ATO Interpretative Decision
ATO ID 2004/187
Goods and Services Tax
GST and the supply of adult entertainment services: dancer collects payments and distributes entity's percentageFOI status: may be released
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With effect from 1 July 2015, the term 'Australia' is replaced in nearly all instances within the GST, Luxury Car Tax and Wine Equalisation Tax legislation with the term 'indirect tax zone' by the Treasury Legislation Amendment (Repeal Day) Act 2015. The scope of the new term, however, remains the same as the repealed definition of 'Australia' used in those Acts. For readability and other reasons, where the term 'Australia' is used in this document, it is referring to the 'indirect tax zone' as defined in subsection 195-1 of the GST Act.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is the entity, a supplier of adult entertainment services, making a taxable supply to a customer under section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act), when a dancer, engaged by the entity, performs a lap dance or striptease for one or more customers and the dancer collects the payment for the performance?
Decision
Yes, the entity is making a taxable supply to a customer under section 9-5 of the GST Act when a dancer, engaged by the entity, performs a lap dance or striptease for one or more customers and collects the payment for the performance.
Facts
The entity operates an establishment in Australia, which supplies adult dancing services as part of its total entertainment package. The entity is registered or required to be registered for goods and services tax (GST).
The entity engages dancers to perform in its establishment.
The entity enters into an agreement, whereby each dancer agrees to supply their dancing services to the entity. The agreement sets out the terms and conditions under which the parties will operate and enables the entity to control each dancer's behaviour in regard to issues such as their compliance with drug and prostitution laws.
The entity also has control over which dancers are allowed to perform at the establishment.
The entity's customers can watch the dancers on stage or they can approach an employee of the entity directly and request for one of the dancers to provide a private lap dance or striptease for a price. The entity's employees assist with the selection of a dancer who will then provide private dances to one or more customers. The entity provides the venue for the private performance.
The entity establishes the price of the lap dances with customers and establishes the percentage of that price that the dancer will receive.
The dancer collects the fees for these dances from the customers in cash. The dancer retains the agreed percentage of the fee for their services. The dancer then passes the balance, being the entity's share of the fee, to the entity at the end of the dancer's shift.
Subject always to the entity's ability to control who performs at the club, the dancers choose where and when they lap dance and dancers may perform lap dances at a number of clubs in any one night.
Reasons for Decision
Section 9-5 of the GST Act provides that an entity is making a taxable supply where:
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- it makes a supply for consideration
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- the supply is made in the course or furtherance of an enterprise that it carries on
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- the supply is connected with Australia, and
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- it is registered, or required to be registered for GST.
However, a supply is not taxable if it is GST-free or input taxed.
The first requirement in section 9-5 of the GST Act is that an entity must make a supply for consideration. When a customer requests a lap dance or striptease, they approach the entity. The entity organises the lap dance or striptease. The entity provides the venue and the dancers and organises the private dances. The entity is supplying the customer with a service.
The customer pays their money to the dancer, who retains an agreed percentage and passes the remaining amount to the entity. Therefore, it needs to be determined whether all or any of the amount paid by the customer is consideration for the entity's service or if the entity is acting as an agent on behalf of the dancer who is making a separate supply of their services.
Goods and services tax ruling, GSTR 2000/37, outlines a number of factors that are taken into account in determining whether an entity is an agent under an agency relationship. However, no single factor (by itself) is determinative. These factors include:
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- any description of the entity as an agent, having an authority to act for another party, in an agreement (expressed or implied) between the two parties
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- any exercise of the authority that the entity is given to enter into legal relations with a third party
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- whether the entity bears any significant commercial risk
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- whether the entity acts in its own name
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- whether the entity is renumerated for its services by way of commissions and whether it is entitled to keep any part of the remuneration secret from the other party
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- whether the entity decides the price of things it sells to third parties.
The entity operates an establishment which supplies adult dancing services as part of its total entertainment package. The entity acts in its own name and does not hold itself out to its customers as acting on behalf of the dancer. The entity sets the prices for the lap dances and stripteases.
The agreement between the entity and the dancer is for the provision of the dancer's services to the entity, in return for payment for the lap dance or striptease. The agreement does not provide for a separate supply of services by the dancer to the customers.
The agreement does not provide for the entity as having authority to act on behalf of the dancer, nor does it entitle the entity to enter legal relations with a third party on behalf of the dancer. The entity is not bearing any commercial risk by entering into the agreement with the dancer.
Taking into account these factors, the entity is not acting as an agent for the dancer in respect to the supply of the lap dances or stripteases to the customers. As such, the entire payment made by the customer is for the supply of services by the entity.
The entity is registered or required to be registered for GST, its supply is made in the course of its enterprise and is connected with Australia. In addition, the supply is not input taxed under any of the provisions in Division 40 of the GST Act nor is it GST-free under Division 38 of the GST Act. Accordingly, all the requirements in section 9-5 of the GST Act are satisfied.
Therefore, the entity is making a taxable supply to a customer under section 9-5 of the GST Act when a dancer, engaged by the entity, performs a lap dance or striptease for one or more customers.
Note: As the lap dance/striptease fee is consideration for the entity's supply of services, the entity has a GST liability equal to 1/11th of the total fee received (section 9-70 of the GST Act).
Date of decision: 12 February 2004
Legislative References:
A New Tax System (Goods and Services Tax) Act 1999
section 9-5
section 9-70
Division 38
Division 40
Related Public Rulings (including Determinations)
Goods and Services Tax Ruling GSTR 2000/37
ATO ID 2004/186
ATO ID 2004/188
Keywords
Goods and services tax
GST supplies & acquisitions
Taxable supply
ISSN: 1445-2782
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