ATO ID 2002/236: GST and registration of an administrator of a deed of company arrangement for two companies
Date of decision: 8 August 2001
Business line: Indirect Tax Centre of Expertise

Issue
Is the entity, an administrator of a deed of company arrangement (the Deed) over two companies, required to be registered twice for GST under section 58-20 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), once for each company subject to the Deed?

Decision
Yes, the entity is required to be registered twice for GST under section 58-20 of the GST Act, once for each company subject to the Deed.

Facts
The entity is an administrator of the Deed. The Deed is for two separate companies, company A and company B. Company A and company B are incapacitated entities. The Deed is executed by both companies and each company is separately subject to the Deed. However, contributions received under the Deed will not be separately identified for each company. Company A and company B are registered for GST. The companies are not grouped.

Reasons for decision
Summary: Under section 58-20 of the GST Act, a representative of an incapacitated entity is required to be registered if the incapacitated entity is registered or required to be registered. The term 'representative' is defined in section 195-1 of the GST Act. The definition of a representative includes an administrator of a deed of company arrangement executed by the incapacitated entity. The entity is the administrator of a deed of company arrangement executed by company A and company B. Therefore, the entity meets the definition of a representative under section 195-1 of the GST Act. In addition, although the Deed is common to both companies, each company is separately subject to the Deed. Therefore, for the purposes of the GST Act, the entity is a representative of company A and a representative of company B. Subsection 184-1(3) of the GST Act provides that a legal person can have a number of different capacities in which the person does things. In each of these capacities, the person is taken to be a different entity. Therefore, in accordance with subsection 184-1(3) of the GST Act, the representative of an incapacitated entity is, in that particular representative capacity, a separate entity for the purposes of the GST Act. If an entity is also the representative of other incapacitated entities, separate registration is required in respect of each representative capacity in which the entity acts. As such, the entity is required to register separately for GST under section 58-20 of the GST Act for each company; once in its capacity as the administrator for company A and once in its capacity as administrator for company B.

Legislative references: A New Tax System (Goods and Services Tax) Act 1999 section 58-20 subsection 184-1(3) section 195-1
Subject references: Goods & services tax GST registration Required to be registered Representative of incapacitated entities