Edited version of your written advice

Authorisation Number: 1051310118756

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This edited version has been found to be misleading or incorrect.

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Date of advice: 27 November 2017

Ruling

Subject: GST and food

Question

Is the supply of the meal selections on your menu subject to goods and services tax (GST)?

Answer

The supply of most of the meal selections on your menu are GST-free except the others as indicated, which are subject to GST. Please refer to the reasons for decisions below for an explanation.

Facts

You are registered for GST.

You will supply prepared meals. You have described how the activity operates.

You supply food products consisting of a number of food items as you have described.

You have described the components of the meals and other details.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 section 38-2.

A New Tax System (Goods and Services Tax) Act 1999 section 38-3.

A New Tax System (Goods and Services Tax) Act 1999 paragraph 38-3(1)(c).

A New Tax System (Goods and Services Tax) Act 1999 section 38-4.

A New Tax System (Goods and Services Tax) Act 1999 Schedule 1 clause 1 table item 4.

A New Tax System (Goods and Services Tax) Act 1999 Schedule 1 clause 1 table item 5.

Reasons for decision

Section 38-2 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) provides that a supply of food is GST-free.

Food is defined in subsection 38-4(1) of the GST Act to include:

● food for human consumption (whether or not requiring processing or treatment)

● ingredients for food for human consumption

● goods to be mixed with or added to food for human consumption (including condiments, spices, seasonings, sweetening agents or flavourings), and

● fats and oils marketed for culinary purposes.

From the information provided, the meal products you will supply meets the definition of ‘food’ for GST purposes.

However, not all food is GST-free. Subsection 38-3(1) of the GST Act provides that a supply of food is not GST-free under section 38-2 of the GST Act if it is a supply of:

(a) food for consumption on the premises from which it is supplied

(b) hot food for consumption away from those premises

(c) food of a kind specified in the third column of the table in clause 1 of Schedule 1 to the GST Act, or food that is a combination of one or more foods at least one of which is food of such a kind

(d) a beverage (or an ingredient for a beverage), other than a beverage (or ingredient) of a kind specified in the third column of the table in clause 1 of Schedule 2 to the GST Act, or

(e) food of a kind specified in the A New Tax System (Goods and Services Tax) Regulations 1999 (GST Regulations) made for the purposes of subsection 38-3(1) of the GST Act.

Paragraphs 38-3(1)(a), 38-3(1)(b) and 38-3(1)(c) of the GST are not relevant to your circumstances and paragraph 38-3(1)(e) of the GST is not relevant, as there are no GST Regulations relating to this kind of food.

However, paragraph 38-3(1)(c) of the GST provides that, if the food products are listed in Schedule 1 to the GST Act, then, the food products will not be GST-free.

Schedule 1 to the GST Act lists two items that may be relevant to your case:

● Item 4 of Schedule 1 to the GST Act (Item 4) refers to food marketed as a prepared meal, and

● Item 5 of Schedule 1 to the GST Act (Item 5) refers to platters etc. of cheese, cold cuts, fruit or vegetables and other arrangements of food.

Prepared meal

The term 'prepared meal' is not defined in the GST Act and will therefore, bear its ordinary meaning.

The Macquarie Dictionary (third edition) provides that 'meal' means ‘the food eaten or served for a repast’. This definition could be applied to a single food item or to a meal consisting of several food items.

The Macquarie Dictionary (third edition) defines 'prepare' in relation to food as ‘to get ready for eating, as a meal, by due assembling, dressing or cooking’.

Prepared meals are subject to GST. Examples of ‘prepared meals’ are:

● prepared meals, such as curry and rice dishes and such similar dishes sold cold by a take-away or supermarket that only need reheating to be ready for consumption

● fresh or frozen lasagne

● sushi

● cooked pasta dishes sold complete with sauce

● frozen TV dinners, and

● fresh or frozen complete meals (eg. single serves or a roast dinner including vegetables and low fat dietary meals).

All of the above meals, except sushi, are duly assembled, cooked or partly cooked and require heating and completion of the cooking process for them to be ready for consumption.

Therefore, for food to be regarded as a ‘prepared meal’ in accordance with Item 4, the food needs to be supplied assembled and dressed (if applicable).

In addition, if the food is cooked or partly cooked and is served hot, it should only need heating which may include completion of the cooking process, to be ready for consumption. Heating is interpreted to mean warmed in the microwave oven, convection oven, frying pan, wok or saucepan.

Paragraph 1.34 of the Explanatory Memorandum to the A New Tax System (Goods and Services Tax) Bill 1998 provides examples of food items that are not considered to be prepared meals and include:

● frozen vegetables

● uncooked pasta, and

● fish fingers.

Uncooked pasta products are not considered a prepared meal as they are not cooked.

Lasagne, for example, is assembled and merely requires heating or baking in an oven at a certain temperature for a number of minutes to complete the cooking process prior to consumption, and meets the description of a prepared meal. Consequently, the supply of the lasagne meal selections is excluded from being GST-free.

Meal selections consisting of raw meat, vegetables and other ingredients for food that are not assembled and require further preparation and/or processing before it can be served as a meal. Also, the salads are not assembled, require dressing and are not supplied as a prepared meal. As these meal selections do not meet the description of a prepared meal, the supply of these products will be GST-free provided that they are not excluded from the definition of food under any other provision.

In this respect, we have also considered whether the remaining meal selections are covered by Item 5 in Schedule 1 to the GST Act.

Platters

Clause 1 of Item 5 of Schedule 1 to the GST Act (Item 5) lists ‘platters of cheese, cold cuts, fruit or vegetables and other arrangement of food’.

The term platter is not defined in the GST legislation. Therefore, its ordinary meaning is to be adopted.

Item 5 operates to subject such platters to GST. The platters referred to in Item 5 can essentially be uncovered and placed on the table ready for serving, for example, as a catering product at parties.

Although the meal selections are arranged on a tray, they are not a ‘platter’ for the purposes of Item 5.

As some meal selections are considered to be food for human consumption under the GST Act and none of the exclusions in section 38-3 of the GST Act apply, the supply of the relevant products will be GST-free.

Further information regarding GST and food is included in the Food Industry Partnership - Issues Register which is available on our website at www.ato.gov.au