A Under an engagement with a non-resident client entity (that has no GST presence in Australia and is not registered or required to be registered for Australian GST), is your supply of tax advisory, immigration and/or tax compliance services (Services) provided to an employee: (i) who is in Australia at the time the Services are performed and is an employee of an Australian entity, or branch of an overseas entity, (i.e. not the engaging non-resident client entity) that is registered for Australian GST, a GST- free supply under item 2 of the table in subsection 38-190(1) of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) (item 2)? (a) If yes, does subsection 38-190(3) of the GST Act negate the GST-free status of the supply?
: Yes. The supply of Services is GST-free under item 2. Subsection 38-190(3) of the GST Act will not negate the GST-free status under item 2. (ii) who is in Australia at the time the Services are performed and is an employee of the engaging non-resident client entity that is not registered for Australian GST, considered a GST-free supply under item 2? (a) If yes, does subsection 38-190(3) of the GST Act negate the GST-free status of the supply? Answer: Yes. The supply is GST-free under item 2. Where the acquisition of the Service by the engaging non-resident client entity is for a creditable purpose and is not a non-deductible expense subsection 38-190(3) of the GST Act will not negate the GST-free status under item 2. (iii) who is in Australia at the time the Services are performed and is an employee of a non-resident entity (i.e. not the engaging non-resident client entity) that is not registered for Australian GST, considered a taxable supply under section 9-5 of the GST Act? Answer: Yes. The supply is a taxable supply under section 9-5 of the GST Act.
(iv) who is not in Australia at the time the Services are performed and is an employee of the engaging non-resident client entity, considered a GST-free supply under item 2? (a) If yes, does subsection 38-190(3) of the GST Act negate the GST-free status of the supply? Answer: Yes. The supply is GST-free under item 2. Subsection 38-190(3) of the GST Act will not negate the GST-free status under item 2. Question B Under an engagement with your overseas member firm (that has no GST presence in Australia and is not registered or required to be registered for Australian GST), is your supply of Services provided to an employee: (i) who is in Australia at the time the Services are performed and is an employee of an Australian entity, or branch of an overseas entity, (that is not the branch of the contracting overseas member firm) that is registered for Australian GST, considered a GST- free supply under item 2? (a) If yes, does subsection 38-190(3) of the GST Act negate the GST-free status of the supply? Answer: Yes. The supply of Services is GST-free under item 2. Subsection 38-190(3) of the GST Act will not negate the GST-free status under item 2.
(ii) who is in Australia at the time the Services are performed and is an employee of a non-resident entity (i.e. that is not the branch of the contracting overseas member firm) that is not registered for Australian GST, considered a taxable supply under section 9-5? Answer: Yes. The supply is taxable under 9-5 of the GST Act. (iii) to an employee of the overseas X member firm who is not in Australia at the time the Services are performed, considered a GST-free supply under table item 2? (a) If yes, does subsection 38-190(3) of the GST Act negate the GST-free status of the supply? Answer: Yes. The supply is GST-free under item 2. Subsection 38-190(3) of the GST Act will not negate the GST-free status under item 2. Question C Is the supply of Services made by you under an engagement with an individual (who is a resident or non-resident) and provided to that individual who is: (i) in Australia at the time the Services are provided, taxable? Answer: Yes, the supply will be a taxable supply under section 9-5 of the GST Act. (ii) not in Australia when the Services are performed, and the individual does not own an Australian residential rental property, taxable? Answer:
No. The supply will be GST-free. (iii) not in Australia when the Services are performed, and the individual owns an Australian residential rental property, taxable? Answer: Yes. The supply is a taxable supply. Question D Is the supply of Services made by you under an engagement with a company that is an Australian tax resident and provided to an individual who is: (i) in Australia at the time the Services are performed, taxable? Answer: Yes. The supply will be taxable under section 9-5 of the GST Act. (ii) not in Australia when the Services are performed, and the individual does not own an Australian residential rental property, taxable? Answer: No. The supply is not taxable. It is a GST-free supply. (iii) not in Australia when the Services are performed, and the individual owns an Australian residential rental property, taxable? Answer: No. Supply is not taxable. It is a GST-free supply. Question E
Is the supply of Services made by X under an engagement with a company that is an Australian tax resident and provided to an individual who is a representative of the company (for example, employee, officer of the company, agent) and is a third party provide that is not registered for GST: (i) In Australia at the time the Services are performed, taxable? Answer: Yes. The supply will be taxable under section 9-5 of the GST Act. (ii) Not in Australia when the Services are performed, and the individual does not own an Australian residential rental property, taxable? Answer: No. The supply is not taxable. It is a GST-free supply where the effective use or enjoyment of the supply takes place outside Australia. (iii) Not in Australia when the Services are performed, and the individual owns an Australian residential rental property, taxable? Answer: No. The supply is not taxable. It is a GST-free supply where the effective use or enjoyment of the supply takes place outside Australia. Question F Is the supply of Services made by you to a non-resident entity or your overseas member firm and provided to another individual who is:
(i) in Australia and is not an employee of the engaging non-resident client entity, the overseas member firm or an Australian based business entity taxable? Answer: Yes. The supply is a taxable supply under section 9-5 of the GST Act. (ii) not in Australia and not an employee of the engaging non-resident client entity or an overseas member firm or any other entity taxable? Answer: No. The supply will be GST-free. This ruling applies for the following periods: Not applicable The scheme commenced on: Not applicable
You are a GST registered entity based in Australia and is a member of a GST group. You provide tax advisory and tax compliance services to both resident and non-resident entities and individuals. There are two specific types of engagements with non-resident client entities and their employees which form the basis for the primary Questions for this ruling. Under the first type, you engage under an Agreement with a non-resident client entity located outside Australia (and is not a related party to you). Under the second type, you engage under an Arrangement (Interfirm Referrals) with your overseas member firm (which is not registered or required to be registered for Australian GST). In respect of both types of engagements above: i. The tax advice may be in relation to, or the tax return may include, income received from leasing of Australian residential property which is input taxed. ii. The relevant employees may or may not be in Australia at the time the services are provided to them.
iii. The tax advisory and/or tax compliance services are provided as part of the employee's remuneration, i.e. where there is either a formal or informal arrangement between the client and the employee that the client will incur the cost. You may be engaged by the relevant overseas entity to provide Australian tax advisory, immigration and/or tax compliance services to: I. employees of the engaging non-resident entity (under the Agreement) or the non-resident client entity (under the Arrangement), II. employees of another non-resident entity which may be related to the engaging non-resident entity (under the Agreement) or the non-resident client entity (under the Arrangement); or III. employees of an Australian entity / branch of another non-resident entity. You are also engaged by other entities (e.g.Companies, individuals) separately under other contracts. We have assumed:
• acquisition of Services by an engaging non-resident entity or a non-resident member firm that are then provided to their employees who are based in Australia are made by the relevant engaging non-resident entity or the non-resident member firm solely for a creditable purpose and they are not non-deductible expenses as defined in subsections 69-5(3) and (3A) of the GST Act, • where the Services are 'provided' to an employee of an engaging non-resident client or a non-resident member firm the employee's presence in no way amounts to the non-resident being 'in Australia' in relation to the supply, • in the cases where Services are supplied to Australian companies and provided to another entity based overseas, the effective use or enjoyment of the supply takes place outside Australia as explained in GSTR 2007/2 Goods and services tax: in the application of paragraph (b) of item 3 in the table in subsection 38-190(1) of the A New Tax System (Goods and Services Tax) Act 1999 to a supply, when does 'effective use or enjoyment' of the supply 'take place outside Australia?
Note: whether supplies that involve the supply of legal, accounting, auditing services, the question of whether the supply is provided to another entity depends on the facts and circumstances in any given case
A New Tax System (Goods and Services Tax) Act 1999 section 9-5 A New Tax System (Goods and Services Tax) Act 1999 section 9-40 A New Tax System (Goods and Services Tax) Act 1999 section 38-190 Does Division 165 apply to this private ruling? Division 165 of the A New Tax System (Goods and Services Tax) Act 1999 is a general 'anti-avoidance' rule that can apply in certain circumstances if you or another entity obtains a GST benefit from a scheme that you entered into or carried out for the main purpose of obtaining a GST benefit, or allowing another to obtain one. It may also apply in some cases where the GST benefit arises as a principal effect of a particular scheme. An entity can get a 'GST benefit' under the GST, Luxury Car Tax or Wine Equalisation Tax laws. If Division 165 applies, the
Under section 9-40 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), you are liable to pay GST on any taxable supply that you make. Section 9-5 of the GST Act provides that you make a taxable supply if: (a) the supply is made for consideration; and (b) the supply is made in the course or furtherance of an enterprise that you carry on; and (c) the supply is connected with Australia; and (d) you are registered or required to be registered. However, the supply is not a taxable supply to the extent that it is GST-free or input taxed. Your supply of tax advisory, immigration and/or tax compliance services (Services) to an engaging non-resident entity satisfies paragraphs 9-5(a) to 9-5(d) of the GST Act because: (a) the supply of Services is made for consideration (i.e: the fees payable for the Services); and (b) the supply of Services is made in the course of an enterprise that carried on by you; and (c) the supply of Services is connected with Australia as the supply is made through a business carried on in Australia; and (d) you are registered for GST.
The supply of Services is not input taxed under the GST Act. However, it should be considered whether the supply of Services is GST-free under any of the GST-free provisions of the GST Act. GST-free supply The relevant GST-free provision to consider in this instance is subsection 38-190(1) of the GST Act. Subsection 38-190(1) of the GST Act provides a list of items. Item 2 in the table in subsection 38-190(1) of the GST Act (item 2) is considered relevant to the supply of Services made by you to an engaging non-resident entity or your non-resident member firm. Under item 2 a supply of anything other than goods or real property is GST-free when the supply is made to a non-resident who is not in Australia in relation to the supply at the time the supply is made and one of the paragraphs below is also satisfied: a) the supply is neither a supply of work performed on goods located in Australia not a supply that is directly connected with real property; or b) the non-resident is neither registered nor required to be registered for GST and the acquisition is for the purpose of the enterprise carried on by the non-resident.
Your supply of Services to an engaging non-resident entity or your non-resident member firm (or another non-resident who is not in Australia at the time the services are supplied) The supply of Services satisfies item 2. For instance: • You are satisfied that the engaging non-resident entity or your overseas member firm or any other entity (who are the recipients of your Services) is not in Australia in relation to the supply of Services at the time the supply is made; and • The supply is neither a supply of work performed on goods located in Australia nor a supply that is directly connected with real property in Australia. Note: whether the non-resident entity is 'in Australia' should be based on facts relating to each scenario. A mere check of the ABNLookup will not provide enough information to make a decision regarding this aspect. Where the Services are 'provided' to an employee based in Australia of an engaging non-resident client it may not always be the case that the non-resident is not in Australia. For example, applying the view in Goods and Services Tax Ruling:
in the application of items 2 and 3 and paragraph (b) of item 4 in the table in subsection 38-190(1) of the A New Tax System (Goods and Services Tax) Act 1999 (GSTR 2004/7): • A non-resident employer that is a company is 'in Australia' if it carries on business (or activities) in Australia: at or through a fixed and definite place of its own for a sufficiently substantial period of time; or through an agent at a fixed and definite place for a sufficiently substantial period of time. (See paragraph 37 of GSTR 2004/7). • A non-resident company is in Australia in relation to the supply if the supply is solely or partly for the purposes of the Australian presence, for example, its Australian branch. If the supply is not for the purposes of the Australian presence but that Australian presence is involved in the supply, the company is in Australia in relation to the supply, except where the only involvement is minor. (See paragraph 41 of GSTR 2004/7).
• If the employee works in the Australian branch or otherwise for the purposes of the Australian presence, then the provision of the benefit to the employee is for the purpose of the Australian presence of the company. The non-resident would be in Australia 'in relation to the supply' even if their involvement in the supply is only minor. Where the non-resident entity or your overseas member firm (or any other recipient of your supply) is not in Australia when the Services are supplied, they will be GST-free under item 2 unless subsection 38-190(2A) or 38-190(3) of the GST Act does not negate this GST-free status. Subsection 38-190(2A) of the GST Act Under subsection 38-190(2A) of the GST Act a supply that is covered by any of items 2 to 4 in the table in subsection 38-190(1) is not GST-free if: (a) the acquisition of the supply relates (whether directly or indirectly, or wholly or partly) to the making of a supply of real property situated in Australia; and (b) the supply of that property would be wholly or partly input taxed under Subdivisions 40-B or 40-C of the GST Act.
Subdivision 40-B of the GST Act is about the supply of premises (including a berth at a marina) by way of lease, hire or licence. Subdivision 40-C of the GST Act is about the sale of residential premises and the supply of residential premises by way of long-term lease. Under subsection 38-190(2A) of the GST Act it is the acquisition of the supply which must relate (whether directly or indirectly, or wholly or partly) to the making of a supply of real property that would be input taxed.
Therefore, where the Services are acquired by the engaging non-resident client entity or the overseas member firm that are then provided to another entity who owns residential rental premises, it is our view that they do not relate directly or indirectly or partly to the making of an input taxed supply by the recipient of the supply. The acquisition of the Services made by the engaging non-resident entity or the overseas member firm is made in relation to fulfilling their contractual obligations with their clients or employees. Therefore, the acquisition of Services has no sufficient nexus with the input taxed supply the clients or employees make (i.e. the acquisition is too remotely connected to the making of the input taxed supply). Hence, subsection 38-190(2A) of the GST Act does not apply to the supply of Services made by to the recipient of the supply where the Services are provided to another entity (ie: employee of the recipient or another client) and the Services relate to input taxed supply of residential rental properties made by the employee or other entity (the providee). This will apply to the following scenarios addressed in this Ruling
• Question A(i), (ii) and (iv) • Question B(i) and (iii) • Question D(iii) • Question E(iii) • Question F(ii) However, where the Services are directly or indirectly in relation to making of an input taxed supply by the acquirer of the Service (ie: recipient of the supply), the GST-free status under item 2 will be negated. This will apply to the following scenarios addressed in this Ruling. • Question C(iii)) Note: this analysis of the application of 38-190(2A) of the GST Act is limited to the type of services that you supply that are covered in this Ruling (ie: those that are defined as Services) and as such should not be taken to be applicable broadly to other supplies. Subsection 38-190(3) of the GST Act Subsection 38 190(3) of the GST Act provides that, without limiting subsection 38 190(2) or (2A) of the GST Act, a supply covered by item 2 in the table is not GST free if: a) it is a supply under an agreement entered into, whether directly or indirectly, with a non-resident; and
b) the supply is provided, or the agreement requires it to be provided, to another entity in Australia; and c) for a supply other than an input taxed supply - none of the following applies: I. the other entity would be an Australian-based business recipient of the supply, if the supply had been made to it; II. the other entity is an individual who is provided with the supply as an employee or officer of an entity that would be an Australian-based business recipient of the supply, if the supply had been made to it; or III. the other entity is an individual who is provided with the supply as an employee or officer of the recipient and the recipient's acquisition of the thing is solely for a creditable purpose and is not a non-deductible expense. Question A(i) Paragraphs 38-190(3)(a) and 38-190(3)(b) of the GST Act are satisfied as you have entered into an agreement with the engaging non-resident entity to provide the Services to another entity in Australia (ie: an employee of an Australian entity or branch of an overseas entity (that is not the engaging non-resident entity)). Therefore, the only remaining requirement that needs to be determined is paragraph 38-190(3)(c).
Paragraph 38-190(3)(c) of the GST Act The supply of Services is not an input taxed supply. Therefore, it needs to be determined if the supply falls under any of the requirements in subparagraphs 38-190(3)(c)(i)-(iii) of the GST Act. If it does, then subparagraph 38-190(3)(c) will not be satisfied and as such the GST-free status under Item 2 will not be negated. It is our view that the supply will come within subparagraph 38-190(3)(c)(ii) of the GST Act where the Services are provided to an employee of another Australian entity or branch of an overseas entity that has a presence, carries on an enterprise in Australia and is registered for GST. This is because, under these circumstances, the relevant employee's employer will come within the meaning of an Australian-based business recipient as defined in subsection 9-26(2) of the GST Act. Under these circumstances, paragraph 38-190(3)(c) of the GST Act is not satisfied. Therefore, given all requirements of subsection 38-190(3) of the GST Act are not satisfied the GST-free status under item 2 will not be negated. Hence the supply of Services made to the engaging non-resident client entity will be GST-free. Question A(ii)
Paragraphs 38-190(3)(a) and 38-190(3)(b) of the GST Act are satisfied as you have entered into an agreement with the engaging non-resident client entity to provide Services to another entity in Australia (ie: an employee of the engaging non-resident client entity). Therefore, the only remaining requirement that needs to be determined is paragraph 38-190(3)(c). Paragraph 38-190(3)(c) of the GST Act Sub-paragraphs 38-190(3)(c)(i) and 38-190(c)(ii) of the GST Act are not satisfied because neither the employee nor the recipient of the supply (the engaging non-resident client entity) is an Australian-based business recipient. The supply of Services is provided to the employee of the recipient of the supply who is the engaging non-resident entity with whom you have entered into an agreement. Further, it is our understanding that the acquisition made by the non-resident entity is solely for a creditable purpose and it is not a non-deductible expense.
On this basis, the requirement of subparagraph 38-190(3)(c)(iii) of the GST Act is satisfied and as such paragraph 38-190(3)(c) of the GST Act is not satisfied. Therefore, under these circumstances, given the requirements of subsection 38-190(3) of the GST Act are not satisfied, the GST-free status under item 2 is not negated. Question A(iii) Paragraphs 38-190(3)(a) and 38-190(3)(b) of the GST Act are satisfied as the supply is made under an arrangement with the engaging non-resident to provide the supply to another entity in Australia (ie: an employee (who is in Australia) of another non-resident entity who is not registered for GST). Therefore, the only remaining requirement that needs to be determined is paragraph 38-190(3)(c). Paragraph 38-190(3)(c) of the GST Act
Neither the employee to whom the supplies are provided in Australia nor their employer (ie: another non-resident) comes within the definition of an Australian-based business recipient. Therefore, subparagraphs 38-190(3)(c)(i) to (ii) of the GST Act will not be satisfied. Further, because the employee is not an employee of the engaging non-resident, subparagraph 38-190(3)(c)(iii) is not satisfied either. This means paragraph 38-190(3)(c) is satisfied. Given all of the requirements of subsection 38-190(3) of the GST Act are satisfied, the GST-free status under item 2 is negated. Hence the supply will be taxable under section 9-5 of the GST Act. The supply is neither GST-free nor input taxed under any of the other provisions of the GST Act. Question A(iv) Under the engagement entered by you with the engaging non-resident client entity, you have agreed to provide the Services to an employee of the engaging non-resident client entity who is not in Australia at the time the services are performed.
Paragraph 38-190(3)(a) of the GST Act is satisfied, however paragraph 38-190(3)(b) of the GST Act is not satisfied as the employee is not in Australia in relation to the supply of Services. Therefore, subsection 38-190(3) of the GST Act does not apply and the supply will be GST-free under item 2. Question B(i) Paragraphs 38-190(3)(a) and 38-190(3)(b) of the GST Act are satisfied as you have entered into an agreement with your overseas member firm under IWRF to provide the Services to another entity in Australia (ie: an employee (who is in Australia) of an Australian entity or branch of an overseas entity). Therefore, the only remaining requirement that needs to be determined is paragraph 38-190(3)(c). Paragraph 38-190(3)(c) of the GST Act Given the employer of the employee is an Australian entity or the branch of the overseas entity that is registered for GST is an Australian-based business, subparagraph 38-190(3)(c)(ii) of the GST Act is satisfied. Therefore, paragraph 38-190(3)(c) of the GST Act is not satisfied. This means the requirements of subsection
38-190(3) are not satisfied and the GST-free status under item 2 is not negated. Hence the supply of Services made to the overseas X member firm under the IWRF will be GST-free. Question B(ii) Paragraphs 38-190(3)(a) and 38-190(3)(b) of the GST Act are satisfied as you have entered into an agreement with your overseas member firm under IWRF to provide the Services to another entity in Australia (ie: an employee (who is in Australia) of a non-resident entity (not the engaging non-resident entity)). Therefore, the only remaining requirement that needs to be determined is paragraph 38-190(3)(c). Paragraph 38-190(3)(c) of the GST Act The 'other entity' for the purpose of subparagraphs 38-190(3)(c)(i) and (ii)) of the GST Act is the employee of the other non-resident. Neither the employee nor their non-resident employer comes within the meaning of an Australian based business recipient as defined in subsection 9-26(2). Therefore subparagraphs 38-190(3)(c)(i) and (ii)) are not satisfied.
The employees are not employees of the overseas member firm. Therefore, the requirements of subparagraph 38-190(3)(c)(iii) are not satisfied either. This means, paragraph 38-190(3)(c) is satisfied. As such given all of the requirements of subsection 38-190(3) of the GST Act are satisfied, the GST-free status under item 2 will be negated. Hence the supply will be taxable under section 9-5 of the GST Act. Question B(iii) Under the circumstance where under an engagement with an overseas member firm (that has no GST presence in Australia and is not registered or required to be registered for Australian GST), your supply of Services provided to one of their employees who is not in Australia at the time the Services are provided do not meet paragraph 38-190(3)(b) of the GST Act. Hence, subsection 38-190(3) of the GST Act is not satisfied and the supply will remain GST-free under item 2. Question C(i)
Under an engagement with an individual who is a resident or non-resident of Australia, the supply of Services made and provided by you to that individual who is in Australia at the time the supply is made will satisfy all of the requirements under section 9-5 of the GST Act. As such this supply is a taxable supply. The supply is not GST-free or input taxed under any of the other provisions of the GST Act. Question C(ii) Under item 3 in the table in subsection 38-190(1) of the GST Act (item 3) a supply of anything other than goods or real property is GST-free when the supply is used or enjoyed outside Australia, and the supply: (a) is made to a recipient who is not in Australia when the thing supplied is done; and (b) the effective use or enjoyment of which takes place outside Australia. Subsection 38-190(4) of the GST Act provides that a supply is taken for the purposes of table item 3 of subsection 38-190(1) of the GST Act, to be a supply made to a recipient who is not in Australia if: (a) it is a supply under an agreement entered into, whether directly or indirectly with an Australian resident; and
(b) the supply is provided, or the agreement requires it to be provided to another entity outside Australia. Under an engagement with an individual (resident or non-resident individual), the supply of Services made by you will satisfy the requirements of item 3 as the supply is made and provided to that individual who is not in Australia. Question C(iii) Under an engagement with an individual, the supply of Services made by you to an individual (resident or non-resident) who owns a residential rental property in Australia but is not in Australia is GST-free under item 3. However, subsection 38-190(2A) of the GST Act is required to be considered in this scenario. Given the individual is acquiring the Services in relation to making the supply of residential rental property in Australia which comes under Subdivision 40-B or 40-C of the GST Act subsection 38-190(2A) of the GST Act will negate the GST-free status and the supply is taxable under section 9-5 of the GST Act. The supply is not GST-free or input taxed under any other provision of the GST Act. Question D(i)
Under an engagement with a company that is an Australian tax resident, the supply of Services made by you to an individual who is in Australia at the time the Services are performed will satisfy all of the requirements under section 9-5 of the GST Act. Hence the supply would be taxable. The supply is not GST-free or input taxed under any provision of the GST Act. Question D(ii) The recipient of the supply is the Australian company and as such comes under paragraph 38-190(4)(a) of the GST Act. Further, the supply is provided to an individual who is not in Australia and as such comes within paragraph 38-190(4)(b). This means that the supply is one that falls under paragraph (a) of item 3. Where the effective use or enjoyment of the supply takes place outside Australia paragraph (b) of item 3 is also satisfied and as such will be GST-free under item 3. Therefore, under an engagement with a company that is an Australian tax resident, the supply of Services made by you and provided to an individual who is not in Australia at the time the Services are performed and does not own a residential rental property will satisfy the requirements of subsection 38-190(4) of the GST Act.
Hence the supply is GST-free. Question D(iii) The recipient of the supply is the Australian company and as such comes under paragraph 38-190(4)(a) of the GST Act. Further, the supply is provided to an individual who is not in Australia and as such comes within paragraph 38-190(4)(b). This means that the supply is one that falls under paragraph (a) of item 3. Where the effective use or enjoyment of the supply takes place outside Australia paragraph (b) of item 3 is also satisfied and as such will be GST-free under item 3. However, as explained above, subsection 38-190(2A) of the GST Act will negate the GST-free status of a supply under item 2 to 4 in the table in subsection 38-190(1) if the acquisition of the supply is made in relation to making input taxed supplies under subdivision 40-B and 40-C of the GST Act. In this scenario, the recipient of the supply of Services made by you is the company that is an Australian tax resident. The residential rental property is owned by the third-party individual (who is not a representative of the company and is not in Australia).
Since, the acquisition of Services is made by the Australian tax resident who is the recipient of the supply who does not own the residential rental property, subsection 38-190(2A) of the GST Act will not negate the GST-free status under item 2. Hence, the supply will be GST-free under item 2. As explained above, subsection 38-190(2A) of the GST Act has no application in this scenario. Question E(i) Under an engagement with a company that is an Australian tax resident, the supply of Services made by you to an individual who is an officer of the company and is in Australia at the time the Services are performed will satisfy all of the requirements under section 9-5 of the GST Act. Hence the supply would be taxable. The supply is not GST-free or input taxed under any provision of the GST Act. Question E(ii) The recipient of the supply is the Australian company and as such comes under paragraph 38-190(4)(a) of the GST Act. Further, the supply is provided to an individual who is not in Australia and as such comes within paragraph 38-190(4)(b). This means that the supply is one that falls under paragraph (a) of item 3.
Where the effective use or enjoyment of the supply takes place outside Australia paragraph (b) of item 3 is also satisfied and as such will be GST-free under item 3. Therefore, under an engagement with a company that is an Australian tax resident, the supply of Services made by you and provided to an individual who is not in Australia at the time the Services are performed and does not own a residential rental property will satisfy the requirements of subsection 38-190(4) of the GST Act. Hence the supply is GST-free. Question E(iii) The recipient of the supply is the Australian company and as such comes under paragraph 38-190(4)(a) of the GST Act. Further, the supply is provided to an individual who is not in Australia and as such comes within paragraph 38-190(4)(b). This means that the supply is one that falls under paragraph (a) of item 3. Where the effective use or enjoyment of the supply takes place outside Australia paragraph (b) of item 3 is also satisfied and as such will be GST-free under item 3.
However, as explained above, subsection 38-190(2A) of the GST Act will negate the GST-free status of a supply under item 2 to 4 in the table in subsection 38-190(1) if the acquisition of the supply is made in relation to making input taxed supplies under subdivision 40-B and 40-C of the GST Act. In this scenario, the recipient of the supply of Services made by you is the company that is an Australian tax resident. The residential rental property is owned by the third-party individual (who is not a representative of the company and is not in Australia). Since, the acquisition of Services is made by the Australian tax resident who is the recipient of the supply who does not own the residential rental property, subsection 38-190(2A) of the GST Act will not negate the GST-free status under item 2. Hence, the supply will be GST-free under item 2. As explained above, subsection 38-190(2A) of the GST Act has no application in this scenario. Question F(i)
Paragraphs 38-190(3)(a) and 38-190(3)(b) of the GST Act are satisfied as you have entered into an agreement with the engaging non-resident client entity or your overseas member firm to provide Services to another entity in Australia. The other entity is not an employee of the engaging non-resident client entity, the overseas member firm or an Australian based business entity. The only remaining requirement that needs to be determined is paragraph 38-190(3)(c). Paragraph 38-190(3)(c) of the GST Act
None of the requirements of paragraph 38-190(3)(c) of the GST Act is satisfied. For instance, the providee individual is not an Australian based business recipient as such subparagraph 38-190(3)(c)(i) is not satisfied. Given the providee is not an employee of an Australian based business recipient subparagraph 38-190(3)(c)(ii) is not satisfied. Further, the providee is not an employee of either the engaging non-resident client entity or the overseas member firm and as such subparagraph 38-190(3)(c)(iii) is not satisfied. The supply satisfies the requirements of subsection 38-190(3). Therefore, subsection 38-190(3) will negate the GST-free status under item 2 and the supply will be taxable. Question F(ii) The supply of Services made by you to an engaging non-resident client entity or an overseas member firm and provided to another individual who is not in Australia and is not an employee of the engaging non-resident client entity, an overseas member firm or any other entity will satisfy item 3 in the table in subsection 38-190(1) of the GST Act. Hence, the supply will be GST-free.