ATO Interpretative Decision
ATO ID 2004/435 (Withdrawn)
Goods and Services Tax
GST and pease puddingFOI status: may be released
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This ATO ID is withdrawn as the Tax Office position on this issue is contained in the current GST Food Guide (NAT 3338)This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 pease pudding?
Decision
Yes, the entity is making a GST-free supply under section 38-2 of the GST Act when it supplies pease pudding.
Facts
The entity is a food supplier. The entity supplies pease pudding.
Pease pudding is presented in a small tin ready for retail sale and is described as tinned vegetables (ready cooked). The pease pudding can be served hot with boiled meat or served hot or cold with any meat or fish.
The entity is registered for goods and services tax (GST).
Reasons for Decision
Section 38-2 of the GST Act provides that a supply of food is GST-free if the product satisfies the definition of food in section 38-4 of the GST Act and the supply is not excluded from being GST-free by section 38-3 of the GST Act.
Food is defined in section 38-4 of the GST Act to include food for human consumption (whether or not requiring processing or treatment) (paragraph 38-4(1)(a) of the GST Act). Pease pudding is food for human consumption and therefore, satisfies the definition of food in paragraph 38-4(1)(a) of the GST Act.
However, paragraph 38-3(1)(c) of the GST Act provides that a supply of food is not GST-free if it is food of a kind that is specified in the table in clause 1 of Schedule 1 to the GST Act (Schedule 1).
Item 4 of Schedule 1 (Item 4) lists food that is marketed as a prepared meal, but not including soup. However, clause 3 of Schedule 1 provides that Item 4 only applies to food that requires refrigeration or freezing for its storage.
While the pease pudding is described as ready cooked vegetables, the pease pudding is presented in a small tin ready for retail sale and does not require any refrigeration or freezing to maintain its storage. As such, pease pudding is not covered by Item 4 and the excluding provisions of paragraph 38-3(1)(c) of the GST Act do not apply.
In addition, the supply of the pease pudding does not fall within any of the other exclusions in section 38-3 of the GST Act.
Therefore, the entity is making a GST-free supply under section 38-2 of the GST Act when it supplies pease pudding.
Date of decision: 25 July 2002
Legislative References:
A New Tax System (Goods and Services Tax) Act 1999
section 38-2
section 38-3
paragraph 38-3(1)(c)
section 38-4
subsection 38-4(1)
Schedule 1 clause 1
Schedule 1 clause 1 table item 4
Schedule 1 clause 3
Keywords
Goods and services tax
GST free
GST food
Food for human consumption
GST imports and exports
ISSN: 1445-2782
| Date: | Version: | |
| 25 July 2002 | Original statement | |
| You are here | 12 December 2008 | Archived |