Edited version of private advice

Authorisation Number: 1051976228180

Date of advice: 24 May 2022

Ruling

Subject: GST and supply of plant-based milk

Question 1

Is the supply of the Products GST-free pursuant to section 38-2 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Answer

Yes.

A supply of food is GST-free under section 38-2 of the GST Act if the product satisfies the definition of food in section 38-4 of the GST Act and the supply is not excluded from being GST-free by section 38-3 of the section GST Act.

The supply of the Products is GST-free under section 38-2 of the GST Act because:

• the Products satisfy the definition of food in paragraph 38-4(1)(c) of the GST Act as beverages for human consumption, and
• the supply of the Products does not fall within any of the exclusions in section 38-3 of the GST Act.

Question 2

Is the importation of the Products a non-taxable importation under paragraph 13-10(b) of the GST Act?

Answer

Yes.

GST is not payable on an importation of goods into Australia where the importation is a non-taxable importation.

Paragraph 13-10(b) of the GST Act provides that an importation is a non-taxable importation to the extent that, had the importation been a supply, the supply would have been a GST-free or input taxed supply.

The importation of the Products is a non-taxable importation under paragraph 13-10(b) of the GST Act because had the importation been a supply, it would have been GST-free. The importation of the Products therefore is not subject to GST.

Relevant facts and circumstances

You import several grocery brands and alcoholic products into the Australian marketplace.

You are registered for GST.

You are importing the Products for sale to supermarkets.

The Products are sold in a specified size Tetra Pak carton.

The Products are developed by an overseas-based company that creates plant-based meat and dairy food substitutes.

The Products are marketed as plant-based alternatives to dairy milk.

The Products contain specified ingredients.

The Products are not flavoured beverages.

The Products are sold in Tetra Pak cartons and displayed in the shelf stable milk section of the supermarkets, alongside dairy milk products.

The front of the cartons displays the Product name and indicates that it is a plant-based beverage.

The packaging contains instructions and usage suggestions.

The Products are gluten free and lactose and cholesterol free.

The Products have the colour, texture, and consistency of dairy milk.

The manufacturer's website contains beverage and food recipes utilising the Products.

The manufacturing process and the technology used for the Products are similar to the process and technology used for cow's milk production.

You provided samples of the Products.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 Section 13-5.

A New Tax System (Goods and Services Tax) Act 1999 Paragraph 13-10(b).

A New Tax System (Goods and Services Tax) Act 1999 Section 38-2.

A New Tax System (Goods and Services Tax) Act 1999 Section 38-3.

A New Tax System (Goods and Services Tax) Act 1999 Paragraph 38-3(1)(d).

A New Tax System (Goods and Services Tax) Act 1999 Section 38-4.

A New Tax System (Goods and Services Tax) Act 1999 Paragraph 38-4(1)(c).

A New Tax System (Goods and Services Tax) Act 1999 Schedule 2.