Private ruling: GST and home care
Date of advice: 2 October 2017
Published: February 2018

Ruling: Q1: Were you liable for goods and services tax (GST), pursuant to section 9-5 of the A New Tax System Goods and Services Tax Act 1999 , for the services you provided to the consumer for which you received payment from Entity B? | A1: Yes.

Relevant facts and circumstances: You are registered for GST. You provided services to the consumer who has a disability and receives a funding package (the funding) from a State Government Department (the Department). You did not receive the funding from the Department. The services you provided to the consumer were predominately community access (social and recreational activities), assisting with written correspondence and reading, organising appointments, some transfers, meal preparation as required and emotional support. You have considered the list of daily living activities assistance in the Quality of Care Principles 2014 (item XX services) and determined that you also provided the following assistance from the list: ● Showering – A staff member assists with a transfer to and from the shower chair. ● Shaving – Sometimes a staff member assists. ● Transfer to and from bed. You deliver your services in two shifts per day, a morning shift and an afternoon shift. The shifts are usually performed by different staff members. You have calculated the time (rounded up to nearest 5 second block using a stop watch) that you spend performing item XX services. You have calculated (using the more expensive Sunday rate) that the cost of the item XX services for the morning shift and the afternoon shift would each be less than $3:00. In addition, you have calculated that for Public Holidays during the period (using the Public Holiday rate) the cost of the item XX services for the morning shift and the afternoon shift would each be less than $3:00. You did not have a written agreement with the consumer as your services were purchased on an as needs basis. If the consumer cancels a shift without giving you 48 hours notice, they are required to pay for two hours of each shift. You invoiced the consumer directly for your services which are GST inclusive. For administrative ease you invoiced the consumer weekly. The consumer is able to self-direct their support and have control over the disability services they receive, however, they are unable to manage the financial side of their funding package. The consumer had previously engaged Entity B to hold and oversee the funding package which included paying for the services you provided to the consumer. The consumer would pass the invoices to Entity B for payment.

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 38-30 | A New Tax System (Goods and Services Tax) Act 1999 Section 38-38, and | A New Tax System (Goods and Services Tax) Act 1999 Section 38-40.

Reasons for decision: Summary: In this reasoning: ● unless otherwise stated, all legislative references are to the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) ● all terms marked by an asterisk are defined terms in the GST Act ● all reference materials, published by the Australian Taxation Office (ATO), that are referred to are available on ato.gov.au You must pay GST on any taxable supply you make. Section 9-5 provides that you make a taxable supply if: 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 the indirect tax zone (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. You were making a supply of services to a disabled person (the consumer) in Australia for consideration in the course of your care enterprise and you were (and continue to be) registered for GST. There are no GST provisions whereby your supply would be input taxed. Therefore, if your supply was not GST-free all the requirements of a taxable supply under section 9-5 are satisfied and your supply would be taxable. | Detailed Reasoning - Disability support provided to NDIS participants: Section 38-38 provides that certain supplies of disability supports to participants of the National Disability Insurance Scheme (NDIS) are GST-free. A supply to a participant of the NDIS is GST-free if the supply: (a) is a supply to a participant for whom a participant's plan is in effect under section 37 of the National Disability Insurance Scheme Act 2013 (b) is a supply of one or more of the reasonable and necessary supports specified in the statement of supports in the participant's plan (c) is made under a written agreement, between the supplier and the participant (or another person) that: (i) identifies the participant (ii) states that the supply is of one or more of the reasonable and necessary supports specified in the statement of supports in the NDIS plan, and (d) is of a kind determined in a legislative instrument by the Minister responsible for Disability Services. As the consumer was not a participant in the NDIS, section 38-38 does not apply to your services. | Detailed Reasoning - Specialist disability services: Section 38-40 provides that all services for which the supplier receives funding under the Disability Services Act 1986 , or under a complementary state or territory law, will be GST-free. As you did not receive any government funding, section 38-40 does not apply to your services. | Detailed Reasoning - Home care services: Government funded supplier The supply of care services to an aged or disabled person by a government funded supplier is GST-free where the requirements of subsection 38-30(1), (2) or (4) are met. As you did not receive any government funding, subsections 38-30(1), (2) or (4) do not apply. Non-government funded supplier The supply of home care services to an aged or disabled person, by a non-government funded supplier, is GST-free under subsection 38-30(3) to the extent that the services are of a kind covered by the Quality of Care Principles 2014 (Item XX). ‘Home care’ has the meaning given by section 45-3 of the Aged Care Act 1997 which provides: Home care is care consisting of a package of personal care services and other personal assistance provided to a person who is not being provided with residential care. Item XX lists the following services. | Detailed Reasoning - Content: XX Daily living activities assistance Personal assistance, including individual attention, individual supervision, and physical assistance, with the following: (a) bathing, showering, personal hygiene and grooming; (b) maintaining continence or managing incontinence, and using aids and appliances designed to assist continence management; (c) eating and eating aids, and using eating utensils and eating aids (including actual feeding if necessary); (d) dressing, undressing, and using dressing aids; (e) moving, walking, wheelchair use, and using devices and appliances designed to aid mobility, including the fitting of artificial limbs and other personal mobility aids; (f) communication, including to address difficulties arising from impaired hearing, sight or speech, or lack of common language (including fitting sensory communication aids), and checking hearing aid batteries and cleaning spectacles. Excludes hairdressing. The ATO Charities consultative committee resolved issues document (search for ‘QC 27139’ on the ATO website) lists the following services that are not covered by Item XX ● assistance with housework ● assistance with gardening ● meal preparation services ● grocery shopping for individuals ● monitoring medication ● rehabilitation services ● assistance with writing cheques, letters, etc ● advocacy services ● provision of social and community activities, such as providing companionship, craft and reading activities to individuals, and ● driving individuals to and from appointments. The services you provided to the consumer were predominately services that are not covered by Item XX and would not be GST-free, that is they were taxable supplies. However, there are some services that were covered by Item XX It is necessary to determine whether or not your supply of services that were covered by Item XX are separately identifiable, in which case they will be GST-free, or are integral, ancillary or incidental to your taxable supply of services, in which case they will be taxable. It is noted in paragraph 20 of Goods and Services Tax Ruling GSTR 2001/8 Goods and services tax: Apportioning the consideration for a supply that includes taxable and non-taxable parts that the distinction between parts that are separately identifiable and things that are integral, ancillary or incidental, is a question of fact and degree. Paragraph 60 of GSTR 2001/8 provides that as a means of minimising compliance costs, you may treat something (or things taken together) as being integral, ancillary or incidental if the consideration that would be apportioned to it (if it were part of a mixed supply) does not exceed the lesser of : ● $3.00, or ● 20% of the consideration of the total supply. Your services covered by item XX did not exceed $3.00. Taking into account the amount of time spent and total fees charged, it is considered that you may treat these services as integral, ancillary or incidental to the taxable services. For future reference, should the level of services covered by item XX exceed $3:00, the total consideration would need to be apportioned between the taxable supplies and the GST-free supplies. It is considered that apportionment on a time basis would be a reasonable method of apportionment. An example is outlined in paragraph 104 and 105 of GSTR 2001/8: Relative time to perform the supply 104. Where you supply services and charge them out on a time basis (for example, at an hourly rate), it may be reasonable to apportion the consideration for a mixed supply based on the time taken to perform the relevant taxable and non-taxable parts of the supply. This method may be suitable where you make mixed supplies of professional or trade services. Example 16 - GST-free and taxable services 105. Under direction from a doctor, Gilda provides home care to a privately funded client in the client's own home…. She charges a flat hourly rate for her services that include helping to feed and dress her client. These services are GST-free under section 38-30. Gilda also tidies her client's house and garden. These latter services are taxable. Gilda apportions the consideration for her services on the number of hours it takes for her to perform the services. This is a reasonable method of apportionment to ascertain the value of the taxable part of the supply.