South Steyne Hotel Pty Ltd v Commissioner of Taxation [2009] FCAFC 155

FEDERAL COURT OF AUSTRALIA

South Steyne Hotel Pty Ltd v Commissioner of Taxation [2009] FCAFC 155 TAXATION – Goods and Services Tax – grant of leases of apartments in hotel – whether such supply is input taxed – whether apartments are residential premises within the meaning of s 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) – whether apartments are commercial residential premises within the meaning of s 195-1 – subsequent continuation of leases when apartments were sold – whether such continuation was a supply – whether continuation of leases was a supply by way of lease – whether supply is input taxed TAXATION – Goods and Services Tax – supply of accommodation in apartments – whether supply is income taxed – whether supply of premises by was provided by "the entity that owns or controls the commercial residential premises" for the purposes of s 40-35(1) of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) – supply made by exclusive agent of operator and lessee of apartments pursuant to a management agreement – whether terms of management agreement were such that exclusive agent could be said to "control" the operation of the serviced apartment business – whether accommodation was provided by exclusive agent as principal rather than as agent of lessor TAXATION – Goods and Services Tax – sale of apartments – whether terms of sale contract meant that there was a written agreement that the sale was a sale of a going concern as per s 38-325(1)(c) of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) – whether supply was GST-free A New Tax System (Goods and Services Tax) Act 1999 (Cth) Div 9, ss 29-5, 38-325, 40-35, 40-65, 40-70, 40-75, 75-1, 75-5, 156-5, 156-22, Div 195 Tax Laws Amendment (2006 Measures No. 3) Act 2006 (Cth) Sch 15 Conveyancing Act 1919 (NSW)ss 117, 118 Real Property Act 1900 (NSW) s 40(3) Carminco Gold and Resources Ltd v Findlay & Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472 Denman College v Commissioners of Customs and Excise [1998]V & DR 399 International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 Lilyvale Hotel Pty Ltd v Commissioner of Taxation [2009] FCAFC 21 Marana Holdings Pty Ltd v Commissioner of Taxation (2004) 141 FCR 299 Owen v Elliott (Inspector of Taxes) [1990] 1 Ch 786 Urdd Gobaith Cymru v Commissioner of Customs and Excise [1997] V & DR 273 Westley Nominees Pty Ltd v Coles Supermarkets Australia Pty Ltd 2005 ATC 4484 Westley Nominees Pty Ltd v Coles Supermarkets Australia Pty Ltd (2006) 152 FCR 461