Edited version of your written advice

Authorisation Number: 1012723806973

Ruling

Subject: GST and government related entity

Question 1

Are you a government related entity for the purposes of section 9-17(3) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

No

Relevant facts and circumstances

• You are an Australian public company, limited by guarantee established under the Corporations Act 2001 (Cth) (the Corporations Act).

• You were established by the Commonwealth and each State and Territory (with each listed as a member of the company in its Constitution)

• Your Constitution provides that you are establishes for a charitable purpose.

• You are a Health Promotion Charity under the Income Tax Assessment Act 1997 (Cth), is endorsed as a Deductible Gift Recipient and is endorsed for certain tax concessions.

• You also act as the Trustee of a Trust Fund the purpose of the Trust is to commission and undertake research relating to health.

Relevant legislative provisions

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

Section 195-1

Section 9-20

A New Tax system (Australian Business Number) Act 1999

Section 41

Reasons for decision

Summary

The Commonwealth, the States and the Territories established you under the Corporations Act and therefore, we consider that the entity was not established by the Commonwealth, a State or a Territory.

Detailed reasoning

The term 'government related entity' is defined in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (the GST Act)

government related entity is:

(a) a *government entity; or

(b) an entity that would be a government entity but for subparagraph (e)(i) of the definition of government entity in the A New Tax System (Australian Business Number) Act 1999; or

(c) a local governing body established by or under a *State law or *Territory law.

The term' government entity is defined in section195-1 of the GST Act to have the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999 (the ABN Act)

government entity means:

(a)  a Department of State of the Commonwealth; or

(b)  a Department of the Parliament established under the Parliamentary Service Act 1999; or

(c)  an Executive Agency, or Statutory Agency, within the meaning of the Public Service Act 1999; or

(d)  a Department of State of a State or Territory; or

(e)  an organisation that:

(i)  is not an entity; and

(ii)  is either established by the Commonwealth, a State or a Territory (whether under a law or not) to carry on an *enterprise or established for a public purpose by an *Australian law; and

(iii)  can be separately identified by reference to the nature of the activities carried on through the organisation or the location of the organisation;

whether or not the organisation is part of a Department or branch described in paragraph (a), (b), (c) or (d) or of another organisation of the kind described in this paragraph.

Therefore, a government-related entity is any of the following entities:

• a department of state of the Commonwealth

• a department of the parliament established under the Parliamentary Service Act 1999

• an executive agency, or statutory agency, within the meaning of the Public Service Act 1999

• a department of state of a state or territory

• an organisation, whether or not it is an entity, that

i. is either established by the Commonwealth, a state or a territory (whether under a law or not) to carry on an enterprise or established for a public purpose by an Australian law and

ii. can be separately identified by reference to the nature of the activities carried on through the organisation or the location of the organisation; whether or not the organisation is part of a department or branch described in the first four dot points above or of another organisation of the kind described in (i) or (ii)

• a local governing body established by or under a state law or territory law.

For GST purposes the term 'entity' has the meaning given by section 184-1 of the GST Act. Paragraph 184-1(1)(b) of this section provides that a body corporate is an entity.

A body corporate is an entity having a separate legal existence. A body corporate can be created by common law (e.g. a chartered corporation), by statute (e.g. a Corporations Act company) or by registration pursuant to a statue (e.g. a credit union).

You were registered under the Corporations Act and came into existence as a body corporate. It is an entity for ABN and GST purposes. It adopted a constitution on registration which was agreed to by its members. The constitution sets out the objects for which it is established.

The Corporations Act is a Commonwealth Act which is an Australian law. When it registered you, it gave you a separate legal existence, and powers of an individual and a body corporate. However, it does not set out your purposes or objects. You chose its objects and specified them in the constitution which it adopted upon registration. That is, the Corporations Act does not specifically establish or constitutes you. Therefore, we consider that you are not 'established … by an Australian law'.

Your members are the Commonwealth, the States and the Territories on its registration. That is, the Commonwealth, the States and the Territories established you under the Corporations Act which is an Australian law. Therefore, we consider that you were not established by the Commonwealth, a State or a Territory.

For these reasons, we consider that you are not a government related entity for GST purposes.

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