23/06/2016
Profit from property sale was capital gain:
Case 3/2016, 2016 ATC ¶1-081
The AAT has held that a company group did not acquire a property for the purpose of profit-making and that the sale of the property was not a transaction undertaken in the ordinary course of its business activities. Accordingly, the profit arising from the sale was a capital gain.
The AAT rejected the Commissioner's submissions that the company group was carrying on "a business of the acquisition, development and disposal of properties or, alternatively, a business which included investing in property assets". It said that these characterisations failed to acknowledge the discrete nature of the different activities that the company group was undertaking. Rather, the AAT said that the company group had carried on the following "relevant, but quite discrete, activities":
(a) the acquisition, development and sale of residential properties
(b) the acquisition and development of residential properties to hold as capital assets for the purpose of the derivation of rental income
(c) the acquisition, development and sale of commercial properties
(d) the acquisition of commercial properties to hold as capital assets for the purpose of the derivation of rental income, and
(e) the acquisition and development of commercial properties to hold as capital assets for the purpose of the derivation of rental income.
The AAT said that the site of the Woden carpark (which later became the Glasshouse) was, at the time of acquisition, earmarked for activity (d). The decision to develop the site was made a few years after the acquisition, but the purpose was still to retain the developed site and derive rental income from it. Accordingly, the AAT held that the disposal of Glasshouse was not a transaction undertaken in the ordinary course of the company group's business activities, having regard to the scope of its activities.
AAT ref: [2016] AATA 348, SE Frost, Deputy President, 27 May 2016, Sydney.