The Victorian Government has successfully challenged an ATO decision to impose GST on interment, Victorian Minister for Health David Davis has announced. Mr Davis said that last year, the ATO issued a ruling [Class Ruling CR 2013/41] in relation to GST on fees imposed by NSW councils, including cemetery fees. Following this, he said the Department was advised by the ATO that previously GST-exempt Victorian cemetery fees would now be taxable. The Minister said the Department sought its own ATO ruling on behalf of Victorian cemeteries and the ATO ruled that the interment fees would attract GST.
The Department objected to that ruling, and sought legal advice from senior counsel to support that objection. Mr Davis said the ATO informed the Department on Friday 7 February 2014 that it had overturned its initial ruling, and confirmed that interment in Victorian Class A cemeteries would remain GST-free.
Source: Victorian Minister for Health media release, 12 February 2014
[LTN 28, 12/2/14]
Extract from the A New Tax System (Goods and Services Tax) Act 1999
81-1 GST does not apply to payments of taxes, fees and charges that are excluded from the GST by this Division or by regulations.
GST applies to certain taxes, fees and charges prescribed by regulations.
81-10 Effect of payment of certain fees and charges
Certain fees and charges not consideration
(1) A payment, or the discharging of a liability to make a payment, is not the provision of * consideration to the extent the payment is an * Australian fee or charge that is of a kind covered by subsection (4) or (5).
Prescribed fees and charges treated as consideration
(2) However, a payment you make, or a discharging of your liability to make a payment, is treated as the provision of * consideration to the extent the payment is an * Australian fee or charge that is, or is of a kind, prescribed by the regulations.
(3) For the purposes of subsection (2), the * consideration is taken to be provided to the entity to which the fee or charge is payable, for a supply that the entity makes to you.
Fees or charges paid for permissions etc.
(4) This subsection covers a fee or charge if the fee or charge:
(a) relates to; or
(b) relates to an application for;
the provision, retention, or amendment, under an * Australian law, of a permission, exemption, authority or licence (however described).
Fees or charges relating to information and record-keeping etc.
(5) This subsection covers a fee or charge paid to an * Australian government agency if the fee or charge relates to the agency doing any of the following:
(a) recording information;
(b) copying information;
(c) modifying information;
(d) allowing access to information;
(e) receiving information;
(f) processing information;
(g) searching for information.
Extract from the A New Tax System (Goods and Services Tax) Regulations 1999
81-10-01 Fees and charges which constitute consideration
(1) For subsection 81-10(2) of the Act, the following kinds of Australian fee or charge are prescribed:
(a) a fee for parking a motor vehicle in a ticketed or metered parking space;
(b) a toll for driving a motor vehicle on a road;
(c) a fee for hire, use of, or entry to a facility, except for an entry fee to a national park;
(d) a fee for the use of a waste disposal facility;
(e) a fee for pre-lodgment advice if:
(i) the advice relates to an application to which subsection 81-10(4) of the Act applies; and
(ii) it is not compulsory to seek the advice;
(f) a fee or charge for the provision of information by an Australian government agency if the provision of the information is of a non-regulatory nature;
(g) a fee or charge for a supply of a non-regulatory nature;
(h) a fee or charge for a supply by an Australian government agency, where the supply may also be made by a supplier that is not an Australian government agency.
(2) Despite subregulation (1), a fee or charge, the payment of which is covered by subsection 9-17(3) or (4) of the Act, is not a prescribed fee or charge.
Note: Australian fee or charge is defined in section 195- 1 of the Act.
81-15-01 Fees and charges which do not constitute consideration
(1) For section 81-15 of the Act, the following kinds of Australian fees and charges are prescribed:
(a) a fee or charge for:
(i) the kerbside collection of waste; or
(ii) the supply, exchange or removal of bins or crates used in connection with kerbside collection of waste;
(b) royalties charged in relation to natural resources;
(c) a fee or charge imposed on an industry to finance regulatory or other government activities connected with the industry;
(d) a fee or charge to compensate an Australian government agency for costs incurred by the agency in undertaking regulatory activities;
(e) a fee or charge imposed in relation to a court, tribunal, commission of inquiry or Sheriff’s office;
(f) a fee or charge for a supply of a regulatory nature made by an Australian government agency;
(g) a fee or charge for entry to a national park;
(h) any other fee or charge:
(i) specified in the A New Tax System (Goods and Services Tax)(Exempt Taxes, Fees and Charges) Determination 2011 (No. 1) , as in force immediately before the commencement of Schedule 4 to the Tax Laws Amendment (2011 Measures No. 2) Act 2011 ; and
(ii) imposed before 1 July 2013.
(2) In this regulation:
“waste” includes green wasteand recyclables.