Private ruling: GST and entitlement to input tax credits
Date of advice: 27 October 2020
Published: November 2020

Ruling: Q1: Can the non-resident company (you) claim the GST paid on the following expenses which are listed in the tax invoice that was issued to the overseas Travel Agent under the A New Tax System (Goods and Services Tax) Act 1999 (GST Act): 1. Accommodation with buffet breakfast from 9 May to 23 May 20xx, 2. 1 VIP charge back, 3. 1 Damage/chair upholstery, 4. Feast packages from 12 to 21 May 20xx, 5. Dinner on 21 May 20xx, 6. Saturday surcharge; 7. Sunday surcharge; and 8. 1 audio visual surcharge. | A1: From the information given the expenses incurred in the tax invoice were for your employees who were in Australia for the training conference that you held for your business purposes and these expenses were acquired on your behalf by the Travel Agent. You have made the following creditable acquisitions under section 11-5 of the GST Act for the following expenses and therefore you are entitled to claim GST credits under section 11-20 of the GST Act and use the Travel Agent's tax invoice when making the claims: · accommodation with buffet breakfast and the feast meals provided to employees who attended the training from 12 May to 21 May 20xx; · accommodation with buffet breakfast and accommodation with VIP meals provided to your admin staff from 9 to 23 May 20xx (excluding 11 May 20xx). · the damaged chair; · dinner held on 21 May 20xx; · Saturday and Sunday surcharge; and · the audio-visual surcharge. You are not entitled to claim GST credits for the acquisition of accommodation with buffet breakfast on 11 May 20xx as this acquisition is entertainment under section 32-10 of the Income Tax Assessment Act 1997 (ITAA 1997) and therefore not a creditable acquisition under section 69-5 of the GST Act.


Relevant legislative provisions: A New Tax System (Goods and Services Tax) Act 1999 section 11-55 | A New Tax System (Goods and Services Tax) Act 1999 section 11-20 | A New Tax System (Goods and Services Tax) Act 1999 Division 69 | Income Tax Assessment Act 1997 section 8-1 | Income Tax Assessment Act 1997 section 32-10 | Income Tax Assessment Act 1997 section 32-35

Reasons for decision: Summary: Note : Where the term 'Australia' is used in this document, it is referring to the 'indirect tax zone' as defined in section 195-1 of the GST Act. | Detailed Reasoning - Detailed reasoning: Under section 11-20 of the GST Act you are entitled to a GST credit for any creditable acquisition that you make. Under section 11-5 of the GST Act you make a creditable acquisition if: a) you acquire anything solely or partly for a creditable purpose; and b) the supply of the thing to you is a taxable supply; and c) you provide or are liable to provide consideration for the supply; and d) you are registered or required to be registered for GST. Further you must hold valid tax invoices at the time you claim a GST credit in your BAS . From the information given you satisfy paragraphs (a) to (d) in section 11-5 of the GST Act as: a) You acquire the supplies listed in the hotel's tax invoice through your agent the Travel Agent when organising and holding a conference at that hotel for your staff in Australia in respect of their employment with you. In this instance the supplies for the expenses you have acquired in the tax invoice are for a creditable purpose. b) The supplies for the expenses in the tax invoice were acquired through your agent the Travel agent and were taxable supplies. c) You advised that the Travel Agent was acting as your agent when it acquired the expenses incurred in the tax invoice issued by the hotel and you have provided to us a letter of authority to substantiate this statement. You advised you paid these expenses. Under the agency law you will be the one claiming GST credits for any creditable acquisitions you have made through your overseas agent and be liable for any taxable supplies made through your overseas agent. In this instance we accept that when the Travel Agent acquired the expenses in the tax invoice on your behalf, these acquisitions were made to you and you were liable to pay for these expenses. d) you are registered for GST. Your acquisitions for the supplies listed in the tax invoice are creditable acquisitions under section 11-5 of the GST Act to the extent that that Division 69 of the GST Act does not preclude these acquisitions to be creditable acquisitions. Division 69 of the GST Act Division 69 of the GST Act provides that some acquisitions that are not deductible for income tax purposes under the Income Tax Assessment Act 1997 (ITAA 1997) are not creditable acquisitions. It should be noted that Division 69 of the GST Act applies to an entity irrespective of the income tax status of that entity. In other words, an acquisition will still be a non-deductible expense notwithstanding that the entity making the acquisition may be exempt from the Australian income tax. Subsection 69-5(1) of the GST Act provides that an acquisition is not a creditable acquisition to the extent that it is a 'non-deductible expense'. Of relevance to this case is paragraph 69-5(3)(f) of the GST Act which provides that entertainment expenses that are not deductible under Division 8 of ITAA 1997 because of Division 32 of the ITAA 1997 (which deals with entertainment expenses), are non-deductible expenses. | Detailed Reasoning - Entertainment Expenses: Section 32-5 of the ITAA 1997 denies an income tax deduction to the extent that an entity incurs expenditure on entertainment unless that expenditure is related to any of the exceptions outlined in Subdivision 32-B of the ITAA 1997. The term 'entertainment' is defined in subsection 32-10(1) of the ITAA 1997 to mean: · entertainment by way of food, drink or recreation, or · accommodation or travel to do with providing entertainment by way of food, drink or recreation. Following on from this, subsection 32-10(2) of the ITAA 1997 provides that you are taken to provide entertainment even if business discussions or transactions occur. This means that entertainment expenses are not deductible no matter who the recipients of the entertainment are and irrespective of whether there is a genuine connection with business activities. The types of things caught as entertainment expenses are: · business lunches, dinners, cocktail parties and social functions. · tickets to sporting or theatrical events, sightseeing tours and holidays · accommodation and travel in connection with entertaining employees and non-employees (for example clients) over a weekend at a tourist resort or providing them with a holiday. Recreation includes amusement, sport and similar leisure time activities or pursuits, for example a game of golf, theatre or movie tickets, a joy flight or a harbour cruise. However, subdivision 32-B of the ITAA 1997 contains the exceptions to the general rules concerning non-deductibility of entertainment. Of relevance to this case is section 32-35 of the ITAA 1997 (seminar expenses). | Detailed Reasoning - Seminar Expenses: Item 2.1 in section 32-35 of the ITAA 1997 provides that a deduction is allowable for entertainment expenses where the provision of food, drink, accommodation or travel, to an individual (including yourself) that is reasonably incidental to the individual attending a seminar that goes for at least 4 hours. However, this exception does not apply if: a) The seminar is a business meeting; or b) The seminar's main purpose is to promote or advertise a business (or prospective business) or its goods or services; or c) The seminar's main purpose is to provide entertainment at or in connection with the seminar. Paragraph 1(b) in Taxation Determination TD93/195 explains when food and drink is reasonably incidental to a seminar and states the following: b) if the food and drink does amount to entertainment but the CPD seminar is a seminar as defined in section 32-65 and the seminar expenses exception in section 32-35 applies, the registration fee is deductible in full. Section 32-35 includes the requirement that the food and drink provided is 'reasonably incidental' to a participant's attendance at the seminar. 'Reasonably incidental' is not defined. Food and drink are reasonably incidental to a CPD seminar if it: i. is provided for sustenance because of the duration, time of day or location of the seminar; ii. is provided immediately before, during or immediately following sessions of the seminar; and iii. is available to all seminar participants. The term 'seminar' is defined in subsection 32-65(1) of the ITAA 1997 as including: ... a conference, convention, lecture, meeting (including a meeting for the presentation of awards), speech, "question and answer session", training session or educational course. Subsection 32-65(2) of the ITAA 1997 provides guidance in working out when a seminar goes for at least for 4 hours. That subsection states: 2) In working our whether a seminar goes for at least 4 hours the following are taken not to affect the seminar's continuity, nor to form part of it: a) Any part of the seminar that occurs during a meal; b) Any break during the seminar for the purpose of a meal, rest or recreation. Subsection 32-65(3) of the ITAA 1997 provides that a seminar is a business meeting if its main purpose is for individuals who are (or will be) associated with a business to give or receive information, or to discuss matters, relating to that business. However, a seminar is not a business meeting if it a) is organised by (or on behalf of) an employer solely for either or both of these purposes: i. training the employer and the employer's employees (or just those employees) in matters relevant to the employer's business (or prospective business); ii. enabling the employer and the employer's employees (or just those employees) to discuss general policy issues relevant to the internal management of the employer's business; and b) is conducted on property that is occupied by a person (other than the employer) whose business includes organising seminars or making property available for conducting seminars). The Note 1 in section 32- 65 of the ITTA 1997 states the following: In the case of a company subsection (3) covers directors of the company as if they were employees: see section 32-80 Section 32-80 in the ITTA 1997 states the following: 32-80 Company directors In the case of a company, these provisions cover directors of the company as if they were the company's employees: · item 1.1 (exceptions for in-house dining facilities) of the table in section 32-30 · item 1.2 (exception for in-house dining facilities) of the table in section 32-30 · item 1.3 (exception for dining facilities) of the table in section 32-30 · item 1.5 (exception for recreational facilities) of the table in section 32-30 · item 1.8 (exception for providing your employee with an allowance) of the table in section 32-30 · section 32-55 (which defines in-house dining facility) · subsection 32-65(3) (which defines business meeting) Taxation Ruling 97/17: Income tax and fringe benefits tax: entertainment by way of food or drink (TR 97/17) provides guidance on when an expense is an entertainment expense. TR 97/17 provides the following: 21. Where an employee is travelling in the course of performing their employment duties, the food or drink provided is consumed as a result of that work-related travel. In the absence of supplementary entertainment, the food or drink is not provided by the employer in order to confer entertainment on that employee. Therefore, the meal does not have the character of entertainment. 22. Taxation Determination TD 94/55 states that in determining whether providing an item of property constitutes entertainment, regard should be had to all the circumstances of the case. In particular, regard should be given to the character of the entertainment to be derived from the item of property provided. The provision of food or drink is the provision of property. However, an objective consideration of the circumstances in which that food or drink is provided is necessary to determine whether it constitutes entertainment. 23. It can be seen that the determination of whether or not the provision of food or drink constitutes entertainment requires an objective analysis of all the circumstances surrounding that provision. We are of the view that the following are relevant factors that should be considered in undertaking any objective analysis: (a) Why is the food or drink being provided. This test is a 'purpose test'. For example, food or drink provided for the purposes of refreshment does not generally have the character of entertainment, whereas food or drink provided in a social situation where the purpose of the function is for employees to enjoy themselves has the character of entertainment. (b) What food or drink is being provided. As noted above, morning and afternoon teas and light meals are generally not considered to constitute entertainment. However, as light meals become more elaborate, they take on more of the characteristics of entertainment. The reason for this is that the more elaborate a meal, the greater the likelihood that entertainment arises from the consumption of the meal. For example, when an employer provides morning or afternoon teas or light meals, that food or drink does not usually confer entertainment on the employee. By contrast, a three course meal provided to an employee during a working lunch has the characteristics of entertainment. The nature of the food itself confers entertainment on the employee. (c) When is the food or drink being provided. Food or drink provided during work time, during overtime or while an employee is travelling is less likely to have the character of entertainment. This is because in the majority of these cases food provided is for a work-related purpose rather than an entertainment purpose. This, however, depends upon whether the entertainment of the recipient is the expected outcome of the provision of the food or drink. For example, a staff social function held during work time still has the character of entertainment. (d) Where is the food or drink being provided. Food or drink provided on the employer's business premises or at the usual place of work of the employee is less likely to have the character of entertainment; refer to the reasons in (b) and (c) above. However, food or drink provided in a function room, hotel, restaurant, cafe, coffee shop or consumed with other forms of entertainment is more likely to have the character of entertainment. This is because the provision of the food or drink is less likely to have a work-related purpose. 24. No one of the above factors will be determinative; however, paragraphs (a) and (b) are considered the more important. The application of the above factors results in the determination of whether the food or drink amounts to meal entertainment. Once this determination is made, the employer must then decide whether each item of actual expenditure on meal entertainment is to be treated individually under the ITAA and FBTAA or whether to elect that one of the methods contained in Division 9A of the FBTAA is to apply. If the election is made then the taxation outcome for the individual meal is no longer relevant. The fringe benefits tax and income tax consequences are discussed at paragraphs 29 to 32 and 37 of this Ruling. 33. Certain entertainment provided to employees of a tax-exempt employer gives rise to a separate category of fringe benefit known as a 'tax-exempt body entertainment fringe benefit'. It is only entertainment that is non-deductible for income tax purposes (e.g., a meal at a party) that gives rise to a tax-exempt body entertainment fringe benefit. Section 32-20 of the ITAA is ignored for the purposes of determining whether the entertainment expenditure is deductible. | Detailed Reasoning - Income tax result: 41. The provision of food or drink to an employee that does not amount to meal entertainment is deductible to the employer under section 8-1 of the ITAA, whether or not it is subject to FBT. | Detailed Reasoning - Question 5: 74. Is the situation different where two or more employees who are travelling together on business dine together and for convenience one employee pays for the meals of all the employees on behalf of the employer? This employee is subsequently reimbursed by the employer for the cost of all meals. | Detailed Reasoning - Answer: 75. Reimbursement of the cost of an employee's own meals while travelling away from home does not normally constitute entertainment. 76. Where two or more employees of the same employer dine together while undertaking work-related travel, the food or drink consumed by all employees does not amount to meal entertainment. Therefore, under the 'otherwise deductible' rule, the taxable value of any expense payment fringe benefit is reduced to nil. 77. However, if there is entertainment other than food or drink provided (e.g., a floor show) then the expenditure is in respect of entertainment and, therefore, amounts to meal entertainment. Accordingly, section 32-5 of the ITAA would apply to deny a deduction for the expenditure if the employee incurred it and the 'otherwise deductible' rule does not apply to reduce the taxable value of the expense payment fringe benefit. | Detailed Reasoning - Question 13: 104. Food or drink is provided to employees as part of a seminar which is not held on the employer's premises. Is the food or drink subject to FBT? | Detailed Reasoning - Answer: 105. Food or drink provided to employees as part of their attendance at a seminar constitute either an expense payment or property fringe benefit. However, the 'otherwise deductible' rule may apply to reduce the taxable value of the fringe benefit. 106. Taxation Determination TD 93/195 provides guidance as to when the cost of food or drink which is part of the cost of attending a Continuing Professional Development (CPD) seminar is deductible under section 8-1 of the ITAA. Guidelines provided in that determination are useful in determining whether the 'otherwise deductible' rule can be applied to reduce the taxable value of the benefit provided. As indicated in TD 93/195 the relevant questions are: · whether the cost of attending the seminar is deductible under section 8-1 of the ITAA; · whether the seminar satisfies the requirements of section 32-35 of the ITAA; and · whether the food or drink provided amounts to entertainment. 107. With regard to the third dot point, the factors discussed at paragraph 23 above of this Ruling are to be applied when determining whether the food or drink amounts to meal entertainment. 108. Item 2.1 of the table in section 32-35 of the ITAA provides that if the seminar goes for at least 4 hours and does not satisfy one of the specified exceptions, then any food or drink consumed by the employee that is 'reasonably incidental' to the attendance at that seminar is not precluded by section 32-5 from being deductible under section 8-1 of the ITAA. This is regardless of whether or not the food or drink constitutes entertainment, i.e., whether or not the food or drink amounts to meal entertainment. 109. If the seminar does not satisfy the requirements of section 32-35 and the costs of attending that seminar are deductible under section 8-1 of the ITAA, then food or drink which is included as part of the cost is also deductible provided that the food or drink does not amount to entertainment, i.e., is not meal entertainment. For this purpose, light refreshments (which may include alcohol) provided immediately prior to or following the seminar does not constitute entertainment We will now consider whether section 69-5 of the GST Act applies to any of these expenses. | Detailed Reasoning - Supplies to admin staff and damaged chair: You paid for the accommodation with buffet breakfast and accommodation with VIP meals expenses when your employees came to Australia to perform admin stuff and organise and manage the training. As noted in paragraph 21 in TR 97/17, where an employee is travelling in the course of performing their employment duties, the food or drink provided is consumed as a result of that work-related travel. In the absence of supplementary entertainment, the food or drink is not provided by the employer in order to confer entertainment on that employee. Therefore, the meal does not have the character of entertainment. In this instance the accommodation with breakfast and accommodation with VIP meals expenses incurred for the Admin staff from 9 May to 23 May 20xx (excluding 11 May 20xx) would not constitute entertainment under section 32-10 of the ITAA 1997 as the employees were travelling in the course of performing their employment duties, the accommodation and meals are consumed as a result of that work related travel. This expense is a deductible expense under section 8-1 of the ITAA 1997. The damaged chair would be incidental to the director's work-related travel and therefore is a deductible expense under section 8-1 of the ITAA 1997. Section 69-5 of the GST Act does not apply to these supplies. | Detailed Reasoning - Supplies to employees attending the training and Saturday and Sunday surcharge: You paid for the accommodation with buffet breakfast and feast meals when the employees came to Australia to attend the training for their personal development. The training you held for your employees meets the definition of 'Seminar' under subsection 32-65(1) of the ITAA 1997 and satisfies the requirements in subsection 32-65(2) of the ITAA 1997 since the training was more than 4 hours daily. It is also excluded from being a business meeting as its purpose was to train your employees in matters relevant to your business activity. The training seminar expenses (accommodation with breakfast and the feast meals) are deductible expenses under item 2.1 in section 32.35 of the ITAA 1997 for the period 12 May to 21 May 2017. The Saturday and Sunday surcharge are incidental to the training supplied and therefore deductible expenses under item 2.1 in section 32.35 of the ITAA 1997. Further, the accommodation with breakfast and the feast meals expenses incurred for the employees attending the training from 12 May to 21 May 20xx would not constitute entertainment under section 32-10 of the ITAA 1997 as the employees were travelling in the course of performing their employment duties, the accommodation and meals are consumed as a result of that work related travel. Section 69-5 of the GST Act does not apply to these supplies. | Detailed Reasoning - Accommodation with breakfast for 11 May 20xx: There was no training on the 11 May 20xx17. On that day the employees were provided with a half day tour which includes lunch. The accommodation with breakfast and meals on 11 May 20xx were provided before the provision of the tour and not immediately before the training seminar. This expense therefore is not deductible as it does not fall within the exception at section 32-10 of the ITAA 1997. This expense is an entertainment expense under section 32-10 of the ITAA 1997 and therefore a non-deductible expense under Division 8 of the ITAA 1997. Section 69-5 of the GST Act applies and therefore this expense is not a creditable acquisition. | Detailed Reasoning - Dinner on 21 May 20xx: The main purpose of the dinner meal was to celebrate the training that was held successfully, and the meals provided were very elaborate. This would be considered entertainment under section 32-5 of the ITAA 1997, as per the tests outlined in paragraph 23 of TR 97/17. However, the meal was provided immediately following the training seminar that lasted more than 4 hours per the schedule provided. In this instance the expense would fall within the exception for training seminar expenses at section 32-10 of the ITAA 1997 and therefore are deductible expenses under item 2.1 in section 32.35 of the ITAA 1997. Section 69-5 of the GST Act does not apply to this supply. | Detailed Reasoning - Audio visual surcharge: The audio-visual surcharge is associated with the training seminar and is therefore a deductible expense under item 2.1 in section 32-35 of the ITAA 1997. Section 69-5 of the GST Act does not apply to this supply. | Summary: You have made the following creditable acquisitions and are entitled to claim GST credits and to use the Travel Agent's tax invoice when making the claims: · accommodation with buffet breakfast, the feast meals provided to employees who attended the training from 12 May to 21 May 20xx · accommodation with buffet breakfast and accommodation with VIP meals provided to your admin staff from 9 to 23 May 20xx (excluding 11 May 20xx). · the damaged chair · dinner on 2 May 201xx; · Saturday and Sunday surcharge and · the audio-visual surcharge; You are not entitled to claim GST credits for the acquisition of accommodation with buffet breakfast on 11 May 20xx made to your employees as these acquisitions are entertainment under section 32-10 of the ITAA 1997 and therefore not a creditable acquisition under section 69-5 of the GST Act. | Detailed Reasoning - Claiming GST credit: Under section 29-10 of the GST Act you are required to hold valid tax invoice when claiming GST credits in your BAS. You stated that the Travel Agent was acting as your agent when you acquired the expenses incurred in the tax invoice issued by the hotel and you have provided us an Authorisation Form to substantiate this statement. You also stated that you paid these expenses. Under the agency law you will be the one claiming GST credits for any creditable acquisitions you have made through your overseas agent and be liable for any taxable supplies made through your overseas agent. Regarding acquisition under an agency relationship, in certain circumstances, the principal is not required to hold a tax invoice for an input tax credit to be attributed to a tax period if it holds a document that contains an agent's identity and/or ABN and satisfies the other requirements in the A New Tax System (Goods and Services Tax) Waiver of Tax Invoice Requirement (Acquisitions under an Agency Relationship) Legislative Instrument 2013 (available at https://www.legislation.gov.au/Details/F2013L00538 ). In this instance you can use the tax invoice issued to your agent to claim GST credits for your creditable acquisitions.

Relevant facts: You are a non-resident company carrying on your business activity outside Australia. You are registered for GST. | You supply health consulting. You focus on the mental health of people, use speeches, stories, training to make people think positive. | You are focusing on the courses for your trainers to train their students how to keep optimism, mental health. The main work of the trainers is to teach, deliver the happiness, optimism and positive attitude to students to keep them living a happy life, to overcome fears, anxiety. | You do not carry on any business activity through a subsidiary or agent in Australia and do not make any supplies to customers located in Australia. | You held a conference In Australia from 12 May 20xx to 21 May 20xx and a non-course tour for the period 22 to 27 May 20xx. | The purpose of the conference was to motivate and inspire your staff and the training was for 10 days. The aim of the conference was to educate the trainers how to train their students. The training was more than 4 hours and on the last day of the training a dinner was held to conclude the training. | All participants for the conference were your employees. Most of them were trainers of your company and some do administration stuff and organise the event (around 15). | You paid for all expenses relating to the organising of the conference and non-course tour including costs incurred for the employees to attend the conference and tours which were accommodation, lunches and dinner for the conference. | The employees did not have to pay anything for attending the conference and the tours. They were not allowed to bring their partners and children to the conference and tours. | All attendees who attended the conference stayed in the same hotel they attended the conference. | Appointm ent of Travel Agent: You contracted an overseas Travel Agent to organise the transfer of the attendees from overseas to Australia to attend the Australian business conference and tours, including visa application, accommodations, venue reservation, dining and so on. | You gave us a copy of the Agreement you had with the Travel Agent regarding the conference and tours in Australia and a copy of the agenda for the conference. | Under the Agreement you were responsible to arrange for the Australian training course between 12 May to 21 May 20xx. The Travel Agent was responsible for the team transfer, a half day tour on 11 May 20xx including one lunch, hotel accommodation venue reservation, dining etc. | The Travel Agent booked the hotel, meeting rooms and air tickets for you. You paid the airfares of these attendees to the Travel Agent. All invoices issued by the Australian providers are under the name of the Travel Agent such as accommodation, conference room hire and GST was included for these expenses. | You have given us a signed copy of an authorisation form which stated that the Travel Agent was assigned to act as your Agent. The purchases made by the Travel Agent were made on your behalf and you were the final consumer. | The expenses in the hotel's tax invoice that was issued to your Travel Agent were: | Regarding the expenses listed in the tax invoice you provided the following information: | · The expenses incurred on the 9, 10, 22 and 23 May 201xx were for your admin staff. The expenses on the other days were for all attendees of the conference. | · The feast packages for the period 12 May to 21 May 20xx - you stated that the feast package was the meeting package and the hotel offered two tea break and lunch to the attendees. | · The dinner paid on 21/05/xx was for the gala dinner in order to, celebrate the event that was held successfully. | · The accommodation with buffet breakfast were for your employees who were in Australia to attend the training you held in Australia. | · 1 VIP Charge Back- you advised that there were 3 VIPS (the CEO and two directors) and they did not have meals with the others. The meals were for breakfast, lunch and dinner. The expenses were for meals during their stay in the hotel while in Australia. | · 1 Damage /chair Upholstery - The chair was one of the facilities in the accommodation room and was used with the desk for the director to work. | · Saturday Surcharge - This surcharge is for the training held on Saturday 13 and 20 May 20xx. | · Sunday Surcharge - This surcharge is for the training held on Sunday 14 and 21 May 20xx. | · 1 Audio visual surcharge - an audio visual (A/V) equipment was rented from a third party who is not on the hotel's vendor list, so the hotel charged a basic fee for the electricity, installation service provided by the hotel. The A/V equipment was used for presentations and videos during the event.