The exports of goods and services constitutes the value of goods and other services that are provided in the market to all across the world. These includes the value of merchandise, freight, insurance, transport and government services. However, it excludes the compensation that is paid to the employees and investment of income along with transfer payments. On the other hand, GST is not collected on the cross border services and the intangibles that are purchased from the offshore suppliers. When the introduction of GST was first made in 1986 there were only few customers from New Zealand. The paper would address the questions relating to the cross border application of GST on the services and intangibles. A comparative study of the EU-VAT and AUS/NZ Model would be studied to understand the reliability of the model. A further recommendation would be sought following the analysis of both the model.
As stated under “section 38-185 (1)” of the New Tax System in Goods and Service Tax Act 1999 the supply of goods for the purpose of export are treated as GST-free. However, the exported goods are only GST-free if the supplier exports the goods from Australia inside 60 days following the day on which the suppler receives the considerations. Furthermore, the exported goods are GST-free if on the previous day the supplier provides an invoice relating to supply which is the day on which an invoice is provided by the supplier. In other words, if a person sells the goods for export then it should be made sure that the export of goods is done within the time limit that is given under the “section 38-185 (1)” unless the below listed special rules for export are applicable; The special rules for export are;
When the goods or any other aircraft of ships is supplied and the considerations arising is paid in portions then the 60-day period commences from the time when the final instalment is received by the supplier except an invoice has been previously given for the final instalment.
The perfect communication regarding the export sales signifies that the exporter should assure compliance inside the limits or the risk of losing benefits relating to GST free treatment. While writing, a modification was issued to change the inside 60-day requirement to before or inside 60 days so that it can cover the circumstances where the goods exported prior to making payment and before issuing the invoice. The GST-Free legislature is also revised to enable GST-Free status for the goods that is supplied in Australia to the export purchaser who has not obtained registration under the Australian GST. The law is presently undertaken only provides GST-Frees supplies where the supplier also forms the exporter of goods.
The supply of aircraft stores or ship that are for consumption, use or sale on the flight or voyage or has the destination out of Australia are treated as GST-free. In spite of the fact that ineffective and unwanted features of the old wholesale sales tax system particularly claiming of exemption were thought of being abandoned, it appears that the conditional exemption system might still be applicable for the GST purpose. Accordingly, section 38-185 (1) 6 gives GST-free status to supply the goods at the time of repairing, modifying, renovating or treating other goods from out of Australia but only to the extent that;
Section 38-185 intends to help person that import goods in Australia for the purpose of repair and exporting them subsequently. The section functions by giving GST-free status to the goods that is supplied during the course of offering repair services. While it may be relatively easy to state that the goods which is supplied during the course of their attachment or incorporation with other goods that might be far difficult to establish that the goods are covered or supplied during the course of repair work.
Other services that are GST-free on export are the labour services. The manufacturer relating to the supply of goods during the phase of contract might be treated as GST-free under section38-185 (1) 1. Finally, the supply of goods to the Australian and overseas national tourist that are prescribed under the rules of export goods are anticipated to be GST-free. The prescribed rules are anticipated to bear a resemblance to the current set of rules for tax-free and sales tax free on sales made to the overseas travellers.
As per the ATO expectations exporters and other persons that are dependent on the GST-free treatment under the section 38-185 to generate evidence whenever required. Proof might comprise of bills of lading, airway bills, proof relating to the export from the Australian custom services of importation from the state to which the goods are exported.
Nevertheless, the above stated requirement are not likely to be burdensome where the supplier is also the exporter. However, in certain situations the suppliers might face the difficulty to obtain the necessary evidences such as the status of GST-free depending on the intent or subsequent act of a customer.
Supply of things, apart from goods or real property, for consumption out of the indirect tax zone:
Under section 38-190 supply things apart from goods or real property may be treated as GST-free where the consumption is made out of Australia. However, deciding whether the supply of goods is consumed out of Australia is not regarded as the easy job. Under the section 38-190(1) 1, supplies that are connected directly with the goods or real property located out of Australia would be treated as GST-free. The example includes the preparation of designs plans by the Australian architect for the Australian resident where the property is out of Australia.
Supplies that are made to the non-resident that are not Australian when the supply of good is done then it is treated as GST-free under the section 38-190 given that;
Thus, the design plans that are made by the Australian architect for the non-resident would not be treated as GST-free given the property is out of Australia. Though, legal instruction provided to the non-resident customers for the operation of Australian GST would be treated as GST-free given that the customers was not the Australian resident. In another example, the liability for GST on the domestic delivery of goods could not be avoided by sending the delivery of invoice to the offshore entity.
According to the scholars it is worth saying that when the supply of goods is done and not during the time of supply due to the reason of precision. For example, a right of service may be supplied on a given day and may be used on a different day. Supplies that is made to the recipient is regarded as GST-free when;
Therefore, an Australian resident that purchases the overseas travel insurance from the local supplier may not be required to pay the GST given that the person was not present in Australia when the coverage for travel insurance began. Supplies that are made in respect to the rights of GST-free under the section 38-190 (1) 4, given that;
Similarly, the sale of Disneyland tickets in Australia must be free from GST since the tickets are to be used outside Australia. Sales made by the Australian copyright owner to the non-resident of the right to distribute the products in the country apart from Australian must be treated as GST-free supply.
Under section 38-190 (1) 5, GST-free status applies to supplies that comprises of renovation, repairs, modifications or treatment of the imported goods that are fixed before making export. Section 38-190(1) 6, seems to be envisioned to cover the supply of things apart from goods such as labour services.
A supply of things apart from the goods or real property is not regarded as the free from GST given the supply of right of options to obtain something where the supply would be linked to Australia. The general exclusion under section 38-190 (2) is aimed at catching the net GST related to supply of rights or options offshore where the exercise of rights or options is associated with Australia. For example, tickets of grand finale to be held in Australia were sold the New Zealand Company which later sold the tickets to Australian and New Zealand residents. Since the supply of grand finale is linked to Australia therefore, the supply of tickets to the company located in New Zealand would not be regarded as GST-free.
Figure 1: Figure representing Item 2 and 3 and paragraph (b) of item 4
Source: (Austlii.edu.au 2018)
Section 38-190 provides the explanation relating to “supplies of things, other than goods or real property, for consumption out of Australia”. The items stated under the subsection 38-190 lay down the supplies of things, apart from goods and real property for the consumption that are out of Australian and free from GST given the specific requirements are satisfied. The policy intention as understood by the headings to both the section 38-190 and the subsection 38-190 (1) by treating the supplies of services or things apart from the goods or real property as the supplies free from GST given consumption takes place out of Australia.
Figure 2: Figure representing Item 3 supply made to country together with non-resident country
Source: (Austlii.edu.au 2018)
Item 3 is application for the supplies that are made to the recipient that are not present in Australia when the supply is made. It is noteworthy to note the necessary requirements of item 3 to consider a supply GST free. The effective usage or enjoyment of the supply should happen out of Australia. Additionally, the supply should neither constitute the supply of work that are physically performed on the goods located in Australia when the work is carried out nor does the supply should be directly related to the real property located in Australia.
For the purpose of the item 2 and paragraph (b) of the item 4, the supply should be made to the non-resident, this requirement is not applicable for items 3. Item 3 is applicable to the supplies that is made to the recipient where all the entities where the supplies are made includes the non-residents. Item 3 is considered as wider in scope and might be applicable if the supplies are made for example to the resident of Australia.
This signifies that the supply that is made to the company established in Australia and does not falls inside the scope of item 2 or paragraph (b) of the item 4 due to the fact the company is not the non-resident. The supply might still be treated as GST-free under the item 3 provided that the other requirements of the item 3 are duly satisfied.
The OECD views its role as the facilitator in promoting e-commerce. The programme comprises of work to raise a steady and foreseeable regulatory environment to encourage the improvement of e-commerce infrastructure and access to the information infrastructure with the help of competitive marketplace. The central philosophy is the appreciation regarding the effect of e-commerce on numerous states and the implications of its use in the overseas trading community where it is understood that the interest are free and open for competition. The Australian goods and service tax is not drafted with reference to the goods and services rather the GST legislature offers a wider definition relating to the term supply.
Evident the e-commerce transactions are treated as exports apart from the goods or real property, it is related to Australia if;
According to the GSTR 2000/31, the general principles are applicable to the cross border e-commerce supplies. If the thing constitutes the export of services, it would be done where the services are carried out. When the electronic supply constitutes the provision of information the place is referred as the place where the supply is made, prepared or produced. If the supplier is located out of Australia, then the supply would not be related with Australia.
Electronic exports that are provided from the supplier having based in Australia would be generally subjected to GST because there is a sufficient connection with Australia. This is applicable to both the onshore and offshore exports of supplies. Nevertheless, if the e-commerce exports are made to the recipient that are located out of Australia might be considered as free from GST under section 38-190. Accordingly, section 38-190 explains that supplies of things, apart from the goods or real property are not subjected to GST when the export of supplies is made to the non-residents that is not present in Australia when the goods were supplied. Furthermore, the exports would be GST-free when the supply neither forms the supply of physical work carried on the goods nor does the supply is related to the real property in Australia. Additionally, the exports would not be subjected to GST where the non-residents acquire the things while carrying on the non-resident’s business, but they are not registered are required to be registered.
Accordingly, the exports of e-commerce either to the business customers or private customers are not held liable for taxation. Unlike the tangible goods that are taxable while entering Australia for the purpose of home consumption under section 13-5, service would not attract GST. This appears to be varying due to the fact of not imposing GST on the exported services that are supplies and anticipated to be consumed outside Australia. From the viewpoint of consumption tax, it is fair to apply GST on the supplied services that are brought in Australia.
Up till now, the non-tax system is steady with the GST connection rule. Intangible supplies in the form of e-commerce are supplied at the place where the things are done. In other words, it implies that where the work is performed, yet not the place where it is delivered or used. As stated under section 84-5, in very rare situations the intangible supplies are subjected to GST despite the fact that they do not have connection to Australia. It is applicable in business transactions and only where the Australian recipients is not entitled to offset the input tax credits due to the fact that the acquisition is for the non-creditable purpose.
For example, a foreign company update the database through electronic means of the registered Australian financial institution. It makes the use of database to give financial supplies. Based on the general rules, the services would not have any connection with Australia. In spite of the fact the services would be treated as GST. By virtue of the section 11-15 (2), the services received is not entirely for the creditable purpose due to the fact that the services is also related to giving financial supplies which is input taxed. Therefore, the e-commerce services that are performed by the offshore companies are treated as taxable supplies.
EU-VAT Model:
The main objective of European Community relating to the establishment relating to internal market where the goods and service are exchanged without the administrative and tax obstacle among the member states. To make sure that the concept of area without the internal boundaries, the European community treaty comprises of provision relating to harmonization. As a result of this Article 93 of the European Community Treaty authorizes that the European Council must adopt the Directive requirements of domestic law.
As per the article 2 of the sixth directive value added tax is applied on the supplies of goods or services that is anticipated in consideration with the territory of a nation by a chargeable person. VAT is imposed on the supplies of goods and services that are involved in the production and distribution chain. Nevertheless, only the final consumer bears the burden of tax as the chargeable person can claim deduction for the sum of VAT that is paid while purchasing the goods and services used in taxable transactions.
As a general rule, VAT is applied on the transactions that are inside the member country, inside the EU and when goods are imported from out of EU. Furthermore, the EU-VAT rules differentiates between the goods and services and between the transactions that are performed for the business customers and private customers.
As per the article 5-1 the supply of goods refers to the transfer of right to dispose the tangible property owner. For transaction that are intra-community amid the chargeable persons (B2B), the supply of goods is exempted from VAT in the member state of the selling enterprise. The recipient is required to pay the VAT of the goods delivered at the applicable rates in the member nation. Goods that are purchased inside the EU by the private customers outside the member country where they live are free from the VAT in the residence nation. Nonetheless, purchases made from the order firms or sales where the goods are shipped by or on behalf of the supplier might be considered for taxation at the place where the transport terminates given the distance selling rule is applied. In contrast to this, the cross border sale goods are levied taxes based on the destination state principle. Henceforth, the exports are exempted from VAT and imports of goods attract VAT at the member state border.
As per the Article 6 (1) transaction that is not the supply of goods inside the meaning of article 5 is regarded as the supply of service. According to the general rule of Article 9 (1) the general rule for the taxable supply refers to the location where the business is set up by the supplier. The place of supply relating to the cross border services is dependent on the type of services, customer status and the nation of establishment. As stated under the Article 9 (2) of the EU- VAT model the place of supply of service for the business or private customers living out of the European Community represents the customers’ business place. Therefore, no EU-VAT is applied at that point. Nevertheless, the supplies of services that are listed under the Article 9 (2) (e) amid the non-EU and EU-businesses will be subjected to the VAT of the member nation with the EU-business will be accountable for remitting the VAT to the local authorities of tax under the mechanism of reverse charge.
To consolidate the EU-VAT model an example has been considered to explain the difference between the place of supplies for the intra-community and the cross border supplies of service. A law company in Germany is providing legal advice to the company that is based in France. As the legal advises of the services is covered under the Article 2 the taxable business place constitute France. Alternatively, if the advice was given to the private customer located in France then the general rule of Article 9 (1) would have been applicable. As the consequence, the German law company will be required to charge German VAT. It must be noted that no EU-VAT becomes due given the German law firm had advised the company or the private consumer in Australia. If the French private customer sought lawful advice from the law firm that was based in Australia, then the supply would not have been subjected to EU-VAT. Nevertheless, if the French customers has the business customer then the EU-VAT would become due under the mechanism of reverse charge.
Unlike the EU-VAT the New Zealand GST is regarded as the consumption tax. The consumption tax seeks to implement tax on the spending of the customers on goods and services. Unlike the EU-VAT, the New Zealand GST model represents the country that possess the right of imposing tax on the spending of consumers which is usually the country where the goods or services are consumed. The New Zealand system of GST is treated across the world as the model of consumption tax. The main reason for this is that the system of New Zealand GST is very wide and is applicable to the large range of goods and services with very limited exemptions. When the GST is applied it makes sure that the consumer decision of purchasing the particular goods and services is impacted or driven by the considerations of tax. Unlike the EU-VAT, the New Zealand GST model helps in improving the efficiency, fairness and offers simplicity.
In spite of the New Zealand’s wide ranging GST system, GST is not usually applied to the cross border services and intangibles which is consumed in New Zealand. This is in contrast to the destination principle and signifies that the services are not levied in any other nation. As per the Goods and Service Tax Act 1985 services is defined as anything that does not includes the money or goods and includes the intangibles such as digital content. GST is usually applied on the services that are carried out by the New Zealand tax residents or supplied by the non-residents but physically carried out in New Zealand.
With the concept of GST was bought forward in 1986, there were only few customers from New Zealand that purchased services from the offshore and there was no availability of the online digital products. During that time, the cost of compliance and administrative cost involved in imposing tax on the inter border services potentially outweighed the benefits of taxation. Ever since the introduction of GST, necessary steps have been taken to implement GST to some of the cross border services that are consumed in New Zealand.
Ever since the 2003 the offshore suppliers of the telecommunications services have been required to file GST return for the telecommunication services that are introduced by the customers in New Zealand. Furthermore, ever since the 2005, the GST reverse charge was applied to the imported services by the businesses which makes the supplies and other non-taxable supplies exempted. Under the New Zealand model of GST, the reverse charge treats the purchaser as having made the supply and hence being liable for GST. The reverse charge is also applicable on the unregistered individuals that acquire the imported services that brings those individuals inside the $60,000 taxable supply threshold limit for registration.
The rules relating to the EU-VAT is applicable to both the origins and destinations principles depending upon the circumstances of the supply. Depending upon the principles of origin that are laid out under Article 8 (1) and Article 9 (1) majority of the transactions are held taxable in the member state where the business has been established by the suppliers. As a result of this, with both the suppliers and customers residing in the same nation both the principles simply overlap.
In regard to the cross border supplies of goods the EU-VAT rules favours the principle of destination. Goods that are delivered out of EU are generally exempted from VAT. The EU based taxable persons supply goods to the consumer out of the EU are not held for double taxation provided that most of the consumption tax regimes are tax imports. The exemption relating to the exports allows the EU-suppliers to compete with the Australian suppliers in the Australian market while making import to the Australian market and the consumption tax is imposed only once.
Conversely goods that are imported are subjected to the VAT in the EU member state only. Customers that purchase the products either from the resident supplier or imported from the Australian company pays tax in both the cases with the VAT is applied in the country of residence. Under the standard consumption regimes both the EU and the EU suppliers are exposed consistently to the VAT. The controversy further arises as in the case of consumption taxation relating to services the uniform playing field for the EU and the non-EU suppliers is not established. Article 9 does not reflect the reliable rule of place for the supplies relating to cross border services.
The idea of implementing VAT on the imports and exempting the VAT on the exports was partially upheld. Under the Article 9 (2) e the supply services to the business customers or the private customers that lives out of the EU are exempted from the EU-VAT while the imports are taxed. The article 9 (e) attains the competitive neutrality for the EU and the EU suppliers. However, the Article 9(2) (e) is applied on the restricted forms of services. All the other services are taxed at the places where the suppliers have established the business. This may result in VAT on the exports of these services and additional taxes might be imposed on another jurisdiction that follows the normal principles of consumption tax.
On a personal opinion use of EU approach is more suitable than using the AUS/NZ approach. The VAT allows the creation of the internal market where the goods and services are exchanged without implementing the tax and creating any form of administrative obstacle among the member states. The EU VAT makes sure that the concept of area is not jeopardised with the internal frontiers the EU-VAT provides the provision of harmonization. The use of EU-VAT is better because VAT is levied on any form of supplies of goods and services that are involved in the production of goods and distribution chain.
Under the EU VAT only the final consumers have to bear the tax liability and allows the taxable person to claim deduction for the amount of VAT that is paid on the purchase of the products and services used during taxable transactions. While the current law of AUS/NZ is complex and requires several non-resident entities to obtain registration for the GST due to the fact that the non-residents are making chargeable supplies or acquiring taxable supplies while carrying the enterprise or both. Submissions suggest that the GST law must be simplified.
The rules relating to the GST does not offer an economic equivalent treatment of the electronic supplies. While the electronic supplies made by the Australian based business to the consumers in Australia are subjected to GST, non-Australian suppliers are capable of offering services at the lower prices as they do not have to charge GST. To offer parity among the Australian suppliers and offshore suppliers it is necessary to amend the section 84-5 in order to seize the supplies of off-shore electronics, business to business and business to consumers.
A recommendation can be made relating to the amendment of the connection rule for the purpose of intangible supplies that is not recommended because it may change the entire system of GST. Under section 84-5 a suggestion can be made that during the absence of any separate provision, offshore supplies would enjoy the advantage of price at the level playing field among the onshore and offshore suppliers. The EU- VAT rule would sufficiently work in Australia to ascertain when the recipient consuming the electronic service is believed to be situated in Australia and the mechanism for collecting taxes must apply for the B2B and B2C transactions.
Conclusion:
On a conclusive note, the EU-VAT rules relating to the supplies of electronic is very much straight forward and appears to be in accordance with the agreed framework of the OECD. The regulations relating to the enforcement of the offshore supplier may not be highly effective, however in the circumstances it is very practical means of avoiding difficulties. Being an OEDC member nation Australia must implement the regulations that are recommended relating to the supplies of the cross border electronic supplies. Up till now the EU-VAT rules can serve as the noteworthy model.
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