Private ruling: GST and supplies connected with Australia
Published: October 2013

Ruling: Are the supplies of services provided by ABC Co to XYZ Ltd in Country X for which it receives the Service Delivery Team Fee taxable supplies within the meaning of section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)? | No. | Are the supplies of things other than goods made by ABC Co to XYZ Ltd for which it receives the Pass-Through Cost Fee taxable supplies within the meaning of section 9-5 of the GST Act? | No. | Are the supplies of goods made by ABC Co to XYZ Ltd for which it receives the Pass-Through Cost Fee taxable supplies within the meaning of section 9-5 of the GST Act? | No. | Are the supplies of services made by ABC Co to XYZ Ltd in Australia for which it receives the Corporate Overhead Fee taxable supplies within the meaning of section 9-5 of the GST Act? | Yes.

Relevant facts and circumstances: ABC Co provides maintenance, operations and other services in Australia and overseas. ABC Co is an Australian resident entity which has been registered for GST from 1 July 2000. XYZ Ltd operates a Site in Country X where it accommodates clients. ABC Co provides various operational and maintenance services to XYZ Ltd in relation to the Country X Site and has done so since Month 20XX. ABC Co is essentially responsible for most aspects of the on-site day to day operations. While some aspects of the overall services provided are performed from ABC Co's premises in Australia, a significant amount of the services are provided by personnel on-site in Country X. In providing its services, ABC Co makes use of a wide variety of fixed and non-fixed equipment provided by XYZ Ltd in Country X including, for example: · electricity generators; · trucks and forklifts; · a waste compactor; · ovens and other kitchen equipment; and · fridges and washing machines. Further, various buildings and facilities provided by XYZ Ltd are used in ABC Co's operations in Country X including a kitchen and laundry, office space and storage areas. ABC Co employs (directly or through subcontractors) approximately XXX staff to provide its services to XYZ Ltd. Relevant personnel include: · local Country X employees that are employed in various positions such as general assistants, cleaners, and kitchen hands; · Australian employees that work in Country X on a 'fly-in, fly-out' basis in various management and labour positions such as trades persons and chefs; · security personnel that are subcontracted and work in Country X on a 'fly-in, fly-out' basis; and · WWW employees that generally perform relevant services from Australia (referred to as 'Onshore Staff'). On occasion, however, an Onshore Staff member may be required to travel to Country X in the performance of their duties. The services performed by the Onshore Staff include: · Providing a person responsible for ABC Co's overall performance under the Agreement (ie. the Contract Manager) · Providing a person responsible for governance, compliance with the Agreement and maintaining the operational management systems relating to ABC Co's performance of its services under the Agreement (ie. the Project Systems Director); and · Providing staff responsible for managing, recording and reporting financial information relating to the services performed under the Agreement (ie. Finance Manager and Finance Administrator). ABC Co leases a number of properties in Country X which are used to provide accommodation for Australian employees that are working in Country X. The services provided by ABC Co under its contractual arrangement with XYZ Ltd are detailed in Schedule 1 of the Agreement. In summary, relevant services include: · Communications services including provision of telephone, fax, mail and internet access for XYZ Ltd clients. · Transportation and logistical services by air, sea or vehicle including transport of XYZ Ltd staff, other service provider staff and goods to and from the Country X Site. This transport may also be provided to XYZ Ltd clients and relevant personnel to transport them to and from the Country X Site. · Supply of accommodation related goods and services, including the provision of bedding and personal hygiene products · Supporting XYZ Ltd and other service providers at the Country X Site as required. · Water, energy, waste management and pest control services. · General cleaning services on the Country X Site · Catering services · Maintaining security around the Country X Site. · Managing the operation and maintenance of all assets used on the Country X Site (other than capital works assets), and maintenance of infrastructure and grounds. Assisting with general management, governance and reporting in relation to the Country X Site. ABC Co is paid a "Service Fee" for the provision of its services and the supply of any necessary goods to XYZ Ltd. The Service Fee has three components: · a Corporate Overhead Fee · a Service Delivery Team Fee · a Pass-Through Cost Fee The Corporate Overhead Fee The Corporate Overhead Fee is a fixed monthly amount. It is paid for management support, financial and administrative support including recruitment services and onshore (ie. Australia) based training. The vast majority of these particular services are performed by ABC Co personnel that are physically located in Australia (ie. the Onshore Staff). From time to time, some management personnel may visit Country X, however, such visits are infrequent and largely incidental to the overall management services provided. ABC Co is accounting for GST on all supplies covered by the Corporate Overhead Fee. The Service Delivery Team Fee The Service Delivery Team Fee specifically relates to the labour component of the services provided by ABC Co. The Service Delivery Team Fee is for operational and maintenance services which are not included in the Corporate Overhead Fee and is calculated by reference to the time spent by ABC Co and subcontractor personnel at the specified hourly rates (excluding GST). The time taken into account when calculating the fee may include some minimal time spent by personnel in Australia (for example, time spent obtaining pre-deployment medical assessments in Australia is included). However, this time is not significant and is generally limited to staff members' first deployment to Country X. The security services are performed by subcontracted personnel who work in Country X on a 'fly in, fly out' basis. ABC Co acquires these services from a third party and invoices the services as part of the Pass-Through Cost Fee (see below). The Pass-Through Cost Fee The Pass-Through Cost Fee is an additional amount payable to compensate ABC Co for procuring things used in the course of providing its services or for goods supplied to XYZ Ltd. ABC Co procures various goods and/or services from third parties to be utilised in the course of providing its services. ABC Co charges XYZ Ltd a fee based on cost plus an agreed mark-up in connection with such goods and services. This fee is referred to in the Agreement as the Pass-Through Cost Fee. The third party suppliers of goods and services may be located inside or outside of Australia. Some examples of things invoiced via the Pass-Through Cost Fee include: · food and beverages, used by ABC Co to provide catering; · bedding and personal hygiene products provided to XYZ Ltd clients; · communication services; · flights to transport staff to and from Australia and other logistical costs; · agreed costs for necessary equipment not supplied by XYZ Ltd as well as parts required to carry out repairs and maintenance; and · security services performed by the subcontracted personnel in Country X. To the extent to which the Pass-Through Cost Fee has been calculated by reference to the cost of goods acquired by ABC Co, the Pass-Through Cost Fee includes: · Amounts calculated by reference to goods consumed by ABC Co in the provision of its services (eg cleaning chemicals), and · Amounts relating to goods which are effectively sold by ABC Co to XYZ Ltd as relevant assets become the property of XYZ Ltd (eg cutlery and bedding for XYZ Ltd clients, etc).


Reasons for decision: Summary: The supplies of services by ABC Co to XYZ Ltd in Country X for which it receives the Service Delivery Team Fee are not connected with Australia. Hence, they are not taxable supplies. | Detailed Reasoning - Detailed reasoning: Connected with Australia (paragraph 9-5(c) of the GST Act) Subsection 9-25(5) of the GST Act provides that a supply of anything other than goods or real property is connected with Australia if: (a) the thing is done in Australia; or (b) the supplier makes the supply through an enterprise that the supplier carries on in Australia; or (c) all the following apply: (i) neither paragraph (a) nor (b) applies in respect of the thing; (ii) the thing is a right or option to acquire another thing; (iii) the supply of the other thing would be connected with Australia. Goods and Services Tax Ruling GSTR 2000/31 explains when a supply is connected with Australia under section 9-25 of the GST Act. Paragraph 9-25(5)(a) 'Thing' is defined in section 195-1 of the GST Act to mean anything that can be supplied or imported. Things other than goods or real property that can be supplied include services, advice, information, rights, obligations to do anything, or any combination of these things. Under paragraph 9-25(5) of the GST Act the connection with Australia requires that the 'thing' being supplied is 'done' in Australia. The meaning of 'done' depends on the nature of the 'thing' being supplied. 'Done' can mean, for example, performed, executed, completed, finished etc depending on what is supplied. ABC Co supplies operational and maintenance services in the Country X Site. For these services, ABC Co is paid a Service Delivery Team Fee calculated by reference to the time spent by ABC Co's personnel in Country X. As the services are done in Country X, they are not connected with Australia under paragraph 9-25(5)(a) of the GST Act. Paragraph 9-25(5)(b) If a thing is not connected with Australia under paragraph 9-25(5)(a) of the GST Act, it may nonetheless be connected with Australia if the supply is made through an enterprise that the supplier carries on in Australia under paragraph 9-25(5)(b) of the GST Act. Subsection 9-25(6) of the GST Act further clarifies 9-25(5) by stating that an enterprise is carried on in Australia if the enterprise is carried on through: (a) a permanent establishment (as defined in subsection 6(1) of the Income Tax Assessment Act 1936); or (b) a place that would be such a permanent establishment if paragraph (e), (f) or (g) of that definition did not apply. Goods and Services Tax Ruling GSTR 2000/31 states at paragraphs 87 and 88: 87. The definition of permanent establishment for the purposes of subsection 9-25(6) is wider than the definition of permanent establishment found in subsection 6(1) of the Income Tax Assessment Act 1936 . This is because the exclusions from a permanent establishment in subsection 6(1) of the Income Tax Assessment Act 1936 - paragraphs (e), (f) and (g) are not similarly excluded from the definition of permanent establishment for the purposes of subsection 9-25(6). 88. Thus, permanent establishment for the purposes of subsection 9-25(6) means a place at or through which a person carries on any business and, without limiting the generality of the foregoing, includes: (a) a place where the person is carrying on business through an agent; (b) a place where the person has, is using or is installing substantial equipment or substantial machinery; (c) a place where the person is engaged in a construction project; and (d) where the person is engaged in selling goods manufactured, assembled, processed, packed or distributed by another person for, or at or to the order of, the first-mentioned person and either of those persons participates in the management, control or capital of the other person or another person participates in the management, control of both of those persons - the place where the goods are manufactured, assembled, processed, packed or distributed. The definition of PE in subsection 6(1) of the ITAA 1936 is that it is a place at or through which the person carries on business. Taxation Ruling TR 2002/5 states at paragraph 9 that these words are: …a reference to a place used for carrying on that person's business activities. That place must have an element of permanence, both geographic and temporal. Permanence must be construed in the context of each particular business and is a question of fact and degree. Permanent in this context does not mean forever. Further Goods and Services Tax Ruling GSTR 2000/31 states at paragraph 85: …in establishing whether a supply is made through a permanent establishment it may be possible to draw some guidance from existing case law and commentaries such as the commentaries on the 'OECD Model Tax Convention on Income and on Capital'. Goods and Services Tax Ruling GSTR 2004/7 states at paragraph 253: Place of its own 253. A non-resident company clearly has a place of business of its own if it leases or owns a place at which it conducts business through it servants or agents. However, a place of its own is not limited to such a place. A non-resident company occupies a place as a place of its own if it has a right to be there. Evidence of that right is generally to be found in the fact that the company's employees or agents occupy that place for the purposes of its business. The OECD Commentary on Article 5 (Permanent Establishment) of the OECD Model Tax Convention on Income and on Capital (OECD Commentary) specifically addresses the concept of a PE. The OECD Commentary defines the term 'permanent establishment' as a fixed place of business, through which the business of an enterprise is wholly or partly carried on. This definition contains the following conditions: · the existence of a "place of business", ie a facility such as premises or, in certain instances, machinery or equipment; · this place of business must be "fixed", i.e., it must be established at a distinct place with a certain degree of permanence; · the carrying on of the business of the enterprise through this fixed place of business. This means usually that persons who, in one way or another, are dependent on the enterprise (personnel) conduct the business of the enterprise in the State in which the fixed place is situated. 4. The term 'place of business' covers any premises, facilities or installations used for carrying on the business of the enterprise whether or not they are used exclusively for that purpose…the place of business may be situated in the business facilities of another enterprise. 4.1 …the mere fact that an enterprise has a certain amount of space at its disposal which is used for business activities is sufficient to constitute a place of business…' Paragraph 4.3 of the OECD Commentary provides the following example: 4.3 '…example of is that of an employee of a company who, for a long period of time, is allowed to use an office in the head quarters of another company (e.g. a newly acquired subsidiary) in order to ensure that the latter company complies with its obligations under contracts concluded with the former company. In that case, the employee is carrying on activities related to the business of the former company and the office that is at his disposal at the headquarters of the other company will constitute a permanent establishment of his employer, provided that the office is at his disposal for a sufficiently long period of time so as to constitute a 'fixed place of business'… Under the Agreement with XYZ Ltd ABC Co provides operational and maintenance services in Country X. ABC Co is responsible for most aspects of the day to day operation of the Country X Site including the supply of transportation and logistical services, provision of communication services, catering, and general cleaning services. To provide its services ABC Co employs (directly or through subcontractors) staff who are based in Country X. In addition, in providing its services, ABC Co makes use of a wide variety of fixed and non-fixed equipment provided by XYZ Ltd in Country X. ABC Co had been operating the Country X site since Month 20XX and will continue to operate it for at least another 12 months from the date of the execution of the Agreement. The Agreement provides that ABC Co has access to office space and accommodation for its personnel. The Country X Site is a place at or through which ABC Co carries on business in relation to the Agreement with XYZ Ltd. This place of business has both geographic and temporal permanence. We consider that the Country X Site constitutes a permanent establishment of ABC Co. As ABC Co is providing the services to XYZ Ltd through a permanent establishment in Country X, the supplies are not made through an enterprise that ABC Co carries on in Australia under paragraph 9-25(5)(b) of the GST Act. The supplies of services by ABC Co to XYZ Ltd in Country X for which it receives the Service Delivery Team Fee are not connected with Australia pursuant to either paragraph 9-25(5)(a) or 9-25(5)(b) of the GST Act and the requirement of paragraph 9-5(c) is not satisfied. These supplies are not taxable supplies for the purposes of section 9-5. We note that the time taken into account when calculating the Service Delivery Team Fee may include some minimal time spent by personnel inside Australia (for example, time spent obtaining pre-deployment medical assessments in Australia). Goods and Services Tax Ruling GSTR 2001/8 explains, among other things, how an entity can identify whether a supply is a mixed or a composite supply. Paragraph 19 of GSTR 2001/8 states: Where a transaction comprises a bundle of features and acts, you must consider all of the circumstances of the transaction to ascertain its essential character. You also need to consider the effect the GST Act has on the supply or any of its individual parts. You can then determine whether the transaction is a mixed supply because it has separately identifiable parts that the GST Act treats as taxable and non-taxable, or whether it is a composite supply because one part of the supply should be regarded as being the dominant part, with the other parts being integral, ancillary or incidental to that dominant part. Paragraphs 40 to 69 of GSTR 2001/8 discuss how to differentiate between mixed and composite supplies. Paragraph 44 of GSTR 2001/8 states that in working out whether an entity is making a mixed or composite supply, the key question is whether the supply should be regarded as having more than one separately identifiable part, or whether it is essentially a supply of one dominant part with one or more integral, ancillary or incidental parts. Paragraph 45 of GSTR 2001/8 provides that in many circumstances, it will be a matter of fact and degree whether the parts of a supply are separately identifiable and retain their own identity. Paragraph 59 of GSTR 2001/8 provides that no single factor by itself will provide the sole test to determine whether a part of a supply is integral, ancillary or incidental to the dominant part of the supply. Having regard to all the circumstances, indicators that a part may be integral, ancillary or incidental include where: · you would reasonably conclude that it is a means of better enjoying the dominant thing supplied, rather than constituting for customers an aim in itself; or · it represents a marginal proportion of the total value of the package compared to the dominant part; or · it is necessary or contributes to the supply as a whole, but cannot be identified as the dominant part of the supply; or · it contributes to the proper performance of the contract to supply the dominant part. We accept that time spent by personnel in Australia for pre-deployment activities are integral, ancillary or incidental to the supplies of the services in Country X. | Summary: The supplies of things other than goods made by ABC Co to XYZ Ltd for which it receives the Pass-Through Cost Fee are not taxable supplies within the meaning of section 9-5 of the GST Act. | Detailed Reasoning - Detailed reasoning: The Agreement provides that XYZ Ltd reimburses ABC Co for reasonable costs incurred that are not covered by the Corporate Overhead Fee and the Service Delivery Team Fee. Under the Agreement ABC Co procures various services from third parties to be utilised in the course of providing its services. ABC Co is paid the Pass-Through Cost Fee as an additional amount payable to compensate ABC Co for procuring things used in the course of providing its services. In relation to these services, similar to the reasons outlined in Question 1 above, the services are not done in Australia and are not made through the enterprise that ABC Co carries on in Australia. The supplies of these services in Country X by ABC Co under its Agreement with XYZ Ltd are not connected with Australia and the requirement of paragraph 9-5(c) of the GST Act is not satisfied. These supplies are not taxable supplies for the purposes of section 9-5. | Summary: The supplies of goods made by ABC Co to XYZ Ltd for which it receives the Pass-Through Cost Fee are not taxable supplies within the meaning of section 9-5 of the GST Act. | Detailed Reasoning - Detailed reasoning: Under the Agreement ABC Co is also paid the Pass-Through Cost Fee as a reimbursement for the costs of various goods purchased from third parties. These goods acquired by ABC Co are either consumed by ABC Co in the provision of its services or effectively sold by ABC Co to XYZ Ltd as title to the goods passes to XYZ Ltd. In determining whether a supply of goods is connected with Australia, a distinction is made between supplies of goods wholly within Australia (subsection 9-25(1) of the GST Act) and supplies of goods from Australia (subsection 9-25(2) of the GST Act. Subsections 9-25(1) and 9-25(2) of the GST Act state: Supplies of goods wholly within Australia (1) A supply of goods is connected with Australia if the goods are delivered, or made available, in Australia to the recipient of the supply. Supplies of goods from Australia (2) A supply of goods that involves the goods being removed from Australia is connected with Australia. GSTR 2000/31 provides that the phrase 'delivered, or made available' in subsection 9-25(1) of the GST Act means that the goods are either physically delivered, or if not physically delivered, physically made available in Australia. 'Made available' refers to the situation where goods are not actually delivered to the recipient but rather the supplier makes the goods physically available to the recipient in Australia. Both 'delivered' and 'made available' look at the place where the goods are at the relevant time. GSTR 2000/31 provides that the removal of goods from Australia outlined is subsection 9-25(2) of the GST Act is a supply from Australia. Goods removed from Australia means that goods are physically taken out of Australia. Goods and Services Tax Ruling GSTR 2002/6, which explains the requirements for a supply of goods to be GST-free export under subsection 38-185(1) of the GST Act, provides that a supply involves goods being removed from Australia where goods located in Australia, are, as part of the supply, transported to, and delivered at a place outside Australia. The Agreement does not require that the goods supplied to XYZ Ltd in Country X be sourced from a particular location. In relation to the goods that are sourced in Country X or elsewhere other than Australia and supplied to XYZ Ltd in Country X, they are neither delivered nor made available to XYZ Ltd in Australia nor removed from Australia. The supplies of these goods are not connected with Australia and the requirement of paragraph 9-5(c) of the GST Act is not satisfied. These supplies are not taxable supplies for the purposes of section 9-5 of the GST Act. Where the goods are sourced in Australia, the supply to XYZ Ltd is connected with Australia under subsection 9-25(2) of the GST Act because the supply of the goods involve those goods being removed from Australia and delivered to XYZ Ltd in Country X. However, subsection 38-185(1) of the GST Act provides that the supply of goods by export is GST-free where the supply meets the requirements of one of the items in the table in that subsection. Item 1 in the table of subsection 38-185(1) of the GST Act (Item 1) provides that an export of goods is GST-free if the supplier exports the goods from Australia before, or within 60 days (or such further period as the Commissioner allows) after: (a) the day on which the supplier receives any of the *consideration for the supply; or (b) if, on an earlier day, the supplier gives an *invoice for the supply - the day on which the supplier gives the invoice. Paragraph 91 of GSTR 2002/6 provides that section 38-185 of the GST Act does not apply to the movement of goods within the same entity. …For example, where an Australian branch of a non-resident company moves goods from the Australian branch to the non-resident head office, there is no supply of goods. A company cannot make supplies to itself. Goods can be exported without there being a supply of those goods. However, section 38-185 only operates where there is a supply of goods. Where ABC Co in Australia sends goods to its permanent establishment in Country X, these are not supplies of goods. The relevant supplies of goods are the supplies from ABC Co to XYZ Ltd in Country X. These supplies are GST-free under Item 1 where they are exported within 60 days (or such further period as the Commissioner allows) after the earlier of: (a) the day on which ABC Co receives any of the consideration for the supply or (b) the day ABC Co gives an invoice for the supply. Therefore, these supplies of goods made by ABC Co to XYZ Ltd for which it receives the Pass-Through Cost Fee are not taxable supplies within the meaning of section 9-5 of the GST Act. | Summary: The supplies of contract management services and the provision of financial information in Australia by ABC Co to XYZ Ltd for which it receives the Corporate Overhead Fee are taxable supplies. | Detailed Reasoning - Detailed reasoning: ABC Co is paid the Corporate Overhead Fee for providing management support, financial and administrative support including recruitment services and onshore (ie. Australia) based training. The supply of these services made by ABC Co to XYZ Ltd in Australia are connected with Australia because the supplies are either done in Australia or made through the enterprise that ABC Co carries on in Australia. Hence, paragraph 9-5(c) of the GST Act is satisfied. It remains to be determined if the supply is GST-free. Section 38-190 of the GST Act provides that certain supplies of things other than goods or real property, for consumption outside of Australia are GST-free. Of particular relevance is Item 3 which provides that a supply is GST-free where it is: a supply: (a) that is made to a *recipient who is not in Australia when the thing supplied is done; and (b) the effective use or enjoyment of which takes place outside Australia; other than a supply of work physically performed on goods situated in Australia when the thing supplied is done, or a supply directly connected with *real property situated in Australia. Item 3 applies to a supply of a thing, other than a supply of goods or real property, which is made to a recipient who is not in Australia when the supply is done. Goods and Services Tax Ruling GSTR 2004/7 discusses when an entity is not in Australia when the thing supplied is done. The supplies of the services for which ABC Co is paid the Corporate Overhead Fee are made and provided to XYZ Ltd for the purpose of its Australian presence. These services are used and enjoyed by XYZ Ltd in Australia. Accordingly, the supplies of these services are not GST-free under Item 3. The supplies of the services are not GST-free under any other provisions of the GST Act or any other Act. Therefore, the supplies of services for which the Corporate Overhead Fee is payable are not taxable supplies. We note that from time to time, in providing management services, Onshore personnel may visit Country X. We accept that time spent by the Onshore Staff in Country X are integral, ancillary or incidental to the supplies of these services in Australia. This may change on a factual basis. All publications referred to above are available at the ATO website www.ato.gov.au

Reasons for decision: An entity is liable to pay the GST on any taxable supply that that entity makes. | Section 9-5 of the GST Act sets out the requirements for a taxable supply: | You make a taxable supply if: | (a) you make the supply for *consideration; and | (b) the supply is made in the course or furtherance of an *enterprise that you *carry on; and | (c) the supply is *connected with Australia; and | (d) you are *registered, or *required to be registered for GST. | However, the supply is not a *taxable supply to the extent that it is *GST-free or *input taxed. | (* denotes a term defined in section 195-1 of the GST Act.) | All of the requirements of section 9-5 of the GST Act must be satisfied for the supply by ABC Co to be a taxable supply. | ABC Co is registered for GST and the supplies to XYZ Ltd as outlined in the Agreement are made for consideration and in the course of an enterprise carried on by ABC Co. Therefore, ABC Co satisfies the requirements of paragraphs 9-5(a), 9-5(b) and 9-5(d) of the GST Act. Furthermore, the supplies in the circumstances described are not input taxed. | Hence, for each of the supplies listed in Questions 1 to 4, it remains to be determined if the supplies are connected with Australia under paragraph 9-5(c) of the GST Act and whether they are GST-free.