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This edited version has been archived due to the length of time since original publication.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

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your private ruling

Authorisation Number: 1012529175246

Ruling

Subject: GST and food

Question

Will your sale of the food product (Product) be GST-free?

Answer

Yes.

Relevant facts and circumstances

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

    You are to sell the Product.

    The Product:

    · is made from 100% fruit that is peeled, pitted, pureed and pressed into a container and sealed.

    · has no additives (juice, sugar etc)

    · will be stored and sold as a frozen fruit product

    · is intended to be consumed using a spoon or similar.

Relevant legislative provisions

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

Section 38-2

Section 38-3

Section 38-4.

Reasons for decision

A supply is GST-free as food under section 38-2 of the GST Act if what is being supplied satisfies the definition of food in section 38-4 of the GST Act and it is not excluded 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)) and ingredients for food for human consumption (paragraph 38-4(1)(d)).

The Product is to be sold for human consumption consequently, can be treated as food for GST purposes. Therefore, it is now necessary to determine if the Product is excluded from being food for GST purposes under any of the exclusions listed in section 38-3 of the GST Act.

The Product does not fall within any of the exclusions in section 38-3 of the GST Act except it may possibly be captured by paragraph 38-3(1)(c) of the GST Act.

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) or food that is a combination of one or more foods at least one of which is food of such a kind. Schedule 1 includes at Item 29:

    · frozen confectionery, frozen yogurt and frozen fruit products (but not frozen whole fruit).

Note that there are no other items in Schedule 1 to consider in relation to the Product.

In this case, the Product is made from 100% fruit. The Product has no additives such as juice or sugar and will be displayed and sold as frozen fruit. As a consequence the Product cannot be considered to be frozen confectionary or frozen yoghurt or food that is of a kind to these products.

For GST purposes, whole fruit does not have to be a single uncut piece of fruit but can be fruit pieces or pureed fruit provided it is purely fruit without additives such as fruit syrup, sugar, water or similar. The Product is made wholly of fruit with no additives and as such, it is not captured by Item 29 of Schedule 1.

Given this, your supply of the Product will be a GST-free supply of food under section 38-2 of the GST Act.


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