Precious Metal

An Australian GST provision effectively zero-rated a supply of “precious metal” (relevantly defined as gold, in an investment form, of at least 99.5% fineness) if it was the “first supply of that precious metal after its refining by … the supplier”. The Australian Commissioner argued that an Australian company did not qualify as refining gold “scrap” purchased by it (which was generally of at least 99.99% fineness, but nevertheless was scrap gold because it was not in investment form) because its mooted refining was of gold that thus already exceeded the statutory threshold of 99.95% fineness.

Before rejecting this position, the Full Court first stated (at para. 28):

The expression “investment form”, which is used in the definition of “precious metal”, is not defined in the GST Act. As noted at [30] of the Tribunal’s reasons, the Commissioner articulated a definition in GSTR 2003/10: Goods and Services Tax: What is ‘precious metal’ for the purposes of GST? That document stated at [29]:

… for gold, silver or platinum to be in an investment form for the purposes of the GST Act, it must be in a form that:

• is capable of being traded on the international bullion market, that is, it must be a bar, wafer or coin;
• bears a mark or characteristic accepted as identifying and guaranteeing its fineness and quality; and
• is usually traded at a price that is determined by reference to the spot price of the metal it contains.

It was common ground before the Tribunal that the above view of what constitutes “investment form” was generally accepted; the parties also agreed that, absent a recognised mark and indication of fineness, a gold bar will not be “precious metal” irrespective of its degree of metallic purity … .

The registrant, a jeweller, purchased gold bars with 99% purity on an exempt basis, and then cut the bars (sometimes with further modeling or rolling) into smaller rectilinear pieces, which it then sold to customers without charging GST. After noting the reliance by the registrant on the ordinary dictionary meanings of "bar," "ingot" and "wafer," Margenson J found that these terms should be given their technical rather than ordinary meaning. Accordingly, the pieces were required to have a readily ascertainable value, in order that they generally were readily transferable. Because the pieces instead had been tranformed out of standard deliverable form, this requirement was not satisfied as it was obvious that no bank or gold dealer would accept them for delivery without first having them assayed and weighed. Accordingly, the pieces did not qualify as "precious metals" as defined, and their sale was taxable.