It's a trap! Watch out for GST on property transactions: Terry Hayes

The sale of a property has GST implications and, potentially, income tax consequences. The GST implications can catch out those who are not fully conversant with how the GST laws apply.

A recent AAT decision held that, for the purposes of the GST law, all of the consideration in relation to the sale of a property was received by the taxpayer at the time of settlement on May 16, 2008, despite not all the consideration being received at that time.

Broadly, the case concerned the liability of the taxpayer (a trust, Rod Mathiesen Truck Hire Pty Ltd as trustee for the Matheson Family Trust) for GST in connection with the taxable supply of vacant land in Queensland. The tax commissioner assessed the trust on the basis that it received full consideration on the transfer of the property in the 2008 tax year in part through a vendor finance agreement (described as the settlement balance facility agreement). A director of Rod Mathiesen Truck Hire Pty Ltd, Mrs Mathiesen, signed the settlement balance facility agreement.

The trust had issued a tax invoice to the purchaser for $3.495 million, including $317,753.50 in GST. However, the trust argued that it was only liable for GST to the extent of two payments actually received for the property (around $2 million and $500,000), made in the 2008 and 2009 tax periods, and amounting to less than the full consideration.

The tribunal considered that the agreement clearly provided for a loan from the trust to the purchaser. It was of the view that Mrs Mathiesen had not formed any particular intention about lending money to the purchaser at the time the agreement was executed. The AAT said its impression was that “she signed what was presented to her as a means of ensuring the sale went ahead without considering what precisely the trust was agreeing to”.

After taking into account all of the circumstances referred to by the trust, the AAT said it did not accept that the loan, or creation of the loan debt, between the trust and the purchaser was incidental or ancillary to the supply under the contract for sale as envisaged in the cases and the commissioner’s ruling, but were distinct transactions.

In the result, the AAT found that for the purposes of the GST Act, all of the consideration in relation to the sale of the property was received by the trust at the time of settlement on May 16, 2008.

The ATO said the findings made by the tribunal were consistent with the principles set out in GST Rulings GSTR 2001/8 and 2003/12 and GST Determination GSTD 2004/4, and the commissioner’s submission made to the tribunal that:

• For a taxpayer who accounts on a cash basis, attribution of GST or an input tax credit is determined by the meaning of ‘consideration’ and whether ‘consideration’ was received or provided and not by reference to the ordinary meaning of ‘cash’;

• In a vendor-financing arrangement, consideration is received by a supplier on set-off of the loan against amounts owing to the supplier by the purchaser;

• The postponement of payment of a debt does not constitute a loan where the recipient remains obliged to pay for the supply under the original supply contract;

• Where there is a contract for sale of land and a vendor-financing agreement, the financing agreement is not ancillary or incidental to the contract for the sale of land.

At the risk of understatement, the application of GST in the context of property transactions is not always straightforward. Financial dealings between vendor and purchaser related to a sale can only serve to complicate matters. As always, good professional advice should be sought … and don’t sign anything without reading and understanding it first.

Featured product is the 2013-14 edition of The Essential SMSF Guide, written by Tony Negline – see details here.

This article originally appeared on SmartCompany.