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Ruling

Subject: GST and arranging services

Will Entity A be entitled to claim a reduced input tax credit (RITC) on costs that Entity B intends to on charge it, in connection with its acquisition of shares from the vendors?

Will Entity B be entitled to claim an input tax credit (ITC) or RITC on costs it incurred to progress the acquisition of the vendor's shares by Entity A?

Answers

Entity A will be entitled to claim a RITC under item 9 of subregulation 70-5.02(2) of the GST Regulations (item 9) on the acquisition it made from Entity B (which Entity B acquired from the lawyers) only to the extent that acquisition contains "arranging services".

Entity B will be entitled to claim an ITC for the acquisition of services from the lawyers to the extent those services fall within the scope of item 9. To the extent that the lawyers' services do not fall within the scope of item 9, the remaining acquisition will be for Entity B's enterprise and any ITCs can be claimed according to the recovery rate of Entity B's enterprise.

Relevant facts and circumstances

Entity B Pty Ltd (Entity B) owns shares in a group of companies (collectively known as the "Group").

Prior to the Transaction, a number of other companies and individuals also owned shares in the Group. These companies and individuals are referred to jointly in this private ruling as "the Vendors".

In prior years there has been some disagreement between Entity B and the Vendors which caused detriment to the day-to-day operation of the Group. These disagreements made it difficult for the Group to continue the day-to-day operations of the group.

There was a dispute relating to funding the ongoing operations of the Group. As this could not be resolved, both Entity B and the Vendors engaged lawyers to represent them at board meetings.

This resulted in Entity B and the Vendors agreeing to undertake mediation.

Entity B participated in the mediation for the following reasons:

· To ensure the survival of the Group as the infighting was resulting in the erosion of value of the Group;

· To consider strategies for continuing the business;

· To consider the management of the business into the future.

The following took place in chronological order:

· At the conclusion of the first day of mediation, the Vendors suggested that Entity B make an offer to purchase their interests in the Group;

· Negotiations concerning the sale price occurred. A number of options were discussed with the mediator liaising;

· The Vendors asked for $x and Entity B countered the offer with its offer to purchase the shares for $y plus a share of the proceeds of the sale of one property of the Group when that sale was realised. The Vendors verbally agreed to the $y offer;

· The Deed of Settlement (the Deed) was signed by Entity B and the Vendors allowing Entity B (or its nominee) to acquire the Vendor's shares in the Group.

During the mediation, Entity B provided the Vendors with a worksheet which summarised the value ascribed to the assets of the Group by Entity B as a "reference point" for the value of the Group. The Vendors did not make any further inquiries as to whether the value presented to them reflected the market value of the assets of the Group.

Under the terms of the Deed, Entity B determined that Entity A, an entity under common control with Entity B, would purchase the Group shares.

Subsequent to appointing Entity B, a meeting was arranged to settle the purchase of the Vendors' shares. Some of the Vendors (from here on referred to as the "Disputing Vendors") did not attend this meeting and did not respond to attempts at communication by the Entity B legal team in the lead up to, or after the arranged settlement date.

The Disputing Vendors submitted a statement of claim in the Federal Court of Australia seeking to rescind the Deed on the grounds that the Entity B's conduct in securing the terms of the Deed were misleading and deceptive.

As a result of the difficulties in running the business, Entity B no longer wanted to deal with the Vendors, so was willing to proceed to trial to ensure that the Deed held and that settlement ensued. The acquisition of the Vendors' shares was the only way to continue the business reasonably, with Entity B's motivation to protect the value of the business.

Following a period of dispute the non-Disputing Vendors and Disputing Vendors eventually agreed to the transfer of shares.

The lawyers are longstanding advisors of Entity B and assisted Entity B in all aspects of resolving this matter and finalising the acquisition of shares from the Vendors.

Due to the nature of the original disagreement and the Disputing Vendors' unwillingness to communicate with Entity B and its directors, The lawyers was required to take an active role in all the dealings between Entity B and the Vendors.

Specifically, the lawyers' role included:

· actively representing Entity B in all dealings with all Vendors;

· assisting in planning the terms and details of the Transaction;

· assisting in structuring the Transaction;

· developing, managing and developing due diligence programs to forward the Transaction;

· assisting in negotiating, drafting and settling the documents (such as the Deed, the security, guarantee and financial assistance documents) necessary to complete the Transaction;

· assisting in resolving various disputes arising after the signing of the Deed, which resulted from the Disputing Vendors' Federal Court claim with respect to the contract price, including:

· defending contractual rights under the Deed with respect to the Transaction;

· negotiating out of court settlement with the Disputing Vendors and assisting in completing the transfer of shares;

· negotiating the terms of settlement with the non-Disputing Vendors and assisting in completing the transfer of shares;

Entity B is planning to on-charge the costs that it incurred after the date Entity A was nominated as the share purchaser, to Entity A.

Entity A and Entity B are registered for GST.

Entity B is not grouped with other companies in the Group for GST purposes.

When the lawyers' fees are on-charged to Entity A, Entity A will exceed the financial acquisition threshold (FAT).

Subsequent to our request for further information you advised us that you are unable to locate a specific engagement letter outlining the terms and conditions of the particular engagement and work performed by the lawyers.

We also requested a cost agreement or some form of "umbrella" type agreement, such as those made between a solicitor and client. However, we have not been provided with anything to this effect. Instead you have provided us with a copy of an invoice prepared by the lawyers which has been issued to Entity B.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999:

Section 11-5

Subsection 11-15(1) and (2)

Section 40-5

Section 70-5

Section 70-10

A New Tax System (Goods and Services Tax) Regulations 1999:

Regulation 40-5.09

Subregulation 40-5.09(1)

Subregulation 40-5.09(2)

Reasons for decision

Claiming Input Tax or Reduced Input Taxed Credits

In order to be entitled to an input tax credit, an entity must make a creditable acquisition. To be a creditable acquisition under section 11-5 of A New Tax System (Goods and Services Tax) Act 1999 (GST Act), the thing must be acquired, solely or partly, for a creditable purpose.

Subsection 11-15(1) of the GST Act provides that an entity acquires a thing for a creditable purpose to the extent that it is acquired in carrying on its enterprise. However, under paragraph 11-15(2)(a) of the GST Act, "you do not acquire a thing for a creditable purpose to the extent that it relates to making supplies that would be input taxed".

Input Taxed Financial Supplies

Subsection 40-5(1) of the GST Act provides that a financial supply is input taxed.

The provision, acquisition or disposal of something is a financial supply where it satisfies the relevant requirements of regulation 40-5.09 of the A New Tax System (Goods and Services Tax) Regulations 1999 (GST Regulations).

The table in subregulation 40-5.09(3) of the GST Regulations contains eleven categories of interest, the provision, acquisition or disposal of which, will constitute a financial supply. The provision, acquisition or disposal of shares is one category of interest. Therefore, where the requirements of subregulation 40-5.09(1) of the GST Regulations are satisfied the provision, acquisition or disposal of shares will be a financial supply that is input taxed.

Entity A makes an acquisition of shares from the Vendors. Further, as Entity A exceeds the FAT any acquisition it makes in relation to this acquisition of shares would be prima facie not made for a creditable purpose under paragraph 11-15(2)(a) of the GST Act. However, section 70-5 of the GST Act provides that specified acquisitions that relate to making input taxed financial supplies, known as reduced credit acquisitions (RCAs), can give rise to a RITC. The percentage of the RITC will depend upon the type of acquisition made and will be either 75% or 55%.

You submit that there is a single supply of arranging services made by the lawyers to Entity B, which is on-supplied by Entity B to Entity A. Therefore, on the basis that Entity B makes an on-supply (of arranging services) to Entity A, you consider that the acquisition by Entity A (from Entity B):

· has a direct nexus to the share transactions that took place between Entity A and the Vendors, and

· falls within the scope of item 9 of subregulation 70-5.02(2) of the GST Regulations (item 9).

As such you consider that Entity A will be entitled to a RITC.

It is also your submission that the service acquired by Entity B from the lawyers which is then on-supplied to Entity A is a creditable acquisition. That is, to the extent that the acquisition of service by Entity B from the lawyers relates to the taxable on-supply of services a full input tax credit entitlement arises.

In order to determine if the acquisition by Entity B is a creditable acquisition and whether Entity A will be entitled to a RITC, the transaction and nature of the acquisitions must be analysed.

Nature of Acquisitions for RITC

The Commissioner's views set out in paragraphs 223 to 256 of Goods and Services Tax Ruling GSTR 2002/2 Goods and services tax: GST treatment of financial supplies and related supplies and acquisitions (GSTR 2002/2) concerning the identification of 'mixed' and 'composite' acquisitions are relevant in undertaking this analysis. In particular at paragraph 224-225 of GSTR 2002/2 the Commissioner states:

224. However, a supply consisting only of taxable parts may not be wholly a reduced credit acquisition to the acquirer. Only those parts that are reduced credit acquisitions give rise to reduced input tax credits.

225. It is not necessary to separate parts of an acquisition into things that are listed in regulation 70-5.02 and parts that are not unless these are separately identifiable parts of the acquisition. Where there are no separately identifiable parts of the acquisition you need to look at the acquisition as a whole to determine whether it is an acquisition specified in the GST regulations.

The Commissioner then provides an example in paragraphs 226-227 of GSTR 2002/2 to illustrate the above principle.

Example 31: Acquisition of more than one thing

226. Papier Suppliers supplies Fobick Bank with stationery. The supply is made up of deposit and withdrawal forms, letterhead and business cards. The supply from Papier consists of several parts, all of which are taxable. There is no need for Papier to separately identify the consideration that relates to each part however Papier chooses to separately list each item on the invoice provided to Fobick Bank.

227. Examining the acquisition, Fobick has acquired deposit and withdrawal forms, letterhead and business cards. Business cards and letterhead are not listed as reduced credit acquisitions in regulation 70-5.02. Therefore, the acquisition of those items by Fobick Bank is not a reduced credit acquisition. Deposit and withdrawal forms are listed in item 4 of regulation 70-5.02 as a reduced credit acquisition and therefore, the acquisition of those forms is a reduced credit acquisition by Fobick Bank.

Therefore, the Commissioner calls for a close analysis of an acquisition regardless of how the supplier made the supply. To this end at paragraph 228 of GSTR 2002/2 further guidance in relation to RCAs are provided as follows:

Reduced credit acquisition is acquired together with something that is not a reduced credit acquisition

228. If something that is listed as a reduced credit acquisition is acquired together with something that is not listed as a reduced credit acquisition then you may need to treat those parts separately. This will depend on whether the acquisition is a ' mixed acquisition' or a ' composite acquisition'. These terms are intended to be similar to the concepts of a mixed supply and a composite supply and to adopt similar principles. The difference is that these terms are used to describe an acquisition that contains parts that are reduced credit acquisitions and parts that are not.

In determining whether Entity B has made a mixed or composite acquisition, the key question, as stated in paragraph 234 of GSTR 2002/2:

…is whether the acquisition has parts that should be regarded as being separately identifiable, or whether it is essentially an acquisition of one dominant part with other parts being integral, ancillary or incidental to that dominant part.

In this case you been unable to locate a specific engagement letter outlining the terms and condition of the particular engagement and work performed by the lawyers. However you have explained that the lawyers have been ongoing advisors for a group of companies to which Entity B and Entity A are connected.

To assist in characterising the acquisition by Entity B you have provided us with a copy a tax invoice provided by the lawyers to Entity B in lieu of an engagement letter or contract and submit that all of the services referred in the tax invoice fall within the scope of "arranging" under item 9.

An analysis of that tax invoice shows that expenditure up to and inclusive of a certain date are in relation to and incidental to the mediation. Therefore based on this evidence we consider that the acquisition of services by Entity B from the lawyers until that date consists of a single acquisition of services.

Subsequent to that date, there are some itemised fees on the tax invoice that suggest a form of arranging type services and some fees that go towards settling the action for misleading and deceptive conduct by disputing vendors. Based on the facts and supporting documents, in this case it is our view that the acquisition by Entity B consists of a mixed supply (i.e. arranging-type services and/or legal services). We explain our reasons as follows.

Acquisition by Entity B

You contend that despite the lawyers providing services to Entity B those services were eventually consumed by Entity A because Entity A was Entity B's nominee entity.

Goods and services tax determination GSTD 2012/3, Goods and services tax: does an adjustment for a change in extent of creditable purpose necessarily arise for services acquired in relation to a proposed merger and acquisition transaction that does not eventuate, or that does not proceed in the manner contemplated at the time the services were acquired? (GSTD 2012/3) considers when an acquisition is applied in an entity's enterprise and states:

38. The meaning of 'apply' is central to determining actual application. A thing will have been applied in an entity's enterprise if an objective assessment of the facts and circumstances demonstrates that the thing has been allocated or dedicated to a particular use (or uses) in the enterprise.

Further paragraph 44 states:

44. Services are applied for their intended purpose to the extent that they are used as part of the process of evaluating the transaction proposed at the time of their acquisition or preparing to carry out that transaction. In many cases the use of the services in evaluating or preparing for the transaction will occur soon after the services are acquired and they will not be further applied at a later point in time if the structure of the proposed transaction changes. In such cases, there will not be a change in creditable purpose in respect of those services.

In this case we do not agree that the character of the services acquired by Entity B were consumed by Entity A. Based on the description of services set out in the invoice, the acquisition by Entity B from the lawyers consists of mediation costs and related services. Accordingly, consistent with the principle in paragraphs 38 and 44 of GSTD 2012/3 we consider that this acquisition is applied and consumed by the Entity B enterprise.

Treatment of Mediation Cost

Goods and Services Tax Ruling GSTR 2008/1, Goods and services tax: when do you acquire anything or import goods solely or partly for a creditable purpose? (GSTR 2008/1) provides the Commissioner's view on whether a particular acquisition is made in carrying on an enterprise. In particular paragraph 70 states:

70. Whether an acquisition is acquired in carrying on an enterprise is a question of fact and degree, making it impractical to provide an exhaustive list of all the factors that may be relevant to determining whether an acquisition is made in carrying on an enterprise. However, some factors that would suggest that an acquisition is made in carrying on an enterprise include that:

· the acquisition is incidental or relevant to the commencement, continuance or termination of the enterprise;

· the thing acquired is used by the enterprise in making supplies;

· the acquisition secures a real benefit or advantage for the commencement, continuance or termination of the enterprise;

· the acquisition is one which an ordinary business person in the position of the recipient would be likely to make for the enterprise;

· the acquisition does not meet the personal needs of individuals such as partners or directors;

· the acquisition helps to protect or preserve the enterprise entity, structure or organisation; and

· the acquisition is made by the entity in accordance with, or to satisfy, a statutory requirement imposed on the enterprise.

Further paragraph 138 of GSTR 2008/1 states:

138. Other acquisitions do not directly relate to any specific type of supplies. Instead, they have an indirect relationship to all the supplies that the entity makes in carrying on its enterprise. If an entity makes both taxable and input taxed supplies, paragraph 11-15(2)(a) precludes these types of acquisitions from being for a creditable purpose to the extent that they relate to making supplies that would be input taxed.

As explained above we have found that a substantial proportion of the tax invoice related to the mediation that occurred prior to the Vendors deciding to sell their shares and/or prior to the planning stage of any arrangement. Accordingly, this does not fall within the scope of arranging as contemplated by item 9. Rather, in our view this portion of the expense is an acquisition relating to Entity B's enterprise as a whole. To this end, Entity B will have to determine the nature of its enterprise and claim any input tax credits depending on the types of supplies it makes.

Entity B can seek guidance in this regard by referring to Goods and Services Tax Ruling GSTR 2006/3): Goods and Services Tax: determining the extent of creditable purpose for providers of financial supplies (GSTR 2006/3).

Accordingly, we consider that this portion of the acquisition cannot be on-charged to Entity A because it is consumed within the Entity B enterprise.

The next issue that needs to be determined is whether Entity B made and acquisition from the lawyers that facilitated the acquisition of securities from the vendors.

Acquisition by Entity B from 24 October 2009

What is an 'arranging services'

Under item 9 in subregulation 70-5.02(2) of the GST Regulations, the acquisitions of arrangement, by a financial supply facilitator, of the provision, acquisition or disposal of an interest in a security, include the following is a RCA:

(a) order placement and trade execution;

(b) clearance and settlement of trades;

(c) management of the issue of securities, including rights and bonus issues;

(d) arranging flotation and privatisations;

(g) performing a settlement, including issue of drafts and encashment;

(h) other securities transactions, including lodgement, withdrawal and exchange control;

(i) underwriting, except a matter that is described in the table in regulation 40-5.09

A 'financial supply facilitator' is defined in regulation 40-5.07 of the GST Regulations to be an entity facilitating the supply of an interest for a financial supply provider.

The word 'facilitates', as evidenced by paragraphs 30 - 35 of Goods and Services Tax Ruling GSTR 2004/1: Goods and services tax: reduced credit acquisitions (GSTR 2004/1), requires that an entity have an active, rather than a passive or minor role.

A financial supply facilitator facilitates the acquisition of an interest where its activities have the effect of helping forward or assist a particular financial supply, rather than where those activities simply assist the financial supply provider.

It follows that the activities of a financial supply facilitator must have a sufficient nexus with the acquisition of an interest by a financial supply provider.

A sufficient nexus requires that there be an identifiable association with the acquisition that goes beyond a mere general association. An identifiable association does not mean that the activities have to be directly linked to the acquisition; however it does require that there be a substantial connection so as to exclude activities that are only generally related. The activities must relate to and assist a particular supply, not merely contemplated supplies. In the absence of this identifiable association, an entity will not be a financial supply facilitator of the supply of an interest. It follows that it is only when an entity is carrying out activities that are sufficiently or substantially identifiable with the actual financial supply being made, such that they help forward or assist the financial supply, that the entity can be said to be a financial supply facilitator.

The term 'arrangement' is discussed in paragraphs 287 to 291 of Goods and Services Tax Ruling GSTR 2004/1: Goods and services tax: reduced credit acquisitions (GSTR 2004/1). Paragraph 287 to 291 of GSTR 2004/1 states:

287. The term arrangement is not defined in the GST Act or regulations, nor does it have a specific industry meaning. Its ordinary meaning is a 'preparatory measure, previous plan, preparation or a final settlement, adjustment by agreement'. Arrangement under this item includes activities relating to the preparation for the transaction, the planning of the transaction and the settlement of the details of the transaction.

288. Typically, arrangement activities take place before the transaction is completed. However, in some instances they may take place after the transaction is completed. Provided the activities relate to the arrangement of the transaction, and not to ongoing services once it is completed, they are arrangement for the purposes of the item. Items 9(d), (e) and (f) also require that the service listed in each has the character of arranging.

289. Although many activities may be undertaken as part of the preparations for, for example, the public float of a company, not all of these are the arrangement of the provision of an interest in securities. Planning by the financial supply facilitator may require that a company group restructures. However, it is the acquisition of the planning which is the arrangement service, not the activities involved in the restructure that is the reduced credit acquisition. Equally, due diligence activities, though part of the preparation for the float, are not arranging for the purposes of item 9(d). This is because due diligence by itself, does not have sufficient connection to the 'arrangement' of preparing or planning a float. However, where an entity provides due diligence activities, as part of its services in planning or preparing a float, then it may come within item 9(d).

290. Where an entity conducts preparatory activities as part of the planning of, and preparation for, a listed service, these may be part of the arrangement of the transaction. Where the entity engages other entities to undertake parts of preparatory activities, the services of those other entities are inputs to the supply of arrangement services by the entity and are not, in themselves, arrangement services.

291. Whether or not a service is the arrangement of a transaction depends upon the nature of the services undertaken, not the name applied to them. For example, a merchant bank may invoice its clients for advisory services for a securities transaction. If, however, the merchant bank is a financial supply facilitator in relation to that supply of securities, and is, in reality, supplying arrangement services under the agreement, the acquisition of those services is a reduced credit acquisition under item 9.

Paragraph 287 of GSTR 2004/1 indicates that in the context of a securities transaction, arrangement activities are those relating to the 'preparation for the transaction, the planning of the transaction and the settlement of the details of the transaction'. For a supply to be the arrangement of the provision, acquisition or disposal of a security the supply must have a sufficient connection to the arrangement of the proposed transaction to be properly described as itself constituting the 'arranging' of the transaction. A remote connection would not suffice.

As discussed above, paragraph 289 of GSTR 2004/1 provides guidance in respect to determining whether a specific supply has a relevant connection with the preparation, planning or settlement of a transaction.

Accordingly in this case to the extent that it can be shown that the lawyers is arranging the acquisition of the respective securities it will also be sufficient to indicate that its services are facilitating that particular supply.

For completeness, it must be stated that the focus is the facilitator's role in a particular transaction and the relationship with a particular financial supply, rather than whether the recipient of that service is necessarily making the particular financial supply. Therefore, this allows the recipient of the service to on-charge that particular service provided that it is not a contrived arrangement as outline in GSTD 2011/3.

To this end we agree with your submission that the facts in this case would be dissimilar to the facts in GSTD 2011/3. Accordingly, whilst the recipient of the service will typically also be the financial supply provider of the particular supply, a financial supply facilitator can also provide a service to a recipient (Entity B) that involves facilitating a financial supply made by a third party namely, Entity A (the nominee).

You submit that Entity B undertakes the management functions of the overall group of companies as part of its business activities. It engaged the lawyers to assist in the acquisition of shares from the Vendors. Therefore, when Entity B acquired the lawyers services those services still had an identifiable association with the relevant financial supply made by the Vendors and Entity A. Therefore, an entity such as the lawyers that is providing services to the recipient Entity B to facilitate the financial supply to be made by the Vendors to Entity A, is still capable of being a financial supply facilitator.

The key issue is to determine if the lawyers is in fact providing arranging services that facilitates the provision, acquisition and disposal of the respective securities. In this context if the lawyers are found to be arranging the disposal of the Vendor securities to Entity A that would be sufficient to determine if they are facilitators.

In this case, you have advised that the lawyers' role included amongst other activities:

· actively representing Entity B in all dealing will all Vendors;

· assisting in planning the terms and details of the Transaction;

· assisting in structuring the Transaction;

· developing, managing and developing due diligence programs to forward the Transaction;

· assisting in negotiating, drafting and settling the documents (such as the Deed, the security, guarantee and financial assistance documents) necessary to complete the Transaction;

Further, there are some itemised fees on the tax invoice that suggest a form of arranging type services and some that go towards settling the action against Entity B for misleading and deceptive conduct.

As explained above, it is our view that from a certain date the acquisition by Entity B from the lawyers is of a mixed supply. It is also our view that consistent with paragraph 289 of GSTR 2004/1 it can be concluded that part of the acquisition by Entity B facilitated the acquisition of securities from the vendors (the Arranging Cost). However part of the acquisition by Entity B is clearly directed to legal services. On this basis we consider the GST treatment of the relevant acquisition is as follows.

Treatment of Arranging Costs

To the extent the services from the lawyers fall within the scope of "arranging" Entity B will make a creditable acquisition and is entitled to claim a full input tax credit. This is on the basis that the acquisition by Entity B will be made for the purpose of making the proposed taxable on-supply of arranging services to Entity A.

Upon Entity B making an on-supply of services to Entity A, to the extent that the services fall within the scope of "arranging" Entity A will then be eligible to claim a RITC on this acquisition under item 9.

Treatment of Misleading and Deceptive Conduct Litigation Costs

You submit to the extent the lawyers fees relate to court action those fees fall within the scope of item 9. We do not agree with this submission. As explained above, item 9 deals with the arrangement by a financial supply facilitator for the provision, acquisition and disposal securities. There is nothing within the item that captures instigation or defending litigation for misleading and deceptive conduct in relation to share valuation disputes.

You submit that this should be viewed as a form of "settling" a security as contemplated by the Commissioner in GSTR 2004/1 under the definition of arranging.

We do not agree with this view. Based on the principles outlined in GSTR 2004/1, settling of a securities transaction does not stretch beyond ensuring that the appropriate share transfer certificates and/or similar contractual documents are duly executed, exchanged between the respective parties and filed with the necessary regulator (if required). In our view, litigation is not within the scope of item 9.

As such, these costs have no association with the definition of arranging. Rather this portion of the acquisition is related to the legal proceedings against Entity B and goes towards Entity B's enterprise costs. Accordingly it cannot be on-charged to Entity A because it is consumed within the Entity B enterprise.

On this basis Entity B will be able to claim input tax credits under the enterprise method referred to above.