ATO Interpretative Decision
ATO ID 2008/124
Goods and Services Tax
GST and cremated remainsFOI status: may be released
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is the entity, a crematorium, packaging and transporting 'goods' under the definition in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (GST Act) when it sends cremated human remains overseas?
Decision
Yes, the entity is packaging and transporting 'goods' under the definition in section 195-1 of the GST Act when it sends cremated human remains overseas.
Facts
The entity is a crematorium.
The entity packages and sends cremated remains overseas.
This service is separate to the cremation and associated funeral services.
Reasons for Decision
Under section 195-1 of the GST Act, 'goods' means 'any form of tangible personal property'.
Common law provides that the body of a deceased is not considered the personal property of another. Rather, a duty of care is conferred upon a person, by virtue of their relationship with the deceased, to give the deceased a decent burial. Doodeward v. Spence (1908) 6 CLR 406 (Doodeward) is authority for an exception to this view in that where there has been an application of work and skill on the deceased that can differentiate the body from a corpse awaiting burial a human body is capable of becoming the subject of property.
Byrne J, in Leeburn v. Derndorfer and Another (2004) 14 VR 100 at paragraph 27 compares ashes as being similar to the preserved body in Doodeward:
...the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so. The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.
So long as the cremated remains are not dispersed or otherwise lose their physical character as cremated remains, they may be owned and possessed and therefore be considered tangible personal property.
Accordingly, for the purposes of the GST Act, services supplied by the entity in packaging and transporting the cremated remains can be treated as services in dealing with goods as per the definition in section 195-1 of the GST Act. In making this conclusion it is not necessary to consider who has the proprietary interest in the cremated remains.
Legislative References:
A New Tax System (Goods and Services Tax) Act 1999
section 38-355 table item 5
section 195-1
Case References:
Doodeward v. Spence
(1908) 6 CLR 406
(2004) 14 VR 100 ATO Interpretative Decisions overturned by this decision
ATO ID 2001/631
ATO ID 2001/632
Keywords
Export of goods
Goods and services tax
GST exports
GST international services
ISSN: 1445-2782