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ATO Interpretative Decision

ATO ID 2013/1

Goods and Services Tax
GST and points fee in a loyalty program

FOI status: may be released

CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 an entity, a loyalty program operator, making a taxable supply to a program partner where:

·
 it allocates points to nominated customers of the loyalty program partner in return for a points fee; and
·
 those points would be redeemed by the nominated customers for vouchers which are subject to the modified rules in Division 100 of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act)?

Decision

Yes, the entity is making a taxable supply of points to the program partner to the extent that the points would be redeemed for Division 100 vouchers and those vouchers would not be redeemed for supplies which are GST-free or input-taxed.

Facts

The entity, a GST registered loyalty program operator, establishes a customer loyalty program where members of the loyalty program can accumulate loyalty points for their eligible purchases and redeem these points for rewards.

The program contains the features of the loyalty program arrangements described at paragraphs 6 to 14 of Goods and Services Tax Ruling GSTR 2012/1. In particular:

·
 The loyalty program operator enters into participation agreements with various program partners.
·
 Under the participation agreement, the program partner agrees to pay a fee (known as a points fee) when it causes points to be credited by the program operator to a member of the loyalty program. The points are typically credited upon purchase of eligible goods or services by the member from the program partner.

The points can be redeemed by the member for goods and services, as well as vouchers that can be later redeemed for goods and services.

The vouchers that are redeemed by members are subject to the modified rules in Division 100 of the GST Act.

Reasons for Decision

Section 9-5 of the GST Act lists the elements for a taxable supply, including that there is a supply for consideration. Sections 9-10 and 9-15 of the GST Act define 'supply' and 'consideration' very broadly.

Having regard to the terms and conditions of the participation agreement, there is a supply (of points) made by the loyalty program operator to the program partner for which the consideration is the points fee paid by the program partner.

Accordingly, the supply of points will be a taxable supply if the other elements of section 9-5 of the GST Act are met. It is clear that the supply is both connected with Australia and made in the course of furtherance of the enterprise carried on by the program operator (being a GST registered taxpayer). The key remaining element is whether the supply is otherwise GST free or input taxed.

Consistent with the view expressed at paragraph 75 of GSTR 2012/1, the supply of points by the program operator to the program partner constitutes a supply of 'rights', being the rights that program members obtain on receiving points. Such supply is GST free to the extent it is GST free under Division 38 or paragraph 9-30(1)(b) of the GST Act or is input taxed to the extent that it is input taxed under Division 40 or paragraph 9-30(2)(b) of the GST Act.

For example, to the extent that the points would be redeemed by members for other supplies which are GST free or input taxed pursuant to paragraph 9-30(1)(b) or 9-30(2)(b) of the GST Act , such supply of points is GST free or input taxed.

However, where the points would be redeemed for rewards, being vouchers, the GST treatment of the points is not immediately clear where the vouchers are subject to the modified rules in Division 100 of the GST Act.

It has been argued that the GST treatment of the supply of points should follow the character of the underlying rewards provided to members. Therefore, to the extent that the underlying rewards provided to members are vouchers that are subject to the modified rules in Division 100 of the GST Act and treated as non-taxable supplies, the supply of points should similarly be non-taxable to that extent.

However, as stated previously, the supply of points is characterised as a supply of rights rather than the underlying rewards provided to members and is a taxable supply to the extent that it is not otherwise GST free or input taxed.

Where the supply of points would be redeemed for vouchers which, in turn, would be redeemed for supplies which are GST free or input taxed, such supply is GST free or input taxed to that extent because of paragraph 9-30(1)(b) or 9-30(2)(b) of the GST Act.

Accordingly, the supply of points is a taxable supply to the extent that it would be redeemed for vouchers which are subject to the modified rules in Division 100 of the GST Act and those vouchers would not be redeemed for supplies which are GST free or input taxed.

Date of decision: 4 January 2013

Legislative References:
A New Tax System (Goods and Services Tax) Act 1999
   section 9-10
   section 9-15
   paragraph 9-30(1)(b)
   paragraph 9-30(2)(b)
   Division 38
   Division 40
   Division 100

Related Public Rulings (including Determinations)
GSTR 2012/1

Keywords
Goods and services tax
Customer loyalty programs
Vouchers

Date of publication: 4 January 2013

ISSN: 1445-2782

 


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