Edited version of your written advice

Authorisation Number: 1051340612129

Date of advice: 19 February 2018

Ruling

Subject: GST and NDIS supports

Questions

1. Do you make GST-free supplies under section 38-38 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) in relation to the delivery of services to participants under the National Disability Insurance Scheme (NDIS) which are set out in table 1.1?

2. Do you make GST-free supplies under section 38-38 of the GST Act in relation to the delivery of services to participants under the NDIS which are set out in table 1.2?

3. Will you make GST-free supplies under section 38-38 of the GST Act in relation to the delivery of services to participants under the NDIS which are set out in table 1.3?

4. Will you make GST-free supplies under section 38-38 of the GST Act in relation to the delivery of services to participants under the NDIS which are set out in table 1.4?

Answers

1. The supply of services to NDIS participants set out in table 1.1 are GST-free under section 38-38 of the GST Act where they are covered by the GST-free Supply (National Disability Insurance Scheme Supports) Determination 2017 (the NDIS Determination). For a full consideration of the different service descriptions refer to the column “GST status” in table 1.1 in the Reasons for decision.

2. Some of the supply of services to NDIS participants set out in table 1.2 are GST-free under section 38-38 of the GST Act where they are covered by the NDIS Determination. Some services listed in Table 1.2, such as training for carers, are not covered by the NDIS Determination and will therefore not be GST-free under section 38-38 of the GST Act. For a full consideration of the different service descriptions refer to the column “GST status” in table 1.2 in the Reasons for decision and for a full explanation refer to the explanatory paragraphs in the Reasons for decision.

3. The supply of services to NDIS participants set out in table 1.3 will be GST-free under section 38-38 of the GST Act where they are covered by the NDIS Determination. For a full consideration of the different service descriptions refer to the column “GST status” in table 1.3 in the Reasons for decision.

4. The supply of services to NDIS participants set out in table 1.4 will be GST-free under section 38-38 of the GST Act where they are covered by the NDIS Determination. For a full consideration of the different service descriptions refer to the column “GST status” in table 1.4 in the Reasons for decision.

Relevant facts and circumstances

1. You are an entity.

2. You are solely a tax resident of Australia and are registered for goods and services tax (GST).

3. One of the core business activities you undertake is to provide a range of services for people covered under the NDIS.

4. You are registered as a service provider with the National Disability Insurance Agency (“NDIA”).

5. The range of services will only be provided for people covered under the NDIS by you where:

a. each participant has a plan determined by the NDIA;

b. the service provided is one of the reasonable and necessary supports specified in the participants’ plan;

c. the plan has been developed by a planner and approved under the NDIS and is currently in effect; and

d. each participant has a written agreement with you that identifies the participant, the services that you are providing, the time frame and the total costs.

6. You are an approved provider of My Aged Care, Disability Services, Department of Veteran’s Affairs and State Health Department to provide support to clients who meet their criteria.

7. You receive a home care subsidy under the Aged Care Act as well as other funding from the Commonwealth in relation to clients cared for.

8. None of the NDIS participants serviced by you reside in a residential care facility.

9. You provide services which you believe are covered by Schedule 1 to the GST-free Supply (National Disability Insurance Scheme Supports) Determination 2017 (NDIS Determination).

Relevant legislative provisions

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

Subdivision 38-B A New Tax System (Goods and Services Tax) Act 1999

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

Section 38-30 A New Tax System (Goods and Services Tax) Act 1999

Section 38-40 A New Tax System (Goods and Services Tax) Act 1999

Reasons for decision

Supplies that meet the requirements of paragraphs 9-5(a) to (d) of the GST Act are taxable unless they are GST-free or input taxed. The provisions relating to input taxed supplies are not relevant in this case. It remains to be considered whether the supplies of disability supports you make to NDIS participants are GST-free.

Section 38-38 of the GST Act deals with disability supports supplied to NDIS participants. If the supplies are not GST-free under section 38-38, they may still be GST-free under the other provisions in Subdivision 38-B of the GST Act, such as section 38-40 (specialist disability services) and section 38-30 (home care).

Section 38-30 (Home Care)

For a supply to be GST-free under section 38-30 of the GST Act, it must satisfy one of the following subsections:

(1) A supply of home care is GST-free if home care subsidy is payable under Part 3.2 of the Aged Care Act 1997 or Part 3.2 of the Aged Care (Transitional Provisions) Act 1997 to the supplier for the care.

(2) A supply of care is GST-free if the supplier receives funding under the Home and Community Care Act 1985 in connection with the supply.

(3) A supply of home care is GST-free if the supply is of services:

(a) that are provided to one or more aged or disabled people; and

(b) that are of a kind covered by item 2.1 (daily living activities assistance) of Part 2 of Schedule 1 to the Quality of Care Principles.

(4) A supply of care is GST-free if:

(a) the supplier receives funding from the Commonwealth, a State or a Territory in connection with the supply; and

(b) the supply of the care is of a kind determined in writing by the Aged Care Minister to be similar to a supply that is GST-free because of subsection (2).

'Home care' has the meaning given by section 45-3 of the Aged Care Act 1997 which provides:

Home care is care consisting of a package of personal care services and other personal assistance provided to a person who is not being provided with residential care.

You advised that you receive home care subsidy under the Aged Care Act as well as other funding from the Commonwealth. Consequently, subsection 38-30(1) of the GST Act will apply to make supplies of home care for which the home care subsidy is payable GST-free.

In addition, as you receive other Commonwealth government funding, subsection 38-30(4) will also apply to make supplies of care for which you receive the funding GST-free where they are of a kind covered by the GST-free Supply (Care) Determination 2017 (Care Determination). Note, various care services provided to carers is covered by Schedule 2 of this Care Determination.

Section 38-40

Section 38-40 of the GST Act provides that a supply of services is GST-free where the supplier receives funding under the Disability Services Act 1986 or a similar State or Territory law in respect of the services.

The funding must be in respect of the services provided and the supply must be of specialist disability services to be GST-free.

You advised that you receive government funding. Where this funding is provided under a similar State law to the Disability Services Act 1986 to provide specialist disability services, the supply of those services for which funding is received will be GST-free.

Section 38-38

For a supply to an NDIS participant to be GST-free under section 38-38 of the GST Act, the supply must be:

a) to a participant for whom a plan is in effect under section 37 of the National Disability Insurance Scheme Act 2013 (NDIS Act) - which means that the plan must be approved by the National Disability Insurance Agency (NDIA);and

b) of one or more of the reasonable and necessary supports specified in the statement of supports in the plan; and

c) made under a written agreement, between the supplier and the participant (or another person), that:

● identifies the participant; and

● states that the supply is of one or more of the reasonable and necessary supports specified in the statement of supports included under subsection 33(2) of that Act, in the participant’s plan; and

d) of a kind determined in a legislative instrument by the Minister responsible for Disability Services.

For the purposes of paragraph 38-38(d) of the GST Act, the GST-free Supply (National Disability Insurance Scheme Supports) Determination 2017 (the NDIS Determination) lists the kinds of supplies to an NDIS participant that are GST-free where the supply meets the other conditions in section 38-38 of the GST Act (listed at paragraphs (a) to (c) above).

Based on the information provided, you meet the first 3 requirements under section 38-38 when providing services to an NDIS participant. However for the services to be GST-free, consideration needs to be given to whether those services are of a kind specified in the NDIS Determination.

The NDIS Determination contains two Schedules. If a support is of a kind listed in Schedule 1 to the NDIS Determination the supply of the support is GST-free where the supply meets the other conditions in section 38-38 of the GST Act (listed at paragraph (a) to (c) above).

However, the supports listed in Schedule 2 in the NDIS Determination are restricted to those services that are also listed in specified parts of other Determinations. The specified parts of the other Determinations are:

● Schedule 1 to the GST-free Supply (Care) Determination 2017 (Care Determination)

● Section 6 of the A New Tax System (Goods and Services) Tax (GST-free Supply-Residential Care-Government Funded Supplier) Determination 2015 (Residential Care Determination)

● Section 6 or 7 of the GST-free Supply (Health Services) Determination 2017 (Health Services Determination)

The Residential Care Determination and the Health Service Determination are not relevant to the supplies you make.

Attachment A of the Explanatory Statement (ES) to the NDIS Determination provides examples and descriptions of the supplies covered by the NDIS Determination. It is important to note, however, that in relation to the examples and descriptions given for Schedule 2 items, these are then further restricted by the specified parts of the other Determinations set out above.

The GST treatment of the services listed in the four tables you provided in your application are set out below in an additional column added to the original tables and headed “GST status”: