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Edited version of private advice
Authorisation Number: 1051621384020
Date of advice: 16 December 2019
Ruling
Subject: GST and fees charged for immigration skills assessments
Question
Is the fee charged for a migration skills assessment service precluded from constituting consideration for a supply pursuant to Division 81 of the A New Tax System (Goods and Services Tax ) Act 1999 (GST Act)?
Answer
No.
The scheme commences on:
XX November 20XX
Relevant facts and circumstances
You are an authorised skills assessing authority for assessing equivalent qualifications for skilled migration purpose.
You charge a fee for the application for the skills assessment.
You are registered for goods and services tax.
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 Division 81.
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(4).
A New Tax System (Goods and Services Tax) Act 1999 subsection 81-10(5).
A New Tax System (Goods and Services Tax) Act 1999 section 81-5.
Reasons for decision
Division 81 of the GST Act was amended with effect from 1 July 2011 to allow entities to self-assess the GST treatment of a payment of an Australian tax or an Australian fee or charge in accordance with certain principles. The amendments to Division 81 of the GST Act allow for regulations to be made to treat an Australian tax, or an Australian fee or charge, in a particular way that will determine if the amount paid, or the discharging to make such payment, is subject to GST.
Therefore, to consider whether any of the provisions in Division 81 apply to the fee in question, it needs to be determined whether the fee charged in the current case is an Australian tax, fee or charge.
The fee charged for the determination of equivalent qualifications does not have the character of a tax. Therefore for Division 81 to apply, the fee needs to be an Australian fee or charge.
Australian fee or charge is a defined term in the GST Act. Section 195-1 of the GST Act provides that:
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.
Section 195-1 of the GST also provides the definition of Australian law where it says:
Australian law means a *Commonwealth law, a *State law or a *Territory law.
The fee charged in question is not imposed under any other Australian law therefore is not an Australian fee or charge under Division 81 of the GST Act.
As such, the fee in question is not precluded from constituting consideration for a supply (service) made under Division 81 of the GST Act. The fee is not GST-free or input taxed under any other provisions of the GST Act either.