ATO ID 2001/173: GST and Samosas
Date of decision: 22 January 2001
Business line: Indirect Tax

Issue
Is the entity, a food supplier, making a GST-free supply under section 38-2 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), when it sells samosas?

Decision
Yes, the entity is making a GST-free supply under section 38-2 of the GST Act when it sells samosas.

Facts
The entity is a food supplier. In this case, the entity is selling samosas. Samosas are a savoury pastry product filled with curried meat and/or vegetables. They are usually triangular in shape. Samosas are fried. The samosas are not sold for consumption on the premises from which they are supplied. The entity does not supply the samosas as hot food for consumption away from those premises. The entity is registered for goods and services tax (GST).

Reasons for decision
Summary: A supply of food is GST-free under section 38-2 of the GST Act if it satisfies the definition of food in section 38-4 of the GST Act and it is not excluded by section 38-3 of the GST Act. Food is defined in paragraph 38-4(1)(a) of the GST Act to include 'food for human consumption (whether or not requiring processing or treatment)'. Samosas are food for human consumption. However, under paragraph 38-3(1)(c) of the GST Act, a supply of food is not GST-free if it is food of a kind that is specified in clause 1 of Schedule 1 to the GST Act (Schedule 1). Samosas are not specifically listed in Schedule 1. As such, the issue in this case is whether samosas are 'food of a kind' specified in Schedule 1. The phrase 'food of a kind' is not defined in the GST Act. However, the words 'of a kind' and their meanings were considered in Hygienic Lily Ltd v. Deputy Commissioner of Taxation (NSW) (1987) 13 FCR 399. Accordingly, it is considered that food will be 'food of a kind' listed in Schedule 1 if it is food belonging to the same class or genus as food listed in Schedule 1. The items from Schedule 1 that are of most relevance to this case are items 22, 23 and 25 of Schedule 1. Item 22 of Schedule 1 lists 'pies (meat, vegetable or fruit), pasties and sausage rolls'. All of these products are baked. Therefore, in order for samosas to belong to the same class of food as 'pies (meat, vegetable or fruit), pasties and sausage rolls' they need to be baked. As samosas are fried they are not considered to be 'food of a kind' known as 'pies (meat, vegetable or fruit), pasties and sausage rolls'. Item 23 of Schedule 1 lists 'tarts and pastries'. After consultation with The Food Consultative Committee it is considered that the reference to 'tarts and pastries' in item 23 of Schedule 1 is to sweet and not savoury pastries. Moreover, item 23 of Schedule 1 is not intended to be a catch all provision for all products that are made from pastry. As such, samosas are not 'food of a kind' known as pastries. Item 25 of Schedule 1 lists 'pastizzi, calzoni and brioche'. All of these products are baked. Therefore, in order for samosas to belong to the same class as 'pastizzi, calzoni and brioche' they need to be baked. As samosas are fried, they are not considered to be 'food of a kind' known as 'pastizzi, calzoni and brioche'. Samosas therefore fall outside the scope of Schedule 1. In addition, the supply of samosas, in this case, does not fall within any of the other exclusions in section 38-3 of the GST Act. The entity is therefore making a GST-free supply under section 38-2 of the GST Act when it sells samosas.

Legislative references: A New Tax System (Goods and Services Tax) Act 1999 section 38-2 section 38-3 paragraph 38-3(1)(c) section 38-4 paragraph 38-4(1)(a) Schedule 1, Clause 1, item 22 Schedule 1, Clause 1, item 23 Schedule 1, Clause 1, item 25
Case references: Hygienic Lily Ltd v. Deputy Commissioner of Taxation (NSW) 13 FCR 396
Other references: Food Industry Issues Register - Issue No.30
Subject references: Goods & Services tax GST-free GST food Food for human consumption