Edited version of private advice

Authorisation Number: 1052188984514

Date of advice: 20 November 2023

Ruling

Subject: GST - provision of driving lessons

Question

Are you required to charge GST on the provision of driving lessons to National Disability Insurance Scheme (NDIS) participants who are funded by the NDIS in accordance with section 38-38 of the GST?

Answer

Yes, as you do not meet all of the requirements in section 38-38 of the GST Act.

The scheme commenced on

18 April 2023

Relevant facts and circumstances

You are registered for GST from XXXX.

You are a registered provider with the NDIS and your provider number is XXX. You charge under the NDIS guideline.

The students that you provide lessons to are approved for driving lessons by their NDIS plan.

You teach people in dual controlled vehicles and also have modifications fitted to one of your vehicles to suit participants with physical disabilities as a driving instructor.

You also provide driving lessons to the public.

Relevant legislative provisions

A New Tax System (Goods and Services Tax) Act 1999 Division 9

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

Reasons for decision

Section 38-38 of the GST Act provides that certain supports provided to NDIS participants are GST-free.

Further, it states that a supply is GST-free if the supply:

(a)  is a supply to a participant (within the meaning of the National Disability Insurance Scheme Act 2013) for whom a participant's plan is in effect under section 37 of that Act; and

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

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

a.    identifies the participant; and

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

(d)  is of a kind that the *Disability Services Minister has determined in writing.

NDIS plan is in effect

The participant's NDIS plan must be in effect under section 37 of the National Disability Insurance Scheme Act 2013 (NDIS Act), which means it must be approved by the National Disability Insurance Agency (NDIA). The plan ceases to be effective when it is replaced by another plan, or when the NDIS participant ceases to be a participant in the NDIS.

Reasonable and necessary supports

The supply must be of one or more reasonable and necessary supports, as defined in the participant's NDIS plan. Where the participant's NDIS plan specifies an amount (such as time or quantity) of reasonable and necessary supports, any supplies of supports in excess of these specifications will not be a GST-free NDIS supply.

Made under a written agreement

There must be made a written agreement between you (the supplier), and the NDIS participant (or another person). The written agreement must:

•         identify the NDIS participant, and

•         state that the supply is a supply of one or more of the reasonable and necessary supports specified in the statement included, under subsection 33(2) of the NDIS Act, in the participant's NDIS plan.

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

The written agreement may be a single document or a combination of documents, such as letters between you and the other party and receipts or invoices you issue. It may include documents in electronic form.

As long as you have written evidence of a legally binding obligation for you to make the supply to the NDIS participant and that it is a reasonable and necessary support as specified in the participant's NDIS plan, the requirement for a written agreement is satisfied.

A supply covered by the Disability Services Minister's Determination

For the supply to be GST-free, as well as meeting the other three requirements outlined above, your supply to the NDIS participant must be of a kind covered by the A New Tax System (Goods and Services Tax) (GST-free Supply-National Disability Insurance Scheme Supports) Determination 2021 (NDIS Determination). The NDIS Determination applies to supplies made on or after 1 July 2021 but before 1 July 2025. The NDIS Determination has two tables:

•         The table in subsection 6(1) - supplies of supports that are GST-free (Table 1)

•         The table in subsection 6(2) - supplies of supports that are GST-free if they are listed in other determinations (Table 2).

If your supply is covered by an item listed in Table 1, the requirement to be covered by the NDIS Determination is satisfied.

The training in driving using adapted equipment or vehicle modification is in item 4 (Table 1) as follows:

Table 1: The training in driving using adapted equipment or vehicle modification is is item 4 as follows:

As you have advised that you are not providing the training as a driver trained occupational therapist but as a driving instructor using adapted equipment or vehicle modification you do not meet the requirements in item 4 above. Therefore, you do not meet the requirements in section 38-38(d) and your driving lessons are not GST- free.

In accordance with section 9-5 of the GST Act, driving schools and driving instructors such as yourself with a GST turnover, or projected GST turnover, which meets or exceeds the GST registration turnover threshold of $75,000 must be registered for GST and pay GST for those driving classes provided to the public and also to NDIS participants as you are not a driver trained occupational therapist.