Private ruling: GST and the supply of live fish
Date of advice: 22 March 2024
Published: 6 May 2024
Ruling period: dd/mm/yyyy to dd/mm/yyyy

Ruling: Q1: Is the supply of live fish GST-free under section 38-2 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)? | A1: No. | Q2: Is the supply of battered fish fillets for human consumption GST-free under section 38-2 of the GST Act? | A2: Yes.

Relevant facts and circumstances: You are registered for GST. You sell live fish in oxygenated bins to various seafood retailers. Currently you sell the live fish inclusive of GST. You also sell battered fish fillets for human consumption. You engage a specified entity to process your fish fillets for battering. The consideration for the processing services includes GST. You sell the battered fish fillets to specified entities. The battered fish fillets need to be cooked before consumption.

Relevant legislative provisions: A New Tax System (Goods and Services Tax) Act 1999 section 9-5 | A New Tax System (Goods and Services Tax) Act 1999 section 38-2 | A New Tax System (Goods and Services Tax) Act 1999 section 38-3 | A New Tax System (Goods and Services Tax) Act 1999 section 38-4

Reasons for decision: Summary: The supply of live fish is not GST-free under section 38-2 of the GST Act. This is because paragraph 38-4(g) of the GST Act excluded live animals from the definition of food for the purposes of the GST Act. The supply of live fish is a taxable supply under section 9-5 of the GST Act. | Detailed Reasoning - Detailed reasoning: Section 9-5 of the GST Act provides that you make a taxable supply if the supply meets the following conditions: (a) you make the supply for consideration (b) the supply is made in the course or furtherance of an enterprise that you carry on (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. Your supply of live fish meets the requirements of paragraphs 9-5(a) to 9-5(d) of the GST Act. Additionally, the supply of live fish is not input taxed. Therefore, what is left to determine is whether the supply of live fish is GST-free. A supply of food is GST-free under section 38-2 of the GST Act if the product satisfies the definition of food in section 38-4 of the GST Act and the supply is not excluded from being GST-free by section 38-3 of the GST Act. 'Food' is defined in section 38-4 of the GST Act to include food for human consumption (whether or not requiring further processing or treatment) (paragraph 38-4(1)(a) of the GST Act). However, paragraph 38-4(1)(g) of the GST Act provides that the definition of food does not include live animals (other than crustaceans or molluscs). As live fish is a live animal it is excluded from the definition of food for the purposes of the GST Act. The supply of live fish therefore is not GST-free under section 38-2 of the GST Act. The supply of live fish is a taxable supply as it meets all the requirements of section 9-5 of the GST Act. The Detailed food list (DFL) , which is a public ruling for the purposes of the Taxation Administration Act 1953 , provides details of the GST classification of major food and beverage product lines. In respect of the GST classification of live fish the DFL relevantly states: 1395 live fish taxable Live animal. Exclusion from the meaning of food at paragraph 38-4(1)(g) of the GST Act applies | Summary: The supply of battered fish fillets for human consumption is GST-free as the product satisfies the definition of food under section 38-4 of the GST Act (paragraph 38-4(1)(a) of the GST Act), and the supply is not excluded from being GST-free by section 38-3 of the GST Act. | Detailed Reasoning - Detailed reasoning: Battered fish fillets that are supplied for human consumption are not excluded from the definition of food in section 38-4 of the GST Act. Battered fish fillets for human consumption meet the definition of food in paragraph 38-4(1)(a) of the GST Act. Additionally, the supply of battered fish fillets for human consumption is not excluded from being GST-free by section 38-3 of the GST Act. As such, the supply of battered fish fillets for human consumption is GST-free under section 38-2 of the GST Act.