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This edited version has been archived due to the length of time since original publication.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

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Edited version of your written advice

Authorisation Number: 1012825341640

Date of advice: 24 June 2015

Ruling

Subject: GST and registration

Question

Are you required to be registered for GST?

Answer

Yes, you are required to be registered for GST in Australia, where the GST turnover from the supply of transport connected with Australia is at or above $75,000.

Relevant facts and circumstances

You are a company incorporated in Country X. You are a resident of Country X for tax purposes and are not a resident of Australia for income tax purposes.

Your principal place of business is in Country X and you have no physical operational facilities in Australia.

You are a passenger transport provider in Country X, offering low-cost services to more destinations and routes with higher flight frequency within Country X.

You transport passengers to different parts of the world.

When a passenger makes a booking, you issue the passenger with a ticket containing a unique ticket number and an invoice.

The contract of carriage and the general terms and conditions and the regulations that you issue are governed by and construed in accordance with Country X law. Following are the important points:

Your contention

You are not required to be registered for GST where you only provide international services to Australia as those supplies are disregarded in calculating GST turnover.

Following the High Court decision in Commissioner of Taxation v Qantas Airways Ltd [2012] HCA 41 (the Qantas case), your contract of carriage should be characterised as supplying rights to a further supply. That supply will not be included in the GST turnover for the purposes of Division 188 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) as the supply of that right is only ever connected with Australia because of section 9-25(5)(c).

Relevant legislative provisions

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

A New Tax System (Goods and Services Tax) Act 1999 Section 9-25.

A New Tax System (Goods and Services Tax) Act 1999 Subsection 9-25(5).

A New Tax System (Goods and Services Tax) Act 1999 Section 23-5.

A New Tax System (Goods and Services Tax) Act 1999 Section 188-5.

A New Tax System (Goods and Services Tax) Act 1999 Section 188-10.

A New Tax System (Goods and Services Tax) Act 1999 Section 188-15.

A New Tax System (Goods and Services Tax) Act 1999 Section 188-20.

A New Tax System (Goods and Services Tax) Act 1999 Section 195-1.

Reasons for decision

Section 23-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) outlines who is required to be registered and it states:

(* denotes a term defined in section 195-1 of the GST Act.)

Currently, the registration turnover threshold is $75,000 (or $150,000 if you are a non--profit body).

Section 188-10 of the GST Act provides that your GST turnover meets the registration turnover threshold if:

Subsection 188-15(1) of the GST Act provides that your current GST turnover is the sum of the values of all supplies made in a particular month plus the previous 11 months. Subsection 188-20(1) of the GST Act provides that your projected GST turnover is the sum of the values of all supplies made in a particular month plus the next 11 months.

However, certain supplies are excluded from the calculation of current and projected GST turnovers. These include:

Additionally, subsections 188-15(3) and 188-20(3) of the GST Act provide that in working out your current and projected GST turnovers, disregard:

As you are a non-resident, you will be required to be registered for GST if your GST turnover from supplies that are connected with Australia meets the registration turnover threshold of $75,000.

For the purposes of determining whether a supply is connected with Australia, section 9-25 of the GST Act makes a distinction between a supply of goods (subsection 9-25(1) to (3)), a supply of real property (subsection 9-25(4) and a supply of anything other than goods or real property (subsection 9-25(5).

In this case, you are not supplying goods or real property. Therefore, subsection 9-25(5) of the GST Act is relevant for consideration.

Subsection 9-25(5) of the GST Act provides that a supply of anything other than goods or real property is connected with Australia if:

Goods and Services Tax Ruling GSTR 2000/31 discusses when a supply is connected with Australia.

Paragraph 9-25(5)(a) of the GST Act provides that a supply of anything other than goods or real property is connected with Australia if the thing is done in Australia.

'Thing' is defined in section 195-1 of the GST Act to mean anything that can be supplied or imported. It is the subject matter of the supply. Examples of things that can be supplied, that are not goods or real property are illustrated by reference to the meaning of supply in section 9-10. Things other than goods or real property that can be supplied include services (paragraph 9-10(2)(b)), a creation, grant, transfer, assignment or surrender of any right (paragraph 9-10(2)(e)) or any combination of these things(paragraph 9-10(2)(h)) .

Under paragraph 9-25(5)(a) of the GST Act the connection with Australia requires that the 'thing' being supplied is 'done' in Australia. The meaning of 'done' depends on the nature of the 'thing' being supplied. 'Done' can mean, for example, performed, executed, completed or finished depending on what is supplied.

Paragraph 9-25(5)(b) of the GST Act provides that a supply of a thing other than goods or real property is connected with Australia if the supplier carries on in Australia an enterprise by means of a permanent establishment and the supply is made through that permanent establishment. This requires that a connection be established between the permanent establishment and the supply.

Paragraph 9-25(5)(c) of the GST Act provides that where neither paragraph 9-25(5)(a)nor 9-25(5)(b) applies to the supply of a right or option to acquire another thing, the supply of the right or option is connected with Australia if the supply of the other things would be connected with Australia.

In the ruling request it was submitted that you are not a resident of Australia for income tax purposes and have no presence in Australia. On that basis, the supply that you make to a passenger would not be made through an enterprise that you carry on in Australia for the purposes of paragraph 9-25(5)(b) of the GST Act.

You are a transport provider. When a passenger makes a booking through your website or through travel agents, upon payment of the fares, the passenger's booking is confirmed and an itinerary receipt is provided listing the flight, date and route.

You rely on the High Court decision in Commissioner of Taxation v Qantas Airways Ltd [2012] HCA 41 (the Qantas case) to argue that the contract of carriage should be characterised as supplying rights to a further supply.

The Qantas case considered whether an airline made a supply for consideration where the airline passenger does not take a booked flight and any payment made by the passenger is not refundable (or no refund is claimed).

The majority of the High Court found that the conditions of the carrier

The Decision Impact Statement (DIS) for the Qantas case was issued by the Australian Taxation Office (ATO) on 9 November 2012. This outlines the ATO's response to this case, and forms part of the ATO view. In particular, the Commissioner considered that there is nothing in the High Court decision that was inconsistent in a material way with existing ATO views. It also provided that:

GSTR 2009/3, which discusses cancellation fees, was amended to reflect the reasoning of the High Court in the Qantas case.

A key aspect of the decision in the Qantas case is that in cases where a payment is made on entry into a contract which secures rights (whether conditional or not) to a further supply, as outlined in GSTR 2009/3, the Commissioner considers that the payment will be consideration for a supply consisting at least of the provision of those rights (and entry into corresponding obligations), even if the further contemplated supply is not ultimately made.

GSTR 2009/3 provides examples that demonstrate the application of the principles outlined in paragraphs 17 to 89 of the Ruling and this includes airline ticketing arrangements:

As outlined above when an airline confirms the booking it does a number of 'things'.

Goods and Services Tax Ruling GSTR 2001/8 discusses mixed and composite supplies.

The distinction between parts that are separately identifiable and things that are integral, ancillary or incidental, is a question of fact and degree. In deciding whether a supply consists of more than one part we adopt a common sense and practical approach.

You argue that when a booking is confirmed what it is supplying is a right to acquire a further supply.

The word 'right' is not defined for GST purposes and has a broad meaning under the general law. A 'right' has been defined as 'generally, a benefit or claim entitling a person to be treated in a certain way'.

Goods and Services Tax Ruling GSTR 2003/8 examines the meaning of the expression 'supply that is made in relation to rights' in item 4 in the table in subsection 38-190(1) of the GST Act.

Paragraphs 64 to 72 of GSTR 2003/8 discuss supply that is the a creation, grant, transfer, assignment or surrender of any right (paragraph 9-10(2)(e).

This approach to rights under executory contracts is consistent with the analysis of a supply of real property under a standard land contract in Goods and Services Tax Ruling 2000/28. The supply of an equitable interest in the land upon entry into the contract is ancillary to what is the substance of the transaction, namely the transfer of title and delivery of possession at settlement.

In this case, when confirming a booking, you do 'things' similar to the ones listed in paragraph 177 of GSTR 2009/3. This may include granting a right to the transport.

Applying the principles adapted in the above rulings, we consider that although a 'right to a further supply' is granted at the time of confirmation of the booking, the supply of this right is integral, ancillary or incidental to the dominant part of the supply being the air transport. Hence, the essential character of the supply that you make when you confirm a booking is the service of transporting passengers.

The supply of the air transport is partly done in Australia, with the passenger either arriving in Australia or departing from Australia. Hence, the supply is (partly) connected with Australia under paragraph 9-25(5)(a) of the GST Act.

As the supply is connected with Australia under paragraph 9-25(5)(a) of the GST Act, the requirement of sub-paragraph 9-25(5)(c)(i) is not satisfied. Hence, paragraph 9-25(5)(c) is not applicable.

As such the supply is not disregarded in working out the current and projected GST turnovers (subsections 188-15(3) and 188-20(3) of the GST).

Your supply of transport is partly connected with Australia. Consequently, where GST turnover from the supply of transport connected with Australia (under paragraph 9-25(5)(a)) is at or above $75,000, you are required to be registered for GST under section 23-5 of the GST Act.

Additional Comments:

We note that the Board of Taxation's review of GST cross-border transactions recommended to remove the requirement for non-residents to register if they only make GST-free supplies (Recommendation 9). To date no change has been enacted. Therefore, this issue is not considered in providing this private ruling.

The Commissioner does not have the discretion to waive the requirement to register if the entity is required to be registered.

GSTR 2001/8 provides methods and examples that may be used to work out how to apportion the consideration for a supply that contains separately identifiable taxable and non-taxable parts. The general principle provided in the ruling to use any reasonable method of apportionment that is supportable under the circumstances can be adopted to determine the extent to which the supply of the air transport is connected with Australia. Records must be retained to support the method of apportionment used.


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