Federal Court finds UberX drivers supply “taxi travel” to customers

In Uber BV v Commissioner of Taxation [2017] FCA 110 the Federal Court found that UberX services constituted the supply of “taxi travel” within the meaning in s 144-5(1) of the GST Act. The Court accepted the Commissioner’s submissions that the ordinary meaning of the word “taxi” was a vehicle available for hire by the public which transports a passenger at his or her direction for the payment of a fare that will often, but not always, be calculated by reference to a taximeter. The Court found that the ordinary meaning of “taxi” was sufficiently broad to encompass the UberX service.

Division 144 of the GST Act provides an exception to the general rule that an entity is only required to be registered for GST when its annual turnover meets the statutory threshold – currently $75,000. Under Division 144 an entity is required to register for GST if it supplies “taxi travel” – regardless of its turnover. The words “taxi travel” are defined to mean “travel that involves transporting passengers, by taxi or limousine, for fares”.

Uber submitted that Division 144 was intended to create an exception from the general rules for a specific industry – being taxi operators – and the Division should not be construed as having been intended to extend to some new state of affairs to which it might arguably extend. Uber also  contended that the words “taxi” and “limousine” bore a trade or non-legal meaning, or at least those words bore an ordinary meaning that was best suited to achieving the statutory object of carving out a specific existing industry from the operation of an otherwise universally applicable general (and beneficial) rule. This ordinary meaning had characteristics which were founded on the regulation of the taxi industry one each of the States and Territories, including that they taxi travel must be provided by a registered taxi and a licensed driver, the vehicle must be physically identified as a “taxi”, the vehicle have a light on the roof to show its availability, the vehicle contain a taximeter which calculates and displays to the passenger the progressive fare.

The Commissioner contended that the definition of “taxi travel”  connoted transportation, by a person driving a private vehicle, of a passenger from one point to another at the passenger’s direction and for a fare, irrespective of whether the fare is calculated by reference to a taximeter. The Commissioner also contended that it was wrong for Uber to rely on State and Territory regulatory regimes applying to the taxi industry because the GST Act is a federal statute – also, the GST Act provides in s 9-10(3) that a supply occurs irrespective of whether it is made in compliance with the law.

The Court found that a plain object of Division 144 was to address the difficulties that had arisen in overseas jurisdictions because not all taxi drivers were registered for GST – meaning that GST was not paid by all drivers. The Court accepted the Commissioner’s construction that, in these circumstances, the concept of “taxi travel” as defined in s 195-1 should be construed broadly and not technically. The Court also considered that a practical and common sense approach should be applied and to avoid an approach which was “unduly technical or overly meticulous and literal” – referring to Young J in Saga Holidays.

The Court found that the UberX driver in question (driving a Honda Civic) was supplying “taxi travel” because he was supplying travel that involved transporting passengers by taxi for fares. The Court considered that fact that his car did not have a taximeter installed was not determinative of the question because this was not an essential aspect of the ordinary meaning of the word “taxi” that a vehicle must have such a device.  Nor were the other characteristics advanced by Uber necessary elements of the ordinary meaning of the word “taxi”. The Court did not consider that the vehicle involved travel by a “limousine”, as the vehicle was not a luxury car.

The decision is a further example of the Court applying a practical approach to the application of the GST Act to transactions, in this case “ride sharing” services. The Court accepted the Commissioner’s submission that it was appropriate to regard the relevant provisions of the GST Act as “always speaking” – therefore merely because software technology of the type used in providing the UberX service may not have been known at the time that Div 144 was inserted into Pt 4-5 of the GST Act was not determinative of the question of whether that Division could apply. This approach may give the Commissioner some comfort as to the continued relevance of the GST Act to transactions that develop in the digital economy.

 

Tribunal finds taxpayer not entitled to input tax credits under an agreement for the purchase of assets

In McKinnon Holdings (NSW) Pty Ltd as Trustee for the McKinnon Equipment Trust and Commissioner of Taxation [2016] AATA 917 the Tribunal found that the applicant was not entitled to input tax credits in respect of the acquisition of plant and equipment from a related entity under an Asset Sale and Purchase Agreement because no consideration (whether monetary or non-monetary) was provided.

The applicant carried on a business of providing excavation and earth moving services. On 1 July 2010 the applicant entered into an Asset Sale and Purchase Agreement with an associated entity. The assets owned by the associated entity were subject to charges held by third party financiers. On 24 September 2010 the associated entity went into liquidation.

No GST was collected or remitted by the associated entity in respect of the agreement, but the applicant subsequently sought to claim input tax credits in respect of the assets said to be acquired under the agreement.

The terms of the agreement were considered by the Tribunal to be important to the resolution of this issue. Essentially, the parties agreed that if the aggregate liabilities of the associated entity exceeded the value of the assets subject to the agreement the consideration payable for the assets would be $1.00. It was common ground at the hearing that the aggregate liabilities exceeded the value of the assets and that no monies were actually paid.

The applicant contended that it provided consideration of:

  • $922,000, being the unencumbered value of the assets; or
  • $1,206,272.70, being the liabilities assumed by the applicant under the agreement.

In respect of the first argument, the Tribunal found that the clear and intended effect of the agreement was that the amount payable was nil or possibly $1.00 if the liability attaching to the assets exceeded the purchase price. As a result, there was no payment made under the agreement in connection with the supply of anything.

In respect of the second argument, the Tribunal observed that no explanation was given as to how the liabilities were assumed by the applicant and how the economic value of those liabilities was determined. The Tribunal identified the following “immediate and seemingly insurmountable problems” for the applicant:

  • the agreement did not in and of itself legally assign the liabilities to the applicant. The most that can be said is that clause 8 of the agreement provided for the associated entity to “use its reasonable endeavours to assist” the applicant to obtain prior to completion or as soon as possible after completion the assignment or novation of each Equipment Lease and consents from other parties as needed;
  • according to the liquidators no such assignment or novation ever occurred;
  • according to the same liquidators, the finance companies did not consent to the transfer of assets and liabilities

The Tribunal concluded that there was neither a legal, nor an effective, assumption of liabilities as suggested was the case by the applicant. This was made demonstrably clear by the fact that the liabilities never in fact moved to the applicant either in a legal sense or in a practical sense. Accordingly, there was no non-monetary consideration provided by the applicant.

Comment 

The Commissioner contended that there was no evidence to support the contention that the applicant acquired the assets under the agreement. At the highest, the Commissioner appeared to accept that the agreement could be construed on the basis that the associated entity made a supply to the applicant of the right to use the assets. In the end, the argument about what, if any, supply was made under the agreement was academic, as the Tribunal did not accept that the applicant provided any consideration for the supply. Therefore, no taxable supply could be identified to support a claim by the applicant for input tax credits.

 

 

Supreme Court of Victoria finds GST not to be added to purchase price

In A & A Property Developers Pty Ltd v MCCA Asset Management Ltd [2016] VSC 643 the Supreme Court of Victoria found that GST was not to be added to the purchase price payable under a contract of sale. The decision is a further example of the difficulties that can arise when documenting the contractual position with regards to GST and the sale of real property. This issue is discussed more broadly in a paper I presented in 2013,  GST and Real Estate Contracts – when things go wrong.

In this case the parties entered into the standard form LIV contract of sale which provides for a “tick the box” process with regards to GST. The particulars of sale state that “The price includes GST (if any) unless the words “plus GST” appear in this box”. Clause 13.1 of the General Conditions provides that “The purchaser does not have to pay the vendor any GST payable by the vendor in respect of a taxable supply made under this contract in addition to the price unless the particulars of sale specify that the price is ‘plus GST’.”

The difficulty appears to have arisen because of the way the particulars of sale were completed. The price was $2,900,000 with a deposit of $290,000 but the word “GST”
was included in the box dealing with GST, not the words “plus GST”.

The Court accepted the defendant’s construction of the contract – that the language of clause 13.1 was clear and the purchaser was not required to pay GST unless the Particulars of Sale specified that the price was “plus GST”. The Court found that its should not add words into a written instrument unless it was clear that the words had been omitted and what those omitted words were. The Court observed that the presence of the letters “GST” was capable of a number of interpretations.

The Court observed that the plain meaning of the contract was that the obligation to pay GST lay with the vendor and that the contract provided a clear mechanism for the parties to give effect to an agreement that the purchaser must pay GST on the purchase price – but that it was not employed in this instance.

The Court also observed that the plaintiff did not seek an order for rectification of the contract – and in any event, the evidence suggested that the parties did not have a common intention about their agreement concerning the liability to pay GST.

This decision can be compared with the recent decision of the New South Wales Supreme Court in SSE Corp Pty Ltd v Toongabbie Investments Pty Ltd as Trustee for the Toongabbie Investments Unit Trust [2016] NSWSC 1235 where the plaintiff unsuccessfully applied for rectification of two contracts of sale by inserting the words “plus GST” after the purchase price. The plaintiff contended that by mistake the words “plus GST” had not been added to the statement of the price in each of the contracts before the contracts were exchanged

The Court undertook a detailed review of the evidence and concluded that the parties did not make a common mistake in the recording of the agreement, and that the purchaser entered into the contracts with a definite and clear understanding that the prices were to be inclusive of GST, whatever the subjective understanding of the vendor may have been. The principals of the purchaser were not aware, when the contracts were exchanged, that the contracts did not reflect the vendor’s understanding of the prices to be paid – so this was not a case where the vendor entered into the contracts under a unilateral mistake that was known to the purchaser.

 

Exposure Draft legislation released on applying GST to low value imports

On 4 November 2016 the Treasurer released an Exposure Draft of legislation to give effect of the decision in the 2016/17 Budget to extend GST to low value goods imported by consumers. The amendment will apply for tax periods starting on or after 1 July 2017.

The amendments will make the supplies of goods valued at $1,000 or less at the time of sale “connected with the indirect tax zone” if the goods are brought to Australia with the assistance of the supplier – the aim is to ensure that such supplies are subject to GST in the same way as domestic goods.

The amendments will treat the operators of electronic distribution platforms as the suppliers of the low value goods if they are purchased by consumers and brought to Australia through the platform.

GST will only be payable where the goods are purchased by a consumer. In general, a purchaser can confirm that they are not purchasing the goods as a consumer by providing their ABN and declaring that they acquire the goods for the purpose of their enterprise.

The following documents can be accessed here:

Submissions are due on the Exposure Draft on 2 December 2016.

Supreme Court of Victoria finds that the four year limitation period goes to the substance of GST liability

In Re Tomker Pty Ltd (in Liquidation[2016] VSC 656 the Supreme Court of Victoria found that the expiration of the four year limitation period in s 105-50 of Schedule 1 to the TAA went to the substance of the tax liability rather than just to its recoverability. Accordingly, if the four year period had expired, the tax amount was not ‘payable’ and it could be plausibly argued that there was no debt at all. The Court gave leave to the defendant (a director of the taxpayer in liquidation) under s 471A(1A)(d) of the Corporations Act to allow the lodgement of an objection to assessments of net amount lodged by the defendant in the name of the taxpayer on the basis that the assessments were issued outside the four year limitation period.

The decision provides an interesting discussion on the interaction between the taxation regime established by the GST Act and the TAA and the insolvency provisions in the Corporations Act. It should be noted that the assessments were issued under the regime in place prior to the self-assessment regime in operation from 1 July 2012.

The Facts

The facts can be summarised as follows:

  • the company was wound up on 22 July 2013 pursuant to a statutory demand issued by the Commissioner in respect of debts totalling $95,482.73.
  • the liquidator issued proceedings against the defendant (as a director of the company) for insolvent trading. The primary amount sought by the liquidator at the time was $99,950.80, which was composed entirely of the debt due to the Commissioner.
  • the Commissioner had lodged a number of proofs of debt over time, each amending the previous proof of debt. The initial proof of debt was dated 7 October 2013 in the amount of $99,950.80. Further proofs of debt were lodged between December 2015 and May 2016. The proofs of debt appear to have been issued to the company as a partner in a partnership – with the partnership being the taxpayer that lodged BAS statements.
  • the Commissioner issued assessments of net amount to the partnership on 29 April 2016 with respect to tax periods 30 September 2010, 31 December 2010, 31 December 2010, 31 March 2011, 30 June 2011, 30 September 2011, 31 December 2011, 31 March 2012 and 30 June 2012 – the assessments sought to recover unpaid net amounts. It appears that the recovery flowed from various revisions made to the partnership’s BASs pursuant to revised BASs lodged in June 2012.
  • the defendant sought to object to the assessments on the basis that they were time barred by s 105-50, except for the tax period ended 30 June 2012 – this was because the assessments were issued by the Commissioner more than four years after the lodgement dates for the tax periods in question.

The effect of s 105-50

The Court concluded that the four year period established by s 105-50 could be contrasted to the six year limitation periods established by the liquidation and insolvent trading regimes in the Corporations Act – including s 588(4) which requires that the recovery of loss and damage, as a debt due to the company, must be commenced within six years of the beginning of the winding up.

The Court described the competing contentions as follows:

[44] …The liquidator contends that:

A creditor will have suffered loss and damage in relation to a debt at the moment that debt is incurred because of the company’s insolvency.

The loss and damage does not cease to have been suffered because of the operation of s 105-50 of the TAA. Similarly, the loss and damage does not cease to have been suffered because of the winding up of the company.

[45] That is, loss and damage occurred at the time of incurring the tax liability. That loss and damage is not affected by the expiration of the time period in s 105-50 of the TAA. Rather, it can be recovered at any time within the six years set by s 588M(4).

[46] Against this construction, s 588M(1)(b) also speaks of a person ‘to whom the debt is owed’ (emphasis added). This suggests that if the tax amount is no longer payable by virtue of s 105-50 of the TAA, recovery in the liquidation is not possible: there ‘is’ no longer any debt which is owing to the Commissioner. If this construction is accepted, the four year time limit is determinative.

The Court considered that the conclusion that the four year period in s 105-50 is determinative led to the second issue – whether the four year period was affected by the liquidation of the plaintiff. The liquidator contended the the debt was owing at the relevant date and was therefore provable in the liquidation and that the four year period in s 105-50 had expired had no impact. The Court noted that a debt that was not statute barred at the commencement of a winding up may still be proved in a liquidation, even if it is proved after the debt would ordinarily be statute barred. However, the Court found that this did not assist the liquidator because s 105-50 had substantive operation in relation to a tax amount (and not just an impact on recoverability) – meaning there was no debt on the expiration of four years.

The conclusion of the Court was as follows:

[60] Any assessment made by the Commissioner therefore had to be made within the four year period set by s 105-50. It is only an amount which is the subject of a notice of assessment made within the four year period which is payable after the expiration of the four year period (in the absence of fraud or evasion): s 105-50(3)(a) TAA.

Comment

The Court may well be correct that s 105-50 has substantive operation. That conclusion is consistent with the approach of the AAT in the context of s 105-55, which provides an equivalent four year limitation period on a taxpayer’s entitlement to recover refunds of overpaid net amounts – see Swanbat Pty Ltd and Commissioner of Taxation [2013] AATA 891 at [46]:

the time limit imposed by this section is not just a procedural nicety. It has a substantive effect, curtailing the rights of a taxpayer to a refund or payment within four years from the end of the relevant tax period.

A similar finding was made by the Tribunal in Australian Leisure Marine Pty Ltd and Commissioner of Taxation [2010] AATA 620 at [17]:

In my view, s 105-55 of Sch 1 to the Act has substantive effect in that the expiry of the four year time limit extinguishes the right of a taxpayer to notify the Commissioner of an entitlement to the input tax credit. As such the provision certainly denies the entitlement of an entity to an input tax credit. The High Court of Australia has also recognised that taxation legislation which imposes time limits on amending an income tax assessment to have substantive rather than procedural operation: see McAndrew v Federal Commissioner of Taxation [1956] HCA 62; (1956) 98 CLR 263.

However, the case appears to have been argued on the premise that s 105-50(1) applies if the Commissioner does not issue an assessment before the expiration of four years. An assessment does operate as a “notification” for the purposes of s 105-50(3) so as to stop the limitation period: Cyonara Snowfox Pty Ltd v Commissioner of Taxation [2012] FCAFC 177 at [173]. However, s 105-50(3)(a) does not require the Commissioner to issue an assessment within 4 years – rather, the Commissioner must have “required payment of the amount or the amount of the excess by giving notice to you”.  In Brookdale Investments Pty Ltd and Commissioner of Taxation [2013] AATA 154 the Tribunal took a broad view as to what constituted a “notice”(at [80]):

(i) Section 105-50 of the TAA does not stipulate that any particular formality is required by a notice under the section, provided the notice brings to the taxpayers attention that the Commissioner claims an entitlement to an unpaid net amount: see Federal Commissioner of Taxation v Prestige Motors Pty Ltd [1994] HCA 39; (1994) 181 CLR 1 at 14;

(ii) Section 105-50 of the TAA is directed at providing notice, not a formal claim or demand. All that is required by s 105-50 of the TAA is to bring to the taxpayer’s attention that the Commissioner is of the view that there is an unpaid net amount. That is, all that s 105-50 of the TAA requires is sufficient information to be given to the recipient of the notice that the Commissioner is claiming an amount is due in respect of a particular tax and for a specified period: see Revlon Manufacturing Ltd v Federal Commissioner of Taxation (1995) 96 ATC 4301 at 4053;

While the Commissioner did not issue an assessment until after the four year period had expired, the Commissioner may have given some other “notice” prior to the expiration of four years that fell within the terms of s 105-50. If that was the case, one would expect the Commissioner to raise that matter in making a decision on the objection.

 

Tribunal finds GST payable on the sale of new residential premises

In FKYL and Commissioner of Taxation [2016] AATA 810 the Tribunal found that the Applicant was liable for GST in respect of the sale of four residential premises as they were “new residential premises” within the meaning of s 40-75 of the GST Act. The Tribunal also found that the Applicant was not entitled to use the margin scheme and that the Applicant was only entitled to a proportion of input tax credits for construction costs because the premises were rented out before they were sold.

New residential premises

The Applicant constructed the premises, some of which were sold more than 5 years after construction was completed. The Applicant contended that the premises were no longer “new residential premises” because they were only used for making input taxed supplies under s 40-35(1)(a) – i.e. they were leased for residential purposes. The Applicant faced a number of difficulties in substantiating its contention, including:

  • Some of the premises were sold less than five years after construction was completed (but more than five years after acquisition). The Tribunal found that the time period starts once a person has a right to occupy the premises – which is not necessarily the date of completion of the building and it cannot be during the period when construction continues to take place.
  • Some of the premises were not rented until some time after completion. Also, due to difficulties with tenants the premises were vacant for substantial periods of time. In each case the total amount of time of rental was less than 5 years.
  • The Applicant required the tenants to also sign an agreement to purchase the house.

The Tribunal found that the Applicant did not satisfy its onus of showing that the 5-year period was satisfied.

Margin scheme

The Applicant contended that it was entitled to utilise the margin scheme for the sale of the residential premises (the Commissioner accepted that the Applicant had purchased the properties under the margin scheme). The Commissioner granted the Applicant an extension of time to obtain written agreements with each purchaser to use the margin scheme. The Applicant did not produce written agreements. The Tribunal found that the Applicant had failed to show that the statutory requirement of a written agreement to use the margin scheme was met.

Input tax credits

The Commissioner contended that because the residential premises were rented out before they were sold, the Applicant was only entitled to claim part of the input tax credits on the construction costs. The Commissioner calculated the apportionment based on the sale price divided by the sum of the sale price and rental income received. The Tribunal found that the basis of the Commissioner’s apportionment was fair and reasonable and it reflected the returns available from sale and rental respectively.

The Commissioner also allowed input tax credits on certain non-construction costs. The Tribunal rejected the application of the Applicant that it was entitled to input tax credits for additional non-construction costs as it could not substantiate those claims.

The Tribunal affirmed the Commissioner’s decision to impose penalties at 25% for failure to take reasonable care.

 

 

Tribunal affirms decision of Commissioner to disallow apportionment methodology for retirement village construction

In RSPG and Commissioner of Taxation [2016] AATA 687 the Tribunal affirmed the decision of the Commissioner to disallow a claim for input tax credits in respect of the construction of a retirement village on the basis that the apportionment methodology relied on by the taxpayer was not “fair and reasonable”. Under the proposed methodology, the taxpayer claimed that it was entitled to recover 91% of the input tax credits in respect of the construction of the retirement village.

The Commissioner did not take issue with the proposed apportionment methodology itself, it being taken from GSTR 2011/1, but contended that the application of the formula was inappropriate and did not reflect a fair and reasonable apportionment and produced significant distortions. The Tribunal agreed.

The applicant also contended that the entire retirement village fell within the definition of “commercial residential premises”, being similar to a “hostel” or a “boarding house”. The Tribunal rejected this contention.

The apportionment methodology

The formula was an output based revenue formula, based on the following formula in GSTR 2011/1:

total value of economic benefits reasonably expected to be obtained from making input taxed supplies /

total value of economic benefits reasonable expected to be obtained in respect of the arrangement

The taxpayer applied the formula in the following way:

Benefit of interest free loan for 1 month (A) + rent (B) /

A + B + recurrent charges (C) + exit fee (D) + licence fee (E)

This formula gave a percentage of acquisitions relating to input taxed supplies of 9%, giving a percentage relating to creditable acquisitions of 91%.

The Commissioner attacked the following aspects of the formula:

  • A – benefit of the interest free loan
    • The taxpayer contended that the economic benefit of the interest free loan was only 1 month, because residents could leave upon giving one month’s notice.
    • The Tribunal agreed with the Commissioner’s contention that the value of an interest free loan is the interest saved during the period that the loan continues. The Tribunal noted that the evidence was that the average period of occupation of residents was 12 years. The Tribunal also considered that it may not be appropriate to limit the benefit to one resident, given the evidence as to the relatively short time ti took to replace outgoing residents.
    • Accordingly, the value to be attributed to the interest free loan was much larger than 1 month – this would increase both the numerator and the denominator, resulting in a larger percentage (and a smaller creditable purpose recovery)
  • B and E – rent and licence fee
    • The Commissioner noted that the taxpayer had spread the rent over 50 years, so that only 1/50th of the rent appeared in the numerator. This assumed that residents would stay for 50 years, which was contrary to the evidence. Further, the Commissioner noted that the taxpayer had included the whole of the licence fee in the denominator. This inconsistency in approach effectively led to an increase in the creditable recovery.
  • D – exit fee
    • The Commissioner contended that the real question was not the proper characterisation of exit fees, but of the payments that may have to be made by the resident at the end of the lease (described as “end of lease payments”) – the Commissioner contended that these payments were consideration for the input taxed supply of the residential units to the residents – the taxpayer contended that the payments were deferred service payments
    • The Tribunal agreed with the Commissioner and found that the payments should be included in the numerator and the denominator
  • E – licence fee
    • This was a one-off licence fee payment by the resident to the Operator pursuant to the Service Agreement – it allowed residents access to the Common Areas at the village
    • The Commissioner accepted that the licence provided by the Operator to the residents was a taxable supply and was not the supply of residential premises – however, the Commissioner contended that the licence “related” to the supply of residential premises in a “substantial” and “real” way – and therefore the inclusion of the licence fee only in the denominator distorts the resulting percentage – the Tribunal agreed

Commercial residential premises

The taxpayer did not develop the argument beyond the contention that “the similarity with a hostel or boarding house is close enough to bring the “normal retirement village” within paragraph (f) of the definition of commercial residential premises.

The Tribunal found that there were fundamental differences between a retirement village and a hostel or boarding house, in particular the nature of the rights or interests which the residents of the retirement village acquired, particularly in respect of their units, and the security and relative permanency of occupation of those units.

 

 

 

NSW Commissioner of State Revenue issues Revenue Ruling on market value and GST

The New South Wales Office of State Revenue has issued Revenue Ruling No. DUT 045 “Market Value and GST” where the Commissioner concludes that it is not possible to determine a GST-exclusive market value and that the value of land will include any GST which the vendor may be liable to pay.

The Commissioner has also stated that he will not accept a valuation as a market valuation that is expressed to be on a “GST-exclusive” basis or where the valuer was instructed to make a determination of market value on that basis. The reason for this view is that the Commissioner accepts the view of the Courts in a line of authorities (including Storage Equities Pty Ltd v Valuer-General [2013] NSWLEC 137) that while GST may have an impact upon the market value of property, it is a not a separate amount to be deducted when determining the market value of the item. My post discussing the decision in Storage Equities can be accessed here.

The ruling observes that the Court’s conclusion in Storage Equities was that the land value is the amount expected to be received on the sale of the land, including any GST which the vendor may be liable to pay. The ruling also considered the following points of the decision to be noteworthy:

  • The starting point for determining land value is the test articulated in Spencer v Commonwealth (1907) 5 CLR 418, namely the price negotiated between a hypothetical willing vendor and a hypothetical willing purchaser, both having access to all current information affecting the property (see paras [24], [42] and [44]);
  • The impact of GST upon each of the vendor and purchaser depends upon their particular, individual circumstances. However, the hypothetical vendor under the Spencer test cannot be assumed to have attributes (eg: GST registered or selling as a going concern) which affect the GST consequences of the sale for the vendor (see paras [45], [46] and [47]);
  • In determining value by reference to comparable sale transactions, no adjustment should be made to those transactions on account of any GST liability of the vendor (see para [48]).

The Commissioner also noted that the view in the ruling was consistent with the policy of the Valuer General.

The ruling refers to the following simple example:

A valuer is engaged to value 2 residential properties located side by side. On the valuation date, one property is a newly completed house which has never been occupied and the other is an established home built some years before.

The valuer would need to take GST into account when determining the market value of the first property, but not the second, because GST is not payable on the sale of  an established home. To complete the engagement, the valuer will need to determine a market value for each property. But it would not be open to the valuer to determine a “GST-exclusive” market value for the first property. That would be contrary to the decided cases and the Valuer General’s policy.

 

 

Privy Council finds VAT not payable where supplier waived right to payment

In Shophold (Mauritius) Ltd v The Assessment Revenue Committee [2016] UKPC 12 the Privy Council allowed the taxpayer’s appeal against the finding of the Supreme Court of Mauritius that the taxpayer was obliged to pay VAT where it waived the enforcement of a contractual right to be paid for services that it provided and neither issued an invoice nor received payment for those services. The decision looks at the meaning of “consideration” in the context of VAT.

The taxpayer had entered into a management services agreement with a related entity in March 2003. In May 2003 the taxpayer resolved to waive its right to be paid the management fee until such time that the entity was in a sufficient profit making position. The management services agreement was not amended to reflect the waiver and the taxpayer continued to provide management services to the entity, albeit at a reduced level. In December 2007 the taxpayer resolved  that the management fee be reinstated. During the period in which the waiver was in effect, the taxpayer did not issue any invoice in respect of its management services or receive any payment for those services.

The Revenue contended that the taxpayer had made taxable supplies by providing the services, whether or not it had submitted invoices or had been paid for the services.

The Supreme Court agreed with the Revenue. In substance, the Supreme Court held that because the taxpayer had only waived its entitlement to receive the Management Fee and had not agreed a variation of the Agreement, the contractual obligation to pay the Management Fee remained. That contractual obligation was the consideration given for the management services, and as a result the services were taxable supplies subject to VAT. Accordingly, the taxpayer ought to have received payment for the service at the end of each month during the relevant period and was liable to VAT as if it had.

The appeal

The Revenue contended that the fundamental error in the taxpayer’s case was that the assumption that because there had been no payment, no consideration passed from the related entity to the taxpayer. The Revenue contended that the continuing contractual obligation to pay the management fee, even if not enforced by the taxpayer, provided the necessary “consideration” to found a taxable supply.

The Privy Council did not agree, observing that the concept of “consideration” in the VAT legislation is quite different from the contractual concept of consideration. In the law of VAT, “consideration” refers to “reciprocal performance”, referring to the following statement of the Court of Justice in Tolsma v Inspector der Omzetbelasting Leewarden [1994] STC 509 (para 14):

…a supply of services is effected ‘for consideration’ …, and hence is taxable only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient.

The Privy Council considered that when the Court of Justice was looking at the matter from the perspective of the supplier. This requires that under the legal arrangement the supplier receives or is to receive remuneration for the service that it has performed, either from the recipient of the service or a third party. That is not the same as the meaning of “consideration” in contract law.

Comment

The approach of the Privy Council is similar to the position in Australia. In Commissioner of Taxation v Qantas Airways Ltd [2012] HCA 41 the majority of the High Court (at [14]) stated that the phrase “the supply for consideration” in the definition of “taxable supply” in s 9-5(a) does not adopt contractual principles, but requires a connection or relationship between supply and consideration. In my view, that connection will likely involve some form of “reciprocal performance”.

It is also interesting to consider this set of facts in light of the decision of the High Court in Commissioner of Taxation v MBI Properties Pty Ltd [2014] HCA 49. In that case the Court found that an executory contract will generally give rise to at least two supplies, a supply on entry into the contract and a further supply on performance of the contract. In this context, the management services agreement would involve a supply by the taxpayer on its execution and further supplies of the provision of management services. These further supplies would be made “for” the management fee. Accordingly, during the period that the taxpayer had waived the right to recover payment it could be said that the supply of management services were not “supplies for consideration”.

 

UK Supreme Court dismisses taxpayer’s appeal in Airtours

In a 3:2 decision, the UK Supreme Court has dismissed the taxpayer’s appeal in Airtours Holidays Transport Ltd v Revenue & Customs [2016] UKSC 21. The issue in the appeal was whether Airtours was entitled to recover, by way of input tax, VAT charged by PwC in respect for services provided by PwC to various financial institutions which were paid for by Airtours.

The majority reviewed previous domestic and Court of Justice judgments, including Redrow and Loyalty Management. In doing so, the majority agreed with the majority in Loyalty Management that Lord Millet’s observations in Redrow went too far, when he said that the question to be asked was whether the taxpayer obtained “anything- anything at all”. Rather, the question to be asked was as follows (at [50]):

…where the person who pays the supplier is not entitled under the contractual documentation to receive any services from the supplier, then, unless the documentation does not reflect the economic reality, the payer has no right to reclaim by way of input tax the VAT in respect of the payment to the supplier.

Applying this analysis, Airtours appeal failed for the following reasons:

  • it was not entitled under the contract (expressly or by implication) to receive any services from PwC; and
  • the Contract did reflect economic reality and was not in any way an artificial arrangement.

The dissenting judgements considered that the “narrow legalistic approach” of the majority was too narrow, was inappropriate in the circumstances, and gave too little attention to the legal relationship between PwC and Airtours and to the economic realities of that relationship.

The decision illustrates the difficulties that can arise in the context of VAT/GST and “tripartite agreements”. The decision also illustrates how minds may readily differ on the characterisation of a transaction for the purposes of VAT/GST, with strong dissenting judgments in both the Supreme Court and the Court of Appeal.

My analysis of the decision can be accessed here. A more detailed analysis of the issue of tripartite agreements can be found in a paper that I presented earlier this year at the Television Education Network GST Symposium in Brisbane – my paper can be accessed here and also under the “My Articles” menu.