Private ruling: GST and Australian government fees and charges
Published: June 2012

Ruling: Q1: Is the list of specified fees and charges imposed by you excluded from GST under Division 81 of the GST Act? | A1: No

Relevant facts and circumstances: You are a state government agency. You carry out a variety of regulatory functions including collecting, registering, recording, collating and maintaining information.

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 Subsection 81-5(1) | A New Tax System (Goods and Services Tax) Act 1999 Subsection 81-10(1) | A New Tax System (Goods and Services Tax) Act 1999 Subsection 81-10(2) | A New Tax System (Goods and Services Tax) Act 1999 Subsection 81-10(4) | A New Tax System (Goods and Services Tax) Act 1999 Subsection 81-10(5) | A New Tax System (Goods and Services Tax) Regulations 1999 Regulation 81-10.01

Reasons for decision: Summary: The requirements for a taxable supply are stated in section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act). A supply is taxable if: · you make the supply for consideration, · the supply is made in the course or furtherance of an enterprise that you carry on, · the supply is connected with Australia, and · 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. The first requirement under section 9-5 of the GST Act is that you make a supply for consideration. Where the supply is not for consideration then it is not captured by section 9-5 of the GST Act and is not taxable. Division 81 of the GST Act excludes certain taxes, fees or charges from GST as it provides that these taxes, fees or charges will not be treated as consideration for a supply. | Detailed Reasoning - Australian tax: Subsection 81-5(1) of the GST Act provides that a payment, or the discharging of a liability to make a payment, is not the provision of consideration to the extent the payment is an Australian tax. For GST purposes, Australian tax means a tax (however described) imposed under an Australian law, and Australian law means a Commonwealth law, a State law or a Territory law. Broadly, a tax is 'a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered'. The fee that you impose for your particular services is not a tax. Therefore, section 81-5 of the GST Act does not apply. Subsection 81-10(1) of the GST Act provides that a payment, or the discharging of a liability to make a payment, is not the provision of consideration to the extent the payment is an Australian fee or charge that is of a kind covered in subsection (4) or (5). However, subsection 81-10(2) of the GST Act provides that a payment you make, or a discharging of your liability to make a payment, is treated as the provision of consideration to the extent the payment is an Australian fee or charge that is, or is of a kind, prescribed by the A New Tax System (Goods and Services Tax) Regulations 1999 (GST Regulations). | Detailed Reasoning - Australian fee or charge: Section 195-1 of the GST Act provides that an 'Australian fee or charge' means a fee or charge (however described), other than an Australian tax, imposed under an Australian law and payable to an Australian government agency. Australian government agency has the meaning given by section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997). Section 995-1 of the ITAA 1997 provides that Australian government agency means: (a) the Commonwealth, a State or a Territory; or (b) an authority of the Commonwealth or of a State or a Territory. You meet the definition of an Australian government agency as you are an agency of a State. It follows that the fees are an Australian fee or charge. | Detailed Reasoning - Fees relating to permissions etc: Subsection 81-10(4) of the GST Act covers a fee or charge if the fee or charge: (a) relates to; or (b) relates to an application for; the provision, retention, or amendment, under an Australian law, of a permission, exemption, authority or licence (however described). The specified fees will be covered by subsection 81-10(4) of the GST Act where they 'relate to' the provision of such a permission etc. The terms permission, authority or licence are not defined in the GST legislation therefore they take their ordinary meaning. An accepted principle of statutory interpretation is that words take their meaning from the words with which they are associated and therefore the meaning of these words can be derived from the context of each of these words. The following definitions are drawn from The Macquarie Dictionary, (Multimedia), version 5.0.0, 1/10/01. Permission is defined as '1. the act of permitting; formal or express allowance or consent. 2. liberty or licence granted to do something'. Authority is defined as '7. a warrant for action; justification' | Detailed Reasoning - Relates to: Goods and Services Tax Ruling GSTR 2003/9 Goods and Services Tax: financial acquisitions threshold considers the meaning of these words in the context of the financial acquisitions threshold. The ruling provides that these words must be read in the context in which they appear and courts have ruled that the terms be interpreted in accordance with the intent of the relevant statute. We consider that the specified fees or charges relate to an application to which subsection 81-10(4) of the GST Act applies. | Detailed Reasoning - Fees relating to information and record keeping etc: Subsection 81-10(5) of the GST Act covers a fee or charge paid to an Australian government agency if the fee or charge relates to the agency doing any of the following: (a) recording information; (b) copying information; (c) modifying information; (d) allowing access to information; (e) receiving information; (f) processing information; (g) searching for information. The specified fees or charges relate to you doing some of the activities that are listed in paragraphs 81-10(5)(a) to (g) of the GST Act. Specifically, we consider that the fees or charges relate to you receiving and processing information under paragraphs 81-10(5)(e) and (f) of the GST Act may apply. As the fees to you are of the kind covered by subsections 81-10(4) and 81-10(5) of the GST Act, subsection 81-10(1) applies and these payments are 'not the provision of consideration.' However, a fee or charge covered by subsection 81-10(1) of the GST Act may still be subject to GST where subsection 81-10(2) of the GST Act applies | Detailed Reasoning - Regulations under subsection 81-10(2): As referred to previously, subsection 81-10(2) of the GST Act provides that a regulation may apply to treat the payment, or the discharge of the liability to make such a payment, of an Australian fee or charge as the provision of consideration for a supply. For the purposes of subsection 81-10(2) of the GST Act, the following kinds of Australian fee or charge are prescribed in GST Regulation 81-10.01: (a) a fee for parking a motor vehicle in a ticketed or metered parking space; (b) a toll for driving a motor vehicle on a road; (c) a fee for hire, use of, or entry to a facility, except for an entry fee to a national park; (d) a fee for the use of a waste disposal facility; (e) a fee for pre-lodgment advice if: (i) the advice relates to an application to which subsection 81 10(4) of the Act applies; and (ii) it is not compulsory to seek the advice; (f) a fee for the provision of information if the information is not required to be provided under an Australian law. Of these regulations, paragraph 81-10.01(e) is relevant to the fee or charge that you impose. We consider that this fee is a fee for pre-lodgement advice. In addition, we have previously determined that the supply relates to an application to which section 81-10(4) of the GST Act applies. On the basis that the fee is a fee for pre-lodgement advice which relates to an application which is covered by subsection 81-10(4) of the GST Act and it is not compulsory to seek that advice, the requirements of paragraph 81-10.01(e) of the GST Regulations are satisfied. This means that subsection 81-10(2) of the GST Act applies because the payment is an Australian fee or charge that is of a kind which is prescribed in the GST Regulations. Accordingly the relevant fees and charges are consideration for a supply. Therefore the supply to which this fee relates will be a taxable supply provided that all of the other conditions in section 9-5 of the GST Act are satisfied.

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