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26 Feb 09 Decision Impact Statement - Hornsby Shire Council

The ATO has published a Decision Impact Statement in relation to the AAT decision in Hornsby Shire Council v FCT [2008] AATA 1060; 2008 ATC 10-061. The case concerned the question of whether a compulsory acquisition of land by a government entity (Hornsby Shire Council) in circumstances where the land owner (CSR) exercised a statutory right to compel the government entity to acquire its land involved a supply for GST purposes. The AAT held that it did in the circumstances of the case, contrary to the arguments of the Commissioner.

In particular, the AAT held that CSR had made a supply on the basis that CSR entered into an obligation, within s 9-10(2)(g) of the GST Act, when it requested that  Hornsby Shire Council acquire the land, or on the basis that CSR surrendered the land, within s 9-10(2)(d), as a result of requesting Hornsby Shire Council to acquire the land.

The Decision Impact Statement states that the Commissioner accepts the AAT's decision in the case and has decided not to lodge an appeal. However, the Commissioner says he agrees with the AAT's view that the making of a supply requires some positive action on the part of the supplier. Thus, the Decision Impact goes on to say:

"The Commissioner considers that the Tribunal's decision is broadly consistent with his view in GSTR 2006/9 that an owner of real property does not make a supply when an acquiring authority initiates the process of compulsorily acquiring real property and the relevant interest is vested in the relevant government authority by extinguishing any previous interests in the land (as opposed to an acquisition of the real property by agreement).

For a copy of the Decision Impact Statement, go here.

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