In-house asset rules - Part 8 of the SISA and Division 13.3A of 59 the SISR Elements of the business real property definition 61 Entity to which the definition applies 62 Interest in real property 64 What is ' real property' ? 68 Ordinary meaning 68 Fixtures forming part of the land 74 When do crops form part of land ? 82 ' ? 85 What is Crown land' What is a ' freehold interest' in real property ? 88 Ordinary meaning 88 Co-ownership 90 Strata title 96 What is a ' leasehold interest' in real property ? 98 What is ' an interest that is capable of assignment or transfer' in 103 Crown land ? When will an entity hold an interest in the capacity of a 106 beneficiary of a trust estate ? Does a share in a company confer an interest in real property 109 held by the company ? Real property held company title 111 Business 113 Definition of ' business' in subsection 66(5 ) 113 ' Business' as ordinarily understood 115 Not for profit enterprises 119 Relevance of the entity carrying on the business 121 ' Primary production business' 128 131 Provision of professional services Employee 133 The business use test - 'used wholly and exclusively in one or 136 more businesses' 136 Nature of the business use test What is ' use' of real property ? 140 Distinguishing physical and non-physical use of property 140 Only physical use considered in the business real property 146 definition Application to a business real property case 152 Immediate statutory context 156 Judicial consideration of similar provisions 162 No need for human presence for physical use to occur 165 Physical use of land generally follows an entity's non-physical 168 use Use of residential property 170 Land development cases 171 Vacant land 174 When is use of real property ' in' a business ? 176 176 Nature of the connection required between use and a business Direct use of property by an entity carrying on a business 183 185 Use of property by customers of a retail business Use of property by guests of a commercial accommodation 187 business Use of property by a residential tenant where the property is held 189 in an investment business
In-house asset rules - Part 8 of the SISA and Division 13.3A of the SISR 59 Elements of the business real property definition 61 Entity to which the definition applies 62 Interest in real property 64 What is ' real property' ? 68 Ordinary meaning 68 Fixtures forming part of the land 74 When do crops form part of land ? 82 What is ' Crown land' ? 85 What is a ' freehold interest' in real property ? 88 Ordinary meaning 88 Co-ownership 90 Strata title 96 What is a ' leasehold interest' in real property ? 98 What is ' an interest that is capable of assignment or transfer' in Crown land ? 103 When will an entity hold an interest in the capacity of a beneficiary of a trust estate ? 106 Does a share in a company confer an interest in real property held by the company ? 109 Real property held company title 111 Business 113 Definition of ' business' in subsection 66(5 ) 113 ' Business' as ordinarily understood 115 Not for profit enterprises 119 Relevance of the entity carrying on the business 121 ' Primary production business' 128 Provision of professional services 131 Employee 133 The business use test - 'used wholly and exclusively in one or more businesses' 136 Nature of the business use test 136 What is ' use' of real property ? 140 Distinguishing physical and non-physical use of property 140 Only physical use considered in the business real property definition 146 Application to a business real property case 152 Immediate statutory context 156 Judicial consideration of similar provisions 162 No need for human presence for physical use to occur 165 Physical use of land generally follows an entity's non-physical use 168 Use of residential property 170 Land development cases 171 Vacant land 174 When is use of real property ' in' a business ? 176 Nature of the connection required between use and a business 176 Direct use of property by an entity carrying on a business 183 Use of property by customers of a retail business 185 Use of property by guests of a commercial accommodation business 187 Use of property by a residential tenant where the property is held in an investment business 189
SMSFR_2009-1_Business_Real_Property-2.docx