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The ATO has published a Decision Impact Statement in relation to the Full Federal Court decision in MTAA Superannuation Fund (R G Casey Building) Property Pty Ltd v FCT [2012] FCAFC 89.

The case concerned the taxpayer's claim, by reference to s13 of A New Tax System (Goods and Services Tax Transition) Act 1999, to a refund of GST paid on a lease entered into in 1998. The lease payments had been increased to take account of GST.

The Full Federal Court dismissed the taxpayer's appeal from the decision of the AAT, which had held that the taxpayer was not entitled, pursuant to s 13, to a refund of GST (totalling $7,457,531.10) paid as part of the rent of a building under a lease agreement entered into in 1998, that is, prior to the date of Royal Assent to the A New Tax System (Goods and Services Tax) Act 1999.

Specifically, the AAT held that the taxpayer and the lessee departed from the consideration specified in the pre-Royal Assent lease by agreeing that the lessee would pay an additional 10% on account of GST, outside the rent review process. On this basis, the consideration for supplies after 1 March 2001 was not "identified or capable of being worked out" by the pre-Royal Assent date agreement, as required by s 13. The Full Federal Court agreed.

The Decision Impact Statement states that the AAT's decision has minor impacts on GSTR 2000/16. Rather than updating the ruling, the Commissioner proposes to withdraw the ruling because it concerns a provision that is no longer operative. 

The Commissioner will review MT 2009/1 and make changes as necessary to reflect the AAT's decision in this case and other recent cases.

The Commissioner does not propose to make any changes to MT 2010/1 in relation to the question of how the discretion under s 105-65 operates. It is also felt that the AAT's observations concerning windfall gains do not necessitate any change to MT 2010/1.


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