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Is the entity, a government body, making an input taxed supply under subsection 40-5(1) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), when it transfers a debt owed to it, to a third party?

Yes, the entity is making an input taxed supply under subsection 40-5(1) of the GST Act when it transfers a debt owed to it, to a third party.

The entity is a government body. The entity transfers a debt owed to it, to a third party. The chose in action is the right to recover a debt. The interest was the property of the entity immediately before the supply.

The entity is registered for goods and services tax (GST). The supply is for consideration. The supply is connected with Australia and is in the course or furtherance of the enterprise the entity is carrying on.

Under subsection 40-5(1) of the GST Act, a financial supply is input taxed. Subsection 40-5(2) of the GST Act provides that 'financial supply' has the meaning given by the A New Tax System (Goods and Services Tax) Regulations 1999 (GST Regulations).

Regulation 40-5.08 of the GST Regulations provides that a supply is a financial supply if it is a financial supply mentioned in regulation 40-5.09 of the GST Regulations.

Subregulation 40-5.09(1) of the GST Regulations describes the circumstances under which the provision, acquisition, or disposal of an interest mentioned in subregulation 40-5.09 (3) or (4) is a financial supply. The circumstances are that the provision, acquisition, or disposal is: • for consideration; and • in the course or furtherance of an enterprise; and • connected with Australia; and • the supplier is registered or required to be registered; and • the supplier is a financial supply provider in relation to the supply of the interest.

Therefore, it is necessary to determine whether the entity is providing, acquiring or disposing of an interest in or under an item mentioned in subregulation 40-5.09(3) or (4) of the GST Regulations. Regulation 40-5.02 of the GST Regulations defines an 'interest' as anything that is recognised at law or in equity as property in any form.

As such, the interest has to be mentioned in subregulations 40-5.09(3) or (4) of the GST Regulations. Item 2 of subregulation 40-5.09(3) of the GST Regulations lists 'a debt, credit arrangement or right to credit, including a letter of credit'.

Subregulation 40-5.09(1) of the GST Regulations also requires that there must be a provision, acquisition or disposal of the interest in the debt. Regulation 40-5.04 of the GST Regulations states that the disposal of an interest includes assignment, cancellation, redemption, transfer and surrender of the interest. As the entity is making a transfer of the debt, they are making a disposal of the interest in the debt.

The first 4 requirements in subregulation 40-5.09(1) of the GST Regulations are satisfied as the supply is for consideration, it is in the course and furtherance of an enterprise, it is connected with Australia and the supplier is registered for GST. Therefore, it is necessary to determine if the supplier is a 'financial supply provider' in relation to the supply of the interest. 'Financial supply provider' is defined in regulation 40-5.06 of the GST Regulations: 'An entity, in relation to the supply of an interest that was: immediately before the supply, the property of the entity; or created by the entity in making the supply; is the financial supply provider of the interest'.

Therefore, as the interest was the property of the entity immediately before the supply, the entity is a financial supply provider in relation to the supply of the interest. Accordingly, subparagraph 40-5.09(1)(b)(ii) of the GST Regulations is satisfied. Consequently, the supply satisfies subregulation 40-5.09(1) of the GST Regulations.

The transfer of the interest in the debt, by the entity to a third party fulfils all of the requirements of regulation 40-5.09 of the GST Regulations and is a financial supply. Therefore, the entity is making an input taxed supply under subsection 40-5(1) of the GST Act when it transfers a debt owed to it, to a third party.