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The sale of a commercial property subject to an existing monthly tenancy held over from an expired lease was found to be a supply of a going concern for the purposes of s 38-325 of the GST Act, and was therefore GST-free.

The principal issue was whether the parties to the sale of the property had “agreed in writing” that the sale would a supply of a going concern, as required by s 38-325(1)(c).

The contract of sale itself contained no stipulation as to a supply of a going concern. The AAT found, however, that references to sale as a going concern in collateral documents, including a letter from the purchaser's solicitor to the vendor’s solicitor, a tax invoice provided in anticipation of settlement, and a Goods Statutory Declaration, constituted sufficient evidence that the vendor and the purchaser had agreed in writing that the supply involved a going concern, as required by s 38-325(1)(c).

Re SDI Group Pty Ltd and FCT [2012] AATA 763 (Dr Gordon Hughes, Member, 2 November 2012).

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