Other ATO Developments
ATO accepts Hornsby Shire Council case
25.02.2009
In a decision impact statement issued on 25 February 2009, the Commissioner states that he accepts the decision of the AAT in Hornsby Shire Council & FCT ([2008] AATA 1060; 2008 ATC ¶10-061).
In that case, CSR Ltd owned land in the Hornsby Shire. Because of the zoning of the land, CSR Ltd had the right (under the relevant Local Environment Plan) to give notice to the Hornsby Shire Council to acquire the land. CSR Ltd gave the Council notice and, in due course, received compensation. The AAT held that CSR Ltd had made a supply on the basis that CSR Ltd entered into an obligation (within sec 9-10(2)(g) GSTA), when it requested that the Council acquire the land or on the basis that CSR Ltd surrendered the land (within sec 9-10(2)(d) GSTA) as a result of requesting the Council to acquire the land. The Commissioner accepts the AAT’s finding that, on the specific facts of the case, CSR Ltd did make a supply of the land.
Although it was unnecessary for them to consider the issue, the AAT expressed its agreement with the ATO’s view in GSTR 2006/9 that the making of a supply requires some form of positive action on the part of the supplier. In the Hornsby Shire Council case, the AAT was satisfied that CSR Ltd had taken positive action by exercising its right to require the Council to acquire the land.
The decision impact statement indicates that the impact of the AAT’s decision on para 83 of GSTR 2006/9 is being considered. That paragraph deals with the case where a compulsory acquisition statute provides that land remaining, where only part of the land (the “target land”) is to be compulsorily acquired, will also be compulsorily acquired if the owner and the acquiring authority agree that the remaining land will be of no practical use or value to the owner.
For the text of the decision impact statement, click here.
