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This edited version has been archived due to the length of time since original publication.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: 1051394579104

Date of advice: 4 July 2018

Ruling

Subject: GST and NDIS funded supports

Question

Are your supplies of services to NDIS funded participant’s GST-free under section 38-38 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

Yes, your supplies of services to NDIS funded participants are GST-free under section 38-38 of the GST Act provided the supports provided are considered reasonable and necessary and the supports are covered by the GST-free Supply (National Disability Insurance Scheme Supports) Determination 2017 (Disability Services Minister’s Determination). See below for further detail.

Question 2

Are your supplies of services to non NDIS funded participant’s GST-free under the GST Act?

Answer

No, your supplies of services to non NDIS funded participants are not GST-free under the GST Act.

Relevant facts and circumstances

You are registered for goods and services tax (GST). You provide day programs for people with disabilities.

You do not receive funding from the Government for the provision of your services.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 section 38-38

Reasons for decision

Section 38-38 of the GST Act provides that certain supports provided to NDIS participants are GST-free. Section 38-38 of the GST Act states:

A supply is GST-free if the supply:

NDIS plan is in effect

The participant's NDIS plan must be in effect under section 37 of the National Disability Insurance Scheme Act 2013 (NDIS Act), which means it must be approved by the National Disability Insurance Agency (NDIA).The plan ceases to be effective when it is replaced by another plan, or when the NDIS participant ceases to be a participant in the NDIS.

You have stated that most of your participant’s have a NDIS plan. Where your participant’s do not have an NDIS plan then section 38-38 of the GST Act does not apply to making those supplies GST-free.

Reasonable and necessary supports

The supply must be of one or more reasonable and necessary supports, as defined in the participant's NDIS plan. Where the participant’s NDIS plan specifies an amount (such as time or quantity) of reasonable and necessary supports, any supplies of supports in excess of these specifications will not be a GST-free NDIS supply.

Each individual participant’s plan will specify the reasonable and necessary supports and this needs to also be included in your agreement between you and the participant.

Made under a written agreement

There must be made a written agreement between you, the supplier, and the NDIS participant (or another person). The written agreement must:

The written agreement can be between you and a person other than the NDIS participant. Other people can include those who manage the plan and funding for the NDIS participant. This would include the NDIA, a plan management provider registered with NDIA, or a guardian or relative of the NDIS participant.

The written agreement may be a single document or a combination of documents, such as letters between you and the other party, and receipts or invoices you issue. It may include documents in electronic form. As long as you have written evidence of a legally binding obligation for you to make the supply to the NDIS participant and that it is a reasonable and necessary support as specified in the participant’s NDIS plan, the requirement for a written agreement is satisfied.

You have provided a copy of the template used for your written agreement between you and the NDIS participant. This includes the participant’s name and that the provision of the supports is reasonable and necessary to the participant.

A supply covered by the Disability Services Minister’s Determination

For the supply to be GST-free, your supply to the NDIS participant must be of a kind covered by the Disability Services Minister's Determination. The Determination applies to supplies made on or after 1 July 2017 but before 1 July 2021.

The supplies covered by the Disability Services Minister’s Determination are:

Note 1

These services are only GST-free if it is a supply of a kind listed in:

The most common examples of supplies in these Determinations have been shown below each of the relevant services covered by the Disability Services Minister's Determination.

As such, you are making GST-free supplies under section 38-38 of the GST Act where the participant plan provides for the supports you provide to each individual participant to be reasonable and necessary and the supports are listed in the Disability Services Minister’s Determination.

Non NDIS funded participants

Where you provide supports to participants who are not funded by the NDIS and do not have an NDIS plan those supplies are not GST-free under section 38-38 of the GST Act. As you do not provide home care or care in a residential setting, there are no supplies of these services that are GST-free under any other section of the GST Act.

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