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Edited version of your written advice

Authorisation Number: 1012777793545

Ruling

Subject: GST and payment of compensation/damages under the Water Act 2000

Question

Is there a GST liability for the Bore Owners when ABC Pty Ltd (ABC) pays them compensation under the Make Good Agreement (MGA) for the effects caused by ABC's activities to the water bores?

Answer

No, the Bore Owners do not make a supply to ABC under the MGA when ABC pays them compensation hence there is no GST liability for the Bore Owners.

Relevant facts and circumstances

The Bore Owners own some water bores on the farmland. The Bore Owners are registered for GST. They carry on an enterprise of farming on the farmland.

The Bore Owners entered into a Make Good Agreement (MGA) under the Water Act 2000 (Water Act) with ABC Pty Ltd. The MGA states that the MGA is a Make Good Agreement under Division 3 of Chapter 3 of the Water Act.

ABC is registered for ABN and GST in Australia. ABC is the registered holder of a Petroleum Lease.

The Water Act 2000 (the Water Act)

Chapter 3 of the Water Act is about Underground Water Management. Division 3 of Chapter 3 of the Water Act explains the general obligations of petroleum tenure holders.

Part 4 of Chapter 3 of the Water Act explains about ABC's obligation to negotiate and enter into a Make Good Agreement with the Bore Owners as follows:

Part 5 of Chapter 3 of the Water Act explains about the make goods obligations of ABC.

The Make Good Agreement (MGA)

The MGA provides that the water bores will have a decline of the water level in the aquifer to which the bores relate. This is the result of ABC's activities in exercising their relevant underground water rights as a Petroleum and Tenure Holder.

The MGA identifies the Responsible Tenure Holder for the water bores as ABC for make good purposes under the Water Act 2000 (Water Act).

ABC has completed a Bore Assessment for the water bores per the requirements of Section 411 of the Water Act.

The MGA acknowledges the fact that the water bores are impaired in their capacity by ABC's activities and that money compensation is the most effective measure for the purpose of making good the impaired capacity of the water bores.

The Make Good Measures for the likely impaired capacity of the water bores consist of the payment of Compensation from ABC to the Bore Owners and the decommissioning of the water bores by ABC in accordance with Best Industry Practice.

The monetary compensation is listed in the MGA and the compensation is in full and final settlement of Make Good Obligations under Chapter 3 of the Water Act with respect to the water bores.

Reasons for decision

Summary

The payment from ABC to the Bore Owners is paid and received as compensation to the Bore Owners to discharge ABC's statutory compensation liability for losses relating to the Bores resulting from ABC's activities in exercising their relevant underground water rights as a Petroleum and Tenure Holder. Any loss suffered by the Bore Owners is not a supply that the Bore Owners make to ABC hence there is no GST liability for the Bore Owners.

Detailed reasoning

Section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) states:

A supply is broadly defined in section 9-10 of the GST Act to include the creation, grant, transfer, assignment or surrender of any right or an entry into, or release from an obligation to refrain from an act or to tolerate an act or situation.

Is there a supply from the Bore Owners to ABC of the right to exercise ABC's relevant underground water rights as a Petroleum and Tenure Holder?

Goods and Services Tax Ruling 2001/4 (GSTR 2001/4), sets out the Commissioner's views relating to GST consequences of court orders and out-of-court settlements. In relation to the meaning of supply, paragraphs 22 and 25 of GSTR 2001/4 state:

Goods and Services Tax Ruling 2006/9 (GSTR 2006/9), examines the meaning of 'supply' in the GST Act. Proposition 5 in paragraph 71 of GSTR 2006/9 provides that to 'make a supply' an entity must do something. The relevant paragraphs are paragraphs 74 and 78 (as follows):

The current case has a number of similarities to the decisions in Nullaga Pastoral Company Pty Ltd v FC of T78 ATC 4329; (1978) 8 ATR 757; and Barrett v Federal Commissioner of Taxation [1968] HCA 59; (1968) 118 CLR 666; 15 ATD 149; 10 AITR 685. These cases involve 'compensation' payments relating to mining activities conducted on farming properties; and consider whether the payments that were made to the farmers were licence fees. In Barrett's case, Owen J of the High Court held that the payments were not received (by the landholder) as income in return for the grant of a licence to use the land for the purpose of mining, as the mining company already had the right to take the minerals from the land and do all things necessary for that purpose pursuant to an agreement with another party. That is, the landowner taxpayer did not receive the payments for granting an authority to the mining company.

Similarly, in Nullaga's case, the mining operators already had a permit to enter the land and could also apply for a mining tenement on the land pursuant to the Mining Act (WA). Their exploration rights were therefore, not pursuant to any licence granted by the landowner. Wickham J of the Supreme Court of Western Australia thought that the agreement did embrace a kind of licence but it was held that the money was paid as consideration for the deprivation of a capital asset and in order to replace that capital.

In the current case, ABC is the holder of petroleum leases and the registered holder of the Petroleum Authority under the Petroleum Legislation. ABC has the rights to exercise ABC's relevant underground water rights as a Petroleum and Tenure Holder; however, Chapter 3 of the Water Act requires ABC to monitor and assess the impact of the exercise of underground water rights on water bores and to enter into make good agreements with the owners of the bores. Since ABC's activities led to the impaired capacity of the bores which belong to the Bore Owners, ABC has statutory obligations to enter into a MGA with the Bore Owners as required under section 406 of the Water Act.

The Make Good Measures for the likely impaired capacity of the Relevant Bore and the C&A Bore consist of the payment of Compensation from ABC to the Bore Owners and the decommissioning of the water bores by ABC in accordance with Best Industry Practice.

In such circumstances, the right to exercise ABC's relevant underground water rights is vested in ABC as a holder of the Petroleum Authority under the Petroleum Legislation. The Bore Owners do not transfer or surrender their rights related to the water bores to ABC. Hence there is no supply from the Bore Owners to ABC of the right to exercise ABC's relevant underground water rights.

Discontinuance supply:

Upon signing the MGA, the Bore Owners accept that they give up their rights to pursue further compensation in relation to the water bores. However, we do not consider that the giving up of the rights is a separate supply from the Bore Owners to ABC since it is not the reason for the decommissioning of the water bores and for the compensation amount being paid to the Bore Owners. Paragraphs 106 to 109 of GSTR 2001/4 state:

Damages

The Make Good Measures under the MGA is compensation in respect of any damage caused or likely to be caused to the water bores and any inconvenience suffered by the Bore Owners as a consequence of ABC's activities in exercising their relevant underground water rights as a Petroleum and Tenure Holder. In paragraph 71 of GSTR 2001/4, the Commissioner identifies situations where the subject matter of a claim for damages or compensation cannot be regarded as a 'supply'. Examples of such claims include property damage, negligence causing loss of profits, wrongful use of trade name, breach of copyright, termination or breach of contract or personal injury. We consider that this payment under the MGA is not consideration for a supply from the Bore Owners to ABC.

In summary, when the Bore Owners receive the Make Good Measures from ABC, there is no supply from the Bore Owners to ABC and no consideration. Hence there is no GST liability arising for the Bore Owners.


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