17.This section defines what buildings are within the scope of the levy and what buildings are exempt. A “new residential unit” is either the whole of a newly constructed or converted building which is itself a “dwelling or other accommodation” or a separate part of a newly constructed or converted building where that part is a separate “dwelling or other accommodation”. If a part of a building is a separate dwelling or other accommodation, the other parts may also be units (for example, in a building consisting of 12 flats), but the other parts may not be units (for example, a shop or other non-residential parts built below a building of flats). The section also provides that, in certain circumstances, a building may be considered (or not) a “dwelling or other accommodation” to the extent that it is intended to be – or is – used as such.
18.An assessment of the purpose of a newly constructed or converted building is made at the time of the building control event (i.e. the “building completion date”). If, at that time, the building is intended to be (or is) used as a dwelling or other accommodation then it is within the scope of the levy, unless it is an “exempt new residential unit” (see section 5).
19.Subsection (2) lists buildings with certain intended uses which are to be taken as intended to be used as a dwelling or other accommodation to the extent that it is intended to be (or is) used for those purposes. This is a non-exhaustive list, and the subsection provides clarity that residential accommodation for students, halls of residence for students in further or higher education and residential accommodation built for the purpose of occupation by a tenant (commonly known as “build-to-rent”) are included in the definition of “new residential unit”.
20.In contrast, subsection (3) lists buildings with certain intended uses which are not to be considered as dwelling or other accommodation to the extent that it is intended to be (or is) used for those purposes. Again the list is non-exhaustive. Paragraph (a) excludes temporary residential accommodation with hotels, inns or similar establishments mentioned in a non-exhaustive list of examples. Paragraph (b) excludes residential institutions with certain purposes:
	residential accommodation for children;
	institutions for persons in need of personal care by reason of old age, disability, dependence on alcohol or drugs or mental disorder;
	hospitals or hospices;
	military barracks or single living or family living accommodation for members of the armed forces;
	prisons and similar establishments;
	residential accommodation for school pupils.
21.Paragraphs (c) and (d) of subsection (3) list further types of buildings which are not to be considered as suitable for use as a dwelling or other accommodation. Paragraph (c) covers accommodation provided by a body registered in the Scottish Charity Register for persons employed full time to perform the work of a religious denomination where accommodation is provided as part of the duties of the employment or a place of worship which also provides accommodation within it (e.g. a monastery, nunnery or similar establishment). Paragraph (d) lists accommodation for asylum-seekers and dependants.
22.Subsection (4) provides certain interpretive matters relevant for Revenue Scotland or the courts (as well as taxpayers in the first instance) in determining the proposed use of a building or part of a building in the Act. One aspect in paragraph (a) is the information included in a certificate or application provided in accordance with section 17 or 21 of the Building (Scotland) Act 2003. The content of completion certificates and applications can be dictated by regulations made under section 36 of the 2003 Act. Paragraph (b) covers where more than one use is suitable and paragraph (c) confirms other information might be relevant. For example, there may be planning obligations entered into under section 75 of the Town and Country Planning (Scotland) Act 1997.
Commentary on Provisions Part 2 – Key concepts Section 4: Meaning of a “new residential unit”