Goods and Services Tax Determination

GSTD 2012/8

Goods and services tax: when are telecommunication supplies made under arrangements for global roaming outside Australia by an Australian resident telecommunication supplier GST-free under item 3 in the table in subsection 38-190(1) of the A New Tax System (Goods and Services Tax) Act 1999?

• Please note that the PDF version is the authorised version of this ruling.
  From 1 July 2015, the term 'Australia' is replaced in nearly all instances within the GST, Luxury Car Tax, and Wine Equalisation Tax legislation with the term 'indirect tax zone' by the Treasury Legislation Amendment (Repeal Day) Act 2015. The scope of the new term, however, remains the same as the now repealed definition of 'Australia' used in those Acts. This change was made for consistency of terminology across the tax legislation, with no change in policy or legal effect. For readability and other reasons, where the term 'Australia' is used in this document, it is referring to the 'indirect tax zone' as defined in subsection 195-1 of the GST Act.

Preamble

This publication provides you with the following level of protection: This publication (excluding appendixes) is a public ruling for the purposes of the Taxation Administration Act 1953. A public ruling is an expression of the Commissioner's opinion about the way in which a relevant provision applies, or would apply, to entities generally or to a class of entities in relation to a particular scheme or a class of schemes. If you rely on this ruling, the Commissioner must apply the law to you in the way set out in the ruling (unless the Commissioner is satisfied that the ruling is incorrect and disadvantages you, in which case the law may be applied to you in a way that is more favourable for you - provided the Commissioner is not prevented from doing so by a time limit imposed by the law). You will be protected from having to pay any underpaid tax, penalty or interest in respect of the matters covered by this ruling if it turns out that it does not correctly state how the relevant provision applies to you.

Background

1. This question was considered amongst others in issue 3 of the Telecommunications Industry Liaison Group - Issues Register (issues register). Issue 3 deals with the GST treatment of specific telecommunication supplies.^[1]

2. The issues register was a public ruling for the purposes of former section 105-60 of Schedule 1 to the Taxation Administration Act 1953 before 1 July 2010. The Commissioner's view in this Determination is consistent with those expressed in the issues register.

3. In this Determination, references to a telecommunication supplier mean a carrier or a carriage service provider as defined in the Telecommunications Act 1997 or an Internet service provider as defined in Schedule 5 to the Broadcasting Services Act 1992.

Ruling

4. Telecommunication supplies made under arrangements for global roaming outside Australia by an Australian resident telecommunication supplier are GST-free under item 3 in the table in subsection 38-190(1) (item 3) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)^[2] when:

(a)

the supply is made to the subscriber who is not in Australia when the thing supplied is done; and

(b)

the effective use or enjoyment of the supply by the subscriber takes place outside Australia.^[3]

5. The application of paragraph (b) of item 3 (effective use or enjoyment of the supply takes place outside Australia) is explained in Goods and Services Tax Ruling GSTR 2007/2.^[4]

6. Subsection 38-190(4) extends the scope of item 3. Subsection 38-190(4) provides that a supply is taken, for the purposes of item 3, to be a supply made to a recipient who is not in Australia if:

(a)

it is a supply under an agreement entered into, whether directly or indirectly, with an Australian resident; and

(b)

the supply is provided, or the agreement requires it to be provided, to another entity outside Australia.

7. For the purposes of paragraph 38-190(4)(b), the word provided is to be contrasted with the term made in item 3. Consistent with the views expressed in GSTR 2007/2, the Commissioner considers that 'provided' in the context of subsection 38-190(4) is used, in relation to a supply covered by item 3, to distinguish between the contractual flow of the supply made to the recipient and, in the performance of a service (or in the doing of some thing), the actual flow to another entity outside Australia.^[5]

8. Subsection 38-190(4) applies where a supply of global roaming services is made to an Australian business for an employee overseas. The supply is covered by subsection 38-190(4) because the supply is made to a resident entity (the Australian business) but is provided to another entity (the employee), outside Australia. The supply is therefore taken to satisfy paragraph (a) of item 3.

9. The Explanatory Memorandum accompanying the Bill^[6] that inserted subsection 38-190(4) supports the application of subsection 38-190(4) to a supply of global roaming services outside Australia. It uses the supply of mobile telephone roaming to an Australian business with an employee overseas as an example of the types of supplies covered by that subsection.

Example - Global Roaming - employee of the Australian subscriber is overseas - makes and receives calls

10. An Australian resident company, Aus Co, has a mobile phone agreement with Aus Telco. Greg, an employee of Aus Co, travels to China for business. Greg has a work mobile provided by Aus Co that is supplied under a mobile phone agreement with Aus Telco.

11. While in China Greg accesses the mobile service through a Chinese telecommunication supplier (China Telco). Greg uses his work mobile to call a business contact in Australia and a business contact in China. Greg also uses his work mobile to receive a phone call from a business contact in Australia and a business contact in China.

12. The supply of telecommunication services made under arrangements for global roaming outside Australia by Aus Telco to Greg's employer, Aus Co, is a supply made to a resident company that is in Australia when the services are performed. The supply does not satisfy paragraph (a) of item 3 unless subsection 38-190(4) applies.

13. The supply of telecommunication services by Aus Telco to Aus Co is a supply under an agreement entered into with a resident. Paragraph 38-190(4)(a) is therefore satisfied.

14. Paragraph 38-190(4)(b) is only satisfied if the supply is provided to another entity outside Australia. The supply by Aus Telco is made to the resident employer company. However, it is the employee that is receiving the telecommunication supply when he uses his work mobile. As Greg is an individual who is outside Australia when the supply is performed, the supply is provided to another entity outside Australia. Paragraph 38-190(4)(b) is satisfied.

15. The supply that Aus Telco makes to Aus Co is GST-free under item 3.

16. Section 38-570 has no application to the telecommunication supplies as they are not made under arrangements for global roaming in Australia.^[7]

Date of effect

17. This Determination applies both before and after its date of issue. However, this Determination 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 Determination (see paragraphs 75 and 76 of Taxation Ruling TR 2006/10).

Commissioner of Taxation
28 November 2012

GSTD 2012/D2

References

ATO references:
NO 1-3XH7ZF3

Related Rulings/Determinations:

TR 2006/10
GSTR 2007/2
GSTD 2012/7
GSTD 2012/9
GSTD 2012/10

Subject References:
goods and services tax
GST free
non resident entities
non resident individuals
supplies used or enjoyed outside Australia
telecommunication supply

Legislative References:
ANTS(GST)A 1999 38-190(1)
ANTS(GST)A 1999 38-190(4)
ANTS(GST)A 1999 38-190(4)(a)
ANTS(GST)A 1999 38-190(4)(b)
ANTS(GST)A 1999 38-570
ANTS(GST)A 1999 38-570(1)
ANTS(GST)A 1999 38-570(3)
TAA 1953 Sch 1 105-60
Broadcasting Services Act 1992 Sch 5
Telecommunications Act 1997

Other References:
Explanatory Memorandum to the Indirect Tax Legislation Amendment Bill 2000.
The Telecommunications Industry Liaison Group - Issues Register