Wine Equalisation Tax Ruling

WETR 2009/2

Wine equalisation tax: operation of the producer rebate for other than New Zealand participants

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What this Ruling is about

1. The A New Tax System (Wine Equalisation Tax) Act 1999 (WET Act) deals with a tax on sales, importations and certain other dealings with wine which take place on or after 1 July 2000. The tax on wine is referred to in this Ruling as the wine tax although it is also known as the wine equalisation tax or WET.

2. The WET Act provides for a producer rebate in the form of a wine tax credit from 1 October 2004. This Ruling explains how the wine tax producer rebate operates for producers of wine other than New Zealand participants.^[1] This Ruling also explains eligibility to claim the rebate, how the rebate is calculated and when and how a claim for the rebate may be made.

3. Unless otherwise stated, all legislative references in this Ruling are to the WET Act and all references to the WET Regulations are to the A New Tax System (Wine Equalisation Tax) Regulations 2000.

Date of effect

4. This Ruling explains the Commissioner's view of the law as it applies both before and after its date of issue. You can rely upon this Ruling on and from its date of issue for the purposes of section 105-60 of Schedule 1 to the Taxation Administration Act 1953 (TAA).

5. If this Ruling conflicts with a previous private ruling that you have obtained or a previous public ruling, this Ruling prevails. However, if you have relied on a previous ruling, you will be protected in respect of what you have done up to the date of issue of this Ruling. This means that if you have underpaid an amount of WET, you will not be liable for the shortfall prior to the date of issue of the later ruling. Similarly, you will not be liable to repay an amount overpaid by the Commissioner as a refund.

Background

How does the wine tax work?

6. The broad aim of the WET Act is to impose wine tax on dealings with wine in Australia. The wine tax is applied to both Australian produced wine and imported wine. Dealings which attract wine tax are referred to as assessable dealings and can include selling wine, using wine, or making a local entry of imported wine at the customs barrier.

7. The wine tax is normally a once only tax designed to fall on the last wholesale sale. Where wine is sold by wholesale to a retailer for example, to a distributor, bottle shop, hotel or restaurant, wine tax is calculated on the selling price of the wine excluding wine tax and Australian goods and services tax (GST).^[2] If wine is not the subject of a wholesale sale, for example, it is sold by retail by the manufacturer at the cellar door or used by the manufacturer for tastings or promotional activities, alternative values are used to calculate the tax payable.

8. Normally for retailers (including bottle shops, hotels, restaurants and cafes) wine tax is included in the price for which the retailers purchase the wine. Most retailers are not entitled to a credit for wine tax included in the purchase price of the wine. The system is designed so that wine tax is built into the retailer's cost base and is then effectively passed on in the price of the wine to the end consumer.

9. Refer to Wine Equalisation Tax Ruling WETR 2009/1 Wine equalisation tax: the operation of the wine equalisation tax system for a detailed discussion on how the wine tax works.

Producer rebates

10. The WET Act provides a rebate of wine tax for producers of rebatable wine that are registered or required to be registered for GST in Australia. From 1 October 2004 to 30 June 2006, the maximum amount of rebate that an Australian producer (or group of associated producers)^[3] could claim in a full financial year was A$290,000, effectively offsetting wine tax on A$1 million (wholesale value) of eligible sales and applications to own use per annum.

11. From 1 July 2006, the maximum amount of rebate an Australian producer (or group of associated producers) can claim in a full financial year is A$500,000, which equates to approximately A$1.7 million (wholesale value) of eligible sales and applications to own use per annum.^[4]

12. The amount of the producer rebate is:

(a)

for wholesale sales,^[5] 29% of the price for which the wine is sold^[6] (excluding wine tax and GST).

(b)

for retail sales^[7] and AOUs,^[8] 29% of the notional wholesale selling price of the wine.^[9]

13. From 1 July 2005, access to the producer rebate was extended to eligible New Zealand wine producers that have their wine exported to Australia. The operation of the producer rebate for New Zealand participants is described in Wine Equalisation Tax Ruling WETR 2006/1 Wine equalisation tax: the operation of the producer rebate for producers of wine in New Zealand.

Previous Rulings

14. This Ruling replaces paragraphs 121 to 135 inclusive of Wine Equalisation Tax Ruling WETR 2004/1 Wine equalisation tax: the operation of the wine equalisation tax system. WETR 2004/1 was withdrawn on 24 June 2009. Pursuant to section 105-60 of the TAA, you will be protected in respect of what you have done up until the date of the withdrawal of WETR 2004/1 to the extent that you have relied on paragraphs 121 to 135 of WETR 2004/1 to ascertain your entitlement to the producer rebate.

Ruling and Explanation

Rebatable wine

15. Producers of rebatable wine may be entitled to a producer rebate.^[10]

16. Rebatable wine^[11] means grape wine, grape wine products, fruit or vegetable wine, cider or perry, mead or sake as defined in the WET Act.^[12]

17. The definitions and examples of these various products are set out in Appendix A of this Ruling and are discussed in paragraphs 8 to 43 of WETR 2009/1.

Producer of rebatable wine

18. An entity is entitled to a producer rebate for rebatable wine if it is the producer of the wine.^[13] Producer (of rebatable wine) is defined in section 33-1 and means an entity that:

manufactures the wine or supplies to another entity the grapes, other fruit, vegetable or honey from which the wine is manufactured.^[14]

19. There are two elements to the definition of producer in section 33-1. Firstly, in broad terms, an entity is the producer of rebatable wine if it manufactures the wine from the base constituents (for example grapes for grape wine, fruit or vegetables for fruit or vegetable wine, honey for mead or rice for sake or grape wine for grape wine products).

20. Secondly an entity (the first entity) is also the producer of rebatable wine if it provides another entity with the base constituents (that is grapes, fruit or vegetables or honey) and that other entity manufactures the wine on behalf of the first entity.

21. Although rice is not specifically mentioned in the definition of producer of rebatable wine, the Commissioner considers rice falls within the meaning of fruit or vegetable.^[15] Therefore, an entity that provides rice to another entity to make sake on its behalf will also be the producer of that rebatable wine.

22. The meaning of producer as defined in section 33-1 refers to an entity that supplies the raw materials such as fruit or vegetables from which wine is manufactured. As specified in section 33-1 the term 'supply' in the WET Act takes its meaning from the definition of supply in A New Tax System (Goods and Services Tax) Act 1999 (GST Act).

23. Although the term 'supply' is defined very broadly in the GST Act, in the context of the WET Act, an entity that sells grapes, fruit or vegetables or honey to manufacturers of wine are not producers of rebatable wine and are not entitled to a producer rebate. This is because in order to be entitled to a producer rebate an entity not only has to be the producer of rebatable wine but also:

•

must be liable for wine tax for a taxable dealing in the wine during the financial year; or

•

would have been liable for wine tax for a dealing in the wine during the financial year had the purchaser not quoted for the sale at or before the time of sale.

24. The sale of fruit or vegetables to a manufacturer of wine is not a taxable dealing in wine. Therefore an entity that sells the grapes, fruit or vegetables or honey to a wine manufacturer will not be entitled to a producer rebate.

25. In the context of section 33-1 and particularly the meaning of producer in that section the reference to an entity that supplies grapes, fruit or vegetables or honey from which wine is manufactured to another entity is referring to the situation where an entity provides the grapes, fruit or vegetables or honey to that other entity to make wine on their behalf.

Manufacture of wine

26. Manufacture is defined^[16] in the WET Act to include:

(a)

production;

(b)

combining parts or ingredients so as to form an article or substance that is commercially distinct from the parts or ingredients; and

(c)

applying treatment to foodstuffs as a process in preparing them for human consumption.

27. The definition of manufacture is an inclusive definition and extends the ordinary meaning of manufacture. In commenting on the similarly inclusive definition of manufacture in section 3 of the Sales Tax Assessment Act (No. 1) 1930, Murray J stated in Deputy Commissioner of Taxation v. Cohn's Industries Pty Ltd:^[17]

...I am quite unable to see anything which should lead me to the view that the word 'includes' is intended to be, insofar as it is followed by para. (b) exhaustive. It seems to me that para. (a), (b) and (c) of the definition can all be fairly read as intended to extend the ordinary meaning of the term 'manufacture'.^[18]

28. The definition of manufacture in the WET Act also uses identical words to the first three paragraphs of the definition of manufacture in the sales tax legislation. The meaning of manufacture has been considered in a number of sales tax cases. The Commissioner considers that the cases that examined that part of the sales tax definition as replicated in the WET Act apply equally to wine tax.

29. In McNichol and Anor v. Pinch^[19] Darling J stated at page 361:

...the essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made.^[20]

30. This statement was quoted with approval in Federal Commissioner of Taxation v. Jack Zinader Pty Ltd.^[21] In that case it was held that articles which resulted from the remodelling of fur garments were goods manufactured and sold within the meaning of the Sales Tax Assessment Act (No. 1) 1930-1942 and were liable to tax under that Act. In his judgment Dixon J stated:

The argument is answered by the consideration that, according to the conclusion already stated, the process produces a different article. When that consideration is added to the fact that the actual work done and the procedure employed in producing the new, that is the distinct, article is characteristically a manufacturing process, it must follow that the 'goods' are 'manufactured' within the ordinary meaning of that term.^[22]

31. Whether or not the processes carried out by a particular entity constitute manufacture will be a matter of fact and degree. An entity that makes, from the base constituents, for example grapes, fruit or vegetables, honey or rice, a beverage (this includes raw wine)^[23] that satisfies the meaning of wine in section 31-1 manufactures wine. However, an entity that purchases bottled wine or bulk wine for bottling does not manufacture that wine and is not eligible for the producer rebate in relation to that wine.

32. The first limb of the extended meaning of manufacture in section 33-1 refers to production.

33. The Australian Oxford Dictionary, 2004, Second Edition, Oxford University Press, Melbourne relevantly defines 'production' as:

1.

the act or instance of producing; the process of being produced.

34. Produce is relevantly defined as:

2.

manufacture (goods) from raw materials etc.

35. The meaning of production in the definition of manufacture was considered by the High Court in Federal Commissioner of Taxation v. Riley.^[24] Rich, Dixon and McTiernan JJ in their joint judgement stated:

By the statutory definition, manufacture includes production. This description is very wide. It appears to cover all operations conducted for the purpose of bringing tangible things into existence for sale.^[25]

36. Some winemakers purchase raw wine (wine that has undergone primary fermentation) and finish the wine by stabilising, fining and filtering, secondary fermentation (malolactic fermentation) if needed, maturation and racking to clarify the wine by removing unwanted solids. The Commissioner's view is that these are processes in the production of wine and that entities that carry out all these processes manufacture wine.

37. An entity that carries out only one or some of the above mentioned processes may not manufacture wine. Whether a particular process, or combination of processes that an entity conducts in relation to wine constitutes production, and therefore manufacture, requires examination of the relevant facts and circumstances. However filtering wine as part of the bottling process on its own would not be the manufacture of the wine.

38. The second limb of the extended meaning of manufacture in section 33-1 refers to combining parts or ingredients so as to form an article or substance that is commercially distinct from the parts or ingredients.

39. The mixing together of two or more different wines (the inputs) to produce another wine, for example a blended wine satisfies the second limb of the definition of manufacture. The person who mixes the inputs together does not have to have produced the inputs.

40. In the wine industry it is a normal part of winemaking to blend wines. In some cases the wines that are blended may be different varieties of wine, for example cabernet sauvignon and merlot. In other cases the blended wines may be the same variety of wine but with each individual blended wine having characteristics that when combined with the characteristics of the other blended wine results in a wine with its own commercially distinct characteristics. What is commercially distinct will often be a matter of fact and degree. The Commissioner considers that an entity that combines different wines to produce wine with its own characteristics, distinct from the individual blended wines, manufactures wine.

Example 1 - manufacture by combining two or more different wines

41. Feekle Wines Pty Ltd purchases bulk Cabernet Sauvignon wine from Winemaker A and bulk Merlot wine from Winemaker B. Feekle Wines blends the wines to produce their own distinctive Cabernet Merlot wine.

42. Feekle Wines Pty Ltd manufactures the Cabernet Merlot wine.

Example 2 - manufacture by combining two or more different wines

43. Feekle Wines Pty Ltd purchases bulk 2005 port style wine from Winemaker A and bulk 2006 port from Winemaker B. Feekle Wines believes that the combination of these two wines will produce a port style wine that will have the characteristics they want. Feekle Wines combines the 2005 wine with the 2006 wine to produce their own port style wine.

44. Feekle Wines Pty Ltd manufactures their port style wine.

45. The mixing of wine with other substances to produce another wine, for example a beverage that meets the requirements of a grape wine product, will also meet the second limb of the definition of manufacture.

Example 3 - manufacturing a grape wine product

46. Good Drinks Pty Ltd makes a beverage that meets the definition of grape wine product. The beverage consists of 85% white wine, 10% lemonade and 5% flavours. Good Drinks Pty Ltd purchases the white wine from other wine makers and combines the ingredients to make the grape wine product.

47. Good Drinks Pty Ltd is the manufacturer of the grape wine product.

48. The Commissioner also considers that an entity manufactures wine when it engages a contract wine maker who makes the wine on behalf of the entity, provided that the grapes, other fruit, vegetable or honey and the resulting wine remains the property of the entity. The owner does not physically manufacture the wine, however the owner provides the requisite materials (the grapes, other fruit, vegetable or honey) and specifications for wine to be manufactured, and the engagement of the contract winemaker is akin to engaging an employee to undertake the physical tasks of manufacture.

49. Although the entity that owns the wine does not carry out any of the physical processes of manufacture personally, by causing the wine to be manufactured on their behalf, the owner has undertaken the manufacture of the wine. In these circumstances the owner of the wine is the producer of that rebatable wine for the purposes of Division 19.

50. Having regard to the views expressed in paragraphs 48 and 49 of this Ruling the Commissioner considers that an owner of grape wine that provides to a contract winemaker the grape wine and other materials and specifications to make a beverage that meets the definition of grape wine product, manufactures the grape wine product as defined in section 33-1. Therefore the owner of the grape wine is the producer of that rebatable wine for the purposes Division 19.

51. The third limb of the extended meaning of manufacture in section 33-1 refers to applying treatment to foodstuffs as a process in preparing them for human consumption.

52. This third limb of the extended meaning of manufacture in section 33-1 is not relevant in determining if an entity is a producer of rebatable wine. This is because wine is not a foodstuff.

53. While 'food' is defined in the WET Act by reference to the GST Act, 'foodstuffs' is not defined in the WET Act. Therefore the term 'foodstuffs' takes its ordinary meaning. The Australian Oxford Dictionary, 2004, Second Edition, Oxford University Press, Melbourne defines foodstuff as:

any substance suitable as food.

54. The ordinary meaning of 'foodstuff', as set out in paragraph 53 of this Ruling, is defined with reference to 'food'. Food, as it is ordinarily understood does not include drink.^[26] Therefore the ordinary meaning of 'foodstuff' does not extend to drinks or beverages. Consequently wine is not a foodstuff for the purposes of the third limb of the extended definition of manufacture in section 33-1.

55. The third limb of the extended definition of manufacture in section 33-1 may be relevant in determining if a person is entitled to quote^[27] for an assessable dealing because they will use the wine in manufacture or other treatments or processes which may not relate to, or result in other wine.^[28] For example sherry may be used in the manufacture of cakes.

Eligible sales and applications to own use

56. To be eligible to claim a producer rebate the producer must either:

•

be liable for wine tax on taxable dealings during the financial year; or

•

sell wine in a dealing that would have incurred wine tax if the purchaser had not quoted at or before the time of the sale.^[29]

Example 4 - incur wine tax

57. Tim's Tasty Wines Pty Ltd makes chardonnay. Tim's Tasty Wines is registered for GST and sells the chardonnay via cellar door sales.

58. Tim's Tasty Wines incurs wine tax on those sales and therefore satisfies the producer rebate requirements.

Example 5 - would have incurred wine tax

59. Winemaker A is the producer of Cabernet Sauvignon wine. Feekle Wines Pty Ltd purchases bulk Cabernet Sauvignon wine from Winemaker A. Winemaker A is registered for GST. Feekle Wines quotes for the purchase from Winemaker A.

60. Winemaker A would have incurred wine tax if Feekle Wines had not quoted and therefore Winemaker A satisfies the producer rebate requirements for this dealing.

Exceptions

61. An entity is not entitled to the producer rebate if:^[30]

•

the purchaser quotes for the sale and notifies the entity at or before the time of the sale that they intend to make a GST-free supply of the wine; or

•

the entity has claimed a wine tax credit,^[31] or a wine tax credit subsequently arises for the entity (other than a producer rebate), for the dealing with the wine.

62. The approved form for quoting^[32] has provision for the purchaser to notify a producer that the purchaser intends to make a GST-free supply of the wine. This is not the only way in which the purchaser can notify a producer that the purchaser intends to make a GST-free supply of the wine. It is sufficient that they provide the producer with the information necessary to conclude that they will make a GST-free supply. For example, exporting wine is a GST-free supply, therefore, if a purchaser provides the producer with information that the wine will be exported they have notified the producer that they intend to make a GST-free supply.

63. Where an entity purchases wine from a producer and they intend to make a GST-free supply of the wine, the purchaser commits an offence if they do not notify the producer of that intention either at or before the time of the purchase.^[33]

Amount of producer rebate

64. The amount of a producer rebate is calculated as follows:^[34]

•

for wholesale sales - 29% of the price (excluding wine tax and GST) for which the wine was sold; and

•

for retail sales and applications to own use - 29% of the notional wholesale selling price of the wine.

65. The maximum amount of producer rebate to which a producer is entitled for a financial year as from 1 July 2006 is $500,000. However, if the producer is an associated producer (refer to paragraph 66 of this Ruling) of one or more other producers for a financial year, the maximum amount of producer rebates to which those producers are entitled as a group for each financial year as from 1 July 2006 is $500,000.

Associated producer

66. A producer is an associated producer of another producer for a financial year if, at the end of the financial year:^[35]

•

they are 'connected with'^[36] each other. Generally they are 'connected with' each other if:

-

one controls the other;

-

both are controlled by the same third entity; or

-

one producer controls a second entity and the second entity controls the other producer,

•

one is under an obligation (formal or informal), or might reasonably be expected, to act in accordance with the directions of the other in relation to their financial affairs;

•

each of them is under an obligation (formal or informal),or might reasonably be expected to, act in accordance with the directions of the same third entity in relation to their financial affairs;

•

one is under an obligation (formal or informal), or might reasonably be expected, to act in accordance with the directions of a third producer and the third producer is under an obligation (formal or informal), or might reasonably be expected, to act in accordance with the directions of the second producer in relation to their financial affairs.

Claiming the producer rebate

67. The producer rebate is claimed in the activity statement for the tax period to which the wine tax on the dealing is attributed.^[37] However if the purchaser has quoted for a dealing at or before the time of the sale then it is the tax period in which WET would have been payable if the purchaser had not quoted. The producer rebate is claimed by adding the rebate to the total amount of wine tax credits claimed and entering this total amount against Label 1D (wine equalisation tax refundable).

68. Any subsidy payable by the States or Territories is claimable from the relevant State or Territory department or authority. It must not be claimed on the activity statement.

What happens if the producer rebate is over-claimed

69. If the amount of producer rebate that an entity claims exceeds the amount to which the entity is entitled for a financial year, the entity is liable to pay an amount equal to that excess.^[38] The amount payable is treated as if it is wine tax payable and is attributable to the last tax period of the financial year in which the excess claim was made.^[39]

70. If an entity is a member of a group of associated producers and the rebate claimed by the group for a financial year is more than the maximum amount of producer rebates to which the group is entitled for the financial year, each member of the group is jointly and severally liable to pay an amount equal to the excess.^[40] However, an entity will not be liable to pay an amount that exceeds the sum of the amounts of producer rebates that the entity claimed for the financial year.^[41]

Impact of volume rebates and discounts

71. If an entity has allowed volume rebates or discounts which effectively reduce the price for which the wine is sold (refer to paragraphs 118 to 122 of WETR 2009/1) the entity will need to adjust the amount of the producer rebate it has claimed for these sales.

72. Where the volume rebate or discount is allowed after the end of the financial year in which the rebatable sale was made it may result in the entity over-claiming the producer rebate for the financial year. If this is the case, any amount of producer rebate over-claimed should be included as wine tax payable in the final tax period of the financial year in which the rebatable sale was made. If the entity has already lodged its activity statement for the final tax period of the financial year in which the rebatable sale was made, the entity will need to revise this activity statement.

Detailed contents list

73. Below is a detailed contents list for this Ruling:

Commissioner of Taxation
24 June 2009

Appendix A

Rebatable Wines

Set out below are the definitions of products for the purposes of the WET Act. The definitions incorporate the requirements of the regulations set out in the WET Regulations. The wine tax applies to alcoholic products which satisfy the definitions and contain more than 1.15% by volume of ethyl alcohol. Some examples of products that satisfy the various definitions and products that do not are provided - the examples are only covered by the definitions where they meet the requirements in the column on the left. Alcoholic products containing more than 1.15% by volume of ethyl alcohol that are not covered by the wine equalisation tax are subject to the excise/duty regime.

WETR 2008/D2

References

ATO references:
NO 2008/7495

Previous Rulings/Determinations:
WETR 2004/1

Related Rulings/Determinations:

GSTR 1999/1
WETR 2002/1
WETR 2006/1
WETR 2009/1

Subject References:
assessable dealing
application to own use
export
manufacture
producer rebate
taxable value
wholesale sales
wine

Legislative References:
ANTS(WET)A 1999
ANTS(WET)A 1999 13-5(1)(c)
ANTS(WET)A 1999 17-10(1)
ANTS(WET)A 1999 Div 19
ANTS(WET)A 1999 19-5(1)
ANTS(WET)A 1999 19-10
ANTS(WET)A 1999 19-15
ANTS(WET)A 1999 19-15(1)(a)
ANTS(WET)A 1999 19-15(1)(b)
ANTS(WET)A 1999 19-15(2)
ANTS(WET)A 1999 19-15(3)
ANTS(WET)A 1999 19-20
ANTS(WET)A 1999 19-25(1)
ANTS(WET)A 1999 19-25(2)
ANTS(WET)A 1999 19-25(3)
ANTS(WET)A 1999 19-25(4)
ANTS(WET)A 1999 19-30
ANTS(WET)A 1999 21-15
ANTS(WET)A 1999 31-1
ANTS(WET)A 1999 31-2
ANTS(WET)A 1999 31-3
ANTS(WET)A 1999 31-4
ANTS(WET)A 1999 31-5
ANTS(WET)A 1999 31-6
ANTS(WET)A 1999 31-7
ANTS(WET)A 1999 33-1
ANTS(GST)A 1999
ANTS(WET)R 2000
ANTS(WET)R 2000 31-2.01
ANTS(WET)R 2000 31-4.01
ANTS(WET)R 2000 31-6.01
ITAA 1997 328-125
ITAA 1997 328-125(8)
Sales Tax Assessment Act (No. 1) 1930-1942
Sales Tax Assessment Act (No. 1) 1930 3
TAA 1953 Sch 1 105-60

Other References:
Australia New Zealand Food Standards Code
Australian Oxford Dictionary, 2004, 2nd Edition, Oxford University Press, Melbourne
Macquarie Dictionary, 2005, 4th Edition, The Macquarie Library Pty Ltd NSW