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The ATO has issued a Decision Impact Statement in relation to the AAT decision in SDI Group Pty Ltd and FCT [2012] AATA 763; 2012 ATC 10-282.

The decision concerned whether a vendor (supplier) and purchaser (recipient) had agreed in writing on or before settlement that a property was sold as a going concern and thus was a GST-free supply.

In this case, the ATO was of the view that there was insufficient evidence of there being an agreement in writing between the parties that the supply was of a going concern because the contract was silent on the point, there was no other separate document setting out such an agreement, and the contemporaneous correspondence between the parties did not constitute an agreement between the parties that the supply was of a going concern.

The AAT took a different view of the evidence, and held that the contract, the tax invoice, the Goods Statutory Declaration, and the letters exchanged between solicitors for the parties meant the supplier and recipient had "agreed in writing" that the supply (the sale) was a supply of a going concern for the purpose of the GST Act and was thus GST-free.

The ATO states that this finding was open to the AAT on the evidence in this case and does not differ in principle from the requirements outlined in GSTR 2002/5.

The ATO also states that it is its belief that the decision does not support a view that unilateral documents are sufficient to constitute an agreement in writing as contemplated by paragraph (c) of subsection 38-325(1) of the GST Act.


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