- Dr Seuss, Horton Hatches the Egg (Random House, 1940).
- Travelex Ltd v Commissioner of Taxation [2010] HCA 33.
- Contained in the A New Tax System (Goods and Services Tax) Regulations 1999 (Australia) (the Regulations). References in this paper to sections and other provisions are references to those provisions of the GST Act and Regulations, as the case may be, unless indicated otherwise.
- Australian Taxation Office, Tax Law Improvement Project, Information Paper No 2: Building the New Law (AGPS, 1995). Amongst other features, the style uses a ‘pyramid’ approach dividing the law into chapters with core rules at the beginning and exceptions and special rules in later chapters. It contains ‘objects’ clauses at the beginning of its divisions to explain what the Division is about and signposts to direct attention to other provisions that are relevant.
- An asterisk in the GST Act indicates that the term is defined in section 195–1 of the Act.
- Value Added Tax Act 1994 (UK) (‘UK VATA 1994′), s 2(1).
- Although there are many examples where an action is ‘treated’ as if it were something different. For example, under para 48–40(2)(a), a supply made between members of the same GST group ‘is treated as if it were not a *taxable supply’.
- For further comments on the effects of the drafting style see Rebecca Millar, ‘The Destination Principle: Past Developments and Future Challenges' in Christine Peacock (ed), GST in Australia Looking Forward from the First Decade (Law Book Co, 2011).
- Emmett J in Travelex Limited v Commissioner of Taxation [2008] FCA 1961.
- Institute of Chartered Accountants in Australia, Submission of the Review of the Legal Framework for the Administration of the GST, 22 September 2008.
- Commissioner of Taxation v Multiflex Pty Ltd [2011] FCAFC 142.
- Australia refers to supplies that are received by a taxpayer as ‘acquisitions’ of the recipient.
- Explanatory Memorandum to the A New Tax System (Goods and Services Tax) Bill 1998 (Australia).
- [2005] FCAFC 5.
- GST Act, s 7–1(1).
- ibid, s 7–1(2).
- ibid, ss 9–40, 9–70.
- Generally periods of one month or three months.
- GST Act, s 33–3.
- ibid, s 35–5.
- Defined in ibid, s 9–20.
- The definitions of ‘exported services’ vary considerably between these countries.
- Originally contained in the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes—common system of value added tax: uniform basis of assessment [1977] OJ L145/1. It has since been rewritten as Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax [2006] OJ L347/1 (‘EU VAT Directive’).
- A full discussion of the Australian approach to the destination principle is covered by Rebecca Millar, ‘Taxing the Bull by the Horns: Reforming Australia's Cross-Border Rules' (2009) 24 Australian Tax Forum 281.
- An asterisk in the GST Act indicates that the term is defined in section 195–1 of the Act; words are defined in a section in which they appear in bold italics.
- GST Act, s 9–30(3).
- Millar (n 8) 335.
- GST Act, s 9–20(a)–(c) defines an enterprise to be an activity carried on in the form of a ‘business’, ‘adventure or concern in the nature of trade' and the licensing, leasing and other grant of interests in property.
- The definition of ‘enterprise’ is contained in the GST Act, s 9–20.
- This is a similar test in s 24 of the UK VATA 1994 which defines ‘input tax’ as VAT incurred on acquisitions of ‘goods or services used or to be used for the purpose of any business carried on or to be carried on by' a taxable person. However, it is noted that Art 168 of the EU VAT Directive expresses the requirement as ‘goods and services are used for the purposes of the taxed transactions of a taxable person’.
- For example UK Value Added Tax Regulations 1995 (SI 1995/2518), reg 102, and EU VAT Directive, Art 168.
- Although certain non-commercial supplies are specifically excluded from GST under other provisions of the Act.
- Case C-4/94 BLP Group plc v Customs and Excise Commissioners [1995] STC 424.
- Goods and Services Tax Ruling GSTR 2008/1: Goods and services tax: when do you acquire anything or import goods solely or partly for a creditable purpose?
- In AXA Asia Pacific Holdings Ltd v FC of T [2008] ATC 20–074 Lindgren J referred to s 11–15(2)(a) as a ‘blocking’ provision.
- At paras 184–96 of GSTR 2008/1 the Commissioner contends that the CJEU decision in Case C-465/03 Kretztechnik AG v Finanzamt Linz [2005] STC 1118 is not relevant in Australia because of the GST Act, s 11–15(2)(a).
- Ross Stitt, ‘Uncertainties Surrounding Input Tax Credit Entitlement in Australia’ in Peacock (n 8) 129.
- HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126, [45].
- Art 2 of the EU VAT Directive provides that ‘on each transaction, VAT, calculated on the price of the goods or services at the rate applicable to such goods or services, shall be chargeable after deduction of the amount of VAT borne directly by the various cost components'.
- These terms are defined in s 195–1 of the GST Act and reg 40–5.06 of the GST Regulations, respectively.
- NZ GST Act 1985, s 3(1)(a).
- Goods and Services Tax Act 1993 (c 117A) (Singapore), 4th sch, para 1(b).
- EU VAT Directive, Art 135 1(e).
- Proposed new Art 135 1(d), COM(2007) 747: Proposal for Council Directive amending Directive 2006/112/EC on the common system of value added tax, as regards the treatment of insurance and financial services.
- Tim Edgar, ‘The Search for Alternatives to the Exempt Treatment of Financial Services under a Value Added Tax’ in Richard Krever and David White (eds), GST in Retrospect and Prospect (Brookers, 2007) 144–5.
- In a destination based VAT, tax is collected in the state in which consumption occurs. Generally, this is achieved by imposing VAT on imports but zero rating exports.
- Other provisions in the GST Act, div 38 dealing with ‘exported services’ are international transport (subdiv 38-K), international mail (subdiv 38-Q) and global roaming (subdiv 38-R).
- The New Zealand equivalent is contained at NZ GST Act 1985, ss 11A(1)(e), (f).
- The New Zealand equivalent is contained at NZ GST Act 1985, s 11A(1)(k).
- GST Act, s 38–190(3).
- In New Zealand, s 11A(1)(j) of the GST Act is of similar effect if the additional effect of s 38–190(4) of the Australian law is taken into account.
- The New Zealand equivalent is contained at GST Act 1985, s 11A(4).
- The New Zealand equivalent is contained at GST Act 1985, s 11A(1)(h).
- Travelex Limited v Commissioner of Taxation [2008] FCA 1961.
- ibid, [19].
- ibid, [46].
- For example interest on loans or an increase in the value of investment or pensions.
- Edgar (n 45).
- HP Mercantile (n 38).
- ibid, [16].
- Case C-38/93 HJ Glawe Spiel-und Unterhaltungsgeräte Aufstellungsgesellschaft mbH & Co KG v Finanzamt Hamburg-Barmbek-Uhlenhorst [1995] 1 CMLR 70.
- Case C-172/96 Customs and Excise Commissioners v First National Bank of Chicago [1998] STC 850.
- GST Regulations, reg 40–5.09(3), item 9.
- Travelex Limited v Commissioner of Taxation [2009] FCAFC 133.
- ibid, [53] per Stone J.
- Travelex Limited v Commissioner of Taxation (n 54).
- Travelex Ltd v Commissioner of Taxation [2010] HCA 33, [47] per Heydon J.
- Goods and Services Tax Ruling GSTR 2003/8: Goods and services tax: supply of rights for use outside Australia: subsection 38–190(1), item 4, paragraph (a) and subsection 38–190(2).
- GST Act, s 11–15.
- Ronpibon Tin NL v Federal Commissioner of Taxation (1949) 78 CLR 47.
- In this respect, s 11–15 of the GST Act is modelled on the general deductibility provision of the Income Tax Assessment Act 1997.
- Commissioner of Taxation v American Express Wholesale Currency Services Pty Limited [2010] FCAFC 122.
- ibid, [126].
- For a discussion of the approach to apportionment under the Australian GST law see Michael Evans, ‘Apportionment Methodologies’ (First Annual GST Conference, Television Education Network, March 2012).
- Handley v Federal Commissioner of Taxation (1981) 148 CLR 182, per Aickin J.
- Royal Automobile Club of Victoria (RACV) v Federal Commissioner of Taxation 73 ATC 4153.
- The financial supply that is constituted by an acquisition of an interest in a financial instrument is commonly referred to as an ‘acquisition supply’.
- 78 GSTD 2011/D5: Goods and services tax: Are acquisitions related to an entity's retail foreign currency exchange transactions with customers in Australia made solely for a creditable purpose under section 11–15 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?
- AXA Asia Pacific Holdings Limited v Commissioner of Taxation [2008] FCA 1834, [44].
- HP Mercantile (n 38) [19].
- ibid, [22], [3].
- ibid, [45]–[51].
- If the financial supply were zero-rated because the counterparty was not resident in the jurisdiction, one approach may be an apportionment based on the proportion of resident and non-resident counterparties.
- GSTR 2003/8 (n 68).
- Millar (n 8) 340.
- Sunchen Pty Ltd v Commissioner of Taxation [2010] FCAFC 138.
- GSTR 2003/8 (n 68) para 108A.
World Journal of VAT/GST Law
Volume 1, 2012 - Issue 1