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A New Tax System (Goods and Services Tax) Act 1999

Chapter 3 - The exemptions

Part 3-1 - Supplies that are not taxable supplies

Division 40 - Input taxed supplies

Subdivision 40-C - Residential premises

40-75 Meaning of new residential premises

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When premises are new residential premises

(1)

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* Residential premises are new residential premises if they:

(a) have not previously been sold as residential premises (other than * commercial residential premises ) and have not previously been the subject of a * long-term lease ; or

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(b) have been created through * substantial renovations of a building; or

(c) have been built, or contain a building that has been built, to replace demolished premises on the same land.

Paragraphs (b) and (c) have effect subject to paragraph (a).

Note 1:

For example, residential premises will be new residential premises if they are created as described in paragraph (b) or (c) to replace earlier premises that had ceased to be new residential premises because of paragraph (a).

Note 2:

However, premises that are new residential premises because of paragraph (b) or (c) will cease to be new residential premises once they are sold, or supplied by way of long-term lease, as residential premises (see paragraph (a)).

Note 3:

Premises created because of the registration of, for example, a strata title plan, or a plan to subdivide land, may not become new residential premises (see subsection (2AA)).

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(2)

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However, the * residential premises are not new residential premises if, for the period of at least 5 years since:

(a) if paragraph (1)(a) applies (and neither paragraph (1)(b) nor paragraph (1)(c) applies) - the premises first became residential premises; or

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(b) if paragraph (1)(b) applies - the premises were last * substantially renovated ; or

(c) if paragraph (1)(c) applies - the premises were last built;

the premises have only been used for making supplies that are * input taxed because of paragraph 40-35(1)(a) .

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Subdivisions etc. may not result in new residential premises

(2AA)

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Despite subsection (1), the * residential premises are not new residential premises if:

(a) they are created from residential premises that became the subject of a * property subdivision plan ; and

(b) the residential premises referred to in paragraph (a) were not new residential premises immediately before they became the subject of that plan.

This subsection has effect subject to paragraphs (1)(b) and (c).

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Disregard certain supplies of the premises

(2A)

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A supply of the * residential premises is disregarded as a sale or supply for the purposes of applying paragraph (1)(a) :

(a) if it is a supply by a member of a * GST group to another member of the GST group; or

(b) if:

(i) it is a supply by the * joint venture operator of a * GST joint venture to another entity that is a * participant in the joint venture; and

(ii) the other entity acquired the interest, unit or lease for consumption, use or supply in the course of activities for which the joint venture was entered into.

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(2B)

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A supply (the wholesale supply ) of the * residential premises is disregarded as a sale or supply for the purposes of applying paragraph (1)(a) if:

(a) the premises from which the residential premises were created had earlier been supplied to the * recipient of the wholesale supply or one or more of its * associates ; and

(b) an arrangement (including an agreement) was made by:

(i) the supplier of the earlier supply, or one or more associates of the supplier; and

(ii) the recipient of the earlier supply, or one or more associates of the recipient; and

(c) under the arrangement, the wholesale supply was conditional on:

(i) specified building or renovation work being undertaken by the recipient of the earlier supply, or by one or more associates of the recipient; or

(ii) circumstances existing as specified in regulations made for the purposes of this subparagraph.

Note 1:

The premises referred to in paragraph (a) could be vacant land.

Note 2:

For subparagraph (c)(ii), circumstances may be specified by class (see subsection 13(3) of the Legislation Act 2003 ).

Note 3:

This subsection does not apply to a supply if certain commercial commitments were in place before 27 January 2011 (see item 12 of Schedule 4 to the Tax Laws Amendment (2011 Measures No 9) Act 2012 ).

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History

S 40-75(2B) amended by No 126 of 2015, s 3 and Sch 1 item 20, by substituting " Legislation Act 2003 " for " Legislative Instruments Act 2003 " in note 2, effective 5 March 2016.

S 40-75(2B) inserted by No 12 of 2012, s 3 and Sch 4 item 8, applicable in relation to supplies of residential premises on or after 27 January 2011. No 12 of 2012, s 3 and Sch 4 item 12 contains the following application provision:

12 Exception - arrangements made before 27 January 2011 to develop premises
(1)
Subsection 40-75(2B) of the A New Tax System (Goods and Services Tax) Act 1999 (as inserted by this Schedule) does not apply to a supply (the wholesale supply ) of residential premises if:

(a) the wholesale supply happens:

(i) on or after 27 January 2011; or

(ii) before 27 January 2011, and the next supply of the residential premises happens on or after 27 January 2011; and

(b) subitem (2) is satisfied in relation to the wholesale supply.

(2)
This subitem is satisfied in relation to the wholesale supply if:

(a) the premises from which the residential premises were created had earlier been supplied to the recipient of the wholesale supply or one or more of its associates; and

(b) immediately before 27 January 2011, the recipient of the wholesale supply or one or more of its associates were commercially committed to an arrangement; and

(c) under the arrangement, the wholesale supply was conditional on specified building or renovation work being undertaken by the recipient of the wholesale supply or by one or more of its associates; and

(d) no GST return (as amended) given to the Commissioner reports a net amount for a tax period that includes amounts equivalent to the input tax credits that the recipient of the wholesale supply would have been entitled to if its acquisitions relating to the next sale or long term lease of the residential premises were creditable acquisitions.
Note:

The premises referred to in paragraph (a) could be vacant land.

(3)
In this item:
arrangement
includes an agreement.

commercially committed
: to be commercially committed , in relation to an arrangement, means:

(a) to be a party to the arrangement, where the arrangement is legally binding; or

(b) to be the preferred tenderer (however described) in the final step in a bidding or tendering process relating to the arrangement; or

(c) to have directly made (with associates) acquisitions, having a total GST exclusive value of at least $200,000, in relation to the arrangement; or

(d) to have directly incurred (with associates) internal direct costs, of at least $200,000, in relation to the arrangement.

(2C)

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A supply of the * residential premises is disregarded as a sale or supply for the purposes of applying paragraph (1)(a) if it is made because a * property subdivision plan relating to the premises was lodged for registration (however described) by the * recipient of the supply or the recipient ' s * associate .

Note:

This subsection does not apply to a supply if the plan was lodged for registration before 27 January 2011 (see item 13 of Schedule 4 to the Tax Laws Amendment (2011 Measures No. 9) Act 2012 ).

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New residential premises include associated land

(3)
To avoid doubt, if the * residential premises are new residential premises because of paragraph (1)(b) or (c) , the new residential premises include land of which the new residential premises are a part.

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