1 Is an annual fee (Fee A) imposed by an Australian government agency (AGA) under a state law (State law) in relation to supply A the provision of consideration under Division 81 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?
1 Yes, Fee A imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply A for which Fee A is payable is not a taxable supply under section 9-5 of the GST Act on which goods and services tax (GST) is payable (exempt from GST). Question 2 Is an annual fee (Fee B) imposed by the AGA under State law in relation to supply B the provision of consideration under Division 81 of the GST Act? Answer 2 Yes, Fee B imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply B for which Fee B is payable is not a taxable supply under section 9-5 of the GST Act on which GST is payable (exempt from GST). Question 3 Is an annual fee (Fee C) imposed by the AGA under State law in relation to supply C the provision of consideration under Division 81 of the GST Act? Answer 3 Yes, Fee C imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply C for which Fee C is payable is not a taxable supply under section 9-5 of the GST Act on which GST is payable (exempt from GST). Question 4
Is an annual fee (Fee D) imposed by the AGA under State law in relation to supply D the provision of consideration under Division 81 of the GST Act? Answer 4 Yes, Fee D imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply D for which Fee D is payable is not a taxable supply under section 9-5 of the GST Act on which GST is payable (exempt from GST). Question 5 Is a one-off fee (Fee E) imposed by the AGA under State law in relation to supply E the provision of consideration under Division 81 of the GST Act? Answer 5 Yes, Fee E imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply E for which Fee E is payable is not a taxable supply under section 9-5 of the GST Act on which GST is payable (exempt from GST). Question 6 Is a one-off fee (Fee F) imposed by the AGA under State law in relation to supply F the provision of consideration under Division 81 of the GST Act? Answer 6
Yes, Fee F imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply F for which Fee F is payable is not a taxable supply under section 9-5 of the GST Act on which GST is payable (exempt from GST). Question 7 Is a one-off fee (Fee G) imposed by the AGA under State law in relation to supply G the provision of consideration under Division 81 of the GST Act? Answer 7 Yes, Fee G imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply G for which Fee G is payable is not a taxable supply under section 9-5 of the GST Act on which GST is payable (exempt from GST). Question 8 Is a one-off fee (Fee H) imposed by the AGA under State law in relation to supply H the provision of consideration under Division 81 of the GST Act? Answer 8 Yes, Fee H imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply H for which Fee H is payable is not a taxable supply under section 9-5 of the GST Act on which GST is payable (exempt from GST). Question 9
Is a one-off fee (Fee I) imposed by the AGA under State law in relation to supply I the provision of consideration under Division 81 of the GST Act? Answer 9 Yes, Fee I imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply I for which Fee I is payable is not a taxable supply under section 9-5 of the GST Act on which GST is payable (exempt from GST). Question 10 Is an annual fee (Fee J) imposed by the AGA under State law in relation to supply J the provision of consideration under Division 81 of the GST Act? Answer 10 Yes, Fee J imposed by the AGA under State law is not the provision of consideration under Division 81 of the GST Act and as such supply J for which Fee J is payable is not a taxable supply under section 9-5 of the GST Act on which GST is payable (exempt from GST).
You are a state agency discharging state government functions. You are registered for GST. Under state legislation you undertake functions which involve you making supplies for which you charge certain fees and charges (collectively referred to as the Subject Fees).
A New Tax System (Goods and Services Tax) Act 1999 section 9-5 A New Tax System (Goods and Services Tax) Act 1999 subsection 81-10(1) A New Tax System (Goods and Services Tax) Act 1999 subsection 81-10(2) A New Tax System (Goods and Services Tax) Act 1999 subsection 81-10(4) A New Tax System (Goods and Services Tax) Act 1999 subsection 81-10(5) A New Tax System (Goods and Services Tax) Act 1999 subsection 81-15 A New Tax System (Goods and Services Tax) Act Regulations 2019 section 81-10.01. A New Tax System (Goods and Services Tax) Act Regulations 2019 section 81-15.01.
Legislation GST is payable on taxable supplies. [1] A supply is a taxable supply if among other things, it is a supply made for consideration. [2] Supplies are defined to include the supply of goods, [3] the supply of services, [4] the grant of any right, [5] the entry into or release from an obligation to do anything or any combination of any two of these matters. Consideration is defined in section 9-15 of the GST Act to include any payment or forbearance in connection with, in response to, or for the inducement of a supply of anything. [6] In AP Group Ltd v Federal Commissioner of Taxation (2013) 214 FCR 301 it was held that, while consideration must be 'in connection with' the supply, the supply must also be 'for' the consideration. If there is no consideration for a supply, the supply is not a taxable supply, and therefore it is not subject to GST. Section 9-39 provides special rules in relation to making taxable supplies. In particular, table item 8 in section 9-39 of the GST Act provides that where there is a payment of fees and charges the special rules in Division 81 may apply. Division 81 Division 81 of the GST Act and the associated regulations in the
A New Tax System (Goods and Services Tax) Regulations 2019 (GST Regulations) exclude from GST (GST exempt), certain legislatively imposed fees and charges by ensuring these payments do not constitute consideration for a supply. [7] This exclusion from GST does not apply to a fee or charge that is prescribed to be consideration by the GST Regulations (subsection 81-10(2) of the GST Act). In particular, subsection 81-10(1) of the GST Act excludes from consideration certain Australian fees or charges if they are covered by subsections 81-10(4) or 81-10(5) of the GST Act. Section 81-15 of the GST Act also enables the GST Regulations to prescribe kinds of Australian fees or charges that are excluded from being consideration. If these exclusions apply, the supply to which the fees or charges relate is not a taxable supply on which GST is payable, because the supply is not made for consideration. The exclusions from GST cover the following kinds of fees or charges imposed by and payable to Australian government agencies (AGA) under State or Territory legislation:
• a fee or charge paid in relation to (or in relation to an application for) the provision, retention or amendment under an Australian law, of a permission, exemption authority or licence however described (subsection 81-10(4) of the GST Act); • a fee or charge paid in relation to the agency recording, copying, modifying, allowing access to, receiving, processing or searching for information (subsection 81-10(5) of the GST Act); or • a fee or charge paid for a supply of a regulatory nature made by an Australian government agency (see paragraph 81-15.01(f) of the GST Regulations.) However, as an exception to these exclusions from GST, subsection 81-10(2) of the GST Act permits the GST Regulations to prescribe that certain payments of Australian fees or charges are to be treated as consideration. The prescribed fees or charges that are treated as consideration include a fee or charge paid to an Australian government agency: • for a supply of a non-regulatory nature (paragraph 81-10.01(1)(g) of the GST Regulations).
• for a supply by and AGA, where the supply may also be made by a supplier that is not an AGA (paragraph 81-10.01(1)(h) of the GST Regulations). When these regulations apply, the fee or charge is consideration for a supply made by the AGA. [8] Consequently, the supply for which that fee or charge is consideration becomes subject to GST if the other requirements for making a taxable supply are met. Australian fee or charge For the purposes of subsection 81-10(1) of the GST Act an Australian fees or charges is defined to mean a fee or charge, however described other than an Australian tax, imposed under an Australian law, and payable to an AGA. [9] Australian government agency An AGA is defined to mean the Commonwealth, a State, a Territory, or an authority of the Commonwealth, State or Territory. [10] In Goods and Services Tax Ruling GSTR 2006/5 Goods and services tax: meaning of Commonwealth, State or Territory
the Commissioner considers that the Commonwealth, a State or Territory includes a department, agency or organisation of the type referred to in the definition of 'government entity' in section 195-1 of the GST Act. The Commonwealth, a State or a Territory is not limited to the departments, agencies and organisations in the definition of 'government entity' and may include a corporation which is not a 'government entity' as defined in section 195-1 of the GST Act in which the Commonwealth or a State or Territory has an interest. If the corporation is discharging governmental functions for the State - that is, the State is carrying on the relevant business or other function through the corporation - the corporation is the State. Australian law An Australian law is defined to mean the law of the Commonwealth, a State or a Territory and therefore includes State or Territory legislation. [11] To determine if the Subject Fees payable to you for or in connection with the supplies made by you are excluded from being consideration, it is necessary to consider • Whether the Subject Fees are an Australian fee or charge
• Whether the Subject Fees relate to the provision, under state or territory legislation, of a permission, authority or licence however described • whether the Subject Fees are for a supply of a non-regulatory or regulatory nature, and • whether the supply is a supply that may also be made by a supplier that is not an Australian government agency. Are the Subject Fees and Australian fee or charge? Under the definition of an Australian fee or charge three elements are critical: • the fee or charge must not be an Australian tax; • the fee or charge is imposed under an Australian law; • the fee or charge is payable to an Australian government agency
As to the first critical element, an 'Australian tax' is defined to mean a tax (however described) imposed under an Australian law (section 195-1 of the GST Act). Each of the Subject Fees is not an Australian tax as each of the Subject Fees does not have the character of compulsory impost that has a general revenue raising object. Each of the Subject Fee has a discernible relationship and is particular to the services (supplies) provided by you as a statutory authority for which the Subject Fees are levied and are designed to recover some or all of the costs of the services provided by you. All of the Subject Fees in question are therefore properly regarded as fees for services and do not amount to an Australian tax. As to the second critical element, the Subject Fees must be imposed under an Australian. The State law and Regulations empowers you to make the supplies and to charge the Subject Fees for or in connection with those supplies and as such each of the Subject Fee is imposed under an Australian law being the State law and Regulations.
As to the third critical element, you are an AGA being an authority of the State to whom each of the Subject Fees are payable. Further the supplies cannot be made by a supplier other than an AGA. As each element in the definition of an Australian fee or charge is satisfied, each of the Subject Fees set by you under the State law and Regulations come within the definition of an Australian fee or charge. Subsections 81-10(4) or (5) of the GST Act Under s 81-10(1) of the GST Act, the payment of fees to you for the supplies, is not consideration for supplies subject to GST, because the fees: • Relate to or relate to an application for the provision of a licence, permission or authority however described under the regulatory legislation (subsection 81-10(4) of the GST Act); and or • Relate to you receiving, recording, processing or modifying information (subsection 81-10(5) of the GST Act).
These fees fall within subsection 81-10(1) of the GST Act because they are essentially fees imposed by legislation for rights etc that have the character of permission conferred by an AGA under legislation and as such are of a kind covered by subsection 81-10(4) of the GST Act. Further, the Subject Fees also fall within subsection 81-10(1) because they relate to you receiving, recording, processing or modifying information and as such are of a kind covered by subsection 81-10(5) of the GST Act. Subsection 81-10(2) of the GST Act alters the default position if the fees are of a kind that the GST Regulations prescribes to be consideration. Paragraph 81-10.01(1)(g) of the GST Regulations prescribes that fees a government agency charges for making supplies of a non-regulatory nature constitute consideration. For completeness and the avoidance of doubt, section 81-15 of the GST Act and paragraph 81-10.01(1)(h), 81-15.01(f) and 81-15.02(2) of the GST Regulations, prescribe that fees a government agency charges for making a supply of a regulatory nature do not constitute consideration, provided the supply cannot also be made by a non-government supplier.
In this case, because only you can make the under the legislation, the exclusion of the fees from GST requires the supply to be a supply of a regulatory nature . Supplies Paragraphs 81-10.01(1)(g) of the GST Regulations refer to fees and charges imposed under an Australian law and payable to an AGA that can properly be characterised as being for a 'supply' able to be characterised as 'of a non-regulatory nature'. As the 'nature' of a thing refers to the particular combination of qualities or characteristics belonging to the thing, determining whether a supply can properly be characterised as being of a 'non regulatory nature' involves examining those particular characteristics of the supply relevant to its nature for which the payment of each the Subject Fee is made to you. The characteristics or qualities of the supply or supplies for which each of the Subject Fees are paid is set out below and begins with identifying what is being supplied. On the survey, the supplies you make in exchange for the fees payable involves you making a supply that is some combination of a supply of goods, a grant of rights and entry into an obligation and the recording of information.
Regulatory or non-regulatory The GST Act does not define the terms 'regulatory' or 'non-regulatory'. These terms therefore take their ordinary meaning read in the context of Division 81 of the GST Act. As something ' non-regulatory' describes the opposite of something ' regulatory' , the meaning of ' regulatory' informs the understanding of both terms. Goods and Services Tax Determination GSTD 2024/2 Goods and services tax: is the supply of a burial right in respect of a public cemetery subject to GST? explains that when considering if the fee or charge paid to an AGA is for a supply of a non-regulatory or regulatory nature, the fee or charge must be capable of being characterised as an amount that is paid for the supply. That supply, in turn must be able to be characterised as being of a regulatory nature for an exclusion from GST to apply (paragraph 35 GSTD 2024/2). GSTD 2024/2 further explains that: • A supply is of a regulatory nature if the supply relates to the regulation of behaviour or conduct. [12]
• A supply relates to the regulation of behaviour or conduct if the supply itself regulates behaviour or conduct under state legislation, or furthers in some integral way, the operation of state legislation that governs behaviour or conduct. [13] • A supply is more likely to be of a regulatory nature if the regulated behaviour or conduct must be legally undertaken under legislation, and the making of the supply is a pre-requisite to engaging in the behaviour or conduct, or if entities that choose to undertake regulated behaviour or conduct, must as a condition of doing so, acquire the supply from a government agency. [14] • A supply is capable of characterisation as being regulatory in nature if it is integrally involved in furthering the operation of legislation that governs behaviour or conduct. [15] • A supply will be integrally involved in furthering the operation of legislation that governs behaviour or conduct where the making of the supply is a necessary step in or aspect of a legislative regime for regulating an area of human activity. [16]
• Not all supplies made by government agencies are regulatory in nature; for example, where the supply does not relate to regulating (that is, to controlling or directing) behaviour, ensuring consumer protection, or ensuring compliance with standards. [17] • If a government agency supplies something a consumer chooses to acquire, without that supply being a necessary step in a regulatory regime, the supply is likely to be characterised as being non-regulatory in nature. This could arise where the supply does not further in some integral way, the operation of legislative rules that govern behaviour or conduct. [18] Applying the principles outlined in GSTD 2024/2 the supply relates to regulating behaviour or conduct the supply. On that basis the supplies for which the Subject Fees are paid are a supply of a 'regulatory' nature that relate to regulation based on the following: • the supply regulates behaviour; and • ensuring compliance with certain standards.
• the manner of the imposition of the Subject Fees involves a regulatory regime where the fee is set by a legislated process involving regulatory apparatus and, in some instances, the Ministers oversight. • All of the supplies for which each of the Subject Fees are paid relate to regulation with supplies that you, as an AGA are bound to undertake under the regulatory regime In summary, the supplies can properly be categorised as forming an integral part of the operation of a regulatory regime and are supplies that are properly characterised as being of a regulatory nature. On that basis all the Subject Fees are not for supplies of a non-regulatory nature for the purposes of the GST Act. Conclusion On the facts, the Subject Fees do not constitute consideration under subsection 81-10(1) being the payment of an Australian fee or a charge of a kind covered by: • subsection 81-10(4) of the GST Act relating to the provision, retention or amendment under an Australian law of a permission, authority or licence and or
• subsection 81-10(5) of the GST Act relating to you recording, copying, modifying, allowing access, receiving, processing and searching for information. Furthermore, the supplies for which each of the Subject Fees are paid, are not of a kind that come within subsection 81-10.01(1) of the GST Regulations including those supplies of a non-regulatory nature under paragraph 81-10.01(1)(g) of the GST Regulations or those supplies that may also be made by a supplier that is not an AGA under paragraph 81-10.01(1)(h) of the GST Regulations. Alternatively, for those Subject Fees that are not of a kind covered by subsections 81-10(4) or (5) of the GST Act those fees are not consideration under section 81-15 of the GST Act being a fee or charge: • for a supply of a regulatory nature under paragraph 81-15.01(f) or of the GST Regulations or • to compensate you for costs incurred by you in undertaking regulatory under 81-15.01(d) of the GST Regulations.
As each of the Subject Fee does not constitute consideration, the requirement for a taxable supply under paragraph 9-5(a) of the GST Act is not satisfied and as such the supplies for which the Subject Fees are paid are not a taxable supply on which GST is payable. The Subject Fees are therefore exempt (not consideration) under Division 81 of the GST Act. > [1] Section 9-40 of the GST Act. [2] Paragraph 9-5(a) of the GST Act. [3] Paragraph 9-10(2)(a) of the GST Act. [4] Paragraph 9-10(2)(b) of the GST Act. [5] Paragraph 9-10(2)(e) of the GST Act. The word 'right' is not defined for GST purposes and has a very broad meaning under the general law. A 'right' has been defined as 'Generally, a benefit or claim entitling a person to be treated in a certain way'; see Goods and Services Tax Ruling GSTR 2003/8 at paragraphs 25, 26 and 53. [6] Section 9-15 of the GST Act. [7] Sections 81-1, 81-10, 81-15 and 81-20 of the GST Act. [8] See subsection 81-10(2) of the GST Act. [9] Section 195-1 of the GST Act. [10] Section 195-1 of the GST Act and section 995-1 of the ITAA 1997. [11] Section 195-1 of the GST Act and section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997). [12]
GSTD 2024/2 [38]. [13] GSTD 2024/2 [39]. [14] GSTD 2024/2 [40]. [15] GSTD 2024/2 [41]. [16] GSTD 2024/2 [42]. [17] GSTD 2024/2 [43]. [18] GSTD 2024/2 [45].