GST and cremated remains

Is the entity, a crematorium, packaging and transporting 'goods' under the definition in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (GST Act) when it sends cremated human remains overseas?

Yes, the entity is packaging and transporting 'goods' under the definition in section 195-1 of the GST Act when it sends cremated human remains overseas.

The entity is a crematorium.

The entity packages and sends cremated remains overseas.

This service is separate to the cremation and associated funeral services.

Under section 195-1 of the GST Act, 'goods' means 'any form of tangible personal property'.

Common law provides that the body of a deceased is not considered the personal property of another. Rather, a duty of care is conferred upon a person, by virtue of their relationship with the deceased, to give the deceased a decent burial. Doodeward v. Spence (1908) 6 CLR 406 ( Doodeward ) is authority for an exception to this view in that where there has been an application of work and skill on the deceased that can differentiate the body from a corpse awaiting burial a human body is capable of becoming the subject of property.

Byrne J, in Leeburn v. Derndorfer and Another (2004) 14 VR 100 at paragraph 27 compares ashes as being similar to the preserved body in Doodeward : ...the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so. The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.

So long as the cremated remains are not dispersed or otherwise lose their physical character as cremated remains, they may be owned and possessed and therefore be considered tangible personal property.

Accordingly, for the purposes of the GST Act, services supplied by the entity in packaging and transporting the cremated remains can be treated as services in dealing with goods as per the definition in section 195-1 of the GST Act. In making this conclusion it is not necessary to consider who has the proprietary interest in the cremated remains. Note 1 - Item 5 in the table in section 38-355 of the GST Act may apply where all other conditions are satisfied to the supply of the transport of cremated remains overseas.