Issue 28

How are hot and cold chickens treated for the purposes of the GST Act?

For source of ATO view, refer to the Detailed food list.

Section 38-2 of the GST Act provides that food as defined is GST-free. 'Food' is defined in section 38-4 of the GST Act to include

"food for human consumption (whether or not requiring further processing or treatment)"

Chicken, whether hot or cold, will satisfy this definition.

However, subsection 38-3(1) of the GST Act operates to specifically subject certain foods to GST. This includes food for consumption on premises from which it is supplied and hot take-away food. Therefore, chicken will be subject to GST when supplied hot. This includes the supply from both takeaway outlets and supermarkets etc.

The word 'hot' is not defined for the purposes of the GST Act, however paragraph 1.28 of the Further Supplementary Explanatory Memorandum to A New Tax System (Goods and Services Tax) Bill 1999 provides some guidance:

"Hot food means food that has been heated above the room temperature or above the generally surrounding air temperature for consumption. You do not need to check the precise temperature because food or drink which has been heated so that it can be consumed while still hot will be at a higher temperature than the surrounding air temperature."

Further to the above, hot chicken will be subject to GST whether it is supplied as a whole chicken or as chicken pieces.

Cold chicken is not caught by the provisions in subsection 38-3(1) and will be GST-free. Therefore, if takeaway outlets or supermarkets provide cold cooked chicken for consumption away from those premises, the supply will be GST-free.

It should be noted that Schedule 1 of the GST Act has no application to the classification of chicken, as the supply is not considered to be the supply of a 'prepared meal' under clause 1, item 4 of Schedule 1.

    Last modified: 05 Aug 2016QC 16451