Question 1 Can A Pty Ltd treat the sale of #% of its Sale Interest in the (name of joint venture) (AAA JV) to X Pty Ltd under the Equity Sale and Purchase Agreement (X ESPA) as the GST-free supply of a going concern for the purposes of Subdivision 38-J of the A New tax System (Goods and Services Tax) 1999 (GST Act)?
1 Yes, the Commissioner considers A Pty Ltd's sale of the #% of its Sale Interest in the AAA JV to X Pty Ltd will satisfy all the requirements specified in section 38-325 of the GST Act. Accordingly, the supply will be the GST-free supply of a going concern, and GST will not be payable on the supply. Question 2 Can A Pty Ltd treat the sale of #% of its Sale Interest in the AAA JV to Y Pty Ltd under the Equity Sale and Purchase Agreement (Y ESPA) as the GST-free supply of a going concern for the purposes of Subdivision 38-J of the GST Act? Answer 2 Yes, the Commissioner considers A Pty Ltd's sale of the #% of its Sale Interest in the AAA JV to Y Pty Ltd will satisfy all the requirements specified in section 38-325 of the GST Act. Accordingly, the supply will be the GST-free supply of a going concern, and GST will not be payable on the supply. Question 3 Can A Pty Ltd treat the sale of #% of its Sale Interest in the AAA JV to Z Pty Ltd under the Equity Sale and Purchase Agreement (Z ESPA) as the GST-free supply of a going concern for the purposes of Subdivision 38J of the GST Act? Answer 3
Yes, the Commissioner considers A Pty Ltd's sale of the #% of its Sale Interest in the AAA JV to Z Pty Ltd will satisfy all the requirements specified in section 38-325 of the GST Act. Accordingly, the supply will be the GST-free supply of a going concern, and GST will not be payable on the supply. This ruling applies for the following period Year ended XX The scheme commenced on: XX
This private ruling is based on the facts and circumstances set out below. If your facts and circumstances are different from those set out below this private ruling has no effect and you cannot rely on it. Find out more about when you can rely on your private ruling at ato.gov.au/relyonprivateruling . 1. Documents provided: Documents provided for this ruling are shown in the table below. Table 1: Documents provided for this ruling are shown in the table below. Document Date 1 Private ruling application form <date> 2 Private ruling application letter <date> 3 Interim Joint Operating Agreement (Retention Lease AAA) B Pty Limited A Pty Ltd C Pty Limited <date> 4 Deed of Amendment and Restatement - <name of Joint Operating Agreement> A Pty Ltd (ABN #) B Pty Limited (ABN #) C Pty Limited (ABN #) Dated <date> Signed <date> 5 Transitional Arrangements Deed A Pty Ltd (ABN #) B Pty Limited (ABN #) C Pty Limited (ABN #) <date> 6 Equity Sale and Purchase Agreement - A Pty Ltd (Seller) and Y Pty Ltd (Buyer) ( Y ESPA ) <date> 7 Equity Sale and Purchase Agreement - A Pty Ltd (Seller) and X Pty Ltd (Buyer) and XCo., Ltd. (Guarantor) ( X ESPA ) <date> 8 Equity Sale and Purchase Agreement -
A Pty Ltd (Seller) and Z Pty Ltd and Z Co., Inc (Guarantor) ( Z ESPA ) <date> 2. Background A Pty Ltd (ABN #) is registered for GST since <date>. A Pty Ltd is a participant in the ABC joint venture ( ABC JV ) governed by the ABC Joint Operating Agreement, along with the following participants: B Pty Ltd (ABN #), and C Pty Ltd (ABN #). ABC JV is a GST joint venture with A Pty Ltd as the joint venture operator. The ABC JV participants, via the ABC JV, own retention leases AAA, BBB and CCC with A Pty Ltd's ownership interest being #% and the other participants (C Pty Ltd and B Pty Ltd) #% each. Retention lease AAA is administered under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Commonwealth) ( OPGGS Act ) and ownership of it has been transferred from the ABC JV to a new joint venture, the AAA Interim Joint Venture ( AAA JV ). The retention leases for BBB and CCC will remain in the ABC JV that will be restated as the DDD Joint Venture ( DDD JV ) per the ABC JOA Deed of Amendment and Restatement. The participant interests in both the AAA and DDD JV will remain the same as that in the original ABC JV.
3. The AAA JV participants are evaluating the proposed development of extracting natural gas from the <names of gas fields>. The natural gas will be converted into liquid natural gas for export to international markets and some natural gas will be sold on the domestic market. Currently the AAA JV participants are undertaking Front End Engineering and Design ( FEED ) activities which, amongst other things, include: • Subsurface studies and seismic interpretation; • Engineering and design studies; • Geotechnical studies and surveys; • Environmental surveys, studies, and approvals; • Commercial activities; and • Marketing activities. The AAA JV participants are continuing to assess economic viability through its FEED activities and are yet to have made a final investment decision. 4. Transaction A Pty Ltd is selling a percentage of its joint venture interest ( Sale Interest ) in the title and the AAA JV, and corresponding rights, title and interest in the AAA Transitional Arrangements Deed to the following parties in the following proportions:
• X Pty Ltd (ABN #) - #% interest • Y Pty Ltd (ABN #) - #% interest • Z Pty Ltd (ABN #) - #% Interest This will result in A Pty Ltd retaining a #% interest in the AAAJV and the DDD JV collectively (DDD JV was originally referred to as the BBB and CCC). It is anticipated that the completion date for the sale transaction will occur near the end of MMYYYY. 5. Information available publicly on the Australian Business Register as at current date: • X Pty Ltd is registered for GST • Y Pty Ltd is registered for GST • Z Pty Ltd registered for GST 6. The sale by A Pty Ltd of a part of its interest in the title and AAA JV to the above entities is governed by the following Equity Sale and Purchase Agreements ( ESPAs ): • X Pty Ltd Equity Sale and Purchase Agreement ( X ESPA ) executed on <date> • Y Pty Ltd Equity Sale and Purchase Agreement ( Y ESPA ) executed on <date> • Z Pty Ltd Equity Sale and Purchase Agreement ( Z ESPA ) executed on <date>
7. Once the conditions outlined in the ESPAs have been completed, the property interests in the AAA JV will transition into the <name of Operating Agreement Joint Venture> ( EEE JV ) in which all the above companies will be participants, and in which they hold the same proportional ownership interests. The fundamental nature of the transaction is to bring an additional resource field into the EEE JV. The transition process from the ABC JV to the DDD JV and AAA JV and then from the AAA JV to the EEE JV is governed by the AAA Transitional Arrangements Deed ( Transition Deed ). 8. A Pty Ltd is the only applicant for this ruling as it is the only entity that is selling a share in its existing interest. 9. Consideration Clause #.1 of each of the X ESPA, Y ESPA and Z ESPA provides for definitions, and includes the meaning of the term 'Base Purchase Price'. Clause #.2 of each of the X ESPA, Y ESPA and Z ESPA provides for 'Completion Date consideration and reimbursement of expenses'.
Under Clauses #.1 and #.2 of each of the X ESPA, Y ESPA and Z ESPA, the consideration for the sale of the interest in title and the AAA JV will be an amount determined in aggregate as US$<amount> (X Pty Ltd US$<amount>, Y Pty Ltd US$<amount> and Z Pty Ltd US$<amount>) plus the completion adjustment amount. The completion adjustment amount will be the purchaser's proportion of the joint venture costs incurred by the AAA JV for the period <date> to the completion date of the ESPAs. 10. Equity Sale and Purchase Agreements Clause # of each of the X ESPA, Y ESPA and Z ESPA includes an acknowledgment: (1) The Seller and Buyer acknowledge that the consideration agreed between the Seller and the Buyer has been agreed upon on the basis that the supply of the Sale Interest under this agreement is a "supply of a going concern" under the GST Act. (2) The Seller warrants that it carries on, and will carry on, its enterprise relating to the Sale Interest until the Completion Date.
(3) The Seller warrants that in supplying the Sale Interest to the Buyer on the Completion Date, it is supplying all things necessary for the continuation of the enterprise it carried on relating to the Sale Interest. Clause # of the X ESPA provides for definitions and includes: Sale Interest means: (a) a #% undivided Participating Interest in the Title and the AAA Interim JOA; and (b) the corresponding rights, title and interest in, under and arising from the AAA Transitional Arrangements Deed, to the extent of such undivided Participating Interest. Clause # of the Y ESPA provides for definitions and includes: Sale Interest means: (a) a #% undivided Participating Interest in the Title and the AAA Interim JOA; and (b) the corresponding rights, title and interest in, under and arising from the AAA Transitional Arrangements Deed, to the extent of such undivided Participating Interest. Clause # of the Z ESPA provides for definitions and includes: Sale Interest means: (a) a #% undivided Participating Interest in the Title and the AAA Interim JOA; and
(b) the corresponding rights, title and interest in, under and arising from the AAA Transitional Arrangements Deed, to the extent of such undivided Participating Interest.
A New Tax System (Goods and Services Tax) Act 1999 - section 38-325