ATO Interpretative Decision
ATO ID 2004/479 (Withdrawn)
Goods and Services Tax
GST and product consisting principally of fish roeFOI 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This ATO ID is withdrawn as the Tax Office position on this issue is contained in the current GST Food Guide (NAT 3338)This document incorporates revisions made since original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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 a product consisting principally of fish roe?
Decision
No, the entity is not making a GST-free supply under section 38-2 of the GST Act when it supplies a product consisting principally of fish roe.
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 product containing fish roe blended with other ingredients. The principal ingredient of the product is fish roe.
The entity is registered for goods and services tax (GST) and the supply satisfies the other positive limbs of section 9-5 of the GST Act.
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). The blended fish roe product 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 19 in Schedule 1 (Item 19) specifies food consisting principally of food covered by items 15 to 18 in Schedule 1. Item 17 in Schedule 1 lists caviar and similar fish roe. The principal ingredient of the product supplied by the entity is fish roe. As the entity's product consists principally of fish roe, it is covered by Item 19.
As such, the entity's supply is excluded from being GST-free by the operation of paragraph 38-3(1)(c) of the GST Act. Therefore, the entity is not making a GST-free supply under section 38-2 of the GST Act.
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 of 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 a product consisting principally of fish roe.
Date of decision: 25 July 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)(c)
section 38-4
paragraph 38-4(1)(a)
Division 40
Schedule 1 clause 1
Schedule 1 clause 1 table item 15
Schedule 1 clause 1 table item 16
Schedule 1 clause 1 table item 17
Schedule 1 clause 1 table item 18
Schedule 1 clause 1 table item 19
Keywords
Goods and services tax
GST free
GST food
Food for human consumption
GST supplies & acquisitions
Taxable supply
ISSN: 1445-2782
| Date: | Version: | |
| 25 July 2002 | Original statement | |
| You are here | 12 December 2008 | Archived |