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19 Jun 13 GST recovery restrictions; commercial residential premises – Wynnum Holdings; Dunn

The ATO has released a Decision Impact Statement on two related Administrative Appeals Tribunal decisions which concerned recovery restrictions (a timing issue) where a ruling was issued and whether the issues went to substantive liability, which entity carried on the enterprise, and whether premises were commercial residential premises. The decisions were Re Wynnum Holdings No 1 Pty Ltd and FCT [2011] AATA 296 and Re Wynnum Holdings No 1 Pty Ltd and FCT; Re FD Dunn & JW Dunn and MAM Sky Superannuation Fund and FCT [2012] AATA 616.

In the ATO’s view, the Tribunal’s decisions on the timing issue, ruling issue and excessiveness of the assessment issue are consistent with the Commissioner’s submissions.

The Tribunal’s decision on the enterprise issue is consistent with views set out in GSTR 2008/3.

While deciding that the property was not “commercial residential premises”, the Tribunal’s reasoning for this conclusion differs to some extent with the preliminary views expressed in GSTR 2012/D1. The Tribunal’s views in this regard have been reflected in GSTR 2012/6, which replaced GSTR 2000/20.

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