JMB Beverages Pty Ltd v Commissioner of Taxation [2009] FCA 668

FEDERAL COURT OF AUSTRALIA

JMB Beverages Pty Ltd v Commissioner of Taxation [2009] FCA 668

TAXATION – Goods and Services Tax – Division 38 of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act): GST-free supplies – Subdivision 38-A: Food- Schedule 2: Beverages that are GST-free – Item 11: non-alcoholic carbonated beverages if they consist wholly of juices of fruits or vegetables – Item 12: non-alcoholic non-carbonated beverages if they consist of at least 90% by volume of juices of fruit or vegetables – meaning of 'juices of fruits' – ordinary meaning or trade meaning of a sub-set phrase – meaning of 'consist of'- contrast to 'contained'- whether de-alcoholised wine at supply point is a non-alcoholic beverage that consists of the requisite measure of juices of fruits for it to be GST-free.

HELD: de-alcoholised wine is not GST free.

Taxation Administration Act 1953 (Cth) Pt IVC, Sch 1 s105-10 Food Standards Australia New Zealand Act 1991 (Cth) Sales Tax Exemptions Act 1935 (Cth) Schedule- Item 36(3) Sales Tax (Exemptions and Classifications) Act 1935 (Cth) Schedule 1- Item 36(3) A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 9-30(1)(a), 17-5(1), 38-2, 38-4(1)(c), 38-4(2), Schedule 1, Schedule 2 cl 1- Items 2, 5, 10, 11, 12 Customs Tariff Act 1995 (Cth) Schedule 3 Acts Interpretation Act 1901 (Cth) s 15AA A New Tax System (Wine Equalisation Tax) 1999 (Cth) s 31-1

Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 referred to Bristol-Myers Co Pty Ltd v Federal Commissioner of Taxation (1990) 23 FCR 126 referred to Cascade Brewery Co Pty Ltd v Federal Commissioner of Taxation (2006) 153 FCR 11 considered CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 referred to Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 referred to Commissioner of Taxation v Bargwanna [2009] FCA 620 considered Deputy Commissioner of Taxation v Pepsi-Cola Metropolitan Bottling Co Inc (1967) 10 FLR 101considered Federal Commissioner of Taxation v F.H. Faulding & Co Ltd (1950) 83 CLR 594 considered H P Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553 considered Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 considered Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 considered P & N Beverages Australia Pty Ltd v Commissioner of Taxation (2007) 210 FLR 202applied The Wik Peoples v The State of Queensland (1996) 187 CLR 1 referred to Zeroz Pty Ltd v Deputy Commissioner of Taxation (1997) 35 ATR 349 referred to