ATO Interpretative Decision
ATO ID 2002/984 (Withdrawn)
Goods and Services Tax
GST and supply of a herbal drinkFOI status: may be released
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The ATO view for this issue is covered in the GST food guide - Section 3 - Detailed food list - Beverages - Herbal teas/drinks, ready-to-drink.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
Status of this decision: Decision Withdrawn 28 October 2005
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 food supplier, making a GST-free supply under section 38-2 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), when it supplies a herbal drink?
Decision
No, the entity is not making a GST-free supply under section 38-2 of the GST Act when it supplies a herbal drink. The entity is making a taxable supply under section 9-5 of the GST Act.
Facts
The entity is a food supplier. The entity supplies a herbal drink.
The herbal drink contains ingredients that are specifically designed to improve the physical wellbeing of consumers.
The herbal drink is not a herbal tea.
The entity is registered for goods and services tax (GST). The supply satisfies the other positive limbs of section 9-5 of the GST Act.
Reasons for Decision
A supply of food is GST-free under section 38-2 of the GST Act if the product satisfies the definition of food in section 38-4 of the GST Act and the supply is not excluded by section 38-3 of the GST Act.
The meaning of food in section 38-4 of the GST Act includes beverages for human consumption (paragraph 38-4(1)(c) of the GST Act). The herbal drink is a beverage for human consumption and comes within the meaning of food contained in paragraph 38-4(1)(c) of the GST Act.
However, under paragraph 38-3(1)(d) of the GST Act, a supply of a beverage is GST-free only if it is a beverage of a kind specified in the table in clause 1 of Schedule 2 to the GST Act (Schedule 2).
The herbal drink is not a beverage of a kind specified in Schedule 2. Therefore, the supply of the herbal drink is excluded from being GST-free by paragraph 38-3(1)(d) of the GST Act. The fact that the herbal drink contains ingredients that are specifically designed to improve the physical wellbeing of consumers is not relevant in determining its GST status. Accordingly, the entity is not making a GST-free supply under section 38-2 of the GST Act when it supplies the herbal drink.
The entity is registered for GST and the supply satisfies the other positive limbs of section 9-5 of the GST Act. Furthermore, the supply is neither GST-free under any other provision in Division 38 of the GST Act, nor input taxed under Division 40 of the GST Act. Therefore, the entity is making a taxable supply under section 9-5 of the GST Act when it supplies the herbal drink.
[Note: Herbal tea is listed in item 5 of Schedule 2. Therefore, paragraph 38-3(1)(d) of the GST Act does not exclude the supply of herbal tea from being GST-free.]
Date of decision: 15 April 2002
Legislative References:
A New Tax System (Goods and Services Tax) Act 1999
section 9-5
Division 38
section 38-2
section 38-3
paragraph 38-3(1)(d)
section 38-4
paragraph 38-4(1)(c)
Division 40
Schedule 2 clause 1
Schedule 2 clause 1 item 5
Keywords
Goods and services tax
GST free
GST food
GST beverages
GST supplies & acquisitions
Taxable supply
ISSN: 1445-2782
| Date: | Version: | |
| 15 April 2002 | Original statement | |
| You are here → | 28 October 2005 | Archived |