ATO Interpretative Decision

ATO ID 2001/361

Goods and Services Tax

GST and a supply of a bulk catch of fresh dead fish
FOI status: may be released

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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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 professional fisherman, 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 sells a bulk catch of fresh dead fish?

Decision

Yes, the entity is making a GST-free supply under section 38-2 of the GST Act when it sells a bulk catch of fresh dead fish.

Facts

The entity is a professional fisherman. The entity sells a bulk catch of fish. The fish are sold dead, fresh, chilled and unprocessed, apart from cleaning or skinning certain varieties in readiness for sale. The entity sells the catch as food for human consumption.

The entity is registered for goods and services tax (GST).

Reasons for Decision

A supply of food is GST-free under section 38-2 of the GST Act if it satisfies the definition of food in section 38-4 of the GST Act and it is not excluded by section 38-3 of the GST Act.

Food is defined in paragraph 38-4(1)(a) of the GST Act to include food for human consumption (whether or not requiring processing or treatment). In this case, the fish are dead and are supplied as food for human consumption. Therefore, the fish satisfy the definition of food contained in paragraph 38-4(1)(a) of the GST Act.

However, under paragraph 38-3(1)(c) of the GST Act, a supply of food is not GST-free if it is food of a kind specified in the table in clause 1 of Schedule 1 to the GST Act (Schedule 1). Fresh dead fish do not fall under any item in Schedule 1.

In addition, the supply of the fresh dead fish 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 of a bulk catch of fresh dead fish under section 38-2 of the GST Act.

[Note: Some GST-free food products have alternative non-food uses. There is no requirement for the entity to ascertain how the purchaser will use the product. The GST status of the product depends on whether it is a supply of food for human consumption as defined in the GST Act. If the entity differentiates the catch or part of it as something other than food for human consumption it is subject to GST. For example, if you differentiate your catch or part of it as bait it is subject to GST].

Date of decision: 4 July 2001

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
   paragraph 38-4(1)(a)
   Schedule 1 clause 1

Keywords
Goods & services tax
GST-free
GST food
Food for human consumption

Siebel/TDMS Reference Number: CW212958

Business Line: Indirect Tax

Date of publication: 29 September 2001

ISSN: 1445-2782

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