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This edited version has been archived due to the length of time since original publication.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.

· You received written advice from the Australian Tax Office (ATO) advising that you were a third party payer in relation to the Program and therefore could not make a creditable acquisition and claim an input tax credit.

· You have advised that due to the recent decision in the Commissioner of Taxation v Secretary of Department of Transport (Victoria)(DoT) (2010) FCAFC 84, in relation to Input Tax Credits (ITC) entitlements in multiparty arrangements, the ATO has identified that you may be entitled to claim ITCs in relation to the Program and have asked us to reconsider the previous advice.

· The Program was administered by you.

· The facts provided to the ATO for the previous advice given in 200X and subject to the following advice are as follows:

· You previously saw the arrangement as providing assistance to the householder or landlord to enable the program of works and not as a supply by the supplier to the Commonwealth. The proposed conditions did, however, include some conditions, in particular an indemnity, that to be effective would need to be enforceable by the Commonwealth against the installer. As such it would be more than a condition the breach of which would simply enable the Commonwealth to remove a supplier from the register.

(1) A supply is any form of supply whatsoever.

(2) Without limiting subsection (1), supply includes any of these:

(a) a supply of goods;

(b) a supply of services;

(c) a provision of advice or information;

(d) a grant, assignment or surrender of *real property;

(e) a creation, grant, transfer, assignment or surrender of any right;

(f) a *financial supply;

(g) an entry into, or release from, an obligation:

(i) to do anything; or

(ii) to refrain from an act; or

(iii) to tolerate an act or situation;

(h) any combination of any 2 or more of the matters referred to in paragraphs (a) to (g).

217. Examining the levels of contractual or reciprocal relationships between the entities in a tripartite arrangement may reveal two or more supplies being made based upon the one set of activities.

217A. This proposition is illustrated by Federal Commissioner of Taxation v. Secretary to the Department of Transport (Vic) 63A (Department of Transport), where the activity undertaken by the taxi operator of transporting the eligible passenger resulted in two supplies being made:

221B. The Commissioner considers that the following factors, in combination, may point to a supply being made by the supplier to the payer under a tripartite arrangement that involves a supply by the supplier to the customer, even where there is no binding obligation between the payer and the supplier for the supplier to make a supply to the customer:


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