Edited version of private ruling

Authorisation Number: 1011510685452

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Ruling

Subject: Mini Beef Wellingtons and Mini Involtinis

Question 1:

Is the supply of a Mini Beef Wellington a GST-free supply of food to which section 38-2 of the A New Tax System (Goods and Services Tax) Act 1999 ('GST Act') applies?

Answer:

No, the supply of a Mini Beef Wellington is not a GST-free supply as it is a supply of food of a kind specified in Item 22 in Schedule 1 to the GST Act.

Question 2:

Is the supply of a Mini Semi Dried Tomato Involtini a GST-free supply of food to which section 38-2 of the GST Act applies?

Answer:

No, the supply of a Mini Semi Dried Tomato Involtini is not a GST-free supply as it is a supply of food of a kind specified in Item 25 in Schedule 1 to the GST Act.

Relevant facts and circumstances:

Mini Beef Wellingtons:

The ruling request referred to the ATO's Food Industry Partnership Issues Register, Issue 30 - Pastry Products ('Issue 30') which states that a Beef Wellington made from beef, mushrooms and pate enclosed in puff pastry is GST-free notwithstanding that it is baked and is not covered by either Item 22 (pies (meat, vegetable or fruit) pastries and sausage rolls) or Item 23 (tarts and pastries) in Schedule 1 to the GST Act.

The ruling request noted that the Beef Wellington considered in Issue 30 was generally large enough to feed between 4 and 8 people but that Issue 30 accepted that the GST-free classification applied to individual servings of Beef Wellington.

You advised that the Mini Beef Wellingtons which were the subject of the ruling request are smaller than those covered by Issue 30, being miniature finger food weighing 30 grams each which are made from beef, mushrooms and puff pastry and baked. The package containing the Mini Beef Wellingtons has a description summarised below:

A bite sized version of a classic delicacy,

a miniaturised version of an authentic recipe loved by many families. We use beef tenderloin pieces topped with a blend of pate and mushroom duxelle. Then folded in a flaky puff pastry and baked to perfection.
You subsequently advised that the Mini Beef Wellingtons are pre-cooked by the manufacturer and simply warmed by the consumer.

You submitted that:

the Mini Beef Wellingtons do not fall within Item 22 (pies (meat, vegetable or fruit) pasties and sausage rills) in Schedule 1 because they are particularly small finger foods;

the Mini Beef Wellingtons do not fall within Item 23 (tarts and pastries) in Schedule 1 because they are not sweet in taste; and

the Mini Beef Wellingtons do not fall within Item 25 (pastizzi, calzoni and brioche) in Schedule 1 because they do not possess the shape or qualities of pastizzi.

Mini Involtinis:

You advised that the Mini Involtinis are even smaller than the Mini Beef Wellingtons, weighing only 20 grams each and that they are traditional Italian savouries made from ricotta cheese, spinach, seasoning and fine short pastry twisted into bite sized pieces.

The package for Mini Semi Dried Tomato Involtinis describes them as follows:

An Authentic Italian savoury twisted into a bite-sized morsel.

Creamy Italian ricotta cheese is folded with fresh spinach and lightly seasoned. It is then topped with a semi dried tomato segment and delicately wrapped around a fine short pastry to form a beautiful little involtini and baked until golden…

You subsequently advised that the Mini Beef Involtinis are pre-cooked by the manufacturer and simply warmed by the consumer.

You submitted that:

the Mini Involtinis are not covered by Item 22 (pies (meat, vegetable or fruit) pastries and sausage rolls) in Schedule 1 to the GST Act because they do not have the characteristics of pies, pastries or sausage rolls

the Mini Involtinis are not covered by Item 23 (tarts and pastries) because they are not sweet pastries;

the Mini Involtinis are not covered by Item 25 (pastizzi, calzoni and brioche) because they lacked the physical characteristics of pastizzi (which are boat-shaped and made from puff pastry).

Reasons for decision:

Question 1:

Summary:

The supply of a Mini Beef Wellington is a supply of food of a kind specified in Item 22 (pies (meat, vegetable or fruit) pasties and sausage rolls) in Schedule 1 to the GST Act and is therefore taxable pursuant to paragraph 38-3(1)(c) of the GST Act.

Detailed reasoning:

Section 38-2 of the GST Act provides that a supply of 'food' is GST-free. '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).

Paragraph 38-3(1)(c) of the GST Act provides that a supply of food is not GST-free under section 38-2 if it is, inter alia, food of a kind specified in the third column of the table in clause 1 of Schedule 1 or food that is a combination of one or more foods at least one of which is food of such a kind.

The words 'of a kind' were discussed in Hygienic Lily Ltd v Deputy Commissioner of Taxation (NSW) (1987) 13 FCR 399 where Gummow J. held that cups made from wax-coated paper were goods 'of a kind ordinarily used for household purposes':

Further, the setting in which the phrase 'goods of a kind' appears suggests that it is directed not to the use for which the particular goods in question were designed or manufactured, nor to the purpose to which it is intended those particular goods shall be put, but rather to the nature, quality and adaptation of the goods in the class or genus in question. Thus goods are 'of a kind ordinarily used for household purposes' if they are to be recognised as members of a class or genus which commonly or regularly (albeit not necessarily exclusively or principally) is used for household purposes.

Items 20 to 27 in Schedule 1 to the GST Act deal with bakery products and include:

Item 22 - pies (meat, vegetable or fruit), pasties and sausage rolls;

Item 23 - tarts and pastries; and

Item 25 - pastizzi, calzoni and brioche

Clause 2 of Schedule 1 provides that, for the purpose of determining whether particular food is covered by any of the items in the table in Schedule 1 relating to the category of Bakery Products (which includes Items 22, 23 and 25), it does not matter whether the food is supplied hot or cold, or requires cooking, heating or thawing or chilling prior to consumption.

Beef Wellington is not defined in the Macquarie Dictionary, but recipes books describe Beef Wellington as follows:

A piece of raw beef (generally either tenderloin or rib eye), mushrooms and pate enclosed in puff pastry and baked. Generally large enough to feed 4 to 8 people, although can be made for individual servings.

The Detailed Food List is a public ruling for the purposes of section 105 of the Taxation Administration Act 1953 and includes the following item:

Item 22:

The reasoning in the Detailed Food List is that because Beef Wellington contains raw meat when supplied, Beef Wellington does not have the same nature, quality and adaptation as 'pies (meat, vegetable or fruit) pastries and sausage rolls' and therefore is not food of a kind referred to in Item 22:

The description of the Mini Beef Wellingtons on the packaging provided states:

We use juicy beef tenderloin pieces topped with a blend of pate and mushroom duxelle.

but you advised that the Mini Beef Wellingtons are pre-cooked by the manufacturer. On that basis the Mini Beef Wellingtons do not contain raw meat when supplied. In our view the Mini Beef Wellingtons do not possess the nature or quality which the Detailed Food List relies on to distinguish Beef Wellington from the food items listed in Item 22 (i.e. containing raw meat when supplied) and we consider that the Mini Beef Wellingtons are food of a kind referred to in Item 22.

Item 23:

Item 23 refers to tarts and pastries. The Macquarie Dictionary defines 'tart' as:

A small and saucer shaped shell of pastry filled with cooked fruit or other sweetened preparation and having no top crust

A similar but larger pastry concoction

As the Mini Beef Wellingtons are not sweet they are not food of a kind referred to in Item 23 (tarts and pastries).

Item 25

Item 25 refers to pastizzi, calzoni and brioche. 'Pastizzi' is not defined in the Macquarie Dictionary but the general meaning of that term provided by culinary reference books is as follows:

A traditional Maltese pastry. It is boat shaped and contains a variety of fillings. It is made from puff pastry and traditionally was filled with ricotta cheese. However, they may also contain various other fillings and are baked.

The Mini Beef Wellingtons are not boat-shaped like pastizzi and the filling (tenderloin beef, pate and mushroom duxelle) is not of the same nature and quality as that generally associated with pastizzi (which are traditionally filled ricotta cheese or a mushy split pea mixture which is sometimes slightly spicy, but may contain various other fillings).

Calzoni is described in recipe books as a folded Italian pizza which, by the sheer nature of its shape, is far more portable than a normal pizza and looks a bit like a Cornish pasty.

Given that the Mini Beef Wellingtons are made with puff pastry rather than pizza dough they lack the nature and quality of calzoni.

For these reasons we consider that the Mini Beef Wellingtons are not food of a kind referred to in Item 25.

Question 2:

Summary:

A Mini Involtini is not food of a kind specified in Item 22 (pies (meat, vegetable or fruit) pastries and sausage rolls) or Item 23 (tarts and pastries) in Schedule 1 to the GST Act, but is food of a kind specified in Item 25 (pastizzi, calzoni and brioche) of Schedule 1 and a supply of a Mini Involtini is therefore taxable pursuant to paragraph 38-3(1)(c) of the GST Act.

Detailed reasoning:

Item 22:

You submitted that a Mini Involtini does not have the characteristics of pies, pasties or sausage rolls. You made a similar submission in respect of the Mini Beef Wellington, stating that 'they are particularly small finger foods', which suggests a distinction based on size.

The Macquarie Dictionary defines those items as follows:

Pie - 'a baked dish consisting of a sweet (fruit, etc) or savoury (meat, fish, etc) filling, enclosed in or covered by pastry, or sometimes other topping as mashed potatoes';

Pastie - 'a type of pie in which a circular piece of pastry is folded around a filling of vegetables, meat etc., and baked';

Sausage roll - 'a roll of baked pastry filled with sausage meat'.

In our view, apart from the issue of size, a Mini Involtini would satisfy the dictionary definition of 'pastie' referred to in Issue 30 as a Mini Involtini comprises a circular piece of pastry which is folded around a filling and is baked. However it is unnecessary to determine whether a Mini Involtini is a pastie as we consider that a Mini Involtini is food of a kind specified in Item 25 in Schedule 1 to the GST Act.

Item 23:

As stated above the Macquarie Dictionary definition ascribes to a 'tart' the nature and/or qualities of being sweet and having no top crust.

Based on the description of the Mini Involtinis appearing on the packaging, they are not sweet (as the filling comprises ricotta cheese, spinach and seasoning) and the image on the packaging suggests that they are wrapped in the fine short pastry. Consequently Mini Involtinis are not food of a kind specified in Item 23 (tarts and pastries).

Item 25

As stated above, the general meaning of 'pastizzi' provided by culinary reference books is as follows:

Pastizzi - a traditional Maltese pastry. It is boat shaped and contains a variety of fillings. It is made from puff pastry and traditionally was filled with ricotta cheese. However, they may also contain various other fillings and are baked.

This description of 'pastizzi' contains some elements which also appear in the description appearing on the packaging of Mini Involtinis, i.e. a ricotta cheese filling (although the Mini Involtini adds spinach, seasoning, and a dried tomato to the filling) and a pastry wrapping (albeit puff pastry for the pastizzi and fine short pastry for the Mini Involtini). The instructions on the Mini Involtini packaging suggest that they be thawed at room temperature for 30 minutes, placed on a baking tray, and that the baking tray is then placed in an oven preheated to 130 degrees Celsius for between 8 and 11 minutes.

You submitted that the differences in shape and type of pastry between pastizzi and Mini Involtinis were sufficient to make Mini Involtinis food that is not of a kind specified in Item 25.

In relation to shape, we note that 'pastizzi' are defined as 'boat shaped', but that does not appear to be a determinative nature or quality as the Detailed Food List contains the following:

ATO ID 2002/118 refers to filo pastries which 'come in round, triangular and log shapes' which indicates that, for the purposes of Item 25, the shape of the food item (i.e. whether boat shaped, a triangle, or a parcel) is not considered a determinative nature or quality.

In relation to the type of pastry used, we note that the culinary reference book description of 'pastizzi' describes them as 'made from puff pastry', but the extract from the Detailed Food List set out above nevertheless ruled that filo pastry with savoury vegetable filling is considered to be food of a kind similar to pastizzi. This indicates that the type of pastry used is not considered a determinative nature or quality.

In our view this indicates that food which has the nature and/or qualities of a filling which is encased in pastry and then baked should be classified as being food of a kind specified in Item 25 (pastizzi, calzoni and brioche). We consider that a Mini Involtini has such a nature and/or qualities and is food of a kind specified in Item 25.

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