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Is the entity, a supplier of medical aids and appliances, making a GST-free supply under subsection 38-45(1) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), when it supplies an indirect calorimeter?

No, the entity is not making a GST-free supply under subsection 38-45(1) of the GST Act when it supplies an indirect calorimeter. The entity is making a taxable supply under section 9-5 of the GST Act.

The entity is a supplier of medical aids and appliances. The entity is supplying an indirect calorimeter.

The indirect calorimeter is a device whose primary function is to measure a person's energy expenditure. In the course of this function, the device also measures how much oxygen is inhaled and exhaled by that person. The entity promotes the device for use in nutritional research. For instance, the device can be used to provide a comparative analysis of energy expenditure between healthy and sick subjects.

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

Under subsection 38-45(1) of the GST Act, a supply of a medical aid or appliance is GST-free where the medical aid or appliance: • is covered by Schedule 3 to the GST Act (Schedule 3), or specified in the A New Tax System (Goods and Services Tax) Regulations 2019 (GST Regulations); • is specifically designed for people with an illness or disability; and • is not widely used by people without an illness or disability.

The only item of relevance to the status of the indirect calorimeter is item 137 in the table in Schedule 3 (Item 137), which lists 'breathing monitors'. Indirect calorimeters are not specified in the GST Regulations.

The term 'breathing monitors' is not defined in the GST Act. Generally, where a phrase is not defined in the relevant Act, it is usually interpreted in accordance with its ordinary meaning, unless it has a special or technical meaning. Where a phrase has a special or technical meaning, it is necessary to determine its meaning by reference to the industry to which that phrase relates (Herbert Adams Pty Ltd v FCT (1932) 47 CLR 222).

The health industry considers a breathing monitor to be a device with the primary purpose of measuring a patient's breathing in circumstances where such monitoring is essential (eg the patient is unconscious, under an anaesthetic etc).

Although the indirect calorimeter does measure the level of oxygen breathed in and out during a person's breathing cycle, the primary purpose of the device is to measure how much energy the person is expending. Furthermore, the device is not used to monitor a person's breathing in situations where the person is unconscious or under an anaesthetic, but rather is used in nutritional research.

As such, it is considered that the indirect calorimeter system is not a 'breathing monitor' and is not covered by Item 137. As the indirect calorimeter is not covered by Schedule 3, the supply of the machine is not GST-free under subsection 38-45(1) of the GST Act.

The entity is registered for GST and the supply meets the other positive limbs of section 9-5 of the GST Act. Furthermore, the supply is not GST-free under any of the other provisions in Division 38 of the GST Act nor is it input taxed under Division 40 of the GST Act. Therefore, the entity is making a taxable supply under section 9-5 of the GST Act when it supplies the indirect calorimeter.

Date of Amendment Part Comment 9 April 2019 Throughout Updated A New Tax System (Goods and Services Tax) Regulations 1999 to A New Tax System (Goods and Services Tax) Regulations 2019 .

Date of Amendment | Part | Comment

9 April 2019 | Throughout | Updated A New Tax System (Goods and Services Tax) Regulations 1999 to A New Tax System (Goods and Services Tax) Regulations 2019 .