1 Is the funding payable by (entity A) 'consideration' within the meaning of section 9-15 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) for the taxable supplies made by you to (entity A) under section 9-5 of the GST Act?
Yes. Question 2 If the answer to Question 1 is 'no', is the funding 'consideration' for the purposes of determining the application of 38-250(1)(b) of the GST Act to your supplies of accommodation to tenants? Answer No. Question 1 Will your supply by way of lease of social and affordable housing dwellings to tenants be GST-free under subsection 38-250(1) of the GST Act? Answer Yes. This ruling applies for the following period : DDMMYYYY to DDMMYYYY The scheme commenced on: DDMMYYYY
You are registered for goods and services tax (GST). You are a registered charity and a registered community housing provider. You entered into an arrangement to receive funding for building social and affordable housing dwellings from (entity A). Under the project agreement between you and (entity A) you must fulfill several obligations. You will enter into residential tenancy agreements for the social and affordable housing dwellings with eligible tenants and charge rent that will be less than 75% of the GST inclusive market value of the supply of accommodation.
A New Tax System (Goods and Services Tax) Act 1999 section 9-5 A New Tax System (Goods and Services Tax) Act 1999 section 9-15 A New Tax System (Goods and Services Tax) Act 1999 section 9-30 A New Tax System (Goods and Services Tax) Act 1999 section 9-40 A New Tax System (Goods and Services Tax) Act 1999 section 38-250 A New Tax System (Goods and Services Tax) Act 1999 section 40-35 A New Tax System (Goods and Services Tax) Act 1999 section 195-1
Question 1 Is the funding payable by (entity A) 'consideration' within the meaning of section 9-15 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) for the taxable supplies made by you to (entity A) under section 9-5 of the GST Act? Summary Yes, the funding payable by (entity A) is consideration withing the meaning section 9-15 of the GST Act) for the taxable supplies made by you to (entity A) under section 9-5 of the GST Act. Detailed reasoning 'Consideration' is defined in section 195-1 to mean 'any consideration, within the meaning given by section 9-15, in connection with the supply'. Subsection 9-15(1) provides that consideration includes: (a) any payment, or any act or forbearance, in connection with a supply of anything; and (b) any payment, or any act or forbearance, in response to or for the inducement of a supply of anything. Subsection 9-15(2) provides that it does not matter whether the payment, act or forbearance was voluntary, or whether it was undertaken by the recipient of the supply. Goods and Services Tax Ruling GSTR 2001/6 Goods and services tax: non-monetary consideration ( GSTR 2001/6
) provides the Commissioner's view of what constitutes non-monetary consideration for the purposes of section 9-15. Although non-monetary consideration is not an issue arising in your case, the general principles contained in GSTR 2001/6 of how the Commissioner interprets section 9-15 have application to this case. Paragraphs 49 to 51 of GSTR 2001/6 provide that there needs to be a connection between the supply and the payment for the supply for it to be made for consideration, and that the recipient of the supply need not be the provider of the consideration: What is 'consideration'? 49. Consideration is defined in section 195-1 to mean 'any consideration, within the meaning given by sections 9-15 and 9-17, in connection with the supply'. The meaning given to consideration in section 9-15 extends beyond payments to include such things as acts and forbearances. It may include payments made voluntarily, and payments made by persons other than the recipient of a supply.
50. Section 9-15 further provides that a payment will be consideration for a supply if the payment is 'in connection with', 'in response to' or 'for the inducement' of a supply. Thus, there must be a sufficient nexus between a particular payment and a particular supply for the payment to be consideration for that supply. 51. It follows that there are two elements to the definition of consideration. The first is the payment by one entity to another. The second element is the nexus that must be established between the payment and a supply. Paragraphs 71 and 72 of GSTR 2001/6 provide that the test of determining a sufficient nexus between the supply and the consideration is an objective test based on the true character of the transaction: 71. In determining whether a sufficient nexus exists between supply and consideration, regard needs to be had to the true character of the transaction. An arrangement between parties will be characterised not merely by the description that parties give to the arrangement, but by looking at all of the transactions entered into and the circumstances in which the transactions are made.
72. The test as to whether there is a sufficient nexus is an objective test. The motive of the supplier and the recipient also may be relevant in determining whether the supply was made for consideration, if a reasonable assessment of the evidence supports that motive. Thus, in your case, the questions to be considered are whether you are making a supply to (entity A) and whether there is a sufficient nexus between that supply and the funding paid by (entity A) to you. Subsection 9-10(1) provides that a supply is any form of supply whatsoever. Goods and Services Tax Ruling GSTR 2006/9 Goods and services tax: supplies ( GSTR 2006/9 ) further examines the meaning of supply as defined within section 9-10. Paragraph 22 of GSTR 2006/9 outlines 10 propositions which may be relevant to characterising and analysing two party transactions. Based on the facts, the most relevant of the propositions to consider in this case include: • Proposition 2: Generally, for every supply there is a recipient and an acquisition • Proposition 4: A transaction may involve two or more supplies • Proposition 5: An entity will make a supply if it provides something of value to another entity
• Proposition 6: 'Supply' usually, but not necessarily, requires something to be passed from one entity to another. The arrangement in this case also involves things being provided to entities other than you and (entity A), being the supply of accommodation to tenants in the affordable and social housing. The Commissioner refers to arrangements involving more than two entities as tripartite arrangements, and provides an overview of supplies in the context of tripartite arrangements in paragraphs 115 and 116 of GSTR 2006/9: 115. In more complex arrangements involving more than two entities, which the Commissioner refers to as tripartite arrangements, analysis may reveal: • a supply made to one entity but provided to another entity; • two or more supplies made; or • a supply made and provided to one entity and consideration paid by a third party. 116. As with two party transactions, the GST consequences of tripartite arrangements turn on identifying: • one or more supplies; • consideration (a payment, act or forbearance); • a nexus between the supply and the consideration; and • to whom the supply is made.
The propositions within paragraph 22 of GSTR 2006/9 relevant to characterising and analysing two party transactions discussed above are equally applicable to tripartite arrangements. There are also additional propositions that apply specifically to tripartite arrangements, and these are described in paragraph 117 of GSTR 2006/9. Based on the facts in your case, the most pertinent of the propositions within paragraph 117 of GSTR 2006/9 to consider is Proposition 15 - namely, one set of activities may constitute the making of two or more supplies. Proposition 15 is discussed in more detail in paragraphs 217 and 217A of GSTR 2006/9 with reference to Federal Commissioner of Taxation v Secretary to the Department of Transport (Vic) [2010] FCAFC 84 ( Department of Transport ) as follows: 217. Examining the levels of contractual or reciprocal relationships between the entities in a tripartite arrangement may reveal two or more supplies being made based upon the one set of activities. 217A. This proposition is illustrated by Federal Commissioner of Taxation v. Secretary to the Department of Transport (Vic) (Department of Transport),
where the activity undertaken by the taxi operator of transporting the eligible passenger resulted in two supplies being made: The Department of Transport case concerned an arrangement where taxi-cab operators provided discounted trips for passengers with disabilities that were members of the Multi-Purpose Taxi Program ( MPTP ), and the Department of Transport ( DOT ) reimbursing the taxi-cab operator for the shortfall between the full-price fare and the discounted fare. The reimbursement was referred to as an 'MPTP Payment'. Kenny and Dodds-Streeton JJ observed the following GST consequences of this arrangement at paragraph 45 of the judgment:
45. ... The occasion for the MPTP Payments was not the grant of a taxi-cab licence. Indeed, a licensee could have operated a taxi-cab under a taxi-cab licence without the DOT ever having made a MPTP Payment, or having incurred any liability to make a MPTP Payment, to that licensee. The DOT made a MPTP Payment to a taxi-cab operator, or assumed the liability to make such a payment, only when the taxi-cab operator made a MPTP trip. As the DOT submitted, in the ordinary case, the trip became an MPTP trip, and the obligations under the MPTP were enlivened, when the driver inserted the Member MPTP Card into the EFTPOS terminal and received the authorisation to undertake the trip as an MPTP trip. In your case, like in the Department of Transport case, there is a commitment by you to (entity A) to fulfill obligations under the project agreement. Under the payment schedule, (entity A) must, subject to the project agreement, pay you annual funding payments as at the DDMMYYYY, and then further amounts to be agreed by the parties. Your Arrangement and its GST consequences resemble Example 11B in paragraphs 221L to 221S of GSTR 2006/9, which are reproduced below:
Example 11B: specialised equipment - two separate supplies 221L. A State government's policy provides that any eligible resident (E) of specified country areas should have access to telecommunications services that are accessible through specialised equipment, at a scheduled price. 221M. The State government (G) enters into a contract with a retailer of specialised equipment (R) where if R sells the specialised equipment to an eligible person, R must charge the eligible person a scheduled price. The scheduled price is lower than the recommended retail price and under the agreement R is entitled to receive from G a specified amount when R sells specialised equipment to E for the scheduled price. The specified amount is calculated as the difference between the recommended retail price and the scheduled price. 221N. To assist R in identifying eligible residents, G issues an eligibility card to E that is presented to R when E purchases the specialised equipment.
221O. If R does not supply the specialised equipment to E for the scheduled price, for example, because E does not present the eligibility card, and therefore E buys the specialised equipment at the recommended retail price, E cannot seek the specified amount from G. 221P. Each time R sells specialised equipment to E for the scheduled price, R will be entitled to claim the specified amount from G. Under the contract between R and G, R makes a supply to G because it enters into and fulfils an obligation to provide specialised equipment to E for the scheduled price. 221Q. G's payment of the specified amount to R is the contractual consideration G provides to R under the contract between them in return for R undertaking and fulfilling its contractual obligations. The specified amount received by R from G is consideration for the supply made by R to G.
221R. If R is registered or required to be registered for GST, R has made a taxable supply to G for consideration which is calculated as the difference between the recommended retail price and the scheduled price charged to E. R issues a tax invoice to G where the specified amount is the GST-inclusive price of the supply to G. R is liable to remit GST and G has made a creditable acquisition and is entitled to claim input tax credits if the requirements of section 11-5 are met. 221S. When R supplies E with the specialised equipment R makes a taxable supply to E for consideration from E of payment of the scheduled price. This is a separate supply to the supply that R makes to G. R issues a tax invoice to E with the scheduled price paid by E as the GST-inclusive price of the supply to E. R is liable to remit GST for this taxable supply and if E is registered or required to be registered for GST then E is entitled to claim input tax credits if the requirements of section 11-5 are met.
In your case, your key obligations under the project agreement involve you making commitments to (entity A) to provide social and affordable housing dwellings that are to be leased to eligible tenants at defined rates for a specified period. Based on the principles extracted above from GSTR 2006/9 and the Department of Transport case, we consider that in entering and fulfilling your key obligations under the project agreements you are providing (entity A) with something of value, and consequently you are making a supply to (entity A). Accordingly, the Commissioner considers the funding payments you receive will be 'consideration', within the meaning of section 9-15, for the supply of your obligations to (entity A) under the project agreement. Question 2 If the answer to Question 1 is 'no', is the funding 'consideration' for the purposes of determining the application of 38-250(1)(b) of the GST Act to your supplies of accommodation to tenants? Summary No. This is because the answer to Question 1 above is yes. Question 3 Will your supply by way of lease of social and affordable housing dwellings to tenants be GST-free under subsection 38-250(1) of the GST Act? Summary
Yes, your supply by way of lease of social and affordable housing dwellings to tenants will be GST-free under subsection 38-250(1) of the GST Act, as the charged rent will be less than 75% of the GST inclusive market value of the supply (provided there are no other payments being made under the arrangement by the tenants or any other party that could be consideration for the supply of accommodation). Detailed reasoning Section 40-35 provides that a supply of residential premises (other than a supply of commercial residential premises) by way of lease is input taxed. However, a supply of residential accommodation may be GST-free if the requirements of section 38-250 are satisfied. Paragraph 9-30(1)(a) provides that a supply is GST-free if it is GST-free under Division 38. Subsection 9-30(3) further provides that if a supply is both GST-free and input taxed, the supply is GST-free unless the provision under which it is input taxed requires the supplier to have chosen for its supplies of that kind to be input taxed. A lease of residential premises does not require such a choice. Subsection 38-250(1) states: (1) A supply is GST-free if:
(a) The supplier is an endorsed charity, a gift-deductible entity or a government school; and (b) The supply is for consideration that: (i) If the supply is a supply of accommodation - is less than 75% of the GST inclusive market value of the supply; or (ii) If the supply is not a supply of accommodation - is less than 50% of the GST inclusive market value of the supply. Section 195-1 relevantly defines 'GST inclusive market value' of a supply as meaning the market value of the supply of the thing in question without any discount for GST payable on the supply. You are a charity registered with the ACNC and an endorsed charity within the meaning of section 195-1. You will be supplying social and affordable housing dwellings to eligible tenants for consideration being the rent charged. Your supply of social and affordable housing dwellings will be the supply of accommodation, by way of lease, of residential premises. Therefore, subsection 38-250(1) will be satisfied if the consideration for the supply of the social and affordable housing dwellings will be less than 75% of the GST inclusive market value of the supply.
The affordable housing dwellings will be supplied for consideration (rent) calculated as 74.9% or less of the market rent for that particular dwelling. Your supply by way of lease of the affordable housing dwellings will be GST-free under subsection 38-250(1) as the consideration will be less than 75% of the GST inclusive market value of the supply. (This is provided there are no other payments being made under the arrangement by the tenants or any other party that could be consideration for the supply of the accommodation).
The social housing dwellings will be supplied for consideration (rent) calculated as a proportion of household income (typically 25-30 per cent for low-income households) and in accordance with your social housing tenant policy and will be less than the consideration for the supply of affordable housing dwellings (which is calculated as 74.9% or less of the market rent for that particular dwelling). Consequently, your supply by way of lease of the social housing dwellings will be GST-free under subsection 38-250(1) as the consideration will be less than 75% of the GST inclusive market value of the supply. (This is also provided there are no other payments being made under the arrangement by the tenants or any other party that could be consideration for the supply of the accommodation).