Disclaimer
This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your private ruling

Authorisation Number: 1012396348211

This edited version of your ruling will be published in the public register of private binding rulings after 28 days from the issue date of the ruling. The attached private rulings fact sheet has more information.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet.

Ruling

Subject: GST and arranging services

Will Entity A be entitled to claim a reduced input tax credit (RITC) on costs that Entity B intends to on charge it, in connection with its acquisition of shares from the vendors?

Will Entity B be entitled to claim an input tax credit (ITC) or RITC on costs it incurred to progress the acquisition of the vendor's shares by Entity A?

Answers

Entity A will be entitled to claim a RITC under item 9 of subregulation 70-5.02(2) of the GST Regulations (item 9) on the acquisition it made from Entity B (which Entity B acquired from the lawyers) only to the extent that acquisition contains "arranging services".

Entity B will be entitled to claim an ITC for the acquisition of services from the lawyers to the extent those services fall within the scope of item 9. To the extent that the lawyers' services do not fall within the scope of item 9, the remaining acquisition will be for Entity B's enterprise and any ITCs can be claimed according to the recovery rate of Entity B's enterprise.

Relevant facts and circumstances

Entity B Pty Ltd (Entity B) owns shares in a group of companies (collectively known as the "Group").

Prior to the Transaction, a number of other companies and individuals also owned shares in the Group. These companies and individuals are referred to jointly in this private ruling as "the Vendors".

In prior years there has been some disagreement between Entity B and the Vendors which caused detriment to the day-to-day operation of the Group. These disagreements made it difficult for the Group to continue the day-to-day operations of the group.

There was a dispute relating to funding the ongoing operations of the Group. As this could not be resolved, both Entity B and the Vendors engaged lawyers to represent them at board meetings.

This resulted in Entity B and the Vendors agreeing to undertake mediation.

Entity B participated in the mediation for the following reasons:

The following took place in chronological order:

During the mediation, Entity B provided the Vendors with a worksheet which summarised the value ascribed to the assets of the Group by Entity B as a "reference point" for the value of the Group. The Vendors did not make any further inquiries as to whether the value presented to them reflected the market value of the assets of the Group.

Under the terms of the Deed, Entity B determined that Entity A, an entity under common control with Entity B, would purchase the Group shares.

Subsequent to appointing Entity B, a meeting was arranged to settle the purchase of the Vendors' shares. Some of the Vendors (from here on referred to as the "Disputing Vendors") did not attend this meeting and did not respond to attempts at communication by the Entity B legal team in the lead up to, or after the arranged settlement date.

The Disputing Vendors submitted a statement of claim in the Federal Court of Australia seeking to rescind the Deed on the grounds that the Entity B's conduct in securing the terms of the Deed were misleading and deceptive.

As a result of the difficulties in running the business, Entity B no longer wanted to deal with the Vendors, so was willing to proceed to trial to ensure that the Deed held and that settlement ensued. The acquisition of the Vendors' shares was the only way to continue the business reasonably, with Entity B's motivation to protect the value of the business.

Following a period of dispute the non-Disputing Vendors and Disputing Vendors eventually agreed to the transfer of shares.

The lawyers are longstanding advisors of Entity B and assisted Entity B in all aspects of resolving this matter and finalising the acquisition of shares from the Vendors.

Due to the nature of the original disagreement and the Disputing Vendors' unwillingness to communicate with Entity B and its directors, The lawyers was required to take an active role in all the dealings between Entity B and the Vendors.

Specifically, the lawyers' role included:

Entity B is planning to on-charge the costs that it incurred after the date Entity A was nominated as the share purchaser, to Entity A.

Entity A and Entity B are registered for GST.

Entity B is not grouped with other companies in the Group for GST purposes.

When the lawyers' fees are on-charged to Entity A, Entity A will exceed the financial acquisition threshold (FAT).

Subsequent to our request for further information you advised us that you are unable to locate a specific engagement letter outlining the terms and conditions of the particular engagement and work performed by the lawyers.

We also requested a cost agreement or some form of "umbrella" type agreement, such as those made between a solicitor and client. However, we have not been provided with anything to this effect. Instead you have provided us with a copy of an invoice prepared by the lawyers which has been issued to Entity B.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999:

Section 11-5

Subsection 11-15(1) and (2)

Section 40-5

Section 70-5

Section 70-10

A New Tax System (Goods and Services Tax) Regulations 1999:

Regulation 40-5.09

Subregulation 40-5.09(1)

Subregulation 40-5.09(2)

Reasons for decision

Claiming Input Tax or Reduced Input Taxed Credits

In order to be entitled to an input tax credit, an entity must make a creditable acquisition. To be a creditable acquisition under section 11-5 of A New Tax System (Goods and Services Tax) Act 1999 (GST Act), the thing must be acquired, solely or partly, for a creditable purpose.

Subsection 11-15(1) of the GST Act provides that an entity acquires a thing for a creditable purpose to the extent that it is acquired in carrying on its enterprise. However, under paragraph 11-15(2)(a) of the GST Act, "you do not acquire a thing for a creditable purpose to the extent that it relates to making supplies that would be input taxed".

Input Taxed Financial Supplies

Subsection 40-5(1) of the GST Act provides that a financial supply is input taxed.

The provision, acquisition or disposal of something is a financial supply where it satisfies the relevant requirements of regulation 40-5.09 of the A New Tax System (Goods and Services Tax) Regulations 1999 (GST Regulations).

The table in subregulation 40-5.09(3) of the GST Regulations contains eleven categories of interest, the provision, acquisition or disposal of which, will constitute a financial supply. The provision, acquisition or disposal of shares is one category of interest. Therefore, where the requirements of subregulation 40-5.09(1) of the GST Regulations are satisfied the provision, acquisition or disposal of shares will be a financial supply that is input taxed.

Entity A makes an acquisition of shares from the Vendors. Further, as Entity A exceeds the FAT any acquisition it makes in relation to this acquisition of shares would be prima facie not made for a creditable purpose under paragraph 11-15(2)(a) of the GST Act. However, section 70-5 of the GST Act provides that specified acquisitions that relate to making input taxed financial supplies, known as reduced credit acquisitions (RCAs), can give rise to a RITC. The percentage of the RITC will depend upon the type of acquisition made and will be either 75% or 55%.

You submit that there is a single supply of arranging services made by the lawyers to Entity B, which is on-supplied by Entity B to Entity A. Therefore, on the basis that Entity B makes an on-supply (of arranging services) to Entity A, you consider that the acquisition by Entity A (from Entity B):

As such you consider that Entity A will be entitled to a RITC.

It is also your submission that the service acquired by Entity B from the lawyers which is then on-supplied to Entity A is a creditable acquisition. That is, to the extent that the acquisition of service by Entity B from the lawyers relates to the taxable on-supply of services a full input tax credit entitlement arises.

In order to determine if the acquisition by Entity B is a creditable acquisition and whether Entity A will be entitled to a RITC, the transaction and nature of the acquisitions must be analysed.

Nature of Acquisitions for RITC

The Commissioner's views set out in paragraphs 223 to 256 of Goods and Services Tax Ruling GSTR 2002/2 Goods and services tax: GST treatment of financial supplies and related supplies and acquisitions (GSTR 2002/2) concerning the identification of 'mixed' and 'composite' acquisitions are relevant in undertaking this analysis. In particular at paragraph 224-225 of GSTR 2002/2 the Commissioner states:

The Commissioner then provides an example in paragraphs 226-227 of GSTR 2002/2 to illustrate the above principle.

Therefore, the Commissioner calls for a close analysis of an acquisition regardless of how the supplier made the supply. To this end at paragraph 228 of GSTR 2002/2 further guidance in relation to RCAs are provided as follows:

In determining whether Entity B has made a mixed or composite acquisition, the key question, as stated in paragraph 234 of GSTR 2002/2:

In this case you been unable to locate a specific engagement letter outlining the terms and condition of the particular engagement and work performed by the lawyers. However you have explained that the lawyers have been ongoing advisors for a group of companies to which Entity B and Entity A are connected.

To assist in characterising the acquisition by Entity B you have provided us with a copy a tax invoice provided by the lawyers to Entity B in lieu of an engagement letter or contract and submit that all of the services referred in the tax invoice fall within the scope of "arranging" under item 9.

An analysis of that tax invoice shows that expenditure up to and inclusive of a certain date are in relation to and incidental to the mediation. Therefore based on this evidence we consider that the acquisition of services by Entity B from the lawyers until that date consists of a single acquisition of services.

Subsequent to that date, there are some itemised fees on the tax invoice that suggest a form of arranging type services and some fees that go towards settling the action for misleading and deceptive conduct by disputing vendors. Based on the facts and supporting documents, in this case it is our view that the acquisition by Entity B consists of a mixed supply (i.e. arranging-type services and/or legal services). We explain our reasons as follows.

Acquisition by Entity B

You contend that despite the lawyers providing services to Entity B those services were eventually consumed by Entity A because Entity A was Entity B's nominee entity.

Goods and services tax determination GSTD 2012/3, Goods and services tax: does an adjustment for a change in extent of creditable purpose necessarily arise for services acquired in relation to a proposed merger and acquisition transaction that does not eventuate, or that does not proceed in the manner contemplated at the time the services were acquired? (GSTD 2012/3) considers when an acquisition is applied in an entity's enterprise and states:

Further paragraph 44 states:

In this case we do not agree that the character of the services acquired by Entity B were consumed by Entity A. Based on the description of services set out in the invoice, the acquisition by Entity B from the lawyers consists of mediation costs and related services. Accordingly, consistent with the principle in paragraphs 38 and 44 of GSTD 2012/3 we consider that this acquisition is applied and consumed by the Entity B enterprise.

Treatment of Mediation Cost

Goods and Services Tax Ruling GSTR 2008/1, Goods and services tax: when do you acquire anything or import goods solely or partly for a creditable purpose? (GSTR 2008/1) provides the Commissioner's view on whether a particular acquisition is made in carrying on an enterprise. In particular paragraph 70 states:

Further paragraph 138 of GSTR 2008/1 states:

As explained above we have found that a substantial proportion of the tax invoice related to the mediation that occurred prior to the Vendors deciding to sell their shares and/or prior to the planning stage of any arrangement. Accordingly, this does not fall within the scope of arranging as contemplated by item 9. Rather, in our view this portion of the expense is an acquisition relating to Entity B's enterprise as a whole. To this end, Entity B will have to determine the nature of its enterprise and claim any input tax credits depending on the types of supplies it makes.

Entity B can seek guidance in this regard by referring to Goods and Services Tax Ruling GSTR 2006/3): Goods and Services Tax: determining the extent of creditable purpose for providers of financial supplies (GSTR 2006/3).

Accordingly, we consider that this portion of the acquisition cannot be on-charged to Entity A because it is consumed within the Entity B enterprise.

The next issue that needs to be determined is whether Entity B made and acquisition from the lawyers that facilitated the acquisition of securities from the vendors.

Acquisition by Entity B from 24 October 2009

What is an 'arranging services'

Under item 9 in subregulation 70-5.02(2) of the GST Regulations, the acquisitions of arrangement, by a financial supply facilitator, of the provision, acquisition or disposal of an interest in a security, include the following is a RCA:

A 'financial supply facilitator' is defined in regulation 40-5.07 of the GST Regulations to be an entity facilitating the supply of an interest for a financial supply provider.

The word 'facilitates', as evidenced by paragraphs 30 - 35 of Goods and Services Tax Ruling GSTR 2004/1: Goods and services tax: reduced credit acquisitions (GSTR 2004/1), requires that an entity have an active, rather than a passive or minor role.

A financial supply facilitator facilitates the acquisition of an interest where its activities have the effect of helping forward or assist a particular financial supply, rather than where those activities simply assist the financial supply provider.

It follows that the activities of a financial supply facilitator must have a sufficient nexus with the acquisition of an interest by a financial supply provider.

A sufficient nexus requires that there be an identifiable association with the acquisition that goes beyond a mere general association. An identifiable association does not mean that the activities have to be directly linked to the acquisition; however it does require that there be a substantial connection so as to exclude activities that are only generally related. The activities must relate to and assist a particular supply, not merely contemplated supplies. In the absence of this identifiable association, an entity will not be a financial supply facilitator of the supply of an interest. It follows that it is only when an entity is carrying out activities that are sufficiently or substantially identifiable with the actual financial supply being made, such that they help forward or assist the financial supply, that the entity can be said to be a financial supply facilitator.

The term 'arrangement' is discussed in paragraphs 287 to 291 of Goods and Services Tax Ruling GSTR 2004/1: Goods and services tax: reduced credit acquisitions (GSTR 2004/1). Paragraph 287 to 291 of GSTR 2004/1 states:

Paragraph 287 of GSTR 2004/1 indicates that in the context of a securities transaction, arrangement activities are those relating to the 'preparation for the transaction, the planning of the transaction and the settlement of the details of the transaction'. For a supply to be the arrangement of the provision, acquisition or disposal of a security the supply must have a sufficient connection to the arrangement of the proposed transaction to be properly described as itself constituting the 'arranging' of the transaction. A remote connection would not suffice.

As discussed above, paragraph 289 of GSTR 2004/1 provides guidance in respect to determining whether a specific supply has a relevant connection with the preparation, planning or settlement of a transaction.

Accordingly in this case to the extent that it can be shown that the lawyers is arranging the acquisition of the respective securities it will also be sufficient to indicate that its services are facilitating that particular supply.

For completeness, it must be stated that the focus is the facilitator's role in a particular transaction and the relationship with a particular financial supply, rather than whether the recipient of that service is necessarily making the particular financial supply. Therefore, this allows the recipient of the service to on-charge that particular service provided that it is not a contrived arrangement as outline in GSTD 2011/3.

To this end we agree with your submission that the facts in this case would be dissimilar to the facts in GSTD 2011/3. Accordingly, whilst the recipient of the service will typically also be the financial supply provider of the particular supply, a financial supply facilitator can also provide a service to a recipient (Entity B) that involves facilitating a financial supply made by a third party namely, Entity A (the nominee).

You submit that Entity B undertakes the management functions of the overall group of companies as part of its business activities. It engaged the lawyers to assist in the acquisition of shares from the Vendors. Therefore, when Entity B acquired the lawyers services those services still had an identifiable association with the relevant financial supply made by the Vendors and Entity A. Therefore, an entity such as the lawyers that is providing services to the recipient Entity B to facilitate the financial supply to be made by the Vendors to Entity A, is still capable of being a financial supply facilitator.

The key issue is to determine if the lawyers is in fact providing arranging services that facilitates the provision, acquisition and disposal of the respective securities. In this context if the lawyers are found to be arranging the disposal of the Vendor securities to Entity A that would be sufficient to determine if they are facilitators.

In this case, you have advised that the lawyers' role included amongst other activities:

Further, there are some itemised fees on the tax invoice that suggest a form of arranging type services and some that go towards settling the action against Entity B for misleading and deceptive conduct.

As explained above, it is our view that from a certain date the acquisition by Entity B from the lawyers is of a mixed supply. It is also our view that consistent with paragraph 289 of GSTR 2004/1 it can be concluded that part of the acquisition by Entity B facilitated the acquisition of securities from the vendors (the Arranging Cost). However part of the acquisition by Entity B is clearly directed to legal services. On this basis we consider the GST treatment of the relevant acquisition is as follows.

Treatment of Arranging Costs

To the extent the services from the lawyers fall within the scope of "arranging" Entity B will make a creditable acquisition and is entitled to claim a full input tax credit. This is on the basis that the acquisition by Entity B will be made for the purpose of making the proposed taxable on-supply of arranging services to Entity A.

Upon Entity B making an on-supply of services to Entity A, to the extent that the services fall within the scope of "arranging" Entity A will then be eligible to claim a RITC on this acquisition under item 9.

Treatment of Misleading and Deceptive Conduct Litigation Costs

You submit to the extent the lawyers fees relate to court action those fees fall within the scope of item 9. We do not agree with this submission. As explained above, item 9 deals with the arrangement by a financial supply facilitator for the provision, acquisition and disposal securities. There is nothing within the item that captures instigation or defending litigation for misleading and deceptive conduct in relation to share valuation disputes.

You submit that this should be viewed as a form of "settling" a security as contemplated by the Commissioner in GSTR 2004/1 under the definition of arranging.

We do not agree with this view. Based on the principles outlined in GSTR 2004/1, settling of a securities transaction does not stretch beyond ensuring that the appropriate share transfer certificates and/or similar contractual documents are duly executed, exchanged between the respective parties and filed with the necessary regulator (if required). In our view, litigation is not within the scope of item 9.

As such, these costs have no association with the definition of arranging. Rather this portion of the acquisition is related to the legal proceedings against Entity B and goes towards Entity B's enterprise costs. Accordingly it cannot be on-charged to Entity A because it is consumed within the Entity B enterprise.

On this basis Entity B will be able to claim input tax credits under the enterprise method referred to above.


Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).