Under the Australian GST law, the supply of a “going concern” can be GST-free (referred to as zero-rated in other jurisdictions). The purpose of this exemption from GST is to provide for GST to be ignored in a situation where both the seller of the going concern and the buyer are registered for GST and they agree that the sale of the going concern should be GST free. This is set out in Section 38-325 of the A New Tax System (Goods and Services Tax) Act 1999.
So what’s a going concern? There is no definition in the law of this term. There is, however, a definition of “supply of a going concern”. This is a supply under an arrangement under which [1] the supplier (the vendor) supplies to the recipient (the purchaser) all of the things that are necessary for the continued operation of an enterprise and [2] the supplier carries on, or will carry on, the enterprise until the day of the supply (whether or not as part of a larger enterprise carried on by the supplier).
From this definition it will be seen that a going concern must be an enterprise that is capable of being operated. It need not be the whole of an enterprise carried on by the supplier. It can be part of a larger enterprise, but what is being sold must be an enterprise in itself that can be “carried on”. Typically, this applies to the sale of a business or part of a business. It could also apply to a tenanted building and anything that can be considered to an “enterprise”.
The term “enterprise” is a defined term in the law. I will not discuss that definition here except to say that it encompasses a broad range of activities and covers some activities that are not business activities.
The Australian Taxation Office (“ATO”) released a ruling on this topic some years ago. This is GSTR 2002/5. It’s 44 pages long.
It should be understood that the application of this law is not automatic. It requires the supplier and the recipient of the supply to have agreed in writing that the sale is a sale of a going concern. If you are selling a going concern, should you agree to this? In my view, it depends on how much the purchaser wants the sale to be GST-free. This is because the risk of treating the sale as in this way falls on the supplier/vendor. The law places the liability for the tax on the supplier. If there is no goods and services tax paid from the recipient to the supplier and the ATO later considers that the supply is not GST-free, the supplier must pay to the ATO 1/11th of the amount of the consideration received.
It may be that there is a clause in the contract of sale that allows the supplier to claw-back the tax from the purchaser. In theory, that sounds easy. In practice, this may not be so easy. Say a business has been sold for $500,000 as a going concern. If the ATO says that the sale is not GST-free, the supplier now has a liability to the ATO of $45,454. Will the purchaser be able to get their hands on that much cash? Will a bank lend it to them? Is the purchaser still in business or alive? How will the supplier fund the liability while waiting to be paid by the purchaser?
Due to the above, if you are the vendor of a going concern, I see no advantage in you asking for the sale to be GST-free. If the purchaser is specifically requesting this and you can see that it will benefit the sale process, by all means agree for it to be GST-free. But if there isn’t such a request, why increase the risk for yourself?