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Is the entity, a food supplier, making a GST-free supply under section 38-2 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), when it sells cheese and bacon topped breads?

Yes, the entity is making a GST-free supply under section 38-2 of the GST Act when it sells cheese and bacon topped breads.

The entity is a food supplier. The entity supplies cheese and bacon topped breads.

The cheese and bacon topped breads do not have sweet fillings or coatings.

The cheese and bacon topped breads are not sold for consumption on the premises from which they are supplied. The entity does not supply the cheese and bacon topped breads as hot food for consumption away from those premises.

The entity is registered for goods and services tax (GST).

A supply of food is GST-free under section 38-2 of the GST Act provided that it does not come within any of the exclusions listed in section 38-3 of the GST Act.

Food is defined in paragraph 38-4(1)(a) of the GST Act to include food for human consumption (whether or not requiring processing or treatment). Cheese and bacon topped breads are food for human consumption.

However, under paragraph 38-3(1)(c) of the GST Act, a supply of food is not GST-free if it is food of a kind that is specified in the table in clause 1 of Schedule 1 to the GST Act (Schedule 1). The category of food from Schedule 1 that is of particular relevance to this case is 'bakery products'.

Item 27 in Schedule 1 to the GST Act (Item 27) from the category 'bakery products', provides that bread (including buns) with a sweet filling or coating is not GST-free. Therefore, the issue is whether cheese and bacon topped breads are considered to be bread (including buns) with a sweet filling or coating.

The cheese and bacon topped breads supplied by the entity are savoury in nature. They have savoury toppings and do not have sweet fillings or coatings. Therefore, the cheese and bacon topped breads are not covered by Item 27 because they are not considered to be bread (including buns) with a sweet filling or coating.

In addition, the supply of cheese and bacon topped bread does not fall within any of the other exclusions in section 38-3 of the GST Act. Therefore, the entity is making a GST-free supply of cheese and bacon breads under section 38-2 of the GST Act.