ATO ID 2002/78: GST and input tax credits for payment of superannuation supervisory levy
Date of decision: 30 August 2001
Business line: Indirect Tax

Issue
Is the entity, a trustee of a superannuation fund, entitled to an input tax credit (reduced or otherwise) under Division 11 or Division 70 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), when it pays the annual superannuation supervisory levy?

Decision
No, the entity is not entitled to an input tax credit (reduced or otherwise) under section Division 11 or Division 70 of the GST Act when it pays the annual superannuation supervisory levy.

Facts
The entity is a trustee of a superannuation fund. The entity, in its capacity as trustee for the superannuation fund, pays to the Australian Taxation Office the annual superannuation supervisory levy when lodging documents in compliance with regulatory requirements under the Superannuation Industry (Supervision) Act 1993. The entity is registered for goods and services tax (GST).

Reasons for decision
Summary: Under section 11-20 of the GST Act, an entity is entitled to an input tax credit (reduced or otherwise), if it makes a creditable acquisition. One of the requirements for an entity to make a creditable acquisition is that the entity must provide, or be liable to provide consideration for the supply (paragraph 11-5(c) of the GST Act). Subsection 81-5(2) of the GST Act provides that the payment of any Australian tax, fee or charge specified in a written determination of the Treasurer is not the provision of consideration. When the entity pays the superannuation supervisory levy, the entity is making a payment of an Australian tax, fee or charge, as the entity is paying a fee imposed under an Australian law and payable to an Australian government agency (section 195-1 of the GST Act). The superannuation supervisory levy is listed at item 14.22 in the table in part 1 (Commonwealth) of Schedule 1 of the A New Tax System (Goods and Services Tax) (Exempt Taxes Fees and Charges) Determination 2008 (No. 1). As such, the payment of the superannuation supervisory levy does not represent the provision of consideration for a supply due to the operation of subsection 81-5(2) of the GST Act. Therefore, the entity is not providing, nor is the entity liable to provide consideration for a supply. The entity is not making a creditable acquisition under section 11-5 of the GST, and is therefore not entitled to any amount of input tax credit under Division 11 or Division 70 of the GST Act when it pays the superannuation supervisory levy.

Legislative references: A New Tax System (Goods and Services Tax) Act 1999 Division 11 section 11-5 paragraph 11-5(c) section 11-20 Division 70 subsection 81-5(2) section 195-1
Other references: A New Tax System (Goods and Services Tax) (Exempt Taxes Fees and Charges) Determination 2008 (No. 1) Schedule 1 Part 1 table item 14.22
Subject references: Goods & services tax Reduced credit acquisitions Input taxed supplies GST financial supplies Creditable acquisition