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Edited version of your written advice

Authorisation Number: 1051350370752

Date of advice: 1 May 2018

Ruling

Subject: GST and fees related to searching, copying, allowing access to information in a register

Question

Are the fees charged by you for researching, locating and photocopying records associated with and integral to the inspection of or provision of an extract from or certified copy of an extract from a register established and maintained by you under an Australian law not the provision of consideration (exempt) under Division 81 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

The fees charged by you for researching, locating and photocopying records are to the extent they are associated with or integral to inspection of or provision of an extract from or certified copy of an extract from a register established and maintained by you under an Australian law exempt under subsection 81-10(1) of the GST Act as they are Australian fees of a kind covered by subsection 81-10(5) of the GST Act and subsection 81-10(2) of the GST Act does not apply.

Relevant facts and circumstances

You are registered for goods and services tax (GST).

You are a body corporate established by a state Government to perform functions conferred or imposed on you under an Australian law. You are a statutory authority listed on the government website as a government agency.

You have the power to make by-laws. The Minister and the Governor have a level of power and control over your policies and decision making.

An Australian law provides that you are to establish and maintain registers containing the details of supplies made by you. You must make all registers kept under the Australian law available for inspection by members of the public and on request make available copies of extracts from any register.

Under an Australian law you may set fees and charges for inspection of registers and issue of extracts or certified copies from registers you maintain.

In the course of making registers available for inspection and providing extracts and copies of extracts from a register your activities involve you copying information, allowing access to information and searching for information contained in the registers.

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 Subsection 81-10(1)

A New Tax System (Goods and Services Tax) Act 1999 Subsection 81-10(2)

A New Tax System (Goods and Services Tax) Regulations 1999 Sub Regulation 81-10.01(1)

Reasons for decision

Legislation

Subsection 7-1(1) of the GST Act provides that GST is payable on taxable supplies.

Section 9-5 of the GST Act provides that you make a taxable supply if, amongst other things, you make the supply for consideration (paragraph 9-5(a) of the GST Act).

However, the supply is not a taxable supply to the extent that it is GST-free or input taxed. The GST-free and input taxed provisions do not apply to the supplies in question.

As you are registered for GST and provide services (researching, locating and photocopying) in relation to information in registers you establish and administer, in the course of an enterprise you carry on, the issue that arises under section 9-5 is whether such supplies are made for ‘consideration’.

The term ‘supply’ is defined in section 9-10 of the GST Act as ‘any form of supply whatsoever’ and includes amongst other things, a supply of services, or the provision of information.

Subsection 9-15(1) of the GST Act provides that consideration includes any payment, or any act or forbearance, in connection with, in response to or for the inducement of a supply of anything.

The definition of consideration in section 9-15 of the GST Act is so broad that it would likely include the fees you charge to research, locate and copy records/information from the registers. As all the requirements for a taxable supply would be otherwise satisfied the supplies of researching, locating and photocopying records from the registers would be taxable supplies. This would be the case unless Division 81 of the GST Act comes into operation to preclude the fees in question from being the provision of consideration.

Division 81 of the GST Act

Subsection 81-10(1) of the GST Act relevantly provides that a payment, or the discharging of a liability to make a payment, is not the provision of consideration to the extent the payment is an Australian fee or charge that is of a kind covered by subsections 81-10(4) or (5) of the GST Act.

The term ‘Australian fee or charge’ is defined in section 195-1 as:

An Australian government agency and an Australian law are terms defined in section 995-1 of the Income Tax Assessment Act 1997 as:

(*Asterisked terms are defined in the Dictionary in section 195-1 of the GST Act.)

Subsection 81-10(5) of the GST Act covers a fee or charge paid to an Australian government agency if the fee or charge relates to the agency doing any of the following:

As the fees covered by subsection 81-10(5) of the GST Act are not consideration, a supply to which they relate will not be a taxable supply unless the fee or charge is also of a kind covered by subsections 81-10(2) and (3) of the GST Act.

Under subsection 81-10(2) of the GST Act a payment made by an entity, or the discharge of a liability to make a payment, is treated as the provision of consideration to the extent the payment is an Australian fee or charge that is, or is of a kind, prescribed by those regulations.

Regulation 81-10.01(1) of the A New Tax System (Goods and Services Tax) Regulations 1999 (GST Regulations) provides, amongst other things, that for subsection 81-10(2) of the GST Act, the following kinds of Australian fee or charge are prescribed:

Conversely, section 81-15 of the GST Act provides that where a fee or charge is prescribed by regulation, the payment of the fee or charge is not treated as the provision of consideration. Regulation 81-15.01 to the GST Regulations sets out those fees and charges that are prescribed for section 81-15 and which do not constitute consideration. In particular paragraph 81-15.01(1)(f) to the GST Regulations refers to a supply of a regulatory nature made by an Australian government agency (AGA).

Are the fees of a kind covered by section 81-10(1) of the GST Act?

With regards to the elements of Division 81 of GST Act, you are an Australian government agency for GST purposes (being the State or an authority of the State). The fees in question are not an Australian tax as they don’t have the character of a tax and fall within the concept of a ‘fee for service’.

The fees for researching, locating and photocopying records are imposed under a state law and by-law which comes within the definition of an Australian Law being a State law but only to the extent the fees in question are associated with and integral to the supply of allowing inspection of a register or providing an extract from or certified copy of an extract from a register.

On that basis, the fees set by you under the state law come within the definition of an Australian fee or charge.

The fees charged by you for researching, locating and providing copies of information associated with inspection of or the provision of copies of extract from the registers relate to you copying, allowing access, searching for information for the purposes of subsection 81-10(5) of the GST.

Are the fees for researching, locating and copying of a kind covered by the regulations prescribed for subsection 81-10(2)?

Paragraph 81-10.01(1)(f) to the GST Regulations includes, for the purposes of subsection 81-10(2) of the GST Act, a fee or charge for the provision of information by a an AGA if the provision of the information is of a non-regulatory nature.

The term ‘regulatory nature’ is not defined in the GST Regulations or the GST Act. The explanatory statement to the A New Tax System (Goods and Services Tax) Amendment Regulation 2012 (No.2) (ES) states:

The ES also explains that the non-regulatory activities of government are subject to GST. Non-regulatory activities apply to supplies of goods and services for which fees are imposed where the consumer is provided with something that lacks a regulatory character. That is, the fee or charge does not arise under an Australian law which is intended, for example, to regulate behaviour, ensure consumer protection and ensure compliance with certain standards.

With regards to paragraph 81-10.01(1)(g) of the GST Regulations the ES provides examples of fees and charges that do not have a regulatory character or are not regulatory in nature including:

In the present case you are an AGA and are legislatively empowered under the state law to establish and maintain a number of registers containing information about supplies made under the state law. The registers must be made available for inspections by members of the public and on request copies of extracts for any register made available. Under that same state law you may charge a fee for the inspection of a register or for providing an extract from or certified copy of an extract from a register you establish and maintain.

It follows that where the fee for researching, locating and photocopying is associated with and integral to you allowing inspection of and copies from the registers, those fees arise under an Australian law.

The requirement to provide information (copies from the register) when requested under an Australian law (state law) points to the information when provided being regulatory in nature. Under the state law only an AGA can establish and maintain the registers and therefore allow inspection of or copies from the registers to be provided.

That being the case, the fees in question are not of a kind prescribed by the GST Regulations for the purposes of subsection 81-10(2) of the GST Act.

In being paid a fee for researching, locating or photocopying records associated with providing a person with an extract from the register or allowing inspection of the register, you are paid a fee that relates to activities listed in subsection 81-10(5) of the GST Act including allowing access to information, copying information and searching information.

Accordingly, the fees you charge for researching, locating and copying information associated with inspecting or providing a copy of, or extract from, the registers established and maintained by you is of a kind covered by subsection 81-10(5) of the GST Act and is, therefore, not the provision of ‘consideration’ under subsection 81-10(1) of the GST Act.

As an essential requirement of section 9-5 of the GST Act has not been satisfied, the supply of researching, locating and copying services involved in allowing inspection of or a copy or extract from the registers is not a taxable supply on which GST is payable (exempt).

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