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No. New residential premises as referred to in paragraph 40-65(2)(b) [1] will only have been 'used for residential accommodation (regardless of the term of occupation) before 2 December 1998' where the premises, at the time of use before 2 December 1998, were residential premises but not commercial residential premises. That is, the prior use for residential accommodation does not encompass prior use for making supplies of accommodation in commercial residential premises.

KCMF Enterprises constructs and strata titles premises which it commences operating as a hotel in January 1997. Operating the premises involves making supplies of accommodation in commercial residential premises .

In December 2008, KCMF Enterprises sells one of the strata titled units to Tom .

Under subsection 40-65(1 ), the sale of real property is input taxed, but only to the extent that the property is residential premises to be used predominantly for residential accommodation (regardless of the term of occupation ). In this case the strata titled unit is residential premises to be used predominantly for residential accommodation . [2]

However, under subsection 40-65(2) the sale is not input taxed to the extent that the residential premises are commercial residential premises or new residential premises other than those used for residential accommodation (regardless of the term of occupation) before 2 December 1998. The single strata titled unit is not commercial residential premises . [3] However, the premises have not previously been sold and are new residential premises under section 40-75. Thus, it is necessary to consider whether the strata titled unit has been used for residential accommodation before 2 December 1998 .

The use of the premises for providing accommodation in commercial residential premises before 2 December 1998 does not mean that they have been used for residential accommodation for the purpose of paragraph 40-65(2 )( b ). This is because the use of the premises to supply accommodation in commercial residential premises is not the same as using the premises for residential accommodation as required by paragraph 40-65(2 )( b ).

Therefore, the sale of the strata titled unit to Tom is not an input taxed supply under section 40-65 because it is a sale of new residential premises that have not been used for residential accommodation before 2 December 1998. Assuming the other requirements of section 9-5 are satisfied, the sale to Tom is a taxable supply .

This Determination applies both before and after its date of issue. However, this Determination will not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of this Determination (see paragraphs 75 and 76 of Taxation Ruling TR 2006/10).

Subsection 40-65(1) provides that a sale of real property is input taxed to the extent that the property is residential premises to be used predominantly for residential accommodation (regardless of the term of occupation).

However, subsection 40-65(2) provides that the sale of real property is not input taxed to the extent that the residential premises are: (a) commercial residential premises, or (b) new residential premises other than those used for residential accommodation (regardless of the term of occupation) before 2 December 1998.

The effect of paragraph 40-65(2)(b) is that a sale of new residential premises that have been used for residential accommodation (regardless of the term of occupation) before 2 December 1998 is an input taxed supply where the premises are to be used predominantly for residential accommodation.

The reference to prior use for residential accommodation in paragraph 40-65(2)(b) is construed as applying only where the premises at the time of use before 2 December 1998 were residential premises but not commercial residential premises. That is, the prior use referred to in paragraph 40-65(2)(b) does not encompass prior use for making supplies of accommodation in commercial residential premises.

In South Steyne Hotel Pty Ltd v. Commissioner of Taxation [4] Edmonds J considered that the legislative policy perceived from the statutory context supported this view. [5] His Honour noted that the definition of new residential premises in section 40-75 made it clear that the fact that premises have previously been sold as commercial residential premises does not preclude them from being new residential premises. Additionally, a supply of premises by way of lease, hire or licence that is a supply of accommodation in commercial residential premises provided to an individual by the entity that owns or controls the commercial residential premises is not input taxed. [6] His Honour then concluded that the policy underlying the 'carve-out' for premises used for residential accommodation before 2 December 1998 was to be found in a use of the premises that would be input taxed if the subject of a current supply. Therefore, the 'carve-out' in paragraph 40-65(2)(b) should be construed as not extending to a use prior to 2 December 1998 which would not now be an input taxed supply.

At first instance, Stone J in South Steyne Hotel Pty Ltd v. Commissioner of Taxation [7] reached a similar conclusion with reference to 'slight but clear' textual support in the Act and relevant extrinsic materials, in particular, paragraph 11.21 of the Revised Explanatory Memorandum to the Indirect Tax Legislation Amendment Bill 2000 and example 15.4 of the Explanatory Memorandum to the Tax Laws Amendment (2006 Measures No. 3) Bill 2006. [8]