Class Ruling CR 2013/25
Date of effect: 1 July 2013

What this ruling is about: 1. This Ruling sets out the Commissioner's opinion on the way in which the relevant provisions identified below apply to the defined class of entities, who take part in the scheme to which this Ruling relates. Relevant provision(s) 2. The relevant provisions dealt with in this Ruling are: 3. Unless otherwise stated, all legislative references in this Ruling are to the GST Act. Class of entities 4. The class of entities to which this Ruling applies consists of all councils that are members of the Local Government and Shires Association of New South Wales (NSW). 5. Within this Ruling the class of entities is collectively referred to as Council. Qualifications 6. The Commissioner makes this Ruling based on the precise scheme identified in this Ruling. 7. The class of entities defined in this Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 11 to 17 of this Ruling. 8. If the scheme actually carried out is materially different from the scheme that is described in this Ruling, then this Ruling: 9. [Omitted.]

Class of entities or scheme: 4. The class of entities to which this Ruling applies consists of all councils that are members of the Local Government and Shires Association of New South Wales (NSW). 5. Within this Ruling the class of entities is collectively referred to as Council. | Qualifications: 6. The Commissioner makes this Ruling based on the precise scheme identified in this Ruling. 7. The class of entities defined in this Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 11 to 17 of this Ruling. 8. If the scheme actually carried out is materially different from the scheme that is described in this Ruling, then this Ruling: 9. [Omitted.] 10. This Ruling applies from 1 July 2013 to all entities within the specified class who entered into the specified scheme during the term of the Ruling. However, this Ruling will not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of this Ruling (see paragraphs 75 and 76 of Taxation Ruling TR 2006/10). 11. The following description of the scheme is based on information provided by the applicant. 12. The scheme incorporates the supplies made by NSW Councils in relation to management and control of cemeteries, the use of facilities, leases of land, legal services, operating libraries and sales of goods, information, rights and services. 13. Council is registered for goods and services tax (GST). 14. The supplies made by Council are connected with Australia and made in the course or furtherance of Council's enterprise. 15. By force of section 220 of the Local Government Act NSW 1993 (NSW) (LG Act), Council is a body politic of the State of NSW with perpetual succession and the legal capacity and powers of an individual, both in and outside the State. 16. Council is empowered under the LG Act to: 17. Council levies charges for goods and services under various sections of the LG Act and the other NSW State statutes [1] . In particular, under subsection 608(1) of the LG Act, Council may charge and recover a fee for any service it provides. 18. This Ruling addresses the GST treatment of supplies made by Council in relation to cemeteries, facilities, leases, legal services, libraries and sale of things for which particular fees and charges are imposed. 19. In this Ruling: | Cemeteries: 19A. Table 1 outlines the GST treatment that applies to the fees and charges related to management and control of cemeteries. Includes inspection fee and fee for signing of linen plan, private plot. Exhumation includes reopening and closing of the grave. May include a fee for the removal and replacement of the monument and an administration fee. Search information for family trees. Interment generally means the sinking of the grave, the placement of the coffin or ashes therein, backfilling of the grave and removal of debris. Includes single, double and triple depth graves with work being performed during normal working hours, when late notice given, overtime fee for weekend work. Also includes reopening for second interment fees and fees for removal and replacement of headstone or monument for a second or subsequent interment, as well as fees for adding a new inscription after a second interment. May include a fee for plaque where Council combines the fee for a plaque with the interment fee. Relates to the supply of services rather than the supply of a permission Interment of ashes in columbarium (a vault or room with niches for urns containing ashes). Includes fee for disinterment of ashes. Includes deposits to reserve niche. Includes ashes relocation. May also include fee for provision and affixing of inscribed plaque and perpetual maintenance when Council charges a combined fee for all services. Includes fee for scattering of ashes. Also includes the fee for a wall niche reservation. Fee for burial permit outside hours of 9:00am to 5:00pm weekdays or on Saturday or Sunday. Burial permit fee for second interments. This charge is essentially an administration fee. Includes permit fee for the erection of foot stones, tombs, or other monuments such as stone or concrete slabs over graves, concrete kerbing, etc. Includes single and double graves. Includes fee for permit to perform work on cemetery grounds. Includes application fee for a war grave. Service and maintenance of graves, plaques, vases, ceramic photos etc. wall of remembrance plaque, plaque installation. Includes additional inscriptions on existing plaques or the provision of a cross. The fees or charges payable to a public cemetery operator or other Australian government agency in relation to the operator or other agency recording the granting or transfer of a burial right in a public cemetery. Includes an 'exclusive rights' certificate and the fee for a replacement 'exclusive rights' certificate. Also includes fees for perpetual maintenance of the plot when Council combines the two fees. Includes fee for family estate plots. Also includes fee for a tour guide, where applicable. A fee to cover Council's costs in updating the information contained on its cemetery register or otherwise kept by Council when the owner of a burial right transfers that right to another person. Associated with permit to perform works in a cemetery (monument or headstone permit). Where Council charges a flat fee for various funeral services including preparing the chapel or outdoor funeral area, land for the grave plot, first interment, community centre hall hire, supply and fixing of plaque, marquees at cemetery and a possible discount for pre-purchase. Where Council offers any combination of the above as a package deal including other supplies not specified herein. Where Council offers any combination of the services as a package deal including other supplies not specified herein that are exempt from GST (such as an interment right (burial right)) this will be a mixed supply. Mixed supplies of taxable supplies and GST-free or exempt supplies will need to be apportioned as provided in 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. | Facilities: 19B. Table 2 of this Ruling outlines the GST treatment that applies to the fees and charges related to the use of facilities. Commercial operators, flying schools. car parking charges in terminal car park and car park charges from car hire operators. Hire of runway. Avdata exemption fee. Commercial charter service. Commercial terminal fee. Use of terminal. Fee for closure and use of airport for commercial organisations, recreational, volunteering & sporting organisations. Hire of airport hangars. Terminal after hours opening fees, apron parking fees, pavement concession processing fees. Lighting, electricity, water or gas charge for using facility. Includes fees for hiring facilities at holiday parks. Includes occupation agreements for holiday vans. Use of theatres, rehearsal room, stage, sound and lighting hire and use of technicians, auditorium, vestibule, entertainment theatre, theatrette, studio, kitchen facilities, use of lobby. Includes call out fees. Includes cleaning fees where applicable and security provided by Council. Also includes the cost associated with repairing or replacing damaged, lost, or stolen equipment. Hire of child restraint equipment such as baby capsules. Hire of Council's mobile food van or street stall caravan. Fee for use and hire of equipment in connection with the use of Council footpath or mall. The hire of equipment may include complementary delivery of the equipment to a designated location or otherwise. Also includes surcharge for equipment to be picked up or delivered out of normal business hours. Fee for use of photocopying equipment at Council office or at a location owned by Council such as a visitor centre or library. Fee for the use of wireless access cards to access internet (charged by time increment). Fee for rental and hire of Sydney's New Years Eve operational assets including stage hire. Payment of costs associated with repairing or replacing damaged, lost, or stolen equipment. Includes the cost associated with repairing or replacing damaged, lost, or stolen equipment. Includes additional fee charged per person for occupation of a mooring over a 90-day period. Non-return fee of Council keys. Fees for providing barricading. Fee for revenue forgone, security and waste management etc. May include recovery of costs incurred by virtue of using electricity or water supply in connection with the use of facilities, particularly where Council may be simply passing on the usage costs to the user, rather than charging a flat rate. Fee for street sweeping or footpath cleaning for events or emergency response. Weddings on Council lands, reserves, property etc. Meeting rooms. Canine training facilities including ancillary services. Fee to use parks by personal trainers or fitness groups (where organisers charge a fee for entry). Access through reserves for construction or occupation of public space. Gate fee or gate opening service fee to parks and facilities. Council may allow its land to be used for storage or as a car park. May allow for residents or non-residents to hire storage space for dinghies. Any associated inspection fees for use of facilities for such access purposes and any fees applicable for restoration works required (that is, to landscaped and turfed areas). Storage fees for a range of items. Security call outs. Reimbursement of cost of goods damaged. Also includes fees collected by Council for agistment of cattle and other animals. Weddings on Council lands, reserves, property etc. Cafe hire including use of sink, chairs, tables and urn, microwave and fridge. Track and stable fees including horse training fees. Application fee to be a commoner and associated fee for assignment of sheep or other animals in relation to being a commoner. Includes access to private property via public land. Hire of Council-owned cruise boat for functions. Admission fees for natural areas such as caves where tours are offered. Fee for the use of central business district space, closed roads, malls and footpaths for market stalls and other vending and entertainment activities when conducted during a large-scale, city-wide festival such as the Tamworth Country Music Festival. Non-return fee of Council keys. Fees for providing barricading, revenue forgone, security and waste management etc. May include recovery of costs incurred by virtue of using electricity or water supply in connection with the use of facilities, particularly where Council may be simply passing on the usage costs to the user, rather than charging a flat rate. Fee for street sweeping or footpath cleaning for events or emergency response. Fees can be charged per animal (e.g. cattle, sheep, and pigs). Advertising panel fee. Animal weighing, truck or vehicle washing. National Vendor Declaration form microchip tag, includes scanning. Saleyard agent fees and marshalling charges. Scale weighing and private weighing, after hour call-out fees, etc. Fee for advertising signs at saleyards. Includes National Livestock Identification System scanning fee. Fee for office rental and other miscellaneous fees associated with the saleyard including use of truck wash facilities, telephone charges, removal of dead animals. Annual fee for maintenance of various sporting facilities on behalf of sports council. Fees for issuing of access key to facility or replacement key. Court hire fees. Hire fees for sport fields for cricket football, soccer, basketball, netball, hockey, touch football or oz tag. Golf course fees, golf driving range or bay hire. Fee for skate parks. Race track fees with use of grandstand also trotting track including fee per horse, rodeo park, stables. Any type of Council arena or field used for athletics carnival, triathlon, fun run, cross country, commercial sporting activities, biathlons, etc. Includes kiosk hire fees, control room, canteen etc. Hire for any non-sport activity by group. Charges for ground site clean-up, provision of bins and skips and removal of waste. Includes ancillary items, such as the cost of issuing and replacing a key or pass to access a facility out of season and out of hours, season tickets for residents of village area where pool located. Preprinted passes for players, participants, coaches, trainers, officials. Includes access to ancillary facilities or classes, such as yoga. Hire of rooms within the aquatic centre. Commercial activities. Pool parties. Out of open hours booking fee. Relates to the grant of permission for use of private land. | Leases: 19C. Table 3 of this Ruling outlines the GST treatment that applies to the fees and charges related to leases of land. Includes licences and permits for underground conduit or cable for a road crossing or occupation of Council land by cable or conduit. Gas and oil companies, Australia Post, street advertisers and other persons, including owners of clothing collection bins without current licences, and restaurants on footpaths without current licences, who possess, occupy or enjoy structures located on, under or over public land in the local government area. Includes fees for petrol, gas or diesel pump on a footpath. Applications to formalise an existing encroachment on Council land by creation of an easement, positive covenant, lease or licence. Applications for a covenant variation. Includes costs of the preparation by Council of the lease, stamp duties and costs associated with investigating the applications or preliminary investigations and reports to Council upon an application to purchase Council land. Leases of Council-owned vehicles to Council employees for private use. Renewal of lease including preparation of lease, survey and valuation fees associated with leases. Includes provision of keys and additional sets of keys. (Note: A lease or rental of residential dwellings that are owned by Council will be input taxed under section 40-35.) Under section 149 of the Roads Act 1993 (NSW) a roads authority may lease the air space above, or land below the surface of, any public road (other than a Crown road) that is owned by the authority. Under section 153 of the Roads Act 1993 (NSW) a roads authority may lease land comprising a public road (other than a Crown road) to the owner or lessee of land adjoining the public road if, in its opinion, the road is not being used by the public. Includes consents to erect bus shelters, bollards or other structures in, on or over a public road. The fee may be a flat fee or it may be calculated over time or per advertising panel on the structure or by other means. Under section 125 of the Roads Act 1993 (NSW), a Council may grant an approval that allows a person who conducts a restaurant adjacent to a footway of a public road to use part of the footway for the purposes of the restaurant. | Legal services: 19D. Table 4 of this Ruling outlines the GST treatment that applies to the fees and charges related to legal services These collections are a fee or charge to compensate an Australian government agency for costs incurred by the agency in undertaking regulatory activities. Where Council accepts fees on behalf of the courts in the case of service of process on behalf of the sheriff. An entity must pay conduct money when it requires Council or its officers to attend to give evidence or to produce documents, data or information. The conduct money must be reasonable to cover the cost of travel of a witness to the court and the reasonable costs of locating information and preparing the required evidence, documents, etc. The requirement to pay conduct money is explain under the Uniform Civil Procedures Rules 2005 (NSW). Council may apply to the court for an order that the issuing party pay an amount (in addition to conduct money and any witness's expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying with the subpoena. An entity must pay conduct money when it requires Council or its officers to attend to give evidence or to produce documents, data or information. | Library services: 19E. Table 5 of this Ruling outlines the GST treatment that applies to the fees and charges related to operating libraries. Includes any ancillary fees, such as processing fees imposed by lending libraries for inter-loans. The prescribed fee for the late return of library material is the fee determined by the local authority for the library, being a fee that (whether calculated on a daily, weekly or other basis) does not exceed $50 per item of library material. Part 4 of the Library Act 1939 (NSW) provides for the making of regulations to give effect to the Act including the making of charges in prescribed cases for the use of a library, library service or information service. The Library Regulation 2018 does not authorise the imposition of taxes, fines or penalties of any kind other than the charges detailed in clauses 7 and 8. The recommended national inter-lending charges as per Inter-Library Resource Sharing (ILRS) Code will be passed on to the borrower only if the lending library charges our library for the service. Includes fees associated with inter-library services, such as fees for items provided by facsimile, like journal articles, also includes ancillary charges, like courier or postal fees for delivery of items from other libraries and processing charges imposed by lending libraries. May also charge express service fee. Includes fee for non-collection of items ordered. Temporary borrower fee. | Sales: 19F. Table 6 of this Ruling outlines the GST treatment that applies to the fees and charges related to sales of goods. Includes attaching a hyperlink to a third party's business on Council website and web advertising. Generally applicable where Council enters into an agreement to promote a particular trade or business establishment. Generally an annual fee paid to Council. Also includes fee charged by Council when advertising a development application in the newspaper. Storage fees, retrieval fees, archival search and delivery fees included. Could also include a service provided by Council such as an e-lodgement service where Council scans documents required as part of the service instead of the applicant. Includes fee charged by Council for documents being transferred to CD-ROM. Includes scanning paper plans into Council's records system. Includes archiving interment information. Fees for services such as squad or stroke correction, private swimming lessons, aquarobics. Group fitness, boot camps, surf awareness program, surf survival program at beaches and fee to provide lifeguards (extra lifeguard required if class exceeds 20), FitKid class, Kidz holiday program, other school holiday program for children. Personal trainer session, personal fitness assessment, fitness assessment, by general practitioner or other person, naturopath or nutrition consultant. Body fat test, massage or any centre-initiated programs, short courses, weekend courses, youth programs. May be easy pay facility to allow payment over instalments, payroll deduction. Food safe costs, food handler's course, cost to attend, cost of kit (food safe) original version. Book clubs and educational tours. First aid class. Includes aged day care programs, computer class. Booking fees. Internet training, cost of providing activities or programs for children, word processing tuition, information provision on services program. Includes subscription fee for city or Council partnerships with individuals, students, families, businesses, organisations etc. Includes sponsorship packages purchased by businesses or organisations. Clearing of land by contractor. Includes administration fee  sections 13 and 14 of the Bushfire Act 1949 (NSW). Fee for use of general equipment  sport. Includes application fee for water transport vessels and registration fees for vessels based on vessel capacity. Includes the costs received from the sale of any food stuffs from cafeterias, cafés, restaurants or food halls that form part of any community facility operated or owned by Council. Permanent user of a Council facilities, casual hire of a Council facility for a party or function, casual hirer of a Council facility other than a party or function, use of a Council facility for a meeting. Council land that is sold out of a development project. Note: Residential land with an existing residence may be input taxed under section 40-65. Roads Act 1993 (NSW) section 217 LG Act section 608. Installation of community signs. Includes vehicular crossing, design services and associated inspections. May include delivery of such items or fees charged to collect the item once no longer required. Includes regulatory signs and road markings. Includes temporary bus zone signs. Also includes lamp hire. Also includes signposting of driveways (for example, no parking). The ES provides that fees and charges associated with erecting a stock crossing sign on the side of a road that a farmer has stock regularly crossing for example is not the provision of consideration. May also include fees for Council to remove graffiti from private property. Includes access fee to depot or quarry site (may be singular or annual). Where quarry or gravel pit is located on privately owned land, the sale may include a royalty to be paid to the private landowner. Also includes compost. Includes membership transfer fee and renewal fees. Sale of recycling or recycled material bags and other 'eco-friendly' merchandise. Sale of recycled stormwater to external organisations. Bike loan fees. Cost of tree plaque and perpetual maintenance in Council parks or reserves, street trees, woodchip sales, plant pots, young plants or trees sold in pots etc. Beach cleaning machine hire, diggers, rollers etc. Includes fee for travel cost per km. Rent paid to Council for placing equipment on Council's telecommunications tower. Note: Rent of council residential premises is input taxed. Includes sale of nursery stock such as seeds, tube stock, flowers etc. Commercial signs. Swimming pool safety signs, swimming pool chart, resuscitation charts. Soil and water management warning signs. Principal certifying authority site signage. Includes fees for travel, laboratory costs, and the test report. Fees for hire of any community transport vehicles and services provide by Council, such as a community bus or minibus. Includes fees associated with running costs for vehicles or related transport equipment and fees charged for cleaning community transport vehicles. Also includes sale of taxi vouchers and care car contributions. Commissioner of Taxation 1 May 2013 20. Subsection 7-1(1) provides that GST is payable on taxable supplies. As such, Council is liable to pay the GST payable on any taxable supply it makes. Section 9-5 states: 21. As Council is registered for GST and makes supplies in carrying on its enterprise in Australia, the issue that arises under section 9-5 is whether such supplies are supplies for consideration. 22. Section 9-39 provides special rules in relation to making taxable supplies. In particular, item 8 in the table in section 9-39 provides that where there is a payment of taxes, fees and charges the special rules in Division 81 may apply. | Australian tax: 23. Section 81-5 considers the effect of the payment of a tax. It states: 24. The term 'Australian tax' is defined in section 195-1 as: 25. 'Tax' is not defined in the GST Act. However, the following is the usual description of a tax, as cited in the High Court case of Roy Morgan Research Pty Ltd v. CMR of Taxation [2011] HCA 35 (Roy Morgan), as per Latham CJ in Matthews v. Chicory Marketing Board (Vict) (1938) 60 CLR 263. 26. The above description includes the words 'not a payment for services rendered'. It was discussed in Air Caledonie International v. Commonwealth (1988) 165 CLR 462 that in order to be classified as a fee for service rather than a tax, the fee or charge must be exacted for particular identified services provided or rendered individually to, or at the request or direction of, the particular person required to make the payment. 27. Apart from legal fees that are in the nature of rates and therefore a tax, we consider that none of the other fees or charges, or the discharging of a liability to make such payments, as detailed in the tables in this Ruling, are a tax. | Australian fees and charges: 28. Sections 81-10 and 81-15 consider the effect of certain fees and charges and state: 29. The term 'Australian fee or charge' is defined in section 195-1 as: | Australian law: 30. The term 'Australian law' is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) and relevantly includes a State law. It includes acts and law making powers which are delegated by parliaments, such as regulations, by-laws, proclamations and orders made under Acts. | Australian government agency: 31. The term 'Australian government agency' is defined in section 995-1 of the ITAA 1997 and means: 32. For the purposes of this Ruling it is accepted that Council comes within the definition of Australian government agency. 33. [Omitted.] 34. [Omitted.] 35. [Omitted.] 36. [Omitted.] 37. [Omitted.] 38. [Omitted.] 39. [Omitted.] | Division 81 of the GST Act and Division 81 of the GST Regulations: 39A. Subsection 81-10(1) of the GST Act excludes from consideration certain Australian fees or charges if they are covered by subsections 81-10(4) or 81-10(5) of the GST Act. Section 81-15 of the GST Act also enables the GST Regulations to prescribe that kinds of Australian fees or charges are excluded from being consideration. 39B. If these exclusions apply, the supply to which the fees or charges relate is not subject to GST, because the supply is not made for consideration. 39C. The exclusions from GST cover the following kinds of fees or charges imposed by and payable to Australian government agencies under state or territory legislation: 39D. As an exception to these exclusions from GST, subsection 81-10(2) of the GST Act permits the GST Regulations to prescribe that certain payments of Australian fees or charges are to be treated as consideration. The prescribed fees or charges that are treated as consideration include a fee or charge paid to an Australian government agency: 39E. When these regulations apply, the fee or charge is deemed to be consideration for a supply made by the Australian government agency. Consequently, that fee or charge becomes subject to GST if the other requirements for making a taxable supply are met. | Australian fees and charges covered by both sections 81-10.01 and 81-15.01 of the GST Regulations: 40. If a fee or charge is covered by both sections 81-10.01 and 81-15.01 of the GST Regulations, section 81-15.02 of the GST Regulations determines which section would prevail. For example, a fee for recovering the costs for usage of facilities is covered by both paragraph 81-10.01(c) and paragraph 81-15.01(d) of the GST regulations. In such a situation, subsection 81-15.02(2) of the GST Regulations provides that paragraph 81-10.01(c) of the GST Regulations would prevail and the fee would constitute consideration. | Cemeteries, facilities, leases, library services, legal services, sales: 41. The following comments and explanation refer to particular groups of items in Tables 1 to 6 of this Ruling. | Cemeteries: 42. Cemetery fees and charges are generally considered to be consideration for taxable supplies for purposes of section 9-5. However, subsections 81-10(1) and 81-10(4) of the GST Act exclude from consideration, a legislatively imposed fee or charge paid to an Australian government agency that relates to, or relates to an application for; the provision, retention, or amendment, under an Australian law, of a permission, exemption, authority or licence (however described). Subsections 81-10(1) and 81-10(5) excludes from consideration, a legislatively imposed fee or charge paid to an Australian government agency if the fee or charge relates to the agency receiving, recording, modifying, or processing information. 43. The fees or charges payable to a public cemetery operator for the supply of other goods and services made in relation to a burial or cremation, including memorial plaques and gravedigging services are consideration for a supply. 43A. The following supplies made by an Australian government agency are not subject to GST: 43B. The fees or charges payable to an Australian government agency in relation to the agency recording the granting or transfer of a burial right in a public cemetery are not consideration for a supply. | Apportionment of mixed supplies: 43C. An Australian government agency that supplies a burial right in a public cemetery (which is not subject to GST), together with other supplies that are subject to GST, such as gravedigging services, memorial plaques and hiring of a hall, must therefore ensure that GST is not included in the fee or charge that relates to the supply of a burial right. They are separate supplies that have different GST treatment. It is not a single supply of a funeral service. | Facilities: 44. The payment of a fee for the provision of a permission, authority or licence is covered under subsection 81-10(4) and would not be the provision of consideration. However, the payment 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 regulations. 45. Section 81-10.01 of the GST Regulations relevantly provides that for subsection 81-10(2), the following kinds of Australian fee or charge are prescribed: 46. Accordingly, a fee or charge for the hire or entry to a municipal Council facility or the use of municipal Council equipment is consideration for a supply. Where a supply satisfies the positive requirements of section 9-5, the supply is taxable. However, the supply is not a taxable supply to the extent that it is either GST-free or input taxed. | Leases: 47. An application fee for a new lease of council land, a covenant variation or public road reserve is consideration for a taxable supply. This includes an application to formalise an existing encroachment on council land by the creation of an easement, positive covenant or lease etc. It also includes any application to lease, licence or purchase council property. The application fee may include the costs of the preparation by council of the lease and stamp duty as well as fees associated with investigating the application. A fee for preliminary investigations and reports to Council upon an application to purchase community land is also consideration for a taxable supply. | Approval to occupy footway: 48. Under section 125 of the Roads Act 1993 (NSW) a Council may grant an approval that allows a person who conducts a restaurant adjacent to a footway of a public road, to use part of the footway for the purposes of the restaurant. We consider the granting of an approval under this section is a permission for purposes of section 81-10(4). | Library services: 49. The operation of libraries in NSW is governed by the Library Act 1939 and the Library Regulation 2018 (NSW). Certain fees are imposed by Council to regulate the use of the libraries. These fees are exempt from GST under paragraph 81-15.01(f) of the GST Regulations as they are for supplies of a regulatory nature. | Legal services: 50. Council may incur legal fees in administering their activity and is entitled to claim input tax credits if the legal services are taxable supplies to it. 51. The LG Act provides that legal fees recouped in the recovery of rates take the nature of rates. These receipts are therefore regarded as taxes and are not consideration for a supply under section 81-5. | Sales: 52. Generally, the supplies of goods and services by Council for consideration are taxable supplies unless the supply is GST-free or input taxed. 53. Where the payment is not treated as consideration under Division 81, the supply is not a taxable supply under section 9-5. 54. Where the payment is treated as consideration under Division 81, and the positive requirements of section 9-5 are met, the supply is a taxable supply. | New South Wales Acts: 55. The following New South Wales Acts were considered in preparing this Ruling: | Local Government Act 1993 (NSW): 56. Section 220 of the LG Act states: 57. Section 608 of the LG Act states: | Roads Act 1993 (NSW): 58. Sections 125 and 126 of the Roads Act 1993 (NSW) state: 59. The following is a detailed contents list for this Ruling: © AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).

Ruling: 18. This Ruling addresses the GST treatment of supplies made by Council in relation to cemeteries, facilities, leases, legal services, libraries and sale of things for which particular fees and charges are imposed. 19. In this Ruling: | Cemeteries: 19A. Table 1 outlines the GST treatment that applies to the fees and charges related to management and control of cemeteries. Includes inspection fee and fee for signing of linen plan, private plot. Exhumation includes reopening and closing of the grave. May include a fee for the removal and replacement of the monument and an administration fee. Search information for family trees. Interment generally means the sinking of the grave, the placement of the coffin or ashes therein, backfilling of the grave and removal of debris. Includes single, double and triple depth graves with work being performed during normal working hours, when late notice given, overtime fee for weekend work. Also includes reopening for second interment fees and fees for removal and replacement of headstone or monument for a second or subsequent interment, as well as fees for adding a new inscription after a second interment. May include a fee for plaque where Council combines the fee for a plaque with the interment fee. Relates to the supply of services rather than the supply of a permission Interment of ashes in columbarium (a vault or room with niches for urns containing ashes). Includes fee for disinterment of ashes. Includes deposits to reserve niche. Includes ashes relocation. May also include fee for provision and affixing of inscribed plaque and perpetual maintenance when Council charges a combined fee for all services. Includes fee for scattering of ashes. Also includes the fee for a wall niche reservation. Fee for burial permit outside hours of 9:00am to 5:00pm weekdays or on Saturday or Sunday. Burial permit fee for second interments. This charge is essentially an administration fee. Includes permit fee for the erection of foot stones, tombs, or other monuments such as stone or concrete slabs over graves, concrete kerbing, etc. Includes single and double graves. Includes fee for permit to perform work on cemetery grounds. Includes application fee for a war grave. Service and maintenance of graves, plaques, vases, ceramic photos etc. wall of remembrance plaque, plaque installation. Includes additional inscriptions on existing plaques or the provision of a cross. The fees or charges payable to a public cemetery operator or other Australian government agency in relation to the operator or other agency recording the granting or transfer of a burial right in a public cemetery. Includes an 'exclusive rights' certificate and the fee for a replacement 'exclusive rights' certificate. Also includes fees for perpetual maintenance of the plot when Council combines the two fees. Includes fee for family estate plots. Also includes fee for a tour guide, where applicable. A fee to cover Council's costs in updating the information contained on its cemetery register or otherwise kept by Council when the owner of a burial right transfers that right to another person. Associated with permit to perform works in a cemetery (monument or headstone permit). Where Council charges a flat fee for various funeral services including preparing the chapel or outdoor funeral area, land for the grave plot, first interment, community centre hall hire, supply and fixing of plaque, marquees at cemetery and a possible discount for pre-purchase. Where Council offers any combination of the above as a package deal including other supplies not specified herein. Where Council offers any combination of the services as a package deal including other supplies not specified herein that are exempt from GST (such as an interment right (burial right)) this will be a mixed supply. Mixed supplies of taxable supplies and GST-free or exempt supplies will need to be apportioned as provided in 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. | Facilities: 19B. Table 2 of this Ruling outlines the GST treatment that applies to the fees and charges related to the use of facilities. Commercial operators, flying schools. car parking charges in terminal car park and car park charges from car hire operators. Hire of runway. Avdata exemption fee. Commercial charter service. Commercial terminal fee. Use of terminal. Fee for closure and use of airport for commercial organisations, recreational, volunteering & sporting organisations. Hire of airport hangars. Terminal after hours opening fees, apron parking fees, pavement concession processing fees. Lighting, electricity, water or gas charge for using facility. Includes fees for hiring facilities at holiday parks. Includes occupation agreements for holiday vans. Use of theatres, rehearsal room, stage, sound and lighting hire and use of technicians, auditorium, vestibule, entertainment theatre, theatrette, studio, kitchen facilities, use of lobby. Includes call out fees. Includes cleaning fees where applicable and security provided by Council. Also includes the cost associated with repairing or replacing damaged, lost, or stolen equipment. Hire of child restraint equipment such as baby capsules. Hire of Council's mobile food van or street stall caravan. Fee for use and hire of equipment in connection with the use of Council footpath or mall. The hire of equipment may include complementary delivery of the equipment to a designated location or otherwise. Also includes surcharge for equipment to be picked up or delivered out of normal business hours. Fee for use of photocopying equipment at Council office or at a location owned by Council such as a visitor centre or library. Fee for the use of wireless access cards to access internet (charged by time increment). Fee for rental and hire of Sydney's New Years Eve operational assets including stage hire. Payment of costs associated with repairing or replacing damaged, lost, or stolen equipment. Includes the cost associated with repairing or replacing damaged, lost, or stolen equipment. Includes additional fee charged per person for occupation of a mooring over a 90-day period. Non-return fee of Council keys. Fees for providing barricading. Fee for revenue forgone, security and waste management etc. May include recovery of costs incurred by virtue of using electricity or water supply in connection with the use of facilities, particularly where Council may be simply passing on the usage costs to the user, rather than charging a flat rate. Fee for street sweeping or footpath cleaning for events or emergency response. Weddings on Council lands, reserves, property etc. Meeting rooms. Canine training facilities including ancillary services. Fee to use parks by personal trainers or fitness groups (where organisers charge a fee for entry). Access through reserves for construction or occupation of public space. Gate fee or gate opening service fee to parks and facilities. Council may allow its land to be used for storage or as a car park. May allow for residents or non-residents to hire storage space for dinghies. Any associated inspection fees for use of facilities for such access purposes and any fees applicable for restoration works required (that is, to landscaped and turfed areas). Storage fees for a range of items. Security call outs. Reimbursement of cost of goods damaged. Also includes fees collected by Council for agistment of cattle and other animals. Weddings on Council lands, reserves, property etc. Cafe hire including use of sink, chairs, tables and urn, microwave and fridge. Track and stable fees including horse training fees. Application fee to be a commoner and associated fee for assignment of sheep or other animals in relation to being a commoner. Includes access to private property via public land. Hire of Council-owned cruise boat for functions. Admission fees for natural areas such as caves where tours are offered. Fee for the use of central business district space, closed roads, malls and footpaths for market stalls and other vending and entertainment activities when conducted during a large-scale, city-wide festival such as the Tamworth Country Music Festival. Non-return fee of Council keys. Fees for providing barricading, revenue forgone, security and waste management etc. May include recovery of costs incurred by virtue of using electricity or water supply in connection with the use of facilities, particularly where Council may be simply passing on the usage costs to the user, rather than charging a flat rate. Fee for street sweeping or footpath cleaning for events or emergency response. Fees can be charged per animal (e.g. cattle, sheep, and pigs). Advertising panel fee. Animal weighing, truck or vehicle washing. National Vendor Declaration form microchip tag, includes scanning. Saleyard agent fees and marshalling charges. Scale weighing and private weighing, after hour call-out fees, etc. Fee for advertising signs at saleyards. Includes National Livestock Identification System scanning fee. Fee for office rental and other miscellaneous fees associated with the saleyard including use of truck wash facilities, telephone charges, removal of dead animals. Annual fee for maintenance of various sporting facilities on behalf of sports council. Fees for issuing of access key to facility or replacement key. Court hire fees. Hire fees for sport fields for cricket football, soccer, basketball, netball, hockey, touch football or oz tag. Golf course fees, golf driving range or bay hire. Fee for skate parks. Race track fees with use of grandstand also trotting track including fee per horse, rodeo park, stables. Any type of Council arena or field used for athletics carnival, triathlon, fun run, cross country, commercial sporting activities, biathlons, etc. Includes kiosk hire fees, control room, canteen etc. Hire for any non-sport activity by group. Charges for ground site clean-up, provision of bins and skips and removal of waste. Includes ancillary items, such as the cost of issuing and replacing a key or pass to access a facility out of season and out of hours, season tickets for residents of village area where pool located. Preprinted passes for players, participants, coaches, trainers, officials. Includes access to ancillary facilities or classes, such as yoga. Hire of rooms within the aquatic centre. Commercial activities. Pool parties. Out of open hours booking fee. Relates to the grant of permission for use of private land. | Leases: 19C. Table 3 of this Ruling outlines the GST treatment that applies to the fees and charges related to leases of land. Includes licences and permits for underground conduit or cable for a road crossing or occupation of Council land by cable or conduit. Gas and oil companies, Australia Post, street advertisers and other persons, including owners of clothing collection bins without current licences, and restaurants on footpaths without current licences, who possess, occupy or enjoy structures located on, under or over public land in the local government area. Includes fees for petrol, gas or diesel pump on a footpath. Applications to formalise an existing encroachment on Council land by creation of an easement, positive covenant, lease or licence. Applications for a covenant variation. Includes costs of the preparation by Council of the lease, stamp duties and costs associated with investigating the applications or preliminary investigations and reports to Council upon an application to purchase Council land. Leases of Council-owned vehicles to Council employees for private use. Renewal of lease including preparation of lease, survey and valuation fees associated with leases. Includes provision of keys and additional sets of keys. (Note: A lease or rental of residential dwellings that are owned by Council will be input taxed under section 40-35.) Under section 149 of the Roads Act 1993 (NSW) a roads authority may lease the air space above, or land below the surface of, any public road (other than a Crown road) that is owned by the authority. Under section 153 of the Roads Act 1993 (NSW) a roads authority may lease land comprising a public road (other than a Crown road) to the owner or lessee of land adjoining the public road if, in its opinion, the road is not being used by the public. Includes consents to erect bus shelters, bollards or other structures in, on or over a public road. The fee may be a flat fee or it may be calculated over time or per advertising panel on the structure or by other means. Under section 125 of the Roads Act 1993 (NSW), a Council may grant an approval that allows a person who conducts a restaurant adjacent to a footway of a public road to use part of the footway for the purposes of the restaurant. | Legal services: 19D. Table 4 of this Ruling outlines the GST treatment that applies to the fees and charges related to legal services These collections are a fee or charge to compensate an Australian government agency for costs incurred by the agency in undertaking regulatory activities. Where Council accepts fees on behalf of the courts in the case of service of process on behalf of the sheriff. An entity must pay conduct money when it requires Council or its officers to attend to give evidence or to produce documents, data or information. The conduct money must be reasonable to cover the cost of travel of a witness to the court and the reasonable costs of locating information and preparing the required evidence, documents, etc. The requirement to pay conduct money is explain under the Uniform Civil Procedures Rules 2005 (NSW). Council may apply to the court for an order that the issuing party pay an amount (in addition to conduct money and any witness's expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying with the subpoena. An entity must pay conduct money when it requires Council or its officers to attend to give evidence or to produce documents, data or information. | Library services: 19E. Table 5 of this Ruling outlines the GST treatment that applies to the fees and charges related to operating libraries. Includes any ancillary fees, such as processing fees imposed by lending libraries for inter-loans. The prescribed fee for the late return of library material is the fee determined by the local authority for the library, being a fee that (whether calculated on a daily, weekly or other basis) does not exceed $50 per item of library material. Part 4 of the Library Act 1939 (NSW) provides for the making of regulations to give effect to the Act including the making of charges in prescribed cases for the use of a library, library service or information service. The Library Regulation 2018 does not authorise the imposition of taxes, fines or penalties of any kind other than the charges detailed in clauses 7 and 8. The recommended national inter-lending charges as per Inter-Library Resource Sharing (ILRS) Code will be passed on to the borrower only if the lending library charges our library for the service. Includes fees associated with inter-library services, such as fees for items provided by facsimile, like journal articles, also includes ancillary charges, like courier or postal fees for delivery of items from other libraries and processing charges imposed by lending libraries. May also charge express service fee. Includes fee for non-collection of items ordered. Temporary borrower fee. | Sales: 19F. Table 6 of this Ruling outlines the GST treatment that applies to the fees and charges related to sales of goods. Includes attaching a hyperlink to a third party's business on Council website and web advertising. Generally applicable where Council enters into an agreement to promote a particular trade or business establishment. Generally an annual fee paid to Council. Also includes fee charged by Council when advertising a development application in the newspaper. Storage fees, retrieval fees, archival search and delivery fees included. Could also include a service provided by Council such as an e-lodgement service where Council scans documents required as part of the service instead of the applicant. Includes fee charged by Council for documents being transferred to CD-ROM. Includes scanning paper plans into Council's records system. Includes archiving interment information. Fees for services such as squad or stroke correction, private swimming lessons, aquarobics. Group fitness, boot camps, surf awareness program, surf survival program at beaches and fee to provide lifeguards (extra lifeguard required if class exceeds 20), FitKid class, Kidz holiday program, other school holiday program for children. Personal trainer session, personal fitness assessment, fitness assessment, by general practitioner or other person, naturopath or nutrition consultant. Body fat test, massage or any centre-initiated programs, short courses, weekend courses, youth programs. May be easy pay facility to allow payment over instalments, payroll deduction. Food safe costs, food handler's course, cost to attend, cost of kit (food safe) original version. Book clubs and educational tours. First aid class. Includes aged day care programs, computer class. Booking fees. Internet training, cost of providing activities or programs for children, word processing tuition, information provision on services program. Includes subscription fee for city or Council partnerships with individuals, students, families, businesses, organisations etc. Includes sponsorship packages purchased by businesses or organisations. Clearing of land by contractor. Includes administration fee  sections 13 and 14 of the Bushfire Act 1949 (NSW). Fee for use of general equipment  sport. Includes application fee for water transport vessels and registration fees for vessels based on vessel capacity. Includes the costs received from the sale of any food stuffs from cafeterias, cafés, restaurants or food halls that form part of any community facility operated or owned by Council. Permanent user of a Council facilities, casual hire of a Council facility for a party or function, casual hirer of a Council facility other than a party or function, use of a Council facility for a meeting. Council land that is sold out of a development project. Note: Residential land with an existing residence may be input taxed under section 40-65. Roads Act 1993 (NSW) section 217 LG Act section 608. Installation of community signs. Includes vehicular crossing, design services and associated inspections. May include delivery of such items or fees charged to collect the item once no longer required. Includes regulatory signs and road markings. Includes temporary bus zone signs. Also includes lamp hire. Also includes signposting of driveways (for example, no parking). The ES provides that fees and charges associated with erecting a stock crossing sign on the side of a road that a farmer has stock regularly crossing for example is not the provision of consideration. May also include fees for Council to remove graffiti from private property. Includes access fee to depot or quarry site (may be singular or annual). Where quarry or gravel pit is located on privately owned land, the sale may include a royalty to be paid to the private landowner. Also includes compost. Includes membership transfer fee and renewal fees. Sale of recycling or recycled material bags and other 'eco-friendly' merchandise. Sale of recycled stormwater to external organisations. Bike loan fees. Cost of tree plaque and perpetual maintenance in Council parks or reserves, street trees, woodchip sales, plant pots, young plants or trees sold in pots etc. Beach cleaning machine hire, diggers, rollers etc. Includes fee for travel cost per km. Rent paid to Council for placing equipment on Council's telecommunications tower. Note: Rent of council residential premises is input taxed. Includes sale of nursery stock such as seeds, tube stock, flowers etc. Commercial signs. Swimming pool safety signs, swimming pool chart, resuscitation charts. Soil and water management warning signs. Principal certifying authority site signage. Includes fees for travel, laboratory costs, and the test report. Fees for hire of any community transport vehicles and services provide by Council, such as a community bus or minibus. Includes fees associated with running costs for vehicles or related transport equipment and fees charged for cleaning community transport vehicles. Also includes sale of taxi vouchers and care car contributions. Commissioner of Taxation 1 May 2013


Appendix: 20. Subsection 7-1(1) provides that GST is payable on taxable supplies. As such, Council is liable to pay the GST payable on any taxable supply it makes. Section 9-5 states: 21. As Council is registered for GST and makes supplies in carrying on its enterprise in Australia, the issue that arises under section 9-5 is whether such supplies are supplies for consideration. 22. Section 9-39 provides special rules in relation to making taxable supplies. In particular, item 8 in the table in section 9-39 provides that where there is a payment of taxes, fees and charges the special rules in Division 81 may apply. | Australian tax: 23. Section 81-5 considers the effect of the payment of a tax. It states: 24. The term 'Australian tax' is defined in section 195-1 as: 25. 'Tax' is not defined in the GST Act. However, the following is the usual description of a tax, as cited in the High Court case of Roy Morgan Research Pty Ltd v. CMR of Taxation [2011] HCA 35 (Roy Morgan), as per Latham CJ in Matthews v. Chicory Marketing Board (Vict) (1938) 60 CLR 263. 26. The above description includes the words 'not a payment for services rendered'. It was discussed in Air Caledonie International v. Commonwealth (1988) 165 CLR 462 that in order to be classified as a fee for service rather than a tax, the fee or charge must be exacted for particular identified services provided or rendered individually to, or at the request or direction of, the particular person required to make the payment. 27. Apart from legal fees that are in the nature of rates and therefore a tax, we consider that none of the other fees or charges, or the discharging of a liability to make such payments, as detailed in the tables in this Ruling, are a tax. | Australian fees and charges: 28. Sections 81-10 and 81-15 consider the effect of certain fees and charges and state: 29. The term 'Australian fee or charge' is defined in section 195-1 as: | Australian law: 30. The term 'Australian law' is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) and relevantly includes a State law. It includes acts and law making powers which are delegated by parliaments, such as regulations, by-laws, proclamations and orders made under Acts. | Australian government agency: 31. The term 'Australian government agency' is defined in section 995-1 of the ITAA 1997 and means: 32. For the purposes of this Ruling it is accepted that Council comes within the definition of Australian government agency. 33. [Omitted.] 34. [Omitted.] 35. [Omitted.] 36. [Omitted.] 37. [Omitted.] 38. [Omitted.] 39. [Omitted.] | Division 81 of the GST Act and Division 81 of the GST Regulations: 39A. Subsection 81-10(1) of the GST Act excludes from consideration certain Australian fees or charges if they are covered by subsections 81-10(4) or 81-10(5) of the GST Act. Section 81-15 of the GST Act also enables the GST Regulations to prescribe that kinds of Australian fees or charges are excluded from being consideration. 39B. If these exclusions apply, the supply to which the fees or charges relate is not subject to GST, because the supply is not made for consideration. 39C. The exclusions from GST cover the following kinds of fees or charges imposed by and payable to Australian government agencies under state or territory legislation: 39D. As an exception to these exclusions from GST, subsection 81-10(2) of the GST Act permits the GST Regulations to prescribe that certain payments of Australian fees or charges are to be treated as consideration. The prescribed fees or charges that are treated as consideration include a fee or charge paid to an Australian government agency: 39E. When these regulations apply, the fee or charge is deemed to be consideration for a supply made by the Australian government agency. Consequently, that fee or charge becomes subject to GST if the other requirements for making a taxable supply are met. | Australian fees and charges covered by both sections 81-10.01 and 81-15.01 of the GST Regulations: 40. If a fee or charge is covered by both sections 81-10.01 and 81-15.01 of the GST Regulations, section 81-15.02 of the GST Regulations determines which section would prevail. For example, a fee for recovering the costs for usage of facilities is covered by both paragraph 81-10.01(c) and paragraph 81-15.01(d) of the GST regulations. In such a situation, subsection 81-15.02(2) of the GST Regulations provides that paragraph 81-10.01(c) of the GST Regulations would prevail and the fee would constitute consideration. | Cemeteries, facilities, leases, library services, legal services, sales: 41. The following comments and explanation refer to particular groups of items in Tables 1 to 6 of this Ruling. | Cemeteries: 42. Cemetery fees and charges are generally considered to be consideration for taxable supplies for purposes of section 9-5. However, subsections 81-10(1) and 81-10(4) of the GST Act exclude from consideration, a legislatively imposed fee or charge paid to an Australian government agency that relates to, or relates to an application for; the provision, retention, or amendment, under an Australian law, of a permission, exemption, authority or licence (however described). Subsections 81-10(1) and 81-10(5) excludes from consideration, a legislatively imposed fee or charge paid to an Australian government agency if the fee or charge relates to the agency receiving, recording, modifying, or processing information. 43. The fees or charges payable to a public cemetery operator for the supply of other goods and services made in relation to a burial or cremation, including memorial plaques and gravedigging services are consideration for a supply. 43A. The following supplies made by an Australian government agency are not subject to GST: 43B. The fees or charges payable to an Australian government agency in relation to the agency recording the granting or transfer of a burial right in a public cemetery are not consideration for a supply. | Apportionment of mixed supplies: 43C. An Australian government agency that supplies a burial right in a public cemetery (which is not subject to GST), together with other supplies that are subject to GST, such as gravedigging services, memorial plaques and hiring of a hall, must therefore ensure that GST is not included in the fee or charge that relates to the supply of a burial right. They are separate supplies that have different GST treatment. It is not a single supply of a funeral service. | Facilities: 44. The payment of a fee for the provision of a permission, authority or licence is covered under subsection 81-10(4) and would not be the provision of consideration. However, the payment 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 regulations. 45. Section 81-10.01 of the GST Regulations relevantly provides that for subsection 81-10(2), the following kinds of Australian fee or charge are prescribed: 46. Accordingly, a fee or charge for the hire or entry to a municipal Council facility or the use of municipal Council equipment is consideration for a supply. Where a supply satisfies the positive requirements of section 9-5, the supply is taxable. However, the supply is not a taxable supply to the extent that it is either GST-free or input taxed. | Leases: 47. An application fee for a new lease of council land, a covenant variation or public road reserve is consideration for a taxable supply. This includes an application to formalise an existing encroachment on council land by the creation of an easement, positive covenant or lease etc. It also includes any application to lease, licence or purchase council property. The application fee may include the costs of the preparation by council of the lease and stamp duty as well as fees associated with investigating the application. A fee for preliminary investigations and reports to Council upon an application to purchase community land is also consideration for a taxable supply. | Approval to occupy footway: 48. Under section 125 of the Roads Act 1993 (NSW) a Council may grant an approval that allows a person who conducts a restaurant adjacent to a footway of a public road, to use part of the footway for the purposes of the restaurant. We consider the granting of an approval under this section is a permission for purposes of section 81-10(4). | Library services: 49. The operation of libraries in NSW is governed by the Library Act 1939 and the Library Regulation 2018 (NSW). Certain fees are imposed by Council to regulate the use of the libraries. These fees are exempt from GST under paragraph 81-15.01(f) of the GST Regulations as they are for supplies of a regulatory nature. | Legal services: 50. Council may incur legal fees in administering their activity and is entitled to claim input tax credits if the legal services are taxable supplies to it. 51. The LG Act provides that legal fees recouped in the recovery of rates take the nature of rates. These receipts are therefore regarded as taxes and are not consideration for a supply under section 81-5. | Sales: 52. Generally, the supplies of goods and services by Council for consideration are taxable supplies unless the supply is GST-free or input taxed. 53. Where the payment is not treated as consideration under Division 81, the supply is not a taxable supply under section 9-5. 54. Where the payment is treated as consideration under Division 81, and the positive requirements of section 9-5 are met, the supply is a taxable supply.


What this Ruling is about | NOT LEGALLY BINDING SECTION: | If this Ruling applies to you, and you correctly rely on it, we will apply the law to you in the way set out in this Ruling. That is, you will not pay any more tax or penalties or interest in respect of the matters covered by this Ruling. | (Note: This is a consolidated version of this document. Refer to the ATO Legal database (ato.gov.au/law) to check its currency and to view the details of all changes.) | Provision of an additional vase etc. | Administration fee for burial on private land | Includes inspection fees. | Exempt  paragraph 81-15.01(f) of the GST Regulations | Includes grave plot, wall niche or garden niche. | This is an acquisition from the entity that holds the right to a plot. This is not a fee or charge imposed by Council. | Cremation charge or chapel hire (or both). | Fee for safe custody of ashes | Digging and backfilling fee | Taxable  section 9-5 and paragraph 81-10.01(1)(g) of the GST Regulations | Subsequent interment excavation fee | Fee applicable for excavation for additional interments. | A fee for permit for approved exhumation. | Fee collected from funeral director for incorrect burial | Exempt  subsection 81-10(5) information | Fee for late arrival at cemetery for funeral | Where Council charges a fee when the funeral party fails to arrive at the scheduled time for the funeral, also includes extended service. | Lawn cemetery  burial fee, plaque and vase | The comprehensive fee to be buried in the lawn section of the cemetery. | Maintenance charges, ceramic photo, refurbish or replace plaque, additional motifs or emblem, cast bronze vase, vase holder. | On site cemetery meeting fee | Where the purpose of the meeting is to plan details of the burial and not merely to convey information. | A charge for the supply and installation of a monument. | Monument or headstone permit fee | Fee for permit to carry out works in a cemetery | Permit fee for grave diggers, masons, funeral directors, etc. to perform works associated with funeral services in a cemetery. | Fee for permit to install a plaque | Permit for permission to install or affix a plaque. | Fee for the supply of a plaque | Exempt  under subsections 81-10(1) and 81-10(4) | Charge for plot  single, double, child | Charge for plot reservation and interment | Reservation fee plus first interment. | Fee to re-identify a burial plot | Investigate and identify a burial plot occupant. | Fee for cemetery register | A fee for the provision of information contained in the cemetery register. | Funeral services weekend or public holiday surcharge. | Where Council charges an additional fee for funeral services generally on weekends or public holidays. | Taxable  section 9-5 and paragraph 81-10.01(1)(c) of the GST Regulations | Fee for transfer burial right. | Exempt  subsection 81-10(5) information and record-keeping | Fee for conveyance of body | Fee for conveyance or transportation of a body. | Fee for internal vehicle access for monumental work | Funeral services package fee | Fee for utilisation of Council staff for various activities within a cemetery | Charge for work performed by Council staff. | Use of facilities  airport | Use of facilities  camping grounds and caravan parks | Use of facilities  civic centre | Use of general equipment fee  civic | Use of general equipment fee  other | Use of general equipment fee  library | Use of general equipment fee  sport | Fee for inspection of facility | Includes fee for inspection of an airport or other facility. | Fees for providing keys and or altering locks. | Exempt  subsection 81-10(4) permission, authority or licence to moor a vessel | Fees related to mooring a boat at a pier, wharf or jetty. | Use of facilities  other | Licence to operate surf or paddle board schools | Fee for licences to operate surf or paddle board schools on beaches as well as hire and drive licences on beaches or water reserves. | Recovery of costs in connection with usage of facilities | Beach access permit for vehicles | Application for vehicle to access Council-controlled beaches, other than life-saver vehicles, emergency rescue vehicles etc. | Use of facilities  sport | Use of facilities  aquatic centre | Processing fees associated with use of airport facilities | Fees payable to Council by individuals for use of hangars and other airport facilities. | Racecourse statutory fees | Fees payable to Council by the Miners Race Club, the Rodeo Association, pony club and other commercial sites to conduct business or otherwise operate at the racecourse. | Annual charges under section 611 of LG Act | Exempt  paragraph 81-15.01(1)(f) of the GST Regulations | Application fee and lease of Council property other than land | Application to assign a lease or licence | Fee for lease of air space over road | Fee for lease of unused public road to owner or lessee of adjoining land | Fee for consent to erect a structure on a public road under section 139A of the Roads Act 1993 (NSW) | Application fees for permission to erect a temporary fence enclosing a building during construction or to erect a large billboard on which notices or advertisements are displayed. | Fee for occupying Council footpaths | The LG Act provides that these costs can be recovered. | Legal fees related to a regulatory function | Exempt  section 81-15 and paragraph 81-15.01(c) of the GST Regulations | Court fees and Sheriff's fees | Exempt  section 81-15 and paragraph 81-15.01(e) of the GST Regulations | Fee for service of subpoenas | Fees for the service or attempted service of a subpoena. | Conduct money in relation to a subpoena or notice | Payments relating to requests to supply information to a court or other judicial entity which is not subpoenaed | Combined library lost or damaged book cost and processing fee | Overdue charges and late return fees library fines | Library  book repair and damage  processing charge | Library damage repair charge | Library  lost library book  processing charge | Library inter-library loan processing fee | Lost or damaged library item replacement or repair cost | Replacement cost for an item such as a lost book, cassette, video, compact disc and digital video disk case, toy bag, etc. Includes processing fee. | Fee for access to records belonging to library | Local history research or search of records. | Library  lost library book  cost of book | Replacement membership card fee  library or toy library | Replacement membership card where original card is lost or destroyed. | Membership fee  library or toy library | Library charge for collection of overdue material | Fee for library staff visiting borrower's premises to collect material. | Printing of items using library equipment. Could be printing of documents from a computer or other information technology device. Also production of a hard copy from a microfilm. | Includes bulk book reservation fees. | Fee for sale of merchandise | Sale of library material other than information. | Fee for utilisation of library staff for various activities | Could include exam supervision. | Admission fee  festival, gallery, exhibition, etc. | Includes fees for attendance of delegates and Council-organised events. Includes Australasian Performing Right Association (APRA) fees and Phonographic Performance Company of Australia (PPCA) fees collected by Council upon admission to a music event. These fees are passed on to the APRA and PPCA based upon a percentage of gross box office receipts or a set amount per head. | Fee for admission into the museum. May include admission benefits, such as complementary refreshments, tours etc. Includes fees associated with special museum tours not on the regular program. | Symphony orchestra and choir admission fee | Concert tickets for admission to performance by symphony orchestra or choir, or concert performance. | Fee for phone boxes with third party advertising | Where Council charges an additional fee for phone boxes and booths on Council property (Telstra) that display third party advertisements. | Fee for advertising of public notices (not direct advertising) | Advertising of public notices relating to a range of activities. May be charged on a cost plus basis. | Fee for advertising of visitor or tourism information | Advertising in publication fee | Fee for provision of written advice | Includes a response to a written request for clarification. | Exempt  subsection 81-10(5) store or record information | Fee for swimming pool lifesaving certificates | Includes resuscitation, bronze medallion, pool lifeguard award, senior first aid, oxygen resuscitation certificates. | Fee to attend a class, lesson, program, seminar or workshop | Fee for engaging Council in a collaborative campaign for business, tourism or community development | Commission and booking fee on tourism tours, hotel bookings etc. | Accommodation, tour, tickets or bookings. | Commission on sale of goods | Often related to a use of facilities. | Fee for entry to or participation in a competition. | Fire hazard reduction service fee | General equipment hire fee | Fee for supply of ancillary services associated with use of facilities | Fee for general food services | Fee for public liability Insurance | Administration or processing fee for sale of land | Includes all associated fees such as administration fees, investigation fees, legal fees, survey costs, processing fees and valuation fees. | Charge to supply street sign | Fee for provision of road number plaque | Provide rural road number plaque, rural addressing marker. Includes fee for supply of post and fee for individual numbers. | Fee for supply of services related to traffic control barriers | Fee for supply of services related to traffic information | Payments received for traffic information and studies by traffic classifiers and traffic counters, including establishment fee. | Fee to issue traffic control badges | Issue of traffic control authorisation badge by Council  each badge. | Graffiti removal kit charge | Sale of natural cleaning kit | Sale or supply of building materials | Supply of materials at cost | For recovery of costs in relation to supply of materials for matters such as those connected with labour hire for handiwork, gardening, carpenters' work etc. | Fee for delivery of merchandise | Pots, plants and gardening equipment. | Fee for supply of infringement evidence | Fee to supply photographs of infringement of parking or loading laws. | Sales of photos other than by the library | Sales of photos in tourism centres etc. | Plant and machinery hire fee | Annual fee for Australia Post boxes | Postage and handling. Includes handling and postage of ashes. | Roads and Traffic Authority (RTA) fees | Fees for pink slips, written-off vehicles, design check, adjustment of records, imported vehicles, gas inspections, police referrals, defect clearance, etc. | Fee associated with acquisition of Council land | Includes Council fee to RTA for acquisition of Council land for RTA purposes. | Sale of items from library  withdrawn material, merchandise such as library bags, artworks on display, exhibition or otherwise, universal serial bus drives or other data storage media, local history books, local history database compact disc, sale of local history books or other publications, whether in hard copy form (that is, a paper book) or in electronic form (that is, on compact disc, digital video disk or a universal serial bus stick), sale of old library books. May also include library bags. | Taxable  section 9-5 and paragraph 81-10.01(1)(g) of GST Regulations | Breath testing service  application and service fee | Fee for supply of development-related signage or notice | Fees charged to businesses or organisations to sponsor special events, conferences, conventions, exhibitions, etc. | Fee for testing of building materials | Fee for transport or relocation of building | Transportation or relocation of a building. Includes fee for relocation on weekends or public holiday. | Private use of Council vehicles. | However, the supply is not a *taxable supply to the extent that it is *GST-free or *input taxed. | (* Asterisked terms are defined in the Dictionary in section 195-1.) | 81-5 Effect of payment of tax | Australian tax means a tax (however described) imposed under an *Australian law. | ... a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered ... | 81-10 Effect of payment of certain fees and charges | 81-15 Other fees and charges that do not constitute consideration | The regulations may provide that the payment of a prescribed *Australian fee or charge, or of an Australian fee or charge of a prescribed kind, or the discharging of a liability to make such a payment, is not the provision of *consideration. | 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. | Part 9  Regulation of works, structures and activities | Division 1  Footway restaurants | Appendix 2  Legislative references | Appendix 3  Detailed contents list | Legislative References: ANTS (GST)A99 7-1(1) ANTS (GST)A99 9-5 ANTS (GST)A99 9-17(3) ANTS (GST)A99 9-17(4) ANTS (GST)A99 9-39 ANTS (GST)A99 Div 81 ANTS (GST)A99 81-5 ANTS (GST)A99 81-10 ANTS (GST)A99 81-10(1) ANTS (GST)A99 81-10(4) ANTS (GST)A99 81-10(5) ANTS (GST)A99 81-15 ANTS(GST)A99 195-1 ANTS(GST)R 2019 81-10.01 ANTS(GST)R 2019 81-10.01(1) ANTS(GST)R 2019 81-10.01(1)(c) ANTS(GST)R 2019 81-10.01(1)(g) ANTS(GST)R 2019 81-10(2) ANTS(GST)R 2019 81-15.01 ANTS(GST)R 2019 81-15.01(1)(c) ANTS(GST)R 2019 81-15.01(1)(e) ANTS(GST)R 2019 81-15.01(1)(f) ANTS(GST)R 2019 81-15.02(2) ITAA 1997 995-1 Copyright Act 1968 Library Act 1939 (NSW) Local Government Act 1993 (NSW) Roads Act 1993 (NSW) Library Regulation 2010 (NSW)


Related rulings: TR 2006/10
Legislative references: New South Wales Acts | 55. The following New South Wales Acts were considered in preparing this Ruling: | Local Government Act 1993 (NSW) 56. Section 220 of the LG Act states: | 57. Section 608 of the LG Act states: | Roads Act 1993 (NSW) 58. Sections 125 and 126 of the Roads Act 1993 (NSW) state: | 59. The following is a detailed contents list for this Ruling: | © AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA | You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
Case references: Air Caledonie International v Commonwealth (1988) 165 CLR 462 [1988] HCA 61
Other references: Explanatory Statement to ANTS (GST) Amendment Regulation 2012 (No. 2)