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本帖最后由 3IX37 于 2012-12-20 19:30 编辑
jiaxipan 发表于 2012-12-20 17:20 
understand, it's more likely to be treated as "revenue" rather than "capital gain". so if I'm going ...
Before you make a decision, here is something might be helpful.
after reading the below article, you can then decided:
- whether your activity constitutes the definition of "enterprise".
- is the sale of residential townhouse a taxable supply?
The below article is written by Barrister CHRIS SIEVERS, AICKIN CHAMBERS
INTRODUCTION
If you trawl through the ATO’s register of Private Rulings[1], you will see that a number of them involve the question of whether the applicant is carrying on an “enterprise” for the purposes of the GST Act[2] when they are looking to subdivide and to sell real property. The issue may be as simple as the subdivision of the family home into two lots, so that the vacant lot can be sold, ranging to a large-scale subdivision of land.
What a review of the register shows is that the views of the Commissioner do appear to be somewhat inconsistent and arbitrary. This is probably a reflection on the nature of the material provided by taxpayers in support of the private ruling but also shows the difficulty in establishing where the line between the non-taxable activity of simply selling land in a profitable way ends, and conducting an “enterprise” begins. Also, it is likely that within the ATO itself, officers have different views on where to draw this line. Unfortunately, that makes life very difficult for practitioners who are asked to give advice in this problematic area.
This paper will look at the following matters:
(a) The relevant provisions of the GST Act, with a focus on the concepts of “enterprise” and “registration”;
(b) The Commissioner’s public Rulings on the concept of “carrying on an enterprise”; and
(c) A consideration of some of the recent ATO private rulings dealing with the question of whether an entity is carrying on an enterprise when it undertakes the subdivision and sale of property.
This paper does not consider the cases handed down on the issue of “enterprise”[3] and seeks to focus more on how the ATO looks at the issue and applies its views in the making of private rulings. That does not mean that the ATO’s views should be seen to be correct (they are often proved wrong), but this does provide an insight into how the ATO may look at a particular arrangement.
THE LEGISLATION
Taxable supply
GST is charged on “taxable supplies”, which are defined in s 9-5 of the GST Act. The elements of taxable supply are:
(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 Australia; and
(d) You are registered or required to be registered.
In the context of the subdivision and sale of real property, (a) will be satisfied as the sale is for consideration, and (c) will be satisfied as the supply of real property located in Australia will always be connected with Australia: s 9-25(4). The relevant questions are therefore whether (b) and (d) are satisfied. Each of which is considered below.
Of course, it should be noted that there will not be a taxable supply if the supply is input taxed or GST-free. Those concepts are particular important for real property, given the input taxed treatment of the sale of existing residential premises[4] and the lease of residential premises[5], and the GST-free treatment of supplies such as the sale of a going concern[6] and the supply of farmland[7].
....
Enterprise
Section 195-1 relevantly states that:
(a) “carrying on an *enterprise includes doing anything in the course of the commencement or termination of the enterprise.”
(b) “enterprise has the meaning given by section 9-20”.
Section 9-20 relevantly provides that:
(1) An enterprise is an activity, or series of activities, done:
(a) In the form of a *business;
(b) In the form of an adventure or concern in the nature of trade; or
(c) On a regular or continuous basis, in the form of a lease, licence or other grant of an interest in property;
(2) However, enterprise does not include an activity, or series of activities, done:
(a) …
(b) as a private recreational pursuit or hobby; or
(c) by an individual (other than a trustee of a charitable fund) or a *partnership (all or most of which are individuals), without a reasonable expectation of profit or gain…
When regard is had to the above provisions, the following conclusions may be drawn:
(a) The definition of “enterprise” in the GST Act is very wide, and it appears to be broader than “business”. This is because an “enterprise” includes activities done “in the form of” a business and activities done “in the form of” an adventure or concern in the nature of trade. In this regard, the focus would appear to be less on the substance of the activities but on the form in which the activities are carried on.
(b) An enterprise includes “an activity” – therefore it will extend to a single activity (as well as a series of activities). “One-off” transactions may therefore fall within the definition of “enterprise”.
(c) The exclusion in s 9-20(2) extends to individuals and partners, but not to corporations. Therefore, it would appear that where corporations carry on activities in the form of a business, or an adventure or concern in the nature of trade, those corporations carry on an enterprise regardless of whether they have a reasonable expectation of profit or gain.
The breadth of “enterprise” is shown by the Explanatory Memorandum to the Bill introducing the GST Act[8], which states as follows:
Enterprise is defined widely because the GST is intended to have a broad base. Certain things are included as enterprises so that input tax credits are available to them. Enterprise includes:
A business, trade or profession;
A lease, licence or other grant of interest in property;
Certain activities of gift deductible funds, authorities or institution;
Certain activities of charitable institutions;
Certain activities of religious institutions; and
Certain activities of governments and government corporations.
Certain things are excluded from being an enterprise. For example, hobbies, private recreational pursuits and employee wages are not subject to GST. For individuals and partnerships there must also be a reasonable expectation of profit or gain.
A broad approach to the concept of “enterprise” is also supported by the following aspects of the GST Act:
(a) Unlike income tax, where deductions are limited to items on revenue account, and capital expenses may be depreciated over time, a registered enterprise is entitled to claim up-front input tax credits[9] on all expenses (regardless of whether those items may be regarded as being on “income” or “capital” account).
(b) Entities carrying on an enterprise must register for GST if their annual turnover is above the threshold. However, entities with an annual turnover below that threshold can elect to register for GST. This will entitle small-scale enterprises (including ones which may not strictly be regarded as a business, but are carried out in in that way) the opportunity to claim input tax credits (but of course expose them to a GST liability on taxable outputs).
reference: http://chrissievers.wordpress.co ... e-of-real-property/
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Auburn考察归来，交作业 (2008-11-30) zhengtao 
发表于 2012-12-18 22:11
