Edited version of your written advice

Authorisation Number: 1013139676482

Date of advice: 15 December 2016

Ruling

Subject: GST and supply of services to a non-resident

Question

Is the supply made by the Australian company to the overseas company under the Distribution Agreement a GST-free supply under items 2 and 3 in the table in subsection 38-190(1) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Advice

From the information received, we consider that the Australian company makes two distinct supplies to the overseas company under the Distribution Agreement:

1. Supply of marketing and sales services

The supply of marketing and sales services is GST-free under items 2 and 3 in the table in subsection 38-190(1) of the GST Act.

2. Supply of consultation services

Before 1 October 2016, the supply of consultation services is a mixed supply of taxable and GST-free components. You will have to apportion the consideration received between the taxable and GST-free supply.

After 1 October 2016, the supply of consultation services is GST-free under paragraph (a) of item 2.

Consultation to overseas company

Where the flow of the consultation services is to the overseas company, your supply of consultation services is GST-free under items 2 and 3 in the table in subsection 38-190(1) of the GST Act.

Before 1 October 2016, where the flow of the consultation services is to the builder, the installation team and project manager, your supply of consultation services is a taxable supply under section 9-5 of the GST Act.

From 1 October 2016, where the flow of the consultation services is to the builder, installation team and project manager, your supply of consultation services is GST-free under paragraph (a) of item 2 in the table in subsection 38-190(1) of the GST Act.

Relevant facts

You are an Australian company and registered for the goods and services tax (GST).

You have a written Agreement with an overseas company which provides the following:

● All projects in Australia will exclusively be handled by your director.

● Your director will take care of the marketing, sales and technical consultation.

● All quotations will be made by the overseas company.

● All contracts for the products will be made directly between the customer and the overseas company.

● You will get a commission in case of an order.

At this stage you are marketing the products to Australian customers. You use the relevant brochures/data sheets to advertise in Australia; usually you talk directly to the potential purchasers and discuss the products available. You use your network of organisations in the industry obtained from your prior positions held. You do not have a personal website and you use a specific website as a reference for potential sales.

The products are sold with installations included. The GST annual turnover of the products sold by the overseas company to Australian customer is more than $75,000.

Normally the contract is with the purchaser who can be either an individual or a company and the purchaser is registered for GST.

The Australian customer buys the product directly from the overseas company and you do not have any contractual arrangement with the Australian customer.

Once the contract is signed you will have contact with the purchaser to facilitate that sale, that is co-ordinating the timing of the job and specifications are required. There is no service agreement between the purchaser and you.

The overseas company employs a project manager to manage the installation of all projects. The project manager is an individual and is not registered for GST.

The project manager is a technical employee and you assist with communicating between the project manager and the purchaser. All interactions are generally technical discussions, sometimes there may be commercial discussions in relation to the agreement between the non-resident and the purchaser. You do not receive a separate payment for this service.

You attend teleconferences refining the scope between the overseas project team (the project manager) and the purchaser. The overseas sales manager also attends this meeting. This is a refining process over what the sale constitutes. You consider this to be sales related as the contract is being verified / confirmed to ensure it is viable during these meetings.

Various persons of the installation team come from overseas to Australia. Some come to inspect the site in advance, others to install, others to test.  When various installation team members come to Australia you transfer them from the airport to hotel and introduce them to the site and purchaser.

When the project manager is in Australia and the installation is physically happening you are part of the meetings between the purchaser and project manager as a facilitator only. These discussions happen mostly at the start of installation. Once it is running you hardly have anything to do with it. These would occur for every project.

Relevant legislative provisions

A New Tax system (Goods and Services Tax) Act 1999 section 9-5

A New Tax system (Goods and Services Tax) Act 1999 section 38-190

Reasons for decision

Note: Where the term 'Australia' is used in this document, it is referring to the 'indirect tax zone' as defined in section 195-1 of the GST Act.

Summary

From the information received, we consider that you make two distinct supplies to the overseas company under the Distribution Agreement:

1. Supply of marketing and sales services

The supply of marketing and sales services is GST-free under items 2 and 3 in the table in subsection 38-190(1) of the GST Act.

2. Supply of consultation services

Before 1 October 2016, the supply of consultation services is a mixed supply of taxable and GST-free components. You will have to apportion the consideration received between the taxable and GST-free supply.

After 1 October 2016, the supply of consultation services is GST-free under paragraph (a) of item 2.

Consultation to overseas company

Where the flow of the consultation services is to the overseas company, your supply of consultation services is GST-free under items 2 and 3 in the table in subsection 38-190(1) of the GST Act.

Consultation to installation team including project manager and purchaser

Before 1 October 2016, where the flow of the consultation services is to the purchaser, installation team and project manager, your supply of consultation services is a taxable supply under section 9-5 of the GST Act.

From 1 October 2016, , where the flow of the consultation services is to the purchaser, installation team and project manager, your supply of consultation services is GST-free under item 2 in the table in subsection 38-190(1) of the GST Act.

Characterisation of supply

From the information received, we consider that you are making two distinct supplies to the overseas company:

1. Marketing and sales services

2. Consultation services

We will now consider the GST status of these two supplies.

Taxable supply

GST is payable on a taxable supply. A supply is a taxable supply under section 9-5 of the GST Act if:

a) the supplier makes the supply for consideration; and

b) the supply is made in the course of an enterprise that the supplies carries on; and

c) the supply is connected with the indirect tax zone (Australia); and

d) the supplier is registered for GST.

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

The supplier must satisfy all of the above for their supply to be a taxable supply and to be liable for the Australian GST.

From the information given you satisfy all requirements in paragraphs 9-5(a) to 9-5(d) of the GST Act when you make the two supplies of services to the overseas company as:

a) you make your supply for consideration;

b) you make the supply in the course of an enterprise that you carry on in Australia;

c) your supply is connected with Australia as the supply of services is done in Australia and made through a business that you carry on in Australia; and

d) you are registered for GST.

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

There is no provision under the GST Act that makes your supply of the two services input taxed.

GST-free supply

Relevant to the supply of the two services made to a non-resident is items 2 and 3 in the table in subsection 38-190(1) of the GST Act (item 2 and item 3).

Item 2

Item 2 provides that a supply of a thing (other than goods or real property) made to a non-resident is GST-free if it is a supply that is made to a non-resident, who is not in Australia when the thing supplied is done, and:

(a) the supply is neither a supply of work physically performed on goods situated in Australia when the work is done, nor a supply directly connected with real property situated in Australia; or

(b) the non-resident acquires the thing in carrying on the non-resident's enterprise, but is not registered or required to be registered for GST.

Precondition of item 2 - non-resident is 'not in Australia'

Goods and Services Tax Ruling GSTR 2004/7 provides guidance on when a non-resident is 'not in Australia' for the purposes of item 2.

The requirement that the non-resident in item 2 is not 'in Australia' when the thing supplied is done is a requirement that the non-resident is not in Australia in relation to the supply when the thing supplied is done.

Under paragraph 37 in GSTR 2004/7, we consider that a non-resident company is in Australia if that company carries on business (or in the case of a company that does not carry on business, carries on its activities) in Australia:

a) at or through a fixed and definite place of its own for a sufficiently substantial period of time, or

b) through an agent at a fixed and definite place for a sufficiently substantial period of time.

We consider that it would be reasonable for a supplier to conclude that a non-resident company is in Australia if:

● the company is registered with the Australian Securities and Investment Commission (ASIC); or

● the company has a permanent establishment in Australia for income tax purposes.

Where the requirement that the non-resident is not in Australia in relation to the supply is satisfied, the next step is to consider the paragraphs in item 2. Only one of the paragraphs needs to be satisfied for the supply of marketing and promoting services to be GST-free under item 2.

Where the non-resident is in Australia in relation to the supply, item 2 is no longer applicable to the supply of services. The supply will be a taxable supply under section 9-5 of the GST Act.

Paragraph (a) of item 2

Paragraph (a) of item 2 requires that the supply of services is neither a supply of work physically performed on goods situated in Australia when the work is done, nor a supply directly connected with real property situated in Australia.

Goods and Services Tax Ruling GSTR 2003/7 provides guidance on when a supply is a supply of work physically performed on goods and when a supply directly connected with real property.

Where this paragraph is satisfied, the supply is GST-free to the extent it is not negated by subsections 38-190(2), 38-190(2A) or 38-190(3) of the GST Act.

Paragraph (b) of item 2

Under paragraph (b) of item 2, a supply is GST-free if the non-resident entity acquires its services in acquiring on its business, and is neither registered nor required to be registered for GST.

The supplier must be satisfied, on reasonable grounds that the non-resident is not required to be registered for GST before they can treat their supply as GST-free under paragraph (b) of item 2.

Where the supplier is not in a position to be aware of these circumstances, enquiries should be made of the non-resident. The Commissioner accepts that the supplier has reasonable grounds to be satisfied, if the non-resident has provided a signed written statement, declaring that they are not required to be registered. This is only accepted where the supplier has no reasons to believe the statement is not accurate.

Where this paragraph is satisfied the supply will be GST-free to the extent it is not negated by subsections 38-190(2), 38-190(2A) or 38-190(3) of the GST Act.

Limitations of item 2 

Subsection 38-190(2) of the GST Act

Subsection 38-190(2) of the GST Act provides that a supply covered by any of the items 1 to 5 in the table in subsection 38-190(1) of the GST Act is not GST-free if it is the supply of a right or option to acquire something the supply of which would be connected with Australia and would not be GST-free.

For example, an Australian vehicle rental firm supplies car rental rights to a UK travel agency. The travel agency supplies car rental vouchers to UK tourists who may use the vouchers to obtain car rental in Australia. The supply of the car rental to the tourists is a supply that is connected with Australia. The supply of car rental rights to the UK travel agency is, therefore, not GST-free.

Where subsection 38-190(2) of the GST Act is not applicable, then it is relevant to consider subsection 38-190(3) of the GST Act.

Subsection 38-190(2A) of the GST Act

Under subsection 38-190(2A) of the GST Act  a supply covered by any items 2 to 4 in the table in subsection 38-190(1) of the GST Act is not GST-free if the acquisitions of the supply relates (whether directly or indirectly, or wholly or partly) to the making of a supply of residential real property situated in Australia.

For example, a non-resident individual, who owns residential rental property situated in Australia and who is not registered or required to be registered, acquires gardening services for the property and also acquires the services of a local real estate agent to advertise the property for rent. The acquisition of each service relates to the making of an input taxed supply of real property. The supplies of those services are therefore not GST-free.

Where subsection 38-190(2A) of the GST Act is not applicable, then it is relevant to consider subsection 38-190(3) of the GST Act.

Subsection 38-190(3) of the GST Act

Subsection 38-190(3) of the GST Act before 1 October 2016

Subsection 38-190(3) of the GST Act provided that, without limiting subsection 38-190(2) or (2A), a supply covered by item 2 in that table is not GST-free if:

a) it is a supply under an agreement entered into, whether directly or indirectly, with a non-resident; and

b) the supply is provided or the agreement requires it to be provided to another entity in Australia.

Current subsection 38-190(3) of the GST Act

An amendment was made to subsection 38-190(3) of the GST Act recently. From 1 October 2016, the amended subsection 38-190(3) of the GST Act provides that without limiting subsection 38-190(2) or (2A), a supply covered by item 2 in that table is not GST-free if:

a) it is a supply under an agreement entered into, whether directly or indirectly, with a non-resident; and

b) the supply is provided or the agreement requires it to be provided to another entity in Australia; and

c) for a supply other than an input taxed supply - none of the following applies:

i. the other entity would be an Australian-based business recipient of the supply, if the supply had been made to it;

ii. the other entity is an individual who is provided with the supply as an employee or officer of an entity that would be an Australian-based business recipient of the supply, if the supply had been made to it; or

iii. the other entity is an individual who is provided with the supply as an employee or officer of the recipient, and the recipient's acquisition of the thing is solely for a creditable purpose and is not a non-deductible expense.

Paragraph (b) of subsection 38-190(3) of the GST Act

Goods and Services Tax Ruling GSTR 2005/6 provides guidance on the application of paragraph (b) in subsection 38-190(3) of the GST Act. Paragraphs 59 and 61 in GSTR 2005/6 state:

59. The word 'provided' is used in subsection 38-190(3) to contrast with the term 'made' in item 2. In the context of section 38-190, the contrasting words indicate that if a non-resident contracts for a supply to be provided to another entity, the place of consumption should be determined with regard to the entity to which the supply is provided, not the entity to which the supply is made.

61. Thus the expression 'provided to another entity' means in our view that in the performance of a service (or in the doing of something), the actual flow of that supply is, in whole or part, to an entity that is not the non-resident entity with which the supplier made the agreement for the supply. The contractual flow is to one entity (the non-resident recipient) and the actual flow of the supply is to another entity.

Paragraph (c) of subsection 38-190(3) of the GST Act

Requirement (i)

The term 'Australian based business recipient' describes the relationship that a recipient has with a particular supply. An entity is an 'Australian-based business recipient' of a supply that is made to it if:

a) the entity is registered;

b) an enterprise of an entity is carried on in Australia; and

c) the acquisition of the thing supplied is not solely of a private or domestic nature.

Requirement (ii)

An employee or officer is provided with a supply in their capacity as an employee or officer if the supply was provided to them in the performance of their duties or as part of their remuneration.

Requirement (iii)

Requirement (iii) requires that the non-resident's acquisition is solely for a creditable purpose and is not a non-deductible expense.

An acquisition is solely for a creditable purpose where the thing is acquired solely for business purposes and the acquisition does not relate to making supplies that would be input taxed. Where the non-resident's acquisition is for the personal use or enjoyment of the entity located in Australia (for example supply of sightseeing services to an employee in Australia), the non-resident recipient does not acquire the supply for its business purposes and therefore its acquisition is not for a creditable purpose.

Division 69 of the GST Act is about non-deductible expenses and lists supplies that are generally not creditable acquisitions for non-resident employers. These expenses include entertainment expenses that could be paid to the employees of a non-resident as part of their remuneration package.

Where one of the requirements in paragraph (c) in subsection 38-190(3) of the GST Act applies, subsection 38-190(3) of the GST Act will not negate the GST-free supply status under item 2. The supply is GST-free under item 2.

Where all the requirements in paragraph (c) in subsection 38-190(3) of the GST Act do not apply, subsection 38-190(3) of the GST Act is applicable to the supply of services; the supply of services is no longer GST-free under item 2. The supply is a taxable supply under section 9-5 of the GST Act.

Applying facts to item 2

Supply of marketing and sales services

When you supply your marketing and sales services, the requirement for the overseas company not to be in Australia is satisfied as from the information received the overseas company is not incorporated in Australia and does not carry on any business activities in Australia.

Paragraph (a) of item 2

Goods and Services Tax Ruling GSTR 2003/7 provides guidance on when a supply is a supply of work physically performed on goods and when a supply directly connected with real property.

In regard to advertising paragraph 142 in GSTR 2003/7 states:

142. The supply of advertising is about conveying the advertising message. Even though the subject matter of the advertisement may be goods or real property, this does not establish a direct connection with those underlying things. Although the advertising is caused by a need arising in relation to the goods or real property and would not occur but for the goods or real property, this does not make the supply of advertising directly connected with the goods or real property. This is because an advertising supply is directly connected with all the things necessary for the conveying of the message. Its immediate object is not to effect the sale of the goods or real property but the conveying of the message.

Your supply of marketing and sales services satisfy paragraph (a) of item 2 since the supply is neither a supply of work physically performed on goods situation in Australia when the work is done, nor a supply directly connected with real property situated in Australia.

Your supply of marketing and sales services is be GST-free under paragraph (a) to the extent it is not negated by subsection 38-190(2A) or 38-190(3) of the GST Act.

Limitations of item 2

Based on the facts received, subsections 38-190(2),(2A) and (3) of the GST Act do not apply to your supply of marketing and sales services to the overseas company as:

● your supply of marketing and sales services is not a supply of a right or option to acquire something the supply of which would be connected with Australia and would not be GST-free.

● the marketing and promoting services does not relate to a residential property in Australia from which the overseas company is making a supply,

● your supply of marketing and sales services is made and provided to the overseas company and you are not required to provide your marketing and sales services to another entity in Australia.

There is no need to consider paragraph (b) since paragraph (a) is satisfied.

Summary

Your supply of marketing and sales services is therefore GST-free under paragraph (a) of item 2

There is no need to consider paragraph (b) since paragraph (a) of item 2 is satisfied.

Supply of consultation services

Your supply of consultation services satisfy paragraph (a) of item 2 as:

● the supply is made to a non-resident company that is not in Australia in relation to the supply; and

● the supply is neither a supply of work physically performed on goods situated in Australia when the work is done, nor a supply directly connected with real property situated in Australia.

Your consultation services is GST-free to the extent it is not negated by subsections 38-190(2), 38-190(2A) and 38-190(3) of the GST Act.

Limitations of item 2

Subsections 38-190(2) and 38-190(2A) of the GST Act

Based on the information received, subsections 38-190(2) and 38-190(2A) of the GST Act do not apply to your supply of consultation services as:

● your supply of consultation services is not a supply of a right or option to acquire something the supply of which would be connected with Australia and would not be GST-free.

● the acquisitions of your supply of consultation services by the overseas company does not relate (whether directly or indirectly, or wholly or partly) to the making of a supply of residential real property situated in Australia.

Subsection 38-190 (3) of the GST Act before 1 October 2016

From the facts given, after the purchaser enters into a contract with the overseas company you start making your consultation services. When the contract is entered you interact with the overseas company and the purchaser to assist with the designing of the purchaser's ordered product. When the installation team members including the project manager are in Australia for the installation of the designed product, you interact with them and the purchaser.

In this instance we consider that when you interact with the non-resident and the purchaser once a contract is entered, subsection 38-190(3) of the GST Act is not applicable since the purpose of your interaction is to assist the non-resident in finalising the product ordered by the purchaser. This part of your supply of consultation services is GST-free under paragraph (a) of item 2.

However, from the time you welcome the installation team members in Australia and the installation of the product is to be carried on in Australia, we consider that you provide your consultation services to the installation team members, project manager and purchaser since the purpose of this interaction is to enable communication between the installation team, project manager and purchaser. Accordingly, subsection 38-190(3) of the GST Act is applicable for this period of time; your supply of consultation services in this case is not GST-free under item 2. Your supply is a taxable supply under section 9-5 of the GST Act.

You need to apportion the consideration you receive for the taxable and GST-free supplies you made.

Goods and Services Tax Ruling GSTR 2001/8 provides guidance on apportionment of mixed supply.

Subsection 38-190(3) of the GST Act after 1 October 2016

From 1 October 2016 a new paragraph (38-190(3)(c)) was included to subsection 38--190(3) of the GST Act and with this new paragraph some supplies that were provided to entities in Australia may not be taxable supplies where any of the requirements in that new paragraph applies to the supplies.

Based on the information received, some of the requirements in paragraph 38-190(3)(c) of the GST Act apply when you provide your consultation services to the installation team, project manager and purchaser as:

● the purchaser is an Australian based business that is registered for GST; it carries on its enterprise in Australia and its acquisition is for solely for its business purposes (paragraph 38-190(3) (c) (i) of the GST Act);

● you supply your consultation services to the overseas installation team and project manager who perform the installation of the product on behalf of the overseas company and the overseas company acquires your consultation services for its business purposes(paragraph 38-190(3)( c)(iii) of the GST Act)

In this instance, from 1 October 2016 subsection 38-190(3) is not applicable to your supply of consultation services to the non-resident when provided to the installation team, project manager and purchaser. Your supply of consultation services is GST-free under paragraph (a) of item 2.

Summary

Your supply of consultation services made before 1 October 2016 is partly taxable and partly GST-free.

From 1 October 2016 your supply of consultation services is GST-free under paragraph (a) of item 2.

Item 3

Item 3 appears as follows:

(*denotes a defined term under section 195-1 of the GST Act)

For your supply of services to be GST-free, you must satisfy both paragraphs (a) and (b) of item 3, and the supply of services is not work physically performed on goods or directly connected with real property in Australia.

Paragraph (a) of item 3

Goods and Services Tax Rulings GSTR 2004/7 (available at www.ato.gov.au) provides guidance on the application of paragraph (a) of item 3.

To be GST-free, paragraph (a) of item 3 requires that the recipient is not in Australia in relation to the supply when the thing supplied is done. In regard to supply of services, a supply of services is done where the services are performed.

A recipient in relation to a supply is the entity to whom the supply was made. It is not a requirement of item 3 that the recipient is a non-resident entity. This means that Item 3 may apply if a company that is the recipient of the supply is incorporated outside Australia irrespective of whether the company is a resident of Australia or a non-resident.

A company is in Australia if it is incorporated in Australia. If the company is not incorporated in Australia, the company is in Australia (irrespective of the residency status of that company) if the company carries on business (or in the case of a company that does not carry on business, carries on its activities) in Australia:

a) at or through a fixed and definite place of its own for a sufficiently substantial period of time; or

b) through an agent at a fixed and definite place for a sufficiently substantial period of time.

A company is in Australia in relation to the supply if the supply is solely or partly for the purposes of the Australian presence, for example, its Australian branch, representative office or agent if it is a non-resident company or the Australian head office if it is an Australian incorporated company. If the supply is not for the purposes of the Australian presence but that Australian presence is involved in the supply, the company is in Australia in relation to the supply, except where the only involvement is minor.

From the facts given, your agreement is with the overseas company. The overseas company is therefore the recipient of your supply. The overseas company is incorporated outside Australia and does not carry on its business at a fixed and definite place of its own in Australia or through an agent in Australia. The requirement for the non-resident not to be 'in Australia in relation to the supply' is therefore satisfied.

The next step is to consider paragraph (b) of item 3. It is only necessary to consider paragraph (b) of item 3 if paragraph (a) of item 3 is satisfied.

Paragraph (b) of item 3

Paragraph (b) of item 3 requires the place of effective use or enjoyment of a supply to be determined (that is, whether the place is outside Australia).

To work out whether effective use or enjoyment of a supply takes place outside Australia, we apply the following two step approach:

● Determine the entity to which the supply is provided (the providee entity);

A supply is made to a recipient and provided to another entity if in the performance of a service (or in the doing of something) the actual flow of that supply is to an entity that is not the recipient entity with which the supplier made the agreement for the supply; that is while the contractual flow of the supply is to the recipient entity, the actual flow of the supply is to another entity.

It is only by having regard to what is in substance and reality being supplied that it is possible to identify to which entity that supply is provided. The exact nature of a supply in any given situation depends on the facts and circumstances of the supply and the agreement made between the parties. In this regard, it is necessary to look at the whole arrangement for the supply (including the contractual arrangement) and the way in which the supply is carried out.

Thus the focal point in working out whether a supply is provided to another entity is the facts and circumstances of the doing of the thing supplied. By the supplier examining what it is required to do and in what circumstances, the supplier is able to objectively determine whether the supply is a supply of a service, right or some other thing and to whom the supply is provided.

● Determine whether provision of the supply to the providee entity is outside Australia.

Effective use or enjoyment of the supply takes place outside Australia if there is provision of the supply to the providee entity outside Australia.

Applying facts to item 3

Supply of marketing and sales services

Paragraphs (a) and (b) of item 3

Based on the information received, the nature of your supply is to market the overseas company's products to potential customers and maybe an order will be placed for the product. In this instance, you make and provide the marketing and sales services to the overseas company since you only supply information about the products to the potential customers when you are in contact with them, which does not change the character of your supply.

The overseas company is not in Australia when you supply your marketing and sales services. The effective use or enjoyment of your supply therefore takes place outside Australia.

Paragraphs (a) and (b) of item 3 are satisfied and the supply is GST-free under item 3 if the other requirements of item 3 are satisfied

Other requirement of item 3

The other requirement of item 3 is satisfied as your supply of marketing and sales services is neither a supply of work physically performed on goods situated in Australia when the thing supplied is done nor a supply directly connected with real property situated in Australia. This is because the immediate object of your supply is to convey the marketing message to the potential customers.

Your supply of marketing and sales services is GST-free under item 3 to the extent that subsections 38-190(2) and (2A) of the GST Act do not apply.

Based on the facts received, subsections 38-190(2) and (2A) of the GST Act do not apply to your supply of marketing and sales services. Your supply is therefore GST-free under item 3.

Summary

Your supply of marketing and sales services is GST-free under paragraph tem 3.

Supply of consultation services

Paragraph (a) of item 3

Your agreement is with an overseas company and this company is a non-resident of Australia. Further it does not carry on any business activities at a fixed and definite place of its own or through an agent at a fixed and definite place for a sufficiently substantial period of time in Australia.

In this instance, paragraph (a) of item 3 is satisfied as the overseas company is not in Australia when you supply your consultation services.

Paragraph (b) of item 3

Based on the information received, when you supply your consultation services the actual flow of your supply is partly to the overseas company and partly to the installation team, project manager and purchaser in Australia.

Where the actual flow of your supply is to the overseas company, paragraph (b) of item 3 is satisfied; the supply is GST-free where the other requirements in item 3 are satisfied and the supply is not negated by subsections 38-190(2) and (2A) of the GST Act.

Where the actual flow of your supply is to the installation team, project manager and the purchaser, this part of the supply is provided to the installation team, project manager and purchaser. Since they are located in Australia, the use and enjoyment of your supply of consultation services to them is in Australia. Paragraph (b) of item 3 for that part of your consultation services is not satisfied and therefore that part of your supply is not GST-free under item 3.

Other requirement of item 3

The other requirement is that the supply is neither a supply of work physically performed on goods situated in Australia when the thing supplied is done nor a supply directly connected with real property situated in Australia is satisfied.

Further based on the facts received, subsections 38-190(2) and (2A) of the GST Act do not apply to your supply of consultation services

Summary

Your supply of consultation services is GST-free under item 3 to the extent that the flow of the consultation services is to the overseas company. Where the flow of your supply of consultation services is to the installation team, project manager and purchaser, that part of the supply is a taxable supply under item 3.