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Edited version of your written advice

Authorisation Number: 1012717474352

Ruling

Subject: GST and gifts

Question 1

Is the payment of your funds to the payee consideration for a supply by the payee?

Answer

No.

Relevant facts and circumstances

• You are not registered for goods and services tax (GST).

• You are endorsed as a charity for GST purposes.

• Your main charitable purpose is the promotion of health.

• Your primary source of funding is from donations and fund-raising activities.

• The payee is registered for GST and is a non-profit body.

• The payee has been chosen by the Government to construct a facility that will assist with health issues.

• Under a contract to be entered into between the Government and the payee, the payee, will be required to design and construct a facility that will provide health services.

• The majority of the funding will be provided by the Government.

• The payee has requested you to provide funding for the construction of the facility.

• You wish to make a payment (of $X) to the payee as a contribution towards the costs of designing and constructing the facility.

• To provide the payee with certainty at the outset that the facility will be fully funded, it is proposed you will promise to the payee under a gift deed to be entered into between you and the payee to make a gift (of $X) to the payee.

• The Gift Deed would recognise that the payment of $X is to be used by the payee as a contribution to the design and construction costs of the Facility.

• As between the Government and the payee, the Government will agree to wrap the credit risk of your payment.

• Accordingly, if you do not give $X to the payee as required by the Gift Deed, the Government agrees to pay the $X to the payee on your behalf as your agent.

• If the Government has to make such a payment on your behalf, the primary obligation to make the gift to the payee will remain with you as the principal but the Government will be entitled to be reimbursed by you.

• You have provided a copy of your draft Gift Deed between the payee and yourself.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 Section 9-5

A New Tax System (Goods and Services Tax) Act 1999 Section 9-10

A New Tax System (Goods and Services Tax) Act 1999 Sub-section 9-17(2)

Reasons for decision

GST is payable on taxable supplies. Under section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) you make a taxable supply if:

However the supply is not a taxable supply to the extent that it is GST-free or input taxed.

In your situation, what needs to be considered is whether the payment made by you is consideration for a supply which is a taxable supply.

Gifts to non-profit bodies are not consideration

Sub-section 9-17(2) of the GST Act specifically excludes a gift made to a non-profit body (including charities) from being consideration for a supply. For a payment to be considered a gift, it must be unfettered, meaning that there is no obligation to do anything in recognition of the gift and no expectation on the part of the donor to receive anything in return.

What constitutes a 'gift' for GST and income tax purposes have been set out in two public rulings - Goods and Services Tax Ruling GSTR 2012/2 (Goods and services tax: financial assistance payments) and Taxation Ruling TR 2005/13 (Income Tax: tax deductible gifts - what is a gift). The guidelines set out in TR 2005/13 are also applicable for GST.

Both rulings state that amongst other things, a gift ordinarily proceeds from a detached and disinterested generosity of the giver who must not receive a benefit or an advantage of a material nature by way of return. However it is a question of fact in each case whether any benefit or advantage is considered material.

A payment made in return for a material benefit or an enforceable obligation to use the funds for a specified purpose is consideration for a supply. The organisation receiving the payment has supplied something in return for the payment.

GSTR 2012/2 provides guidance on what is a gift. Paragraphs 69 to 70:

Therefore, a payment will be a gift where:

Is the payment of $X to the payee a gift?

In order for a payment to be considered a gift, it must satisfy the following conditions:

The payment must be made voluntarily and not the result of a prior contractual obligation.

No material benefit flows to the payer as a result of the payment.

The payment is made out of benefaction.

Therefore as you satisfy all of the above criteria, we consider that the payment made to the payee is a gift. Since the GST legislation specifically excludes a gift made to a non-profit body from being consideration for a supply, then your gift to the payee will have no GST consequences.

Further Information:

Please note that the following information also provides further clarification on various circumstances and conditions that may deem certain payments as gifts.

Charities Consultative Committee resolved issues document which is available on the internet at www.ato.gov.au under Issue 2 provides the following:

In these cases, the grant would represent consideration for a supply by the grantee.


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