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A New Tax System (Goods and Services Tax) Act 1999

Chapter 4 - The special rules  

Part 4-1 - Special rules mainly about particular ways entities are organised  

Note:

The special rules in this Part mainly modify the operation of Part 2-2 so far as that Part deals with liability for GST and entitlement to input tax credits, but the special rules also affect other aspects of Part 2-2 and the other Parts of Chapter 2.

Division 48 - GST groups  

CCH Note

Act No 74 of 2010, s 3 and Sch 1 item 43 contains the following transitional provisions:

43 Transitional provisions for GST groups  

GST groups in existence before commencement


(1) Subject to subitems (5) to (8), on the commencement of this item [28 June 2010]:


(a) a GST group that existed immediately before that commencement is taken to continue in existence as if:


(i) it had been formed, and its formation had been notified to the Commissioner, in accordance with section 48-5 of the A New Tax System (Goods and Services Tax) Act 1999 as amended; and

(ii) its formation took effect immediately after that commencement; and


(b) the entities that were members of the group immediately before that commencement are taken, immediately after that commencement, to continue to be the members of the group; and


(c) the entity that was the representative member of the group immediately before that commencement is taken, immediately after that commencement, to continue to be the representative member of the group.

GST groups approved, but not in existence, before commencement


(2) If, before the commencement of this item [28 June 2010], the Commissioner approved 2 or more entities as a GST group but the approval did not take effect before that commencement, then, on the date of effect decided by the Commissioner under section 48-85 of the A New Tax System (Goods and Services Tax) Act 1999:


(a) the group is taken to have been formed, and its formation is taken to have been notified to the Commissioner, in accordance with section 48-5 of that Act as amended; and


(b) the entities that jointly applied for that approval are taken to be the members of the group; and


(c) the entity that was nominated in the application to be the representative member of the group is taken to be the representative member of the group.

GST groups applied for, but not approved, before commencement


(3) If:


(a) before the commencement of this item [28 June 2010], 2 or more entities applied, in accordance with section 48-5 of the A New Tax System (Goods and Services Tax) Act 1999, for approval of a GST group; and


(b) the application did not contain a request (however described) for the Commissioner to decide under section 48-85 of that Act, as a date of effect of approval of the group, a date occurring before the date of that commencement; and


(c) the Commissioner did not approve the group as a GST group, and did not refuse the application, before that commencement;

then, on the date of effect specified in the application:


(d) the group is taken to be formed, and its formation is taken to have been notified to the Commissioner, in accordance with section 48-5 of that Act as amended; and


(e) the entities that jointly applied for that approval are taken to be the members of the group; and


(f) the entity that was nominated in the application to be the representative member of the group is taken to be the representative member of the group.


(4) If:


(a) before the commencement of this item [28 June 2010], 2 or more entities applied, in accordance with section 48-5 of the A New Tax System (Goods and Services Tax) Act 1999, for approval of a GST group; and


(b) the application contained a request (however described) for the Commissioner to decide under section 48-85 of that Act, as a date of effect of approval of the group, a date occurring before the date of that commencement; and


(c) the Commissioner did not approve the group as a GST group, and did not refuse the application, before that commencement;

then:


(d) an application is taken to have been made to the Commissioner, under section 48-71 of that Act as amended, for the Commissioner to approve that date of effect as the day on which the formation of the GST group took effect; and


(e) if the Commissioner decides, under that section as so amended, to approve that day or another day - then, on that day or on that other day:


(i) the group is taken to have been formed, and its formation is taken to have been notified to the Commissioner, in accordance with section 48-5 of that Act as so amended; and

(ii) the entities that jointly applied for approval of the group are taken to be the members of the group; and

(iii) the entity that was nominated, in the application for approval of the group, to be the representative member of the group is taken to be the representative member of the group.

Changes to membership etc. of GST groups applied for, but not approved, before commencement


(5) If:


(a) before the commencement of this item [28 June 2010], the representative member of a GST group applied, in accordance with section 48-70 of the A New Tax System (Goods and Services Tax) Act 1999, for the Commissioner to:


(i) approve another entity as an additional member of the group; or

(ii) revoke the approval of one of the members of the group as a member of the group; or

(iii) approve another member of the group to replace the representative member of the group; and


(b) the application did not contain a request (however described) for the Commissioner to decide under section 48-85 of that Act, as a date of effect of the approval or revocation, a date occurring before the date of that commencement; and


(c) the Commissioner:


(i) did not give the approval, or revoke the approval, as requested in the application; and

(ii) did not refuse the application;
before that commencement;

then, on and after that commencement, the group is taken to continue in existence as if:


(d) the Commissioner has been notified, in accordance with section 48-70 of that Act as amended, that the corresponding action referred to in paragraph 48-70(1)(a), (b) or (c) of that Act as so amended has been taken; and


(e) the action took effect on the date of effect specified in the application.


(6) If:


(a) before the commencement of this item [28 June 2010], the representative member of a GST group applied, in accordance with section 48-70 of the A New Tax System (Goods and Services Tax) Act 1999, for the Commissioner to:


(i) approve another entity as an additional member of the group; or

(ii) revoke the approval of one of the members of the group as a member of the group; or

(iii) approve another member of the group to replace the representative member of the group; and


(b) the application contained a request (however described) for the Commissioner to decide under section 48-85 of that Act, as a date of effect of the approval or revocation, a date occurring before the date of that commencement; and


(c) the Commissioner:


(i) did not give the approval, or revoke the approval, as requested in the application; and

(ii) did not refuse the application;
before that commencement;

then:


(d) an application is taken to have been made to the Commissioner, under section 48-71 of that Act as amended, for the Commissioner to approve that date of effect as the day on which the approval or revocation took effect; and


(e) if the Commissioner decides, under that section as so amended, to approve that day or another day - then, on that day or on that other day, the group is taken to continue in existence as if:


(i) the Commissioner has been notified, in accordance with section 48-70 of that Act as so amended, that the corresponding action referred to in paragraph 48-70(1)(a), (b) or (c) of that Act as so amended has been taken; and

(ii) the action took effect on that day.

Revocation of approval of GST groups applied for, but revocation not approved, before commencement


(7) If:


(a) before the commencement of this item [28 June 2010], the representative member of a GST group applied, in accordance with section 48-75 of the A New Tax System (Goods and Services Tax) Act 1999, for the Commissioner to revoke the approval of the group as a GST group; and


(b) the application did not contain a request (however described) for the Commissioner to decide under section 48-85 of that Act, as a date of effect of the revocation, a date occurring before the date of that commencement; and


(c) the Commissioner did not revoke the approval as requested in the application, and did not refuse the application, before that commencement;

then, on the date of effect specified in the application, the group is taken to be dissolved as if the Commissioner has been notified, in accordance with section 48-70 of that Act as amended, that the action referred to in paragraph 48-70(1)(d) of that Act as so amended has been taken.


(8) If:


(a) before the commencement of this item [28 June 2010], the representative member of a GST group applied, in accordance with section 48-75 of the A New Tax System (Goods and Services Tax) Act 1999, for the Commissioner to revoke the approval of the group as a GST group; and


(b) the application contained a request (however described) for the Commissioner to decide under section 48-85 of that Act, as a date of effect of the revocation, a date occurring before the date of that commencement; and


(c) the Commissioner did not revoke the approval as requested in the application, and did not refuse the application, before that commencement;

then:


(d) an application is taken to have been made to the Commissioner, under section 48-71 of that Act as amended, for the Commissioner to approve that date of effect as the day on which the revocation took effect; and


(e) if the Commissioner decides, under that section as so amended, to approve that day or another day - then, on that day or on that other day, the group is taken to be dissolved as if:


(i) the Commissioner has been notified, in accordance with section 48-70 of that Act as amended, that the action referred to in paragraph 48-70(1)(d) of that Act as so amended has been taken; and

(ii) the action took effect on that day.

Subdivision 48-A - Formation and membership of GST groups    View history reference

48-15  Relationship of companies and non-companies in a GST group  

 View history reference

(1)  

A *company that is a member of a *GST group, or a proposed GST group, satisfies this section if:


(a) a *partnership, trust or individual that is a member of the GST group or proposed GST group would, if it were another company, have *at least a 90% stake in that company; or


(b) the company has only one member, and that member:


(i) is a partner in a partnership that is a member of the GST group or proposed GST group; or

(ii) is an individual that is a member of the GST group or proposed GST group; or

(iii) is a *family member of that partner or individual; or


(c) the company has more than one member, each of whom is:


(i) a partner in the same partnership that is a member of the GST group or proposed GST group; or

(ii) a family member of any such partner;
and one of the following applies:

(iii) at least 2 of the partners are members of the company;

(iv) one of the partners is a member of the company, and at least one other member of the company is a family member of a different partner;

(v) none of the partners is a member of the company, and the members of the company are not all family members of the same partner and no other partner; or


(d) the company has more than one member, each of whom is:


(i) an individual who is a member of the GST group or proposed GST group; or

(ii) a family member of that individual; or


(e) a trust is a member of the GST group or proposed GST group, and distributions of income or capital of the trust are not made except to an entity that is:

(i) the company; or

(ii) any other company that is a member of the GST group or proposed GST group; or

(iia) a member of, or a family member of a member of, any company referred to in subparagraph (i) or (ii) that is a company to which subsection (1A) applies; or

(iii) an *endorsed charity or a *gift-deductible entity.
 View history reference

(1AA)  

(Repealed by No 169 of 2012)

(1A)  

This subsection applies to a company if:


(a) the company has only one member; or


(b) the company has more than one member, and:


(i) at least 2 of the members are beneficiaries of the trust in question (either directly, or indirectly through one or more interposed trusts); or

(ii) one of the members is such a beneficiary, and at least one other such beneficiary is a *family member of a different member of the company; or

(iii) none of the members is such a beneficiary, and those family members (of the members of the company) who are such beneficiaries are not all family members of the same member of the company and no other member.

(2)  

A person is a family member of an individual if the individual's family, within the meaning of section 272-95 of Schedule 2F to the *ITAA 1936, includes that person. There are no family members of an entity that is not an individual.


 



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