ATO ID 2013/9: GST and registration of a representative of an incapacitated entity when the incapacitated entity is neither registered nor required to be registered
Date of decision: 7 February 2013
Year of income: Periods including and after 4 December 2009
Business line: Indirect Tax

Issue
Can the representative of an incapacitated entity register, under section 23-10 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), in its capacity as the representative of the incapacitated entity if the incapacitated entity is neither registered nor required to be registered for GST?

Decision
No. The representative cannot register under section 23-10 of the GST Act in its capacity as the representative of the incapacitated entity if the incapacitated entity is neither registered nor required to be registered for GST.

Facts
The representative of an incapacitated entity, in its capacity as representative, carries on an enterprise. However, it is not required to be registered in that capacity under section 23-5 of the GST Act. The incapacitated entity is neither registered nor required to be registered.

Reasons for decision
Summary: Section 23-10 of the GST Act provides that an entity may register for GST if it is carrying on an enterprise or intends to carry on an enterprise. While an entity may register under section 23-10 of the GST Act if it is carrying on an enterprise or intends to carry on an enterprise, subsection 58-25(1) of the GST Act provides that the registration of a representative of an incapacitated entity must be cancelled if the Commissioner is satisfied that the representative is not required to be registered in that capacity. The representative is not required to be registered as representative of the incapacitated entity under section 23-5 of the GST Act. The representative is also not required to be registered under subsection 58-20(1) of the GST Act, which provides that a representative of an incapacitated entity is required to be registered in that capacity if the incapacitated entity is registered or required to be registered. This is because the incapacitated entity here is neither registered nor required to be registered for GST. As the representative is not required to be registered as representative of the incapacitated entity, the application of subsection 58-25(1) of the GST Act would mean that the representative cannot register in that capacity under section 23-10 of the GST Act.

Legislative references: A New Tax System (Goods and Services Tax) Act 1999 section 23-5 section 23-10 subsection 58-20(1) subsection 58-25(1)
Case references: Deputy Commissioner of Taxation v PM Developments Pty Ltd [2008] FCA 1886
Related ATO interpretative decisions: ATO ID 2003/1063 | (withdrawn)
Subject references: Goods and services tax GST registration Registration cancellation Required to be registered GST special rules Representative of incapacitated entities