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Edited version of your written advice

Authorisation Number: 1051458122529

Date of advice: 7 December 2018

Ruling

Subject: GST and food

Question

Is the supply of the specified products (the Products) GST-free?

Answer

No. The supply of the Products is a taxable supply.

Relevant facts and circumstances

You are registered for GST.

You manufacture and distribute the Products to retailers in Australia. You also have an online presence, where you sell the Products directly to consumers.

You have provided details of the ingredients, the manufacturing process and photographs of the packaging of the Products.

The Products come in different flavours. They consist of various sweet or savoury ingredients such as seeds, nuts, plant based milk, sugar, fruit puree, fruit juice concentrate, starch and minerals.

For each product, the ingredients are measured and mixed/blended together at certain stages using hot water. Once the right viscosity is reached the mixture is batch dosed into individual containers. The Products are then sterilised by placing them in the retort cooker (steam/water spray) that heats them in a high temperature for an extended period of time.

The Products are non-dairy products.

The Products are not frozen.

The Products are located in the chiller section in the store.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 section 38-2

A New Tax System (Goods and Services Tax) Act 1999 section 38-3

A New Tax System (Goods and Services Tax) Act 1999 paragraph 38-3(1)(c)

A New Tax System (Goods and Services Tax) Act 1999 section 38-4

A New Tax System (Goods and Services Tax) Act 1999 paragraph 38-4(1)(a)

Summary

The supply of the Products is a taxable supply as the Products are food of a kind covered under item 20 of Schedule 1 to the A New Tax System (Goods and Services Tax) Act 1999 (GST Act).

Detailed reasoning

A supply of food is GST-free under section 38-2 of the GST Act if the product satisfies the definition of food in section 38-4 of the GST Act and the supply is not excluded from being GST-free by section 38-3 of the GST Act.

Food is defined in section 38-4 of the GST Act to include food for human consumption (paragraph 38-4(1)(a) of the GST Act).

The Products are food for human consumption, and therefore, satisfy the definition of food in paragraph 38-4(1)(a) of the GST Act.

However, paragraph 38-3(1)(c) of the GST Act provides that a supply of food is not GST-free if it is food of a kind that is specified in the table in clause 1 of Schedule 1 to the GST Act (Schedule 1).

In this case item 20 in Schedule 1 (item 20), is relevant for consideration. Therefore we need to consider whether the Products are a pudding or of a kind of a pudding.

Of a kind

The phrase 'of a kind' is not defined in the GST Act. Accordingly, it is appropriate to examine the ordinary meaning of that term. The Macquarie Dictionary [Online], viewed on 20 November 2018, www.macquariedictionary.com.au does not define the entire phrase 'of a kind' however, it defines the word 'kind' to mean:

In Lansell House Pty Ltd & Anor v FCT 2010 ATC 20-173 (Lansell 2010), the Court considered whether a product known as ‘Mini Ciabatte’, which was described on its packaging as ‘Italian flat bread’, was taxable. The issue was whether the product fell under item 32 of Schedule 1 being ‘food that is, or consists principally of, biscuits, cookies, crackers, pretzels, cones or wafers’. The Federal Court agreed with the ATO’s decision and found that the product was ‘of a kind’ of the cracker genus and subject to GST.

In Lansell 2010, the Court provided that classification decisions for GST purposes are often described as questions of fact and degree, a matter of overall impression and a combination of fact finding and evaluative judgment. At paragraphs 108 and 109 it stated:

On appeal, the Full Federal Court, in Lansell House Pty Ltd & Anor v. FCT 2011 ATC 20-39 (Lansell 2011), also found that Mini Ciabatte was subject to GST. The Court considered the phrase ‘of a kind’ and said, at paragraph 30:

In both cases, the Courts attached little significance to the fact that water and yeast were outside the range of those ingredients in crackers and were satisfied that, even accepting that the product is not laminated and contains yeast, it is 'of a kind' of the cracker genus (Lansell 2010 at para 73 and Lansell 2011 at para 33).

In Lansell 2011, at para 24, the Court quoted Jacob LJ in Commissioners for Her Majesty's Revenue and Customs v. Procter & Gamble UK [2009] STC 1990, that the question of classification 'is not one calling for or justifying over-elaborate, almost mind-numbing, legal analysis. It is a short practical question calling for a short practical answer’. It further stated that ‘in a case where scientific analysis does not form part of the characterisation of the product, its classification is not a scientific question'.

Accordingly, something will be 'of a kind' if it is of the same nature or character (possessing the same distinguishing qualities) as the thing or group in question.

The ATO view on pudding is outlined in Issue 13 of the Food Industry Partnership – Issues Register (Issue 13). Issue 13 states:

In this case the Products are non-dairy products. Whilst the ingredients or manufacturing process may be factors in determining whether the Products are ‘similar to’ puddings in item 20, they will not, of themselves, be determinative. As stated in Lansell House 2011 at paragraph 30, a new product that does not possess all the same characteristics of a known item listed in Schedule 1 may nevertheless be within the relevant item; the question is whether the resulting product comes within the genus, class or description of that known item.

We consider that the Products are of a kind of a pudding and come within the genus, class or description of known items such as rice puddings or tapioca puddings and hence fall under item 20. The Products are similar in nature to a tapioca pudding and they have heat applied to them (the water in the first step is hot and then the Products are placed in the retort machine that heats them in a high temperature for an extended period of time). The Products are cooked, as the ‘sterilisation in an overpressure retort cooker’ is a steaming process that cooks the ingredients while also killing any bacteria.

Accordingly, the supply of the Products is not GST-free under section 38-2 of the GST Act as the Products are excluded from being GST-free by paragraph 38-3(1)(c) of the GST Act. The supply of the Products therefore is a taxable supply where all the other requirements of section 9-5 of the GST Act are met.


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