Goods and services tax: improvements on the land for the purposes of Subdivision 38-N and Division 75

This Ruling discusses the meaning of the phrase 'improvements on the land' in the context of the phrases 'improvements on the land' or 'no improvements on the land' or equivalent phrases in Subdivision 38-N and Division 75 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act).

These phrases appear in Subdivision 38-N and Division 75: • 'land on which there are no improvements' in subsection 38-445(1) and section 38-450; • 'no improvements on the land' in paragraph 38-445(1A)(c); • 'no improvements on the land or premises' in table item 4 of subsection 75-10(3) and subsection 75-10(3A); and • 'improvements on the land or premises' in table item 3 of subsection 75-10(3) and in paragraph 75-10(3A)(b).

Unless otherwise stated, all references in this Ruling are to the GST Act.

This Ruling applies to tax periods commencing both before and after its date of issue. However, this Ruling 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 Ruling (see paragraphs 75 and 76 of Taxation Ruling TR 2006/10 Public Rulings).

Changes made to this Ruling by addenda that issued since its original publication have been incorporated into this version of the Ruling. Refer to each addendum for details of how that addendum amended the Ruling, including the date of effect of the amendments.

Where an addendum applies to tax periods both before and after its date of issue, both the pre-addendum wording of the Ruling and the revised wording in the addendum apply for tax periods prior to the issue date of the addendum. In these circumstances, entities can choose to rely on either version when applying the Ruling to the past periods. [A1]

[Omitted.]

[Omitted.]

[Omitted.]

[Omitted.]

Whether there are improvements on the land is relevant in establishing whether a supply made by the Commonwealth, a State or Territory [1] is GST-free under sections 38-445 and 38-450 of the GST Act.

Under subsection 38-445(1), if the Commonwealth, a State or a Territory makes a supply of land on which there are no improvements and the supply is of a freehold interest or long-term lease, it is GST-free unless the land has been previously supplied as a GST-free supply under section 38-445.

Under subsection 38-450(1), a supply by the Commonwealth, a State or a Territory of land on which there are no improvements is GST-free if the supply is by way of a lease other than a long-term lease and the lease is subject to conditions that when satisfied entitle the recipient to the grant of a freehold interest in or long-term lease of the land.

When the Commonwealth, a State or Territory subsequently supplies the freehold interest or long-term lease, it is GST-free under subsection 38-445(1A), unless the land has previously been supplied as a GST-free supply under section 38-445.

Under subsection 38-450(2) the surrender of a lease to the Commonwealth, a State or Territory is GST-free if: • the supply of the lease was GST-free under subsection 38-450(1), or would have been GST-free under that subsection if it had not been made before 1 July 2000; and • solely or partly in return for the surrender of the lease, the Commonwealth, State or Territory makes a supply of the land to the lessee that is GST-free under section 38-445.

Whether there are improvements on the land is also relevant if a taxable supply of real property is made under the margin scheme and the margin for the supply is calculated under subsection 75-10(3).

If subsection 75-10(3) applies, the margin for the supply is the difference between the consideration for the supply and an approved valuation of the real property at the relevant date specified in the table in paragraph 75-10(3)(b). Whether there are improvements on the land may determine which table item applies to the supply. The table item then establishes the valuation date.

For example, table item 4 applies where the supplier is the Commonwealth, a State or Territory and has held the interest, unit or lease since before 1 July 2000, and there were no improvements on the land or premises in question as at 1 July 2000. Under table item 4, the valuation must reflect the value of the real property on the day on which the taxable supply takes place. In addition, if table item 4 applies, then the valuation excludes any improvements on the land or premises at the valuation date. [2]

The Explanatory Memorandum to the A New Tax System (Goods and Services Tax) Bill 1998 in respect of subsection 75-10(3), and the House of Representatives Supplementary Explanatory Memorandum to the A New Tax System (Indirect Tax and Consequential Amendments) Bill (No 2) 1999 in respect of subsection 75-10(3A), refer to unimproved land held by the Commonwealth, a State or a Territory as at 1 July 2000, which is subsequently improved before the supply.

The Explanatory Memoranda confirm that GST is intended to be applied to the difference between the sale price and the value of the land component at the date of sale. The effect is that the value of the land is not subject to GST and that only the value of improvements is taxed.

The Explanatory Memoranda also state that this outcome is intended to be consistent with the operation of Subdivision 38-N of the GST Act which provides that grants of freehold interests in unimproved land by governments are GST-free. Accordingly, the treatment of improvements is the same for subsections 75-10(3) and 75-10(3A) as it is for Subdivision 38-N.

Land in its natural state is unimproved land. Thus, to establish whether there are, or were, improvements on the land for the purpose of these provisions, a comparison is made between the state of the land in question at the relevant time and that same land in its natural state.

In considering the meaning of 'improvements' in the context of land tax, Griffith J, in the High Court decision of Morrison v Federal Commissioner of Land Tax [1914] HCA 10 held: Any operation of man on land which has the effect of enhancing its value comes within the definition of "improvement."

In other contexts, a broader meaning has been given to 'improvements'. In Commonwealth v Oldfield [1976] HCA 17, Jacobs J stated (emphasis added): It appears to me that the considerations which led the Court in these cases to give the word "improvements" a meaning which would include what is done in improvement of quality of the soil and thereby the usefulness of the land apply as much to the words of this lease as to the words of that statute.

In Dampier Mining Company Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1979] FCA 93, a case on the expressions 'effecting improvements upon land' and 'making improvements... on ...land' that were used in the Income Tax Assessment Act 1936, Brennan J in the Full Federal Court stated (emphasis added): ... one cannot find an "improvement" in the present case unless the dredging enhances the value of lan d, or makes the use of land more efficient.

On appeal to the High Court, Stephen J also expressed a broad view on the meaning of improvements [2A] : I would not confine the notion of improvements in Div. 4 to that which enhances the market value of land; some improvements, not made in the course of putting land to its best economic use but, rather, so as to meet the particular requirements of its occupier, may, I suppose, have the effect of actually depreciating its market value.

While the meaning of 'improvements' will depend on the statutory purpose and context in which it is used, there is nothing in the GST Act which requires a restrictive or narrow meaning to be adopted. In accordance with the ordinary meaning of the word and taking into account the views expressed in the cases referred to in paragraphs 21 to 21C of this Ruling, for there to be 'improvements on the land': • there must have been some human intervention; • the human intervention must have been physically located on the land; and • at the relevant date [3] for ascertaining whether there are improvements on land, the human intervention must enhance the - value of the land; - usefulness of the land; or - both the value and usefulness of the land.

A physical human intervention on land that enhances the usefulness of the land does not necessarily have to also result in an increase in the value of that land to constitute an improvement on the land. It is sufficient that what was done has made the land more useful to an occupier.

Where there have been a number of human interventions on the land it is necessary to establish whether any of the human interventions enhance the value or usefulness of the land. If any of the human interventions located on the land enhance its value or usefulness at the relevant date, then there are improvements on the land. This is regardless of whether the net value of the human interventions enhances the overall value of the land.

Determining whether a human intervention enhances the value or usefulness of the land entails an objective test. This means that whether an intervention enhances the value or usefulness should not be determined by reference to actual, or intended, use by a specific occupier. Rather, a comparison should be made between the value or usefulness of that land in its natural state and its value or usefulness at the time provided for in the relevant provisions [3A] , to any potential occupier. [3B]

The following are examples of human interventions that may enhance the value or usefulness of land: • houses, town-houses, stratum units, separate garages, sheds and other out-buildings; • commercial and industrial premises; • farm houses, farm outbuildings, internal fencing, stockyards, wells and bores, excavated tanks, dams, surface drains, culverts, bridges, sown pasture, formed internal roads, and irrigation layouts; • formed driveways, swimming pools, tennis courts, and walls; • any other similar buildings or structures; • fencing – internal or boundary fencing; • utilities, for example, water, electricity, gas, sewerage connected or available for connection; • clearing of timber, scrub or other vegetation; • excavation, grading or levelling of land; • drainage of land; • building up of soil fertility; • removal of animal pests, rabbit burrows etc; • removal of rocks, stones or soil; and • filling of land.

A human intervention is not necessarily an improvement. To be an improvement, the human intervention must enhance the value or usefulness of the land.

In some circumstances, a human intervention on land neither enhances nor decreases the value or usefulness of land. For example, fire breaks, solely to allow access to fire equipment and reduce the spread of a fire, may not enhance the value or usefulness of the particular land.

In other circumstances, human interventions that were once improvements but that have deteriorated over time or have contributed to land degradation, may no longer enhance the value or usefulness of the land and are not improvements. For example, clearing is a human intervention which ordinarily enhances the value or usefulness of the land. However, clearing may deteriorate over time with the regrowth of the same type of vegetation or even different vegetation (for example, lantana, blackberry or other noxious weeds). Clearing also may degrade the land by later causing erosion or salinity problems.

Similarly, a building that initially enhanced the value or usefulness of the land may have deteriorated over time to such an extent that it is a detriment as it is uninhabitable and has been condemned by order of the local council. This building is not considered to be an improvement.

In some situations, improvements may have been on the land but no longer exist as improvements on the relevant day specified in the table below. For example, bushland owned by the Commonwealth, a State or a Territory may have originally been fenced, but due to deterioration, no valuable or useful fencing exists on the relevant day.

In other circumstances, a human intervention that enhanced the value or usefulness of land will not cease to enhance the value or usefulness of the land simply because of a change in the preferred use of the land. In other words, a human intervention on land will not cease to be an improvement if there is no physical change to it. For example, fencing may be constructed to enhance the value or usefulness of land used for farming. The fencing may remain in good repair. If the land can now be better used for mining, for which the fence will be of no use, it does not mean that the fencing no longer enhances the value or usefulness of the land. Compared to the land in its natural state, the fencing continues to enhance the value or usefulness of the land to an occupier who wants to put the land to use for farming. [3C]

The following High Court cases provide support for considering the impacts of deterioration or degradation: • Morrison v Federal Commissioner of Land Tax [1914] HCA 10, per Griffith CJ (emphasis added): While improvements or the consequent operations of nature are still going on, the value of improvements may, of course, increase from year to year, just as, in the case of some improvements, it may be exhausted. • Lewis Kiddle v Deputy Federal Commissioner of Land Tax [1920] HCA 1 7, per Knox CJ (emphasis added ): Presumably, a purchaser of land, if he considered this question at all, would determine that the amount to be attributed to value of improvements would be equal to the amount which he gained or saved by reason of the improvements having been made, he being thereby relieved from the necessity of making them. This amount would be found by ascertaining the amount which it would cost to make the improvements in question at the relevant date, including a proper allowance for loss of interest on all outlay during the period which must elapse before such outlay became fully productive, and by deducting from the sum so ascertained a proper allowance for depreciation or partial exhaustion of the improvements.

Where there are a number of human interventions on the land, it is not appropriate to take a holistic approach to establishing whether there are improvements on the land. Instead, it is necessary to determine whether any of the human interventions enhance the value or usefulness of the land. If any of the human interventions enhance the value or usefulness of the land there are improvements on the land.

For example, a building that is uninhabitable because it is derelict and condemned by order of the local council does not enhance the value or usefulness of the land. The building in these circumstances is a detriment rather than an improvement. However, if the land on which the building is located is cleared and the clearing has not deteriorated or has not degraded the land, there are improvements on the land. The clearing still enhances the value or usefulness of the land.

The following table describes the relevant day for ascertaining whether there are improvements on land. Table 1: Day when land is to be examined for improvements on the land Section Relevant day for ascertaining whether there are improvements on the land subsection 38-445(1) when the supply is made subsection 38-445(1A) when the land was previously supplied by the Commonwealth, a state or a territory by way of a lease to the recipient of the supply subsection 38-450(1) when the supply is made table item 2A of subsection 75-10(3) when the land was previously supplied by the Commonwealth, a state or a territory by way of a lease to the recipient of the supply table item 3 of subsection 75-10(3) 1 July 2000 table item 4 of subsection 75-10(3) 1 July 2000 subsection 75-10(3A) the day on which the taxable supply takes place

Determining whether a human intervention enhances the value or usefulness of the land is an objective test based on the facts. This means that whether an intervention enhances the value or usefulness of the land should not be determined by reference to actual, or intended, use by either the supplier, the recipient or a specific occupier. For example, real property with a building on it that is not condemned, enhances the value or usefulness of the land even though the recipient may intend to demolish the building and construct some other building in its place.

As the issue of whether there are improvements on the land is a question of fact, a professional valuer's opinion may be of assistance in determining whether the intervention enhances the value of the land, provided that the valuer's opinion compares the land to its natural state. However, valuation concepts will not be relevant in determining whether the intervention objectively enhances the usefulness of the land to the occupier. Also the concept of 'highest and best use' is not relevant because this approach assesses the best use to which the land can be applied, which does not test whether the intervention enhances the value or usefulness of the land compared with its natural state, as required. [3D]

The term 'improvements on the land' refers to any human intervention on the land which has the effect of enhancing its value or usefulness. It is not limited to visible structural improvements and includes improvements below the surface of the land, such as underground drainage or other facilities.

Support for this view is found in the decision in Commonwealth v Oldfield [1976] HCA 17 where the High Court described the meaning of 'improvements on the land' in the following manner: We are concerned with the value at the relevant date of the physical consequences which enure to the land of the acts whereby the land attained a quality and usefulness additional to that which it had in its virgin state. ... Improvements to land result in improvements on that land in the relevant sense. The preposition 'on' does not here mean 'on the surface of the land' or the like unless the word improvement is limited to physical objects placed or constructed in or in the soil and for the reasons which I have given I do not think that the word has that meaning.

There is an alternative view that the expression 'improvements on the land' is limited to visible structural improvements such as buildings and does not extend to things such as clearing and draining.

This view does not accept the principles adopted in the land tax cases as these cases considered a broader expression, being 'improvements thereon or appertaining to' the land. The expression is broader, on this view, because the words 'appertaining to the land' extend the phrase to improvements that are not necessarily on the land.

However, in Brisbane City Council v Valuer-General (Q) [1978] HCA 40, Gibbs J, with whom the four other members of the Court agreed, when considering the meaning of the phrase 'thereon or appertaining thereto', noted that: This means that the improvements, if not on the land, must be "such as are in the strict legal sense "appurtenant" to the property and incident to its ownership" (McDonald v. Deputy Federal Commissioner of Land Tax (N.S.W.) ... (1915) 20 C.L.R. 231, at pp. 234-235).

From the above it can be seen that the words 'appertaining to' only extend the meaning of the phrase to a limited extent. Given this, it seems that the conclusions in the rating and land tax cases are more likely based on the expression 'improvements thereon' rather than the improvements 'appertaining to' the land.

As the phrase 'improvements thereon' is analogous to 'improvements on the land', it is the Commissioner's view that the principles in the rating and land tax cases apply when ascertaining the meaning of 'improvements on the land'.

The alternative view also argues that the construction adopted in the rating and land tax cases may have been influenced by the perceived policy of that legislation, and consequently the decisions do not have application in the GST context.

In McGeoch v Federal Commissioner of Land Tax [1929] HCA 29, per Knox CJ and Dixon J, the policy intent of the relevant legislation was articulated in the decision, in which the purpose of land tax was described as a policy of taxing the 'unearned increment'. That is, without regard to improvements effected by the owner or the owner's predecessors, but having regard to extrinsic circumstances, such as public roads or railways, increased settlement in the neighbourhood and other benefits not brought about by the operations on the land of successive operators. However, this reference to the apparent policy of land tax was not the primary basis for the decision.

For the reasons stated, and having regard to the High Court decision in Commonwealth v Oldfield [1976] HCA 17, the Commissioner considers the better view to be that improvements on the land, in the GST context, are not limited to visible structural improvements. This view is consistent with the Explanatory Memorandum which refers to the provisions requiring that the land is 'unimproved' or land that 'has not been improved'. [5]

While the term 'improvements on the land' is not limited to visible improvements, it should be noted that 'improvements on the land' does not include interventions that are not upon the land, such as amenities in the surrounding area, even though they may enhance the value of the land.

For the purposes of applying sections 38-445 or 38-450, or working out the margin for a supply under subsection 75-10(3), each freehold interest, stratum unit or long-term lease is to be considered separately.

In Commissioner of Taxation v Landcom [5B] , the Full Federal Court held that the terms of paragraph 75-5(1)(a) define the subject matter of a supply of real property with reference to the form of legal interest supplied, being either a freehold interest in land, a stratum unit or a long-term lease. [5C] In the context of considering paragraph 75-5(1)(a), the Full Federal Court held that the structure of the GST Act, and the language of Division 75, support the view that Division 75 applies separately to each individual interest supplied. [5D] Applying the same approach to paragraphs 75-5(1)(b) and (c) means that Division 75 applies separately to each individual stratum unit and long-term lease.

Similarly, sections 38-445 and 38-450 apply to the supply of a freehold interest in land, or a supply by way of long-term lease. Therefore, consistent with Commissioner of Taxation v Landcom, each individual freehold interest or long-term lease is also to be considered separately when applying these sections.

In the Australian Capital Territory (ACT), a long-term lease is granted in the form of a Crown lease. Each Crown lease identifies the land subject to the lease by reference to division, section and block numbers. [5E] Regardless of the number of blocks covered by the Crown lease, the single Crown lease represents a single long-term lease. Therefore, when applying Division 75 and sections 38-445 and 38-450 to a supply of a long-term Crown lease in the ACT, the provisions apply separately to each long-term Crown lease supplied.

Land described in 10 certificates of freehold title has been held by a state entity since before 1 July 2000 and has been used as a school site. The land on 7 of the freehold interests is cleared, with the school buildings being constructed across 5 of these freehold interests and the school oval and facilities established on the other 2 freehold interests. The remaining 3 freehold interests are in their natural state. The entire school site is marketed for sale as the XYZ School. A single contract for sale is drawn up in which the land is described as XYZ School. The contract specifies a single price for XYZ School.

Although the sale of the entire school site is for a single price under a single contract, each of the 10 freehold interests must be considered separately when applying section 38-445. The 3 freehold interests that remain in their natural state are each separate freehold interests in land on which there are no improvements at the time of sale and are GST-free under section 38-445. The other 7 freehold interests are land on which there are improvements and would not be GST-free under section 38-445. The state entity may use any fair and reasonable method to apportion the consideration across each of the 10 freehold interests being sold.

[Omitted.]

[Omitted.]

An ACT government entity enters into a single contract for the long-term lease of land in the ACT to another entity. The contract describes the subject land with reference to the Deposited Plan, comprising 15 separate blocks within the same division and section. Each block has a distinguishing block reference number. The contract specifies that 10 of the blocks are to be supplied by way of 10 separate long-term Crown leases. The remaining 5 blocks are to be supplied together under a single long-term Crown lease to facilitate the combined development of that land.

For the purposes of applying Division 75 and sections 38-445 and 38-450 to the supply of the land by way of long-term lease, each of the 11 long-term Crown leases are to be considered separately when determining whether the land contains any improvements at the relevant time.

In this part of the Ruling, the Commissioner considers whether a supply of a particular subdivided lot is ineligible for consideration under table item 4 of subsection 75-10(3) because the larger area (englobo land) from which it was subdivided had improvements on it as at 1 July 2000. In this context, the physical area of the particular subdivided lot may have had no improvements, or part of an improvement, on it as at 1 July 2000.

The issue is whether it is necessary to consider whether any part of the englobo land had improvements on it or whether regard should be had only to that part of the englobo land that forms the subdivided lot.

It is the Commissioner's view that the words 'land or premises in question' in table item 4 qualify the application of the improvements test to land that is supplied and not the englobo land from which it is subdivided.

These words can be contrasted with the expression 'interest, unit or lease' which are used elsewhere in the item to refer to the legal interest being supplied under the margin scheme. This distinction supports the view that it is the physical land being supplied rather than the legal interest that existed as at 1 July 2000 that is considered when determining whether there were improvements on the land at the relevant date. [6]

The consequence of this view is that where land is subdivided after 1 July 2000, it is necessary to examine the englobo land as it was at 1 July 2000 and identify if there were any improvements on that land. If the englobo land had improvements as at 1 July 2000, and any of those improvements, or parts of those improvements, were on the physical land that is supplied (identified by reference to the form of legal interest), table item 4 will not apply. However, if the englobo land had improvements as at 1 July 2000 but none of those improvements, or parts of those improvements, were on the physical land that is supplied (identified by reference to the form of legal interest), table item 4 can apply.

At 1 July 2000, a state entity held a freehold interest in a large rural block that was in part cleared and levelled and in part remained in its natural state. Diagram 1: The rural block as at 1 July 2000 This area had been cleared of trees and levelled This area was in its natural state and there were no improvements

After 1 July 2000, the rural block was subdivided into 3 freehold lots to be sold separately. The state entity cleared the rest of the original block and constructed new premises on each lot. Each lot is sold under the margin scheme. Diagram 2: The rural block as at the time of sale after 1 July 2000 Lot 1 Lot 2 Lot 3

Lots 1 and 2 are land on which there were improvements as at 1 July 2000. Lot 3 is land on which there were no improvements as at 1 July 2000. The state entity may work out the margin for the supply of each of the lots based on obtaining an approved valuation as mentioned in subsection 75-10(3). For the supply of lots 1 and 2, the relevant valuation date is set out in table item 3 of subsection 75-10(3). [7] For the supply of lot 3, the relevant valuation date is set out in table item 4 of subsection 75-10(3).

The same conclusion applies even if lots 1, 2 and 3 were sold as a single parcel of land, for a single price. However, the state entity would need to use a fair and reasonable method of apportionment to ascertain the consideration for each of the 3 freehold interests supplied.

[Omitted.]