Is the supply of the Sale Interest from AAA# Pty Ltd to BBB# Pty Ltd, pursuant to the Asset Sale Agreement, the supply of a going concern that is GST-free under section 38-325 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?
Yes, the supply of the Sale Interest from AAA# Pty Ltd to BBB# Pty Ltd, pursuant to the Asset Sale Agreement is the GST-free supply of a going concern under section 38-325 of the GST Act. This is because all the requirements specified in the section will be satisfied. GST will not be payable on the supply. This ruling applies for the following period : Starting from AAA# Pty Ltd's substituted accounting period ending DDMMYY and continuing until completion of the Post-Completion matters set out in clause # of the Asset Sale Agreement. The scheme commenced on: DDMMYY
Documents Documents provided are shown in table 1: Table 1: Documents provided Number Document Date 1 Authority to act letter from AAA# Pty Ltd to tax representative - application for private ruling - confirmation information provided in the application is true and correct DDMMYY 2 Private ruling application letter DDMMYY 3 Asset Sale Agreement - AAA Project AAA# Pty Ltd CCC# Ltd BBB# Pty Ltd DDD# Ltd DDMMYY Background 1. AAA# Pty Ltd (ABN #) ( AAA / the Vendor ) is a mining and exploration company that is currently carrying on a copper-gold exploration enterprise in Australia. AAA has been registered for GST since DDMMYY. 2. AAA is a wholly owned direct subsidiary of ASX-listed company, CCC# Ltd (ABN #). Together with other related entities, CCC# Pty Ltd operates a global mining business including metal and mineral mining in Australia. The mining activities include exploration, development, production and processing of metals and minerals. 3. AAA is a member of the tax consolidated group of which CCC# Ltd is the head company. AAA is also a member of the XXXX of which EEE# Ltd, a wholly owned direct subsidiary of CCC# Ltd, is the group representative member.
4. BBB# Pty Ltd (ABN #) ( Purchaser ) is a wholly owned subsidiary of DDD# Ltd. a global mineral resources business. The Purchaser has been registered for GST since <date>. Publicly available information on the Australian Business Register website records the GST registration of the Purchaser has remained active at the time of this ruling. Clause # of the ASA includes that the Purchaser warrants that, as at the date of Completion (as defined in the ASA), it will be registered for GST. Project AA Joint Venture 5. This application relates to the sale of an interest in the AA copper-gold exploration and mining project in XXXX ( AA Project ). 6. On DDMMYY, AAA entered into the Asset Sale Agreement ( ASA ) with the Purchaser (among other parties) for the sale by AAA to the Purchaser of a X% interest in each of the Vendor's Assets (as defined in the ASA), which together comprise everything necessary for the continued operation of the AA Project ( Sale Interest ). The total consideration payable by the Purchaser to the Vendor for the purchase of the Sale Interest is: (a) the Purchase Price of US$X (excluding GST) payable on the Completion Date (as defined in the ASA), and
(b) the Deferred Consideration of up to a maximum of approximately US$X (excluding GST), contingent on the Expansion of the AA Project, calculated and payable in accordance with clause # of the ASA. On completion of this transaction, the parties will establish an unincorporated joint venture between AAA and the Purchaser ( AA Joint Venture ). The terms of the AA Joint Venture are detailed in a Joint Venture Agreement, also dated <date> ( JVA ). AAA and the Purchaser will appoint GGG# Pty Ltd (ABN #), a related entity of AAA, to manage and operate the AA Joint Venture. The terms of that appointment are detailed in the JVA and Management Agreement, also dated DDMMYY. 7. While AAA carries on the day-to-day operations of the AA Project (until the AA Joint Venture is established), currently FFF# Pty Ltd (ABN #) ( FFF ), a wholly owned subsidiary of CCC# Ltd, holds a limited number of the mining assets which comprise the AA Project ( Mining Assets ). The balance of the Mining Assets is held by AAA following an internal restructure between AAA and FFF. The Mining Assets include the Existing Tenements (being exploration licences and miscellaneous licences under the Mining Act 1978 (WA) (
Mining Act )), Contracts, Licences, Mining Information, and Plant and Equipment (as defined in the ASA). FFF has also previously lodged a mining lease application for # and # miscellaneous licence applications under the Mining Act in relation to the AA Project ( Applications , as defined in the ASA). 8. FFF is contractually required to transfer those Mining Assets that it still holds (being certain Contracts, Licences and any Tenements granted to FFF pursuant to the Applications) to AAA pursuant to an internal restructure, except for any pending Applications as these are non-transferrable. Completion of AAA's acquisition of the Existing Tenements and any Tenements granted pursuant to the Applications at that time from FFF is a condition precedent to Completion of the ASA (clause # of the ASA).
9. As set out in clause # of the ASA, once the tenements the subject of the Applications have been granted, the Vendor must, as soon as reasonably practicable following such grant, transfer or procure the transfer of an undivided #% interest in the relevant tenements to the Purchaser. Further, the ASA obliges the Vendor to procure the pursuit of the Applications and grant of the associated tenements and procure that the Applications are not withdrawn (clause # of the ASA). Exploration Enterprise 10. The parties are aware that for the supply of the Sale Interest to be wholly GST-free under section 38-325, the relevant enterprise must be carried on until the day of supply.
Clause # of the ASA provides for 'Obligations prior to the Completion Date' and 'Carrying on of business', including at clause # that, from the date of the ASA to the Completion Date, the Vendor must ensure that the Business is conducted materially in the ordinary course, and at clause # 'Business' is defined as the exploration enterprise and pre-development activities carried on by the Vendor ...in respect of the Tenements', that is, prior to and at the time of Completion under the ASA, the Vendor will carry on the exploration enterprise and pre-development activities in respect of the Tenements comprising of the AA Project. Completion means completion of the sale and purchase of the Sale Interest in accordance with clause # of the ASA. Completion Date means the date on which Completion occurs, being: (a) The date that is ten Business Days after the date on which all Conditions Precedent have been satisfied or waived in accordance with this Agreement; or (b) Such other date as may be agreed in writing by the Vendor and the Purchaser. By letter agreement dated DDMMYY, the Vendor and the Purchaser agreed that the Completion Date will be the later of:
(a) the date that is ten Business Days after the date on which all Conditions Precedent have been satisfied or waived in accordance with the ASA, (b) DDMMYY, or such other date as may be agreed in writing by the Vendor and the Purchaser. Completion is scheduled for DDMMYY. 11. The activities of the enterprise include: (a) ongoing drilling activities; (b) ongoing geological analysis of the Tenements; (c) analysis of deposits, forecasting, modelling and preparation of reports; (d) attending to all obligations under relevant Commonwealth and State legislation in relation to landholders and native title; (e) engaging and managing relevant consultants; (f) maintaining accounts and keeping records (intellectual property): (g) progression of the live mining applications; and (h) in broad terms, progressing with the completion of a final pre-feasibility study which involves building ore body knowledge, and understanding other factors relevant to feasibility of a mining project including the future market, the supply chain for materials, and the Environmental Social and Governance requirements.
12. The AAA Project copper-gold deposit was discovered in YYYY and as at MMYYYY a total of US$X has been invested including all exploration and project spend. The pre-feasibility study is expected to be completed in YYYY. 13. In acquiring the Sale Interest, the Purchaser is acquiring a X% interest in both the physical assets of the AA Project - namely, the Tenements, Plant and Equipment, and Licences - and obtaining access to the existing operational framework required to continue the exploration enterprise. The operational framework includes the Mining Information, Contracts including Traditional Owner Agreements, and expertise of the specialist teams who will continue to carry out the AA Project. 14. The Vendor and the Purchaser have agreed in writing that the supply of the Sale Interest is the supply of a going concern for the purposes of the GST Act (Clause # of the ASA). Additional information 15. The Vendor will continue to maintain a #% interest in the exploration enterprise following completion under the ASA. Its enterprise will continue until and beyond the day the Sale Interest is transferred to the Purchaser.
The team currently responsible for the exploration and pre-development activities at the AA Project site will continue their work under the AA Joint Venture manager after the Sale Interest is transferred to the Purchaser.
A New Tax System (Goods and Services Tax) Act 1999 section 38-325