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FC of T v Landcom

Judges:
Wigney J
Moshinsky J
Hespe J

Court:
Federal Court of Australia, Full Court

MEDIA NEUTRAL CITATION: [2022] FCAFC 204

Judgment date: 22 December 2022

Wigney, Moshinsky and Hespe JJ

BACKGROUND

1. This is an appeal from a judgment of a judge of the Court, allowing an appeal under s 14ZZ of the Taxation Administration Act 1953 (Cth) against the decision of the respondent Commissioner of Taxation to disallow an objection to a private ruling issued to the appellant, Landcom. The ruling related to the margin scheme provisions in Div 75 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ( GST Act ), in respect of the tax periods 1 March 2020 to 31 December 2021.

2. The first instance proceeding being an appeal against a private ruling, the facts are those set out in the description of the arrangement identified in the ruling. They are summarised by the primary judge at [8] to [12] of his Honour's reasons. Relevantly, Landcom, a State-owned corporation, is a State for the purposes of the GST Act (PJ [1]) and is registered for GST (PJ [55]). Relevantly for present purposes, Landcom sold freehold interests in four lots of land (referred to below as "Property B2") pursuant to one contract (referred to as "Contract B2").

3. In a private ruling application, Landcom asked the Commissioner to rule on whether, for the purposes of applying item 4 in the table in s 75-10(3) of the GST Act, the sale of the freehold interests in the four lots would be a single supply: Question 3; and whether the sale of the freehold interest in each of the four lots would each be a single supply: Question 4. The Commissioner answered "Yes" to Question 3 and "No" to Question 4.

4. Landcom objected to the Commissioner's private ruling. That objection was disallowed. Landcom appealed that objection decision to this Court.

5. There were two issues raised before the primary judge. The first concerned whether the

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Court had jurisdiction to entertain the appeal. The primary judge held that the Court did have jurisdiction. There is no appeal against that conclusion. The second issue concerned the correctness of the opinion expressed by the Commissioner about the scheme as identified in the private ruling. The primary judge held that, under Div 75 of the GST Act, the margin is to be calculated by reference to the particular freehold interest sold, irrespective of whether or not that particular freehold interest was sold under a contract for the sale of other freehold interests. It is against that conclusion that the Commissioner appeals.

LEGISLATIVE CONTEXT

6. Under s 7-1 of the GST Act, relevantly, GST is payable on "taxable supplies". Section 9-5 defines when a taxable supply is made. It provides:

You make a taxable supply if:

  • (a) you make the supply for *consideration; and
  • (b) the supply is made in the course or furtherance of an *enterprise that you *carry on; and
  • (c) the supply is *connected with the indirect tax zone; and
  • (d) you are *registered, or *required to be registered.

However, the supply is not a *taxable supply to the extent that it is *GST-free or *input taxed.

7. "Supply" is relevantly defined in s 9-10 of the GST Act in the following terms:

  • (1) A supply is any form of supply whatsoever.
  • (2) Without limiting subsection (1), supply includes any of these:
    • …
    • (d) a grant, assignment or surrender of *real property;
    • (e) a creation, grant, transfer, assignment or surrender of any right;
    • …
    • (h) any combination of any 2 or more of the matters referred to in paragraphs (a) to (g).

8. "Real property" is defined in s 195-1 of the GST Act. It provides:

real property includes:

  • (a) any interest in or right over land;
  • (b) a personal right to call for or be granted any interest in or right over land; or
  • (c) a licence to occupy land or any other contractual right exercisable over or in relation to land.

9. The general rule is that the amount of GST on a taxable supply is 10% of the "value" of the taxable supply: s 9-70. Section 9-80 explains how the value of a supply is to be determined where the supply is partly a taxable supply and partly a supply that is GST-free or input taxed. That section provides:

  • (1) If a supply (the actual supply ) is:
    • (a) partly a *taxable supply; and
    • (b) partly a supply that is *GST-free or *input taxed;

      the value of the part of the actual supply that is a taxable supply is the proportion of the value of the actual supply that the taxable supply represents.

    • (2) The value of the actual supply, for the purposes of subsection (1), is as follows:


      where:

      taxable proportion is the proportion of the value of the actual supply that represents the value of the *taxable supply (expressed as a number between 0 and 1).

10. There are special rules contained in Div 75 of the GST Act relating to the amount of GST that apply to certain taxable supplies of real property. These rules are referred to as the "margin scheme".

11. Section 75-5 of the GST Act relevantly provides:

75-5 Applying the margin scheme

  • (1) The *margin scheme applies in working out the amount of GST on a *taxable supply of *real property that you make by:
    • (a) selling a freehold interest in land; or

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    • (b) selling a *stratum unit; or
    • (c) granting or selling a *long-term lease;

      if you and the *recipient of the supply have agreed in writing that the margin scheme is to apply.

12. Section 75-10 relevantly provides:

75-10 The amount of GST on taxable supplies

  • (1) If a *taxable supply of *real property is under the *margin scheme, the amount of GST on the supply is 1/11 of the *margin for the supply.
  • (2) Subject to subsection (3) and section 75-11, the margin for the supply is the amount by which the *consideration for the supply exceeds the consideration for your acquisition of the interest, unit or lease in question.
  • (3) Subject to section 75-11, if:
    • (a) the circumstances specified in an item in the second column of the table in this subsection apply to the supply; and
    • (b) an *approved valuation of the freehold interest, *stratum unit or *long-term lease, as at the day specified in the corresponding item in the third column of the table, has been made;

    the margin for the supply is the amount by which the *consideration for the supply exceeds that valuation of the interest, unit or lease.


    Use of valuations to work out margins
    Item When valuations may be used Days when valuations are to be made
    1 The supplier acquired the interest, unit or lease before 1 July 2000, and items 2, 3 and 4 do not apply. 1 July 2000
    2 The supplier acquired the interest, unit or lease before 1 July 2000, but does not become *registered or *required to be registered until after 1 July 2000. The date of effect of your registration, or the day on which you applied for registration (if it is earlier)
    2A The supplier acquired the interest, unit or lease on or after 1 July 2000, but the supply to the supplier:
    (a) was *GST-free under subsection 38-445(1A); and
    (b) 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.    		 1 July 2000
    3 The supplier is *registered or *required to be registered and has held the interest, unit or lease since before 1 July 2000, and there were improvements on the land or premises in question as at 1 July 2000. 1 July 2000
    4 The supplier is the Commonwealth, a State or a Territory and has held the interest, unit or lease since before 1 July 2000, and there were no improvements on the land or premises in question as at 1 July 2000. The day on which the *taxable supply takes place
  • (3A) If:
    • (a) the circumstances specified in item 4 in the second column of the table in subsection (3) apply to the supply; and
    • (b) there are improvements on the land or premises in question on the day on which the *taxable supply takes place;

    the valuation is to be made as if there are no improvements on the land or premises on that day.

  • (4) This section has effect despite section 9-70 (which is about the amount of GST on taxable supplies).

    Note: Section 9-90 (rounding of amounts of GST) can apply to amounts of GST worked out using this section.

13. Section 75-16 of the GST Act deals with the application of the margin scheme to the supply of an interest acquired through two or more acquisitions. It provides:

75-16 Margins for supplies of real property acquired through several acquisitions

  • (1) If:
    • (a) you make a *taxable supply of *real property under the *margin scheme; and
    • (b) the interest, unit or lease in question is one that you acquired through 2 or more acquisitions ( partial acquisitions ); and
    • (c) one of the following provisions (a margin provision ) applies in relation to such a partial acquisition, or would so apply if the partial acquisition had been an acquisition of the whole of the interest, unit or lease:
      • (i) section 75-10;
      • (ii) subsection 75-11(1), (2), (2A), (2B), (3), (4), (5), (6) or (7);

      the margin provision applies, in working out the margin for the supply you make, only to the extent that the supply is connected to the partial acquisition.

  • (2) The application of a margin provision in relation to one of the partial acquisitions does not prevent that margin provision or a different margin provision applying in relation to another of the partial acquisitions.

14. Section 75-22 provides:

75-22 Increasing adjustment relating to input tax credit entitlement

  • (1) You have an increasing adjustment if:
    • (a) you make a *taxable supply of *real property under the *margin scheme; and
    • (b) an acquisition that you made of part of the interest, unit or lease in question was made through a supply that was *ineligible for the margin scheme; and
    • (c) you were, or are, entitled to an input tax credit for the acquisition.

    The amount of the increasing adjustment is an amount equal to the *previously attributed input tax credit amount for the acquisition.

  • (2) You have an increasing adjustment if:
    • (a) you make a *taxable supply of *real property under the *margin scheme; and
    • (b) you acquired all or part of the interest, unit or lease in question by inheriting it; and
    • (c) the entity from whom you inherited (the deceased ) had acquired part of the interest, unit or lease that you inherited through a supply that was *ineligible for the margin scheme; and
    • (d) the deceased was entitled to an input tax credit for that acquisition.

    The amount of the increasing adjustment is an amount equal to the *previously attributed input tax credit amount for the acquisition.

  • (3) You have an increasing adjustment if:
    • (a) you make a *taxable supply of *real property under the *margin scheme; and
    • (b) an acquisition that you made of part of the interest, unit or lease in question was made through a supply that was *ineligible for the margin scheme because of paragraph 75-5(3)(e), (f) or (g); and
    • (c) the entity from whom you made the acquisition had been entitled to an input tax credit for its acquisition.

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  • (4) You have an increasing adjustment if:
    • (a) you make a *taxable supply of *real property under the *margin scheme; and
    • (b) the acquisition that you made of the interest, unit or lease in question:
      • (i) was made through a supply that was *GST-free under Subdivision 38-J or Subdivision 38-O; or
      • (ii) was made through a supply (other than a taxable supply) from your *associate without *consideration and in the course or furtherance of an *enterprise that your associate *carried on; or
      • (iii) was made from your associate but not by means of a supply from your associate; and
    • (c) the entity from whom you acquired the interest, unit or lease:
      • (i) acquired part of the interest, unit or lease through a supply that would have been *ineligible for the margin scheme if it had been a supply of the whole of the interest, unit or lease; and
      • (ii) had been entitled to an input tax credit for its acquisition; and
      • (iii) was *registered or *required to be registered, at the time of your acquisition of the interest, unit or lease.
  • (5) The amount of the *increasing adjustment under subsection (3) or (4) is an amount equal to 1/11 of:
    • (a) if you choose to apply an *approved valuation to work out the amount-an approved valuation of the part of the interest, unit or lease referred to in paragraph (3)(b) or subparagraph (4)(c)(i) as at the day on which the entity had acquired it; or
    • (b) otherwise-the *consideration for the entity's acquisition of that part of the interest, unit or lease.

15. Division 38 sets out supplies that are GST-free. Section 38-455 provides:

38 445 Grants of freehold and similar interests by governments

  • (1) A supply by the Commonwealth, a State or a Territory of land on which there are no improvements is GST-free if:
    • (a) the supply is of a freehold interest in the land; or
    • (b) the supply is by way of *long-term lease.
  • (1A) A supply by the Commonwealth, a State or a Territory of land is GST-free if:
    • (a) the supply is of a freehold interest in the land, or is by way of *long-term lease; and
    • (b) the Commonwealth, State or Territory had previously supplied the land, by way of lease, to the *recipient of the supply; and
    • (c) at the time of that previous supply, there were no improvements on the land; and
    • (d) because conditions to which that lease was subject had been satisfied, the recipient was entitled to the supply of the freehold interest or the supply by way of long-term lease.
  • (2) However, the supply is not GST-free if, since 1 July 2000, the land has already been the subject of a supply that is GST-free under this section.

16. At this point, it may be observed that:

  • (1) Under s 9-10(2)(h), a "supply" may be comprised of a combination of matters, each of which would, on their own, also constitute a supply.
  • (2) Under s 9-10(2)(d), and having regard to the definition of "real property", an assignment of "any interest in … land" is a supply.
  • (3) Where a supply is comprised of different matters, the amount of GST payable on the supply is determined having regard to the GST character of different parts of the supply: s 9-80. This is consistent with the definition of "taxable supply" in s 9-5,

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    which refers to a supply not being a taxable supply to the extent that it is GST-free or input taxed. The phrase "to the extent" permits dissection and apportionment:
    Ronpibon Tin NL v Federal Commissioner of Taxation (1949) 78 CLR 47 at 55 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ).
  • (4) The purpose of s 38-455 is to ensure that a supply by the Commonwealth, a State or a Territory of a freehold interest in land (or long-term lease of land) on which there are no improvements is GST-free.
  • (5) The general purpose of the margin scheme is to ensure that, for certain supplies of real property, GST is only payable on increases in value which accrue between the time of acquisition and the time of supply. The general purpose of s 75-10(3) is to ensure that, where the interest, stratum unit or long-term lease was acquired before 1 July 2000, GST is only payable on increases in value accruing after the commencement of the GST system on 1 July 2000. A more favourable concession is provided where the supplier is the Commonwealth, a State or a Territory, "the interest" has been held since before 1 July 2000 and there were no improvements on the land as at 1 July 2000. In those circumstances, GST is payable only on the value of improvements made since 1 July 2000 and not on the increase in the unimproved value of the land.

THE ISSUE

17. The central issue in this appeal is whether, in calculating the margin for the purposes of the margin scheme provided for in Div 75, the sale of the four freehold interests in land constituted a single supply or multiple supplies. If the sale was a single supply, any improvements as at 1 July 2000 on any one of the lots would result in the non-application of item 4 of the table in s 75-10(3) and GST being payable on the entire increase in value of the freehold interest in all four lots, since 1 July 2000.

THE DECISION OF THE PRIMARY JUDGE

18. The primary judge set aside the Commissioner's objection decision, holding that the sale of the four freehold interests each constituted a separate supply for the purposes of applying item 4 of the table in s 75-10(3).

19. His Honour reasoned that:

  • (1) The starting point for the application of Div 75 is s 75-5(1) and, in particular, whether there has been a "taxable supply" by "selling a freehold interest in land" (PJ [193]).
  • (2) Section 75-5(1)(a) applies where there has been a supply by selling a particular freehold interest in land, and the supplier and recipient have agreed that the margin scheme is to apply. Where that has occurred, the margin is calculated by reference to the particular freehold interest sold (PJ [194]).
  • (3) The reference to "the interest" in item 4 of the table in s 75-10(3) is a reference to the particular freehold interest referred to in s 75-5(1)(a) (PJ [196]). The margin scheme is to be applied to each freehold interest because, for the purposes of s 75-5(1)(a), there has been a supply of each freehold interest by selling each freehold interest. The GST Act contemplates that a single supply might be made up of several supplies attracting different GST treatment - see, for example, s 9-80 (PJ [197]).
  • (4) This construction better conformed to the object of Div 75 (PJ [198] and [206]) and the operation of the Division as a whole, including ss 75-16 and 75-22 (PJ [199]-[204]).

COMMISSIONER'S GROUNDS OF APPEAL

20. By his notice of appeal, the Commissioner raises two grounds:

  • (1) The primary judge erred in concluding that Div 75 of the GST Act applies separately to each individual freehold interest and that it is not necessary to consider whether the sale of multiple freehold interests constitutes a single supply or four separate supplies.
  • (2) The primary judge ought to have concluded that the sale of the four freehold interests is properly to be characterised as a single supply and item 4 of the table in s 75-10(3) must be applied to that single supply and not to each of the four individual freehold interests.

21.

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In relation to the first ground, the Commissioner submits that the primary judge's construction of Div 75 was incorrect because, in applying the GST Act, it is first necessary to identify the "supply" before ascertaining how to calculate the GST payable on that supply. Section 75-10 is concerned with calculating the margin for "the supply". The term "taxable supply" is defined in s 9-5 of the GST Act and the term "supply" is defined in s 9-10(1) of the GST Act. The "supply" is to be identified pursuant to s 9-10(1). Applying the statute in this way results in there being a single supply and Div 75 is to be applied to that single supply.

22. The Commissioner's construction avoids a need to apportion an undissected purchase price over the four freehold interests.

23. The Commissioner accepts that the second ground of appeal arises only if he succeeds on his first ground.

DISPOSITION

24. For the reasons set out below, we agree with the conclusions of the primary judge in relation to ground one. Ground two does not arise.

25. The construction contended for by the Commissioner is inconsistent with the structure of the GST Act and the statutory language.

26. Characterising a supply as a single supply or multiple supplies under s 9-5 does not determine the calculation of the amount of GST payable, whether that calculation is to be determined for the purposes of s 9-70 or Div 75. The amount of GST payable is to be calculated by applying the terms of Sub-div 9-C or, if the supply is a taxable supply of real property, the terms of the special rules in Div 75.

27. Pursuant to Sub-div 9-C, where a supply is a supply of several matters having different characters for GST purposes (taxable, GST-free or input-taxed), GST is to be calculated having regard to the character of the different parts of the supply: s 9-80. As the Full Court recognised in
Federal Commissioner of Taxation v Luxottica Retail Australia Pty Ltd [2011] FCAFC 20; (2011) 191 FCR 561 at 566 [15] (Ryan, Stone and Jagot JJ), in providing for the valuation of an actual supply that is "partly a taxable supply" and "partly a supply that is GST-free", s 9-80 recognises that a single supply may be comprised of components that are classified differently for GST purposes. The Full Court also agreed at 571-2 [43] with the following comment made by the Administrative Appeals Tribunal at first instance in that case:

Ultimately, though, we do not think that this question as to whether there is one supply or two is particularly critical to the resolution of the issue before us. It would be a surprising, and perhaps a capricious, outcome if the GST payable on a transaction were to turn on such an esoteric enquiry. And so, although we prefer the view that there is one supply, and that as a result s 9-80 is the relevant valuation provision, we agree with the parties that the same result would be reached on the alternative scenario involving two supplies, and valuation under s 9-75.

28. Section 75-5(1) applies to work out the amount of GST on "a taxable supply of real property" where, relevantly, the taxable supply takes the form of a sale of a freehold interest in land: s 75-5(1)(a). The Commissioner's contention focusses on the word "supply", whereas the concept employed in s 75-5(1) is a "taxable supply of real property". The gateway to Div 75 is a taxable supply of real property. Once a taxable supply of real property has been identified, there is no further need to embark on an inquiry as to whether that supply is a component of another supply by recourse to s 9-10.

29. For the purposes of applying the special rules in Div 75, the terms of s 75-5(1)(a) define the subject-matter of the relevant supply as real property that is in the form of "a freehold interest in land". The subject-matter of the margin scheme in Div 75 is relevantly the sale of a particular freehold interest in land.

30. The terms of s 75-10 direct attention to the individual freehold interest. Section 75-10 applies to the calculation of GST payable for the supply of the particular legal interest by reference to the "margin for the supply": s 75-10(1). The margin for the supply is calculated by reference to "the interest, unit or lease in question": s 75-10(2). The interest, unit or lease in s 75-10(2) is a reference back to the different forms of "real property" in s 75-5(1)(a), (b) and (c), being the juridical

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concept or intangible legal interest specified in each of those paragraphs:
Sterling Guardian Pty Ltd v Commissioner of Taxation [2006] FCAFC 12; (2006) 149 FCR 255 at 260 [21] (Heerey, Dowsett and Conti JJ). The reference to "the interest, unit or lease" appears again in item 4 of the table in s 75-10(3). It, too, is a reference back to the legal interest specified in each of the paragraphs of s 75-5(1).

31. Where there is a supply of more than one interest, s 75-10, by its terms, applies to each interest.

32. This interpretation is consistent with other provisions in Div 75 which apply where there is a lack of identity between the interest supplied by the supplier and the interest that had been acquired by that supplier. Those sections are drafted by reference to the supply of the particular freehold interest. It would be a distortion of the language of the provisions as a whole to read the singular as encompassing the plural. In particular:

  • (a) Section 75-16 applies if there is a taxable supply of real property under the margin scheme and "the interest, unit or lease in question" is one acquired through two or more acquisitions: s 75-16(1)(b). By referring to the "interest in question", s 75-16 is addressing the particular freehold interest the subject of the supply. Section 75-16 enables the margin scheme to be applied where an interest that is supplied as a single interest may have been acquired through more than one acquisition, where the single interest is the result of a consolidation or amalgamation of multiple titles that had been acquired separately.
  • (b) Section 75-22 provides an "increasing adjustment" where there is a "taxable supply of real property under the margin scheme" and an acquisition was made of "part of the interest, unit or lease in question" through a supply that was not eligible for the margin scheme. Like s 75-16, the section recognises that a particular freehold interest supplied (being "the interest in question") may have been acquired in different parts. This will be the case where the single interest supplied was the result of a consolidation or amalgamation of multiple titles that had been acquired separately. So much is consistent with the Explanatory Memorandum to the Tax Laws Amendment (2008 Measures No. 5) Bill 2008 (Cth) at [1.50], extracted at PJ [200].

33. The Commissioner's contention ultimately depends upon whether the reference to "a freehold interest" in s 75-10 encompasses the plural as well as the singular. In this respect, he makes reference to s 23(b) of the Acts Interpretation Act 1901 (Cth) ( Interpretation Act ).

34. Section 23(b) of the Interpretation Act applies "subject to any contrary intention": see s 2(2). Having regard to the structure and language of Div 75 and the language of s 75-10 (with its focus on "the interest, unit or lease in question"), we do not consider that the singular "interest" in s 75-10 includes a reference to the plural. We agree with the primary judge's conclusion (at PJ [196]) that the reference to "the interest" in each of the items in the table is a reference to the particular freehold interest referred to in s 75-5(1)(a).

35. This interpretation gives effect to the concession provided for supplies of freehold interests by the Commonwealth, a State or a Territory. The concession was described in the Explanatory Memorandum to A New Tax System (Goods and Services Tax) Bill 1998 (Cth) at [6.108] in the following terms:

Where the Commonwealth, a State or a Territory holds unimproved land at 1 July 2000 that is subsequently improved, it is able to be sold under the margin scheme. In this case, GST will be charged on the difference between the sale price and the value of the unimproved land at the date of sale - Item 4 of subsection 75-10(3) .The effect is that the value of the land is not subject to GST (that is, it is consistent with subdivision 38-L which provides that the sale of unimproved land held by an Australian government agency will be GST-free).

This interpretation ensures that the application of the concession is unaffected by the form of the contract of sale by ensuring that GST is not payable on the value of a freehold interest held unimproved by an Australian government agency prior to 1 July 2000,

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notwithstanding that it is sold together with an interest also held prior to 1 July 2000 but which had been improved in the most minor way prior to 1 July 2000 (by, for example, the addition of a gate or fence).

36. This construction also gives a harmonious operation to the GST Act. The interpretation results in an approach to the calculation of GST under Div 75 that is consistent with the approach to the calculation of GST under Sub-div 9-C, which recognises that different GST treatment may be accorded to different supplies that may form part of a single broader supply as defined under s 9-10. As set out above, pursuant to s 38-445, a supply by the Commonwealth, a State or a Territory of a freehold interest on which there are no improvements is GST-free. By operation of s 9-80, where the Commonwealth, a State or a Territory supplies a freehold interest that has no improvements on it together with a freehold interest on which there are improvements, no GST is payable on that proportion of the value that represents the value of the freehold interest on which there are no improvements. The GST treatment of the unimproved freehold does not depend upon the unimproved freehold constituting a single supply under s 9-10. A construction which applies item 4 of the table in s 75-10(3) to the individual freehold interest ensures s 75-10(3) operates consistently with s 38-445.

37. This interpretation ensures that the amount of GST payable is not dependent on "an esoteric enquiry" as to whether there is one supply or two supplies or, in this case, four supplies, concordant with the approach endorsed by the Full Court in Luxottica 191 FCR at 571-2 [43].

38. The Commissioner's complaint that the interpretation results in undue complexity because of a need to apportion an undissected purchase price over the four freehold interests is not accepted. As the decision in Luxottica 191 FCR 561 demonstrates, it is necessary to ascertain the value of a taxable supply in order to calculate the GST payable in respect of that supply. Where a supply is a "bundled supply of taxable and non-taxable supplies" (Luxottica 191 FCR at 566-7 [19]), issues of apportionment and valuation will inevitably arise (at 570-1 [37]-[42]). That a construction of the GST Act may give rise to issues of apportionment and valuation is hardly antithetical to the operation of the Act.

39. The interpretation adopted by the primary judge avoids uncertainty, regardless of whether a particular freehold interest is sold separately or in conjunction with other interests. Most importantly, it gives effect to the statutory language. The appeal must be dismissed, with costs.

THE COURT ORDERS THAT:

  • 1. The appeal be dismissed.
  • 2. The appellant pay the respondent's costs of the appeal, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


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