Edited version of private advice

Authorisation Number: 1051853918387

Date of advice: 22 June 2021

Ruling

Subject: Goods and services tax

Question 1

Will the services provided by the entity be taxable supplies pursuant to section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

Yes.

Question 2

Will the GST implications be different for the services provided to clients who are not NDIS participants if the entity applies for NDIS registration?

Answer

No.

Relevant facts and circumstances

The entity (You) carries on an enterprise and is registered for the goods and services tax (GST).

You are not registered with the National Disability Insurance Scheme (NDIS) and do not receive any government funding for making your supplies, including any NDIS disability support supplies.

You provide support services in Australia and are paid consideration for your services.

People who request your services include NDIS participants (participants who are NDIS registered and have their plans approved) and non-NDIS participants.

You do not have any written agreement or any signed documentation with the NDIS participant (or another person) that specifies the supply to be made and that states that the supply to be provided is a supply of one or more of the reasonable and necessary supports as specified in the statement included, under subsection 33(2) of the NDIS Act, in the participant's NDIS plan.

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 38-38

A New Tax System (Goods and Services Tax) Act 1999 section 195-1

Reasons for decision

In this reasoning, unless otherwise stated,

•         all legislative references are to the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)

•         all legislative terms of the GST Act marked with an asterisk are defined in section 195-1 of the GST Act

•         where the term 'Australia' is used, it is referring to the 'indirect tax zone' as defined in subsection 195-1 of the GST Act.

Detailed reasoning

You are liable for GST on taxable supplies that you make. You make a taxable supply where you satisfy the requirements of section 9-5 of the GST Act, which states:

You make a taxable supply if:

(a)   you make the supply for *consideration; and

(b)   the supply is made in the course or furtherance of an *enterprise that you *carry on; and

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

(d)   you are *registered, or *required to be registered.

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

You satisfy the requirements of paragraphs 9-5(a) to 9-5(d) of the GST Act. That is, you supply the services in question for consideration and in the course or furtherance of an enterprise that you carry on. The supplies of the services are in Australia, and you are registered for GST.

There are no provisions of the GST Act under which your supplies of the services are input taxed. Therefore, what remains to be determined is whether your supplies of the services are GST-free.

Supplies made by a supplier of disability supports to an NDIS participant may be GST-free where the requirements of the relevant GST law provisions are satisfied.

Section 38-38 of the GST Act deals with disability supports provided to people who use the NDIS (NDIS participants).

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

•         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);

•         of one or more of the reasonable and necessary supports specified in the statement of supports included in the participant's plan;

•         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 the NDIS Act, in the participant's plan; and

•         of a kind determined in a legislative instrument by the Minister responsible for Disability Services, that is, a supply covered by one of the schedules in the GST-free Supply (National Disability Insurance Scheme Supports) Determination 2017 (NDIS Determination).

All the above requirements under 38-38 of the GST Act must be satisfied for your services to be GST-free.

A participant's plan will contain a statement of supports and will identify those that are approved as reasonable and necessary.

The written agreement can be between the supplier and a person other than the participant. Other people can include those who manage the plan and funding for the participant. This would include the NDIA, a plan management provider registered with the NDIA or someone like a guardian or relative of the participant.

The NDIS Determination lists the kinds of supplies to a participant of the NDIS which are GST-free where the supply meets all the other conditions in section 38-38 of the GST Act (as listed above).

Based on the facts provided, all the requirements of section 38-38 of the GST Act are not met and the supply of the support services is not GST-free. The supply is also not GST-free under any other provisions of the GST Act.

Consequently, the supply meets all the requirements for a taxable supply under section 9-5 of the GST Act and will be a taxable supply. GST is payable on taxable supplies. You, as the supplier, are liable for GST on the taxable supplies that you make.