taken a broad view of the meaning of the expression, of 'improvements thereon or appertaining to' or similar expressions in the context of land tax and rating statutes, that is, not limiting it to visible structural improvements but taking it to embrace clearing, draining and any other operation on the land that has the effect of enhancing its value.

99. Applying this principle when interpreting the words 'land on which there are no improvements' and 'no improvements on the land' means that the term 'improvements' refers to any improvements through human intervention 'on' the land which have the effect of enhancing its value.

100. For more information on the phrases 'land on which there are no improvements' and 'no improvements on the land' see GSTR 2006/6.

Can you apply the margin scheme when you make a supply of real property and the supply is partly taxable and partly input taxed or partly taxable and partly GST-free?

101. If a supply of real property is partly input taxed and partly taxable or partly taxable and partly GST-free (a mixed supply), then the margin scheme can apply to the taxable component. Examples of supplies that may be mixed supplies are:

·

  a supply of a building that contains areas that are residential premises (the supply of which is input taxed) and commercial premises (the supply of which is a taxable supply); or

·

  a supply of a building that includes new residential premises (the supply of which is a taxable supply) as well as an area supplied as a GST-free supply of a going concern.

102. In these circumstances, if the margin for the supply is calculated under subsection 75-10(2), the consideration for the supply and the consideration for the acquisition, are the amounts of the consideration that relate to the taxable component of the supply. You may use any fair and reasonable method of apportionment to ascertain the consideration for the supply and the consideration for the acquisition that relates to the taxable component of the supply.

103. If the margin for the supply is calculated using an approved valuation then the consideration for the supply and the approved valuation are the amounts that relate to the taxable component of the supply.

Approved valuation

104. The table in paragraph 60 specifies when an approved valuation is required to work out the margin for the supply.

105. If an approved valuation is required to work out the margin for the taxable component of a supply, the valuation is to be obtained for the entire real property supplied. The valuation is then apportioned on any fair and reasonable basis to ascertain the part of the valuation that relates to the taxable component of the supply.

Increasing adjustments for supplies made on or after 17 March 2005, where part of the acquisition was ineligible for the margin scheme

Subsection 75-22(1)

106. You may apply the margin scheme to the supply of real property even though you acquired part of the real property through a supply that was ineligible for the margin scheme.⁴⁰ An example of this is where a supplier acquires two adjoining properties and one of the properties was acquired as a taxable supply without using the margin scheme, and the other property was acquired as:

·

  a taxable supply using the margin scheme; or

·

  an input taxed, GST-free or non taxable supply.⁴¹

107. If you apply the margin scheme in these circumstances, you have an increasing adjustment. The increasing adjustment is an amount equal to the previously attributed input tax credit amount⁴² for the acquisition of the land.

108. Subsection 75-22(1) applies to supplies made on or after 17 March 2005 and may apply to:

(a)

  the subdivision of broadacres; or

(b)

  construction of stratum units.

Subdivision of broadacres

109. If you acquire adjoining properties, one of which is acquired through a supply that is ineligible for the margin scheme and you subdivide the properties, the margin scheme can be used for the supply of some of the lots created from the subdivision.

110. The margin scheme:

·

  cannot be applied to the supply of those lots that were derived entirely from land that was acquired through a supply that was ineligible for the margin scheme as subsection 75-5(2) applies;

·

  can be applied to the supply of those lots derived partly from land that was acquired through a supply that was ineligible for the margin scheme as subsection 75-5(2) does not apply. However, you have an increasing adjustment to the extent of the input tax credit entitlement for the acquisition of the land from which these lots were created; and

·

  can be applied for the supply of those lots that were derived entirely from land that was acquired through a supply that was eligible for the margin scheme.

111. This is diagrammatically represented below as:

·

  The land is then subdivided into 9 one hectare blocks.

112. In the context of the diagram, the real property that was acquired through a supply that would have been ineligible for the margin scheme is shaded.

113. The margin scheme cannot apply to the supply of Lots 1 to 3 as they were acquired entirely through a supply that was ineligible for the margin scheme under subsection 75-5(2). The margin scheme can apply to the supply of Lots 7 to 9 because subsection 75-5(2) does not apply to make the supply of them ineligible. The margin scheme can also apply to the supply of Lots 4 to 6 as the entire interest in each of those lots was not acquired through a supply that was ineligible for the margin scheme. They are therefore not excluded by subsection 75-5(2).

114. If the margin scheme is applied to the supply of Lots 4 to 6, there is an increasing adjustment under subsection 75-22(1). The increasing adjustment for each supply is a proportionate amount of the previously attributed input tax credit amount for the acquisition of the land. You may use any fair and reasonable basis of apportionment in working out the extent of the increasing adjustment.

Stratum unit

115. 'Stratum unit' is defined in section 195-1 as having the meaning given by subsection 124-190(3) of the Income Tax Assessment Act 1997 . Subsection 124-190(3) defines a stratum unit as 'a lot or unit (however described in an Australian law or a foreign law relating to strata title or similar title) and any accompanying common property.' The Commissioner considers that the reference to 'similar title' in the definition of stratum unit includes other arrangements such as group title arrangements.

116. The definition of stratum unit in section 195-1 encompasses a legal arrangement where real property is divided into units or allotments and common property. The common property is usually held by a body corporate as agent for the land owners as tenants in common.

117. For the purpose of the discussion below, the term 'strata title' refers to a strata plan where the boundaries of unit are defined by reference to the structures (for example, walls floors and ceilings). For example, a single building divided into units.

118. In the discussion below the term 'group title' refers to arrangements where the real property is divided into allotments of land and common property. The boundaries are defined by reference to land rather than by reference to building structure.

Strata title

119. If you acquire adjoining properties, one of which was acquired through a supply that is ineligible for the margin scheme, and you then construct stratum units on the properties, then ordinarily some part of the common property will be constructed on land that was acquired through:

·

  a supply that is eligible for the margin scheme; and

·

  a supply that is ineligible for the margin scheme.

120. In these circumstances, all of the stratum units have been partly derived from land that was acquired through a supply that was ineligible for the margin scheme. The supply of these units can be made under the margin scheme as subsection 75-5(2) does not apply. However, because the units were partly acquired through land that was acquired through a supply that was ineligible for the margin scheme you have an increasing adjustment under subsection 75-22(1). The increasing adjustment is the proportionate amount of the input tax credits for the acquisition of the land referable to the supply of each stratum unit.

121. This is diagrammatically represented below as:

·

  10 stratum units are then built on the land.

122. The real property that was acquired through a supply that would have been ineligible for the margin scheme is shaded in the diagram.

123. The common property in this example is made up of property that was acquired through a supply that would have been ineligible for the margin scheme as well as property that was eligible for the margin scheme.

124. Therefore, the margin scheme can apply to the supply of all the stratum units as the entire interest in each of the stratum units, including the common property, was not acquired through a supply that was ineligible for the margin scheme. They are therefore not excluded from the margin scheme by subsection 75-5(2).

125. If the margin scheme is applied to the supply of any of the stratum units, there is an increasing adjustment under subsection 75-22(1). The increasing adjustment is equal to the proportion of the input tax credit for the acquisition of the land that relates to the stratum unit supplied. To ascertain the extent of the increasing adjustment, you may use any reasonable basis of apportionment.

Group title

126. The margin scheme can be used in group title arrangements where:

·

  the allotment and the common property have been entirely derived from land that was acquired through a supply that was eligible for the margin scheme;

·

  the allotment was derived entirely from land that the margin can apply to but some or all of the common property was derived from land that was acquired through a supply that was ineligible for the margin scheme. In these circumstances, you have an increasing adjustment to the extent of the input tax credit entitlement in respect of the acquisition of the lot; and

·

  both the allotment and the common property were partly derived from land that was acquired through a supply that was ineligible for the margin scheme. However, in these circumstances, you have an increasing adjustment to the extent of the input tax credit entitlement in respect of the acquisition of the lot.

Subsection 75-22(2)

127. Subsection 75-22(2) applies to supplies made on or after 17 March 2005. Under subsection 75-22(2), you may use the margin scheme if you inherit real property and the deceased acquired part of that property through a supply that was ineligible for the margin scheme. An example of this is where:

·

  you inherit real property from the deceased;

·

  the deceased acquired two adjoining properties - one of the properties acquired was acquired through a supply that was ineligible for the margin scheme and the other property was acquired through a supply to which was eligible for the margin scheme; and

·

  the deceased subdivided the properties, or constructed stratum units on them.

128. If you apply the margin scheme in these circumstances you have an increasing adjustment to the extent of any input tax credits for the acquisition of the land.

129. The increasing adjustment is worked out in the same manner as indicated in paragraphs 114 and 120.

Supplies made on or after 17 March 2005 where the full consideration for the acquisition has not been paid

130. If an entity makes a supply of real property but does not pay the full contract price for the acquisition of that property, section 75-12 applies. It provides that the margin for the supply is worked out as the amount by which the consideration for the supply exceeds the consideration paid for the acquisition (which may not be the consideration for the acquisition reflected in the contract). Section 75-12 applies to supplies made on or after 17 March 2005.

Example 3: full consideration not paid

131. Terry supplies real property to Adam. The consideration for the supply is $ 770 , 000. However, Adam only pays Terry $ 700 , 000. Adam then sells the property to Wendy for $ 1 , 100 , 000 and uses the margin scheme to calculate the GST payable on the supply. When Adam calculates the margin for the supply, the consideration for the acquisition is the amount he paid Terry ($ 700 , 000 ).

132. The margin for the supply is $ 400 , 000 ($ 1 , 100 , 000 - $ 700 , 000 ).

Decreasing adjustment for later payment of consideration

133. If section 75-12 applies, and you later make a further payment of the acquisition consideration, you have a decreasing adjustment under section 75-27. Subsection 75-27(2) applies to supplies made on or after 17 March 2005. It provides that the amount of the decreasing adjustment is equal to 1/11th of the further amount of consideration paid.

Example 4: consideration later paid

134. Using the facts in the example shown above, if Adam subsequently pays Terry the remaining $ 70 , 000, Adam has a decreasing adjustment of $ 6 , 364 (1 / 11 ? $ 70 , 000 ).

Entitlement to input tax credits

135. If the GST payable on a supply of real property has been worked out under the margin scheme, the acquisition of the property by the recipient of the supply is not a creditable acquisition. This means that the recipient is not entitled to an input tax credit for the acquisition of the real property.⁴³

Tax invoices

136. A supplier is not required to issue a tax invoice for a taxable supply that is solely a supply of real property under the margin scheme.⁴⁴

Record keeping requirements

137. Section 70 of the Tax Administration Act 1953 requires you to keep records that record and explain all transactions and other acts that you engage in that are relevant to the supply. You must retain these records for at least 5 years after the completion of the transactions or acts to which they relate.

138. As well as retaining accounting records documenting the transaction, you must also retain records showing how you have applied the margin scheme. Examples of these records include:

(a)

  contracts of sale and purchase together with settlement statements; and

(b)

  details of how you worked out the margin for any supply of real property under the margin scheme.

139. The following records must also be retained, if applicable:

(a)

  the approved valuation you obtained;

(b)

  any written request for a further period to obtain an approved valuation and the Tax Office response; and

(c)

  if an approved valuation is required, documents describing the real property at the valuation date

(d)

  the agreement in writing to use the margin scheme;⁴⁵ and

(e)

  the request for a further period in which to agree to use the margin scheme and the Tax Office response.

* Extract only. You can find the full ruling, including footnotes, from the ATO website.