Edited version of private advice

Authorisation Number: 1051905815728

Date of advice: 1 October 2021

Ruling

Subject: GST and special education courses

Question

Is GST payable on your supplies of specialist tuition programs to children and students with disabilities?

Answer

No. GST is not payable on your supplies of specialist tuition programs to children and students with disabilities. Your supplies are GST-free under section 38-85 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act).

Relevant fact and circumstances

You are registered for GST.

You registered for GST from (date).

You provide specialist 1:1 tuition to children and students (collectively referred to as Students) with disabilities.

You hold a certain registration as a specialist teacher. You have trained in several structured programs

You provide your service directly to families and only have contractual arrangements with the parents/carers of Students with disabilities. You charge the fees, set the prices and complete all your own administration and invoicing for your business.

You cater for Students with disabilities of all ages with Students predominantly 7 to 18 years of age. You do not currently have adult students however, they are able to engage and pay for your services if they have a disability for which you provide intervention.

You do not receive government funding.

Students may be referred to you with, or in the process of obtaining, a formal diagnosis of a disability. Students are referred from health professionals, paediatricians, teachers and parents.

You do not provide the tuition to Students who do not have a diagnosable disability.

Students enrol by the term and lessons are delivered weekly.

The programs are specifically designed and resourced by you to address a Student's unique disability diagnosis.

The instruction you provide is systematic, cumulative and knowledge-based.

To address certain issues, you use certain programs.

Any program or technique that you use is tailored and delivered by you according to an individual Student's diagnosis. Modifications may include (certain modifications).

You use multiple techniques, resources and instructional methods that are not provided in schools

You use certain resources and tools and products made by you to support your explicit instruction.

You keep client details of diagnosis, relevant assessments, co-morbidities, parental concerns and client contact details, as well as your own assessments and observations.

Informal assessment and formal assessments take place.

Each certain type of program is structured and accompanied by a certain type of structured introduction of a certain topic being taught. Once a starting point is determined, the plan is to progress through the relevant program. Each lesson is planned accordingly and the lesson is developed according to Student need and profile.

The certain type of programs introduce certain topics, working in a particular manner. Each module builds on the knowledge and skills previously taught.

The entire lesson requires your 1:1 presence and supervision. It requires significant support, explanation, direct instruction and feedback.

Ongoing support is provided to the Student and family during and after instruction. Feedback, assessment and progress monitoring is an essential element of the instruction.

Communication may take place with allied health professionals, paediatricians or teachers. Any testing is to determine progress, understanding and application of skills/knowledge.

The individual programs usually market the relevance of their program to meeting the needs of Students with a disability.

You are currently listed on a certain website as a provider of a certain type of program.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 Section 38-85

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

Reasons for decision

Summary

Your supplies of specialist tuition programs to children and students with disabilities are GST-free under section 38-85 of the GST Act as they are supplies of special education courses. The tuition programs are special education courses because they are courses of education that provide special programs designed specifically for children and students with disabilities.

Detailed reasoning

GST is payable on taxable supplies.

You make a taxable supply if you meet the requirements of section 9-5 of the GST Act, which states:

You make a taxable supply if:

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

(b)         you make the supply 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 for GST

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

(*Denotes a term defined in section 195-1 of the GST Act)

The indirect tax zone includes mainland Australia and various other areas.

In accordance with section 9-5 of the GST Act, entirely GST-free supplies are not subject to GST.

The supply of an education course is GST-free under section 38-85 of the GST Act. 'Education course' is defined in section 195-1 of the GST Act to include, among other things, a special education course.

To be a special education course as defined in section 195-1 of the GST Act, a course must be one that:

(i)      is a course of education

(ii)     provides special programs, and

(iii)    the special programs are designed specifically for children with disabilities or students with disabilities (or both).

The criteria for Special Education Courses are addressed in Goods and Services Tax: supplies that are GST-free as special education courses (GSTR 2002/1).

A course of education

Paragraph 9 of GSTR 2002/1 advises that all special education courses are GST-free, regardless of who supplies the course or where the supply is made.

In the context of the definition of a 'special education course' in section 195-1 of the GST Act, paragraphs 14 to 18 of GSTR 2002/1 explain that a course of education should be given a wide meaning to include a course or program of study involving systematic instruction, training or schooling in areas of scholastic and academic pursuits, vocational skills or personal development. This may be delivered to a group of children or students or to an individual child or student in the form of a series of lessons or classes, or a unit or module that forms part of a larger course. It needs to have elements of interactive teaching such as educational instruction, ongoing support and guidance, assessment, monitoring and the provision of feedback.

You are registered as a specialist teacher providing 1:1 specialist tuition programs to Students with disabilities. Students enrol for a term at a time, the duration of which aligns with a school term and you provide a series of weekly lessons over the course of the term.

In your tuition programs you use various types of programs that you have trained in and certain practices, as well as multiple resources and tools. Each of your tuition programs is specifically tailored and delivered by you according to the individual Student's disability and specific needs.

Your tuition programs involve informal and formal assessments. Once a starting point is determined, the plan is to progress through the relevant program. Each module in the relevant program builds on the knowledge and skills previously taught. Each lesson is planned according to where in that program structure the Student is, and the lesson is developed according to the Student's needs and disability.

The entire lesson requires your 1:1 presence and supervision. It requires significant support, explanation, direct instruction and feedback.

Assessment is ongoing and regular.

Any testing is to determine progress, understanding and application of skills/knowledge.

Therefore:

• there is a significant degree of structure to your tuition programs, and
• the programs of study involve systematic instruction in certain areas, and
• they are delivered to a Student with a disability in the form of a series of lessons, and
• the lessons have elements of interactive teaching, ongoing support and guidance, assessment, monitoring and the provision of feedback and these elements are present to a significant degree.

Hence, you are providing courses of education in accordance with its meaning in GSTR 2002/1.

Special programs designed specifically for children or students (of all ages) with disabilities

Paragraph 19 of GSTR 2002/1 provides that a program is a special program if it is:

• designed specifically to meet the special needs of children or students (of all ages) with disabilities
• designed specifically to reduce or prevent the impact of disabilities for students (of all ages) or children with disabilities, or
• not made available to people generally.

Paragraph 20 of GSTR 2002/1 explains that the program as a whole must be recognised as a special program, though it is not necessary that every part of the course is 'special'.

Paragraph 21 of GSTR 2002/1 advises that in some circumstances, where you modify a program that is not a special program, the modified program may become a special program.

What needs to be considered is the whole of the circumstances of the creation and delivery of the program to decide whether it is designed specifically for children or students (of all ages) with disabilities.

Relevant matters include the character of the program that is provided which may be established by considering its content, where it is delivered and how it will be delivered. Also relevant is evidence of an intention that the program is designed specifically for children with disabilities (regardless of whether they are students) or students with disabilities (regardless of their age). This may be demonstrated by material indicating the program is marketed specifically for children or students with disabilities.

Paragraph 38 of GSTR 2002/1 advises that children or students with disabilities may participate in programs that are not designed specifically for people with disabilities. For example, they may participate in activities that are designed to help students improve their grades, by way of private tutoring. Paragraph 39 explains that if they are not designed specifically for children or students with disabilities, they are not special education courses, regardless of whether children or students with disabilities are the recipients. However, if these programs have characteristics that demonstrate that they are special programs designed specifically for children or students with disabilities, they will satisfy the definition of a special education course.

Paragraph 30 of GSTR 2002/1 advises that a child is someone under age eighteen. A student is someone of any age who is enrolled, or will enrol, in a course or program of study involving systematic instruction, training or schooling in the areas of scholastic and academic pursuits, vocational skills or personal development.

Paragraphs 33 and 34 of GSTR 2002/1 provide that a disability exists where an individual has difficulty in executing activities or has problems being involved in life situations because some body function or structure is impaired. This would include, but is not limited to, conditions such as a learning disability/specific learning difficulty (including dyslexia), autism spectrum disorder, physical disability, an emotional disorder, a language disorder, a hearing impairment, a visual impairment or an intellectual disability that causes the individual difficulty in executing activities or problems involving life situations.

You are a health professional and registered as a specialist teacher. You have trained in several structured types of programs, attended numerous workshops and seminars and continue to complete training.

Students may be referred to you with, or in the process of obtaining a formal diagnosis of a disability. Students are referred from health professionals, paediatricians, teachers and parents. You do not provide the tuition to Students who do not have a disability. All of the students you teach have disabilities as defined in GSTR 2002/1.

You deliver the tuition programs in the form of a series of lessons. To address certain issues, you use certain programs.

All of your tuition programs involve assessing a Student's level of knowledge and development and any program or technique that you use is specifically tailored and delivered according to a Student's needs and disability diagnosis.

Modifications may include (certain modifications).

Your instruction is systematic, cumulative and knowledge-based. Each type of program is structured and you progress through the program.

Each program module builds on what was previously taught. Each lesson is planned based on placement in the program structure and is specifically tailored and resourced by you to address the Student's disability. You advise that each of your tuition programs are designed specifically, tailored and resourced by you to address the individual Student's disability and unique needs.

Individual programs usually market the relevance of their program to meeting the needs of children and students with a disability. You are currently listed on a certain website as a provider of a certain program.

Therefore, the facts you provided indicate that the specialist tuition programs that you are delivering to Students with disabilities are special programs designed specifically for Students with disabilities.

It is considered that your specialist tuition programs to Students with disabilities meet the definition of a special education course under section 195-1 of the GST Act, and your supplies of these programs are therefore GST-free under section 38-85 of the GST Act.