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The ATO has issued a Decision Impact Statement in relation to the High Court decision in Travelex Ltd v FCT [2010] HCA 33; 2010 ATC 20-214; 76 ATR 329. The case concerned the GST treatment of the supply of foreign bank notes by Travelex to a customer on the departures side of the Customs barrier at Sydney International Airport.

The High Court decided that the supply of the foreign banknotes was a GST-free supply on the basis that it was "a supply that is made in relation to rights" within the meaning of item 4(a) in the table in s 38-190(1) of the GST Act.

The Commissioner considers that the decision of the High Court means that the expression 'a supply that is made in relation to rights' in item 4 in the table in subsection 38-190(1) of the GST Act covers the supply of a thing (other than goods or real property) such as foreign currency where the thing supplied only has value because of rights that attach to it and those rights are transferred.

The Decision Impact Statement states as follows:

"As the High Court decision is different in this respect from the ATO view expressed in public ruling GSTR 2003/8 that a supply that is made in relation to rights only covers a supply that is the creation, grant, transfer, assignment, or surrender of a right, the Commissioner will review and revise that ruling to reflect the High Court's decision.

In GSTR 2003/8 the Commissioner expresses the view that the right must bind the parties in some way. The Commissioner proposes to maintain this view but this will be considered more fully in light of the comments of French CJ and Hayne J. when the ruling is amended.

The Commissioner considers that the judgement of the High Court does not support the view that a supply of services associated with a supply of rights would be a supply that is made in relation to rights under item 4 in the table in s 38-190(1). The Commissioner maintains the view that supplies of services associated with supplies of rights are not covered by item 4."


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