Edited version of your private ruling

Authorisation Number: 1012442348770

Ruling

Subject: Supply of documents

Question 1

Is goods and services tax (GST) payable on your supply of documents.

Answer 1

No, GST is not payable on your supply of documents. The payment in relation to your supply of documents does not constitute consideration for the supply as it is covered by subsection 81-10(5) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act).

Relevant facts:

You are an Australian government agency and are registered for GST

You produce and supply documents to residents, developers and engineers for a fee.

Documents are available from private sector suppliers. However, the documents you produce and supply contain overlays of information making your documents more detailed and providing attribute data and information which is not available from documents of private sector suppliers.

Under the relevant legislation you are given the power to charge for a service including a fee for giving information kept under the legislation.

Information on infrastructure included in your documents is used by developers and engineers to plan new developments. It is a requirement of the planning approval process that those planning a development evaluate whether existing infrastructure, as detailed in the documents, can accommodate additional usage.

You have confirmed that under the relevant planning legislation you must keep available for inspection and purchase, documents and other information.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 Section 7-1

A New Tax System (Goods and Services Tax) Act 1999 Section 9-5

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

A New Tax System (Goods and Services Tax) Act 1999 Section 9-15

A New Tax System (Goods and Services Tax) Act 1999 Section 9-40

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

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) Act 1999 Subsection 81-10(3)

A New Tax System (Goods and Services Tax) Act 1999 Subsection 81-10(5)

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

81-10.01(1)(f)

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

81-15.01(1)(f).

Summary

On the facts provided, you are legislatively empowered to make the relevant supply of information encompassed in your documents. Under the relevant legislation you are required to keep available for inspection and purchase certain documents and information.

As the fee you charge for the supply of your documents relates to you recording information and allowing access to that information by supplying the documents, the fee is covered by subsection 81-10(5) of the GST Act. Furthermore, the fee for the documents is not of a kind covered by subsections 81-10(2) or (3) of the GST Act. That is, the provision of the information is not of a non-regulatory nature as specified in paragraph 81-10.01(f) of the A New Tax System (Goods and Service Tax) Regulations 1999 (GST Regulations).

Reasons for decision

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

Under section 9-40 of the GST Act you must pay the GST payable on any taxable supply that you make. You make a taxable supply under section 9-5 of the GST Act if:

· you make the supply for consideration

· the supply is made in the course or furtherance of an enterprise that you carry on

· the supply is connected with Australia, and

· you are registered, or required to be registered for GST.

However, the supply is not a taxable supply to the extent that it is GST-free or input taxed.

The meaning of 'supply' is given in section 9-10 of the GST Act and in addition to the general words 'any form of supply whatsoever' includes, under subsection 9-10(2) of the GST Act, the supply of goods, services and the provision of advice or information. The documents and the information contained within, come within the definition of supply under section 9-10 of the GST Act.

The term 'consideration' is defined in subsection 9-15(1) of the GST Act as including any payment, or any act or forbearance in connection with, in response to or for the inducement of a supply of anything.

On the facts provided, you are registered for GST and the supply of documents in Australia is made in the course of carrying on your enterprise. There are no provisions under Division 38 or Division 40 of the GST Act under which the supply of your documents is GST-free or input taxed.

The issue that arises under section 9-5 of the GST Act is whether the supplies of your documents are for consideration. Item 8 in the table to section 9-39 of the GST Act provides that there are special rules relating to taxable supplies where there are payments of taxes, fees and charges under Division 81.

Division 81 of the GST Act

Payments of fees and charges generally constitute consideration and if the requirements of section 9-5 of the Act are satisfied, the payment will be for a taxable supply on which GST is payable.

Under subsection 81-10(1) of the GST Act, Australian fees and charges of a kind covered by subsections 81-10(4) and (5) of the GST Act are not the provision of consideration.

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

Australian fee or charge means a fee or charge (however described), other than an Australian tax, imposed under an *Australian law and payable to an *Australian government agency.

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

Subsection 81-10(4) of the GST Act covers those fees and charges that relate to, or relate to an application for the provision, retention or amendment, under an Australian law, of a permission, exemption, authority or licence (however described).

In addition, subsection 81-10(5) of the GST Act covers those fees and charges paid to an Australian government agency if the fee of charge relates to the agency doing any of the following:

· recording information

· copying information

· modifying information

· allowing access to information

· receiving information

· processing information, and

· searching for information.

As a payment which is covered by subsections 81-10(4) or (5) of the GST Act is not consideration, the supply to which it relates is not a taxable supply on which GST is payable.

This is the case, unless the payment is covered by subsections 81-10(2) or (3) of the GST Act. Subsections 81-10(2) and (3) of the GST Act provide that certain Australian fees or charges prescribed by regulation are treated as the provision of consideration for a supply. These supplies will be taxable supplies where the requirements of a taxable supply, under section 9-5 of the GST Act, are satisfied.

Conversely, section 81-15 of the GST Act provides that where an Australian fee or charge is prescribed by regulation, the payment of the fee or charge is not treated as the provision of consideration.

GST Regulations

Subregulation 81-10.01(1) of the GST Regulations sets out those Australian fees and charges that are prescribed for subsection 81-10(2) of the GST Act and which constitute consideration. In particular, paragraph 81-10.01(1)(f) of the GST Regulations refers to a fee or charge for the provision of information by an Australian government agency if the provision of the information is of a non-regulatory nature.

In contrast, subregulation 81-15.01(1) of the GST Regulations sets out those Australian fees and charges that are prescribed for section 81-15 of the GST Act and which do not constitute consideration. In particular, paragraph 81-15.01(1)(f) of the GST Regulations refers to a fee or charge for a supply of a regulatory nature made by an Australian government agency.

Regulation 81-15.02 of the GST Regulations deals with those fees and charges covered by both regulations 81-10.01 and 81-15.01 of the GST Regulations.

The explanatory statement to the A New Tax System (Goods and Services Tax) Amendment Regulation 2012 (No.2) (ES) in relation to paragraph 81-10.01(1)(f) of the GST Regulations (which deals with supplies of information that are non-regulatory in nature), states:

The modified paragraph ensures that where an Australian government agency provides information that is not regulatory in nature for consideration, that supply is treated as a taxable supply.

For example, a payment for a commercial sale of books by a government bookshop is treated as consideration for a supply, and if the other conditions of section 9-5 are met, it will be a taxable supply.

The term 'regulatory nature' is not defined in the GST Regulations or the GST Act. The ES states:

The term 'regulatory' captures those supplies made by a government agency, where that agency is legislatively empowered to make the relevant supply and the supply is to satisfy a regulatory purpose.

In some instances, although the consumer acquires something that may be of intrinsic value to the consumer, the acquisition is made in the context of satisfying a regulatory requirement of an Australian law…

The term 'Australian law' is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) and relevantly includes a State law. The relevant legislation is a State law.

The term 'Australian government agency' is defined in section 995-1 of the ITAA 1997 and means:

· the Commonwealth, a State or Territory; or

· an authority of the Commonwealth or of a State or a Territory.

You advise that you are an Australian government agency and that under the relevant legislation you must keep available for inspection and purchase documents and other information.

You provide this information by supplying documents representing infrastructure and other details with sufficient attribute data to allow the purchaser to evaluate whether existing infrastructure, as detailed in the documents, can accommodate additional usage. Such evaluations are a requirement of the planning approval process managed and regulated under the relevant legislation.

On the facts provided, you are, legislatively empowered to make the supply of information encompassed in your documents under the relevant legislation. Under that legislation you are required to keep and supply the information to satisfy a regulatory purpose being the planning and development process under the legislation.

As the fee you charge for the supply of the documents relates to you recording information and allowing access to that information by supplying the document, the fee for the document is one covered by subsection 81-10(5) of the GST Act. Furthermore, the payment for the document is not covered by subsections 81-10(2) or (3) of the GST Act. That is, the provision of the information is not of a non-regulatory nature as specified in paragraph 81-10.01(1)(f) of the GST Regulations.

Accordingly, the payment made to you for the supply of your document is not the provision of consideration to the extent is it is covered by subsection 81-10(5) of the GST Act.

It follows, that as these payments made to you are not consideration, your supply of documents to which the payment relates are not a taxable supply on which GST is payable.