Annotated GST Act – Chapter 4 – Part 4-1 – Divisions 48-63

Division 48 – GST groups

48.1     What this Division is about

Subdivision 48A – Formation and membership of GST groups

48.5     Who is liable for GST

48.7     Membership of GST groups

International cases

Copthorn Holdings Ltd v Revenue & Customs [2015] UKFTT 405 – VAT Group registration  –  Second challenge of a refusal on the part of HMRC to admit two group companies into the VAT group on a retrospective basis  –  problems created by errors made by companies in the Appellant group, particularly during a period where there had been numerous changes of personnel in the finance department  –  Appeal allowed

48.10   Membership requirements of a GST group

GST Regulations

48.10.01   Definitions

48.10..01A Trust distribution and beneficiaries

48.10.02   Membership requirements for partnerships

48.10.03   Membership requirements for trusts

48.01.03A Alternative membership requirements for groups of fixed trusts

48.01.04   Membership requirements for individuals

48.15   Relationship of companies and non-companies in a GST group

Subdivision 48B – Consequences of GST groups

48-40   Who is liable for GST

Cases

Confidential and Commissioner of Taxation [2012] AATA 408 – at [21]-[33]: s 49-40 modifies the usual rules as to liability for GST – for transactions between members of a GST group there is “deemed” to be no taxable supply only for the purposes of calculating liability

International Cases 

Revenue and Customs v BMW (UK) Holdings Ltd [2016] UKFTT 434 – grouping – claim for overpaid tax where company leaves VAT group – correct entity to make claim – last representative member

48.45   Who is entitled to input tax credits

International Cases 

BAA Ltd v Revenue & Customs [2013] EWCA 122 – VAT – whether representative of VAT Group entitled to input tax credits for services received by member entity at the time when the member entity was not part of the group – whether member company carrying on an economic activity at the time it acquired the services – whether there was a “direct and immediate” link between the acquisition of services and the outward taxable supplies by the VAT Group – case analysis

Svenska International Plc v Commissioners of Customs and Excise [1999] UKHL 23; [1999] 2 All ER 906; [1999] 1 WLR 769 – VAT group, input tax credits, time of supply

Commissioners of Customs and Excise v Thorn Materials Supply Ltd and Thorn Resources Ltd [1998] UKHL 23; [1998] 3 All ER 342 – treatment of transactions between members of VAT Group on entry into contract but not grouped on completion, time of supply

48.50   Adjustments

48.51   Consequences of being a member of a GST group for part of a tax period

48.52   Consequences for a representative member of membership change during a tax period

48.53   Consequences of changing a representative member during a tax period

48.55   GST groups treated as single entities for certain purposes

48.57   Tax invoices that are required to identify recipients

48.60   GST returns

Subdivision 48C – Administrative matters

48.70   Changing the membership etc of GST groups

48.71   Approval of early day of effect of forming, changing etc GST Groups

48.73   Tax periods of GST groups with incapacitated members

48.75   Effect of representative member becoming an incapacitated entity

Subdivision 48D – Ceasing to be a member of a GST Group 

48.110 Adjustments after you cease to be a member of a GST group

48.115 Changes in extent of creditable purpose after you cease to be a member of a GST group

Division 49 – GST religious groups

49.1     What this Division is about

Subdivision 49A – Approval of GST religious groups

49.5     Approval of GST religious groups

49.10   Membership requirements of a GST religious group

Subdivision 49B – Consequences of approval of GST religious groups

49.30   Supplies between members of GST religious groups

49.35   Acquisitions between members of GST religious groups

49.40   Adjustment events

49.45   Changes in the extent of creditable purpose

49-50   GST religious groups treated as single entity for certain purposes

Subdivision 49C – Administrative matters

49-70   Changing the membership etc of GST religious groups

49.75   Revoking the approval of GST religious groups

49.80   Notification by principal members

49.85   Date of effect of approvals and revocations

49.90   Notification by the Commissioner

Division 50 – GST treatment of religious practitioners

50.1     What this Division is about

50.5     GST treatment of religious practitioners

Division 51 – GST joint ventures

51.1     What this Division is about

Rulings and Determinations

GSTR 2004/2 – Austlii – Goods and services tax: What is a joint venture for GST purposes?

GSTD 2004/2 – Austlii – Goods and services tax: Are all supplies made by the entity nominated as the joint venture operator to entities that are participants in the GST joint venture to be treated as if they are not taxable supplies?

Subdivision 51-A – Formation of and participation in GST joint ventures

51.5     Formation of GST joint venture

GST Regulations

51.5.01   Specified purposes for GST joint ventures

51.7     Participants in GST joint ventures

51.10   Participation requirements of a GST joint venture

Subdivision 51B – Consequence of GST joint ventures

51.30   Who is liable for GST

51.35   Who is entitled to input tax credits

International cases

D-Win Computer Systems Inc v The Queen 2013 TCC 187 – claim by joint venture partner for input tax credits in respect of money spent by joint venture partner for acquisitions made by joint venture operator – effect of joint venture rules and deeming provisions

51.40   Adjustments

51.45   Additional net amounts relating to GST joint venture

51.50   GST returns relating to GST joint ventures

51.52   Consolidation of GST returns relating to GST joint ventures

51.55   Payments of GST relating to GST joint ventures

51.60   Refunds relating to GST joint ventures

Subdivision 51C – Administrative matters

51.70   Changing the participants etc of GST joint ventures

51.75   Approval of early day of effect of forming, changing etc GST joint ventures

Subdivision 51D – Ceasing to be a participant in, or an operator of, a GST joint venture

51.110 Adjustments after you cease to be a participant in a GST joint venture

51.115 Changes in extent of creditable purpose after you cease to be a member of a GST joint venture

Division 54 – GST branches

54.1     What this Division is about

Subdivision 54A – Registration of GST branches

54.5     Registration of GST branches

54.10   The date of effect of registration of a GST branch

54.15   GST branch registration number

Subdivision 54B – Consequences of registration of GST branches

54.40   Additional net amounts relating to GST branches

54.45   Net amounts of parent entities

54.50   Tax invoices and adjustment notes

54.55   GST returns relating to GST branches

54.60   Payments of GST relating to GST branches

54.65   Refunds relating to GST branches

Subdivision 54C – Cancellation of registration of GST branches

54.70   When an entity must apply for cancellation of registration of a GST branch

54.75   When the Commissioner must cancel registration of a GST branch

54.80   The date of effect of cancellation of registration of a GST branch

54.85   Application of Subdivision 25-B

54.90   Effect on GST branches of cancelling the entity’s registration

Division 57 – Resident agents acting for non-residents

57.1     What this Division is about

57.5     Who is liable for GST

57.10   Who is entitled to input tax credits

57.15   Adjustments

57.20   Resident agents are required to be registered

57.25   Cancellation of registration of a resident agent

57.30   Notice of cessation of agency

57.35   Tax periods of resident agents

57.40   GST returns for non-residents

57.45   Resident agents giving GST returns

57.50   Non-residents that belong to GST groups

Division 58 – Representatives of incapacitated entities

58.1     What this Division is about

58.5     General principle for the relationship between incapacitated entities and their representatives

58.10   Circumstances in which representatives have GST-related liabilities and entitlements

Cases

Deputy Commissioner of Taxation v PM Developments Pty Ltd [2008] FCA 1886 – whether liquidator personally liable for GST on supply by company (under Division 147 which was subsequently repealed and replaced by Division 58).

Overseas cases

Stiassny and others v Commissioner of Inland Revenue [2012] NZSC 106 – receivers of partners not personally liable for GST of the partnership – whether entitled to recover GST paid because of mistake of law – case analysis – decision of Court of Appeal – Commissioner of Inland Revenue v Stiassny [2012] NZCA 93 – whether receivers of partners personally liable to pay GST on sale by partnership, whether right to refund on the basis that GST paid because of a mistake of law – case analysis – decision of High Court – Stiassney v Commissioner of Inland Revenue [2010] NZHC 1935

Simpson v Commissioner of Inland Revenue [2012] NZCA 126 – whether receivers of mortgagee selling real property personally liable for GST – case analysis – decision of High Court – Simpson v Commissioner of Inland Revenue [2011] NZHC 490

58.15   Adjustments for bad debts

58.20   Representatives are required to be registered

58.25   Cancellation of registration of a representative

58.30   Notice of cessation of representation

58.35   Tax periods of representatives

58.40   Effect on attribution rules of not accounting on a cash basis

58.45   GST returns for representatives of incapacitated entities

58.50   Representatives to give GST returns for incapacitated entities

58.55   Incapacitated entities not required to give GST returns in some cases

58.60   Representatives to notify Commissioner of certain liabilities

58-65   Money available to meet representatives liabilities

58.70   Protection for actions of representatives

58.95   Division does not apply to the extent that the representative is a creditor of the incapacitated entity

Division 60 – Pre-establishment costs

60.1     What this Division is about

60.5     Input tax credit for acquisitions and importations before establishment

60.10   Registration etc not needed for input tax credits

60.15   Pre-establishment acquisitions and importations

60.20   Creditable purpose

60.25   Attributing the input tax credit for pre-establishment acquisitions

60.30   Attributing the input tax credit for pre-establishment importations

60.35   Application of Division 129

Division 63 – Non-profit sub-entities

63.1     What this Division is about

63.5     Entities that may choose to apply this Division

63.10   Period for which a choice has effect

63.15   Consequences of choosing to apply this Division

63.20   Non-profit sub-entities may register

63.25   Registration turnover threshold for non-profit sub-entities

63.27  Application of particular provisions relating to charities etc

63.30   When non-profit sub-entities must apply for cancellation of registration 

63.35   When the Commissioner must cancel registration of non-profit sub-entities

63.40   Effect on adjustments of becoming a non-profit sub-entity

63.45   Effect on adjustments of ceasing to be a non-profit sub-entity

63.50   Membership requirements of GST groups

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