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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TAX LAWS AMENDMENT (IMPROVEMENTS TO SELF ASSESSMENT)
BILL (No. 2) 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Treasurer, the Hon Peter Costello MP)
Table of contents
Glossary ...................................................................................... 1
General outline and financial impact....................................................... 3
Chapter 1 The Report on Aspects of Income
Tax Self Assessment .................................................... 7
Chapter 2 Amendment of assessments ........................................11
Chapter 3 ATO advice ..................................................................31
Chapter 4 Regulation impact statement........................................67
Index .....................................................................................77
Glossary
The following abbreviations and acronyms are used throughout this
explanatory memorandum.
Abbreviation Definition
ANTS Tax Reform: not a new tax, a new tax
system
ATO Australian Taxation Office
Commissioner Commissioner of Taxation
ITAA 1936 Income Tax Assessment Act 1936
ITAA 1997 Income Tax Assessment Act 1997
SPOR shorter period of review
STS simplified tax system
TAA 1953 Taxation Administration Act 1953
the Report Report on Aspects of Income Tax
Self Assessment
the Review Review on Aspects of Income Tax
Self Assessment
1
General outline and financial impact
Amendment of assessments
Schedule 1 to this Bill amends the Income Tax Assessment Act 1936 to
make a number of changes to reduce the periods during which the
Commissioner of Taxation (Commissioner) may amend income tax
assessments in a range of circumstances.
The period in which the Commissioner can amend an assessment for most
individuals or very small business taxpayers will be standardised at
2 years. A 4-year amendment period will apply for taxpayers with more
complex affairs.
Date of effect: These amendments will apply to amendments of
assessments for the 2004-05 income year and later years.
Proposal announced: These amendments were announced in the
Treasurer's Press Release No. 106 of 16 December 2004 as part of the
Government's response to the Report on Aspects of Income Tax
Self Assessment.
Financial impact: The revenue impact of the amendments is expected
to be:
2005-06 2006-07 2007-08 2008-09
Nil Nil $11 million $17 million
Compliance cost impact: This measure will bring earlier finality to the
tax affairs of a large number of taxpayers.
ATO advice
Schedule 2 to this Bill amends the Income Tax Assessment Act 1936 and
the Taxation Administration Act 1953 to implement a new framework for
Australian Taxation Office (ATO) advice.
This Bill replaces the existing provisions on rulings entirely. It expands
the circumstances in which the Commissioner can give legally binding
advice (a ruling) to cover matters of administration, collection, and
ultimate conclusions of fact, and establishes a procedure for taxpayers to
obtain private rulings about valuation issues.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
This Bill also ensures that taxpayers will obtain protection from interest
charges (similar to current penalty protection) where they rely on ATO
advice that is not a ruling or administrative practice.
Date of effect: These amendments will apply from 1 January 2006 or
Royal Assent, whichever is the later.
Proposal announced: These amendments were announced in the
Treasurer's Press Release No. 106 of 16 December 2004 as part of
the Government's response to the Report on Aspects of Income Tax
Self Assessment.
Financial impact: The revenue impact for the measure is unquantifiable,
but expected to be minimal.
Compliance cost impact: This measure will have a positive affect on
the responsiveness and confidence in the reliability of ATO advice.
Taxpayers are not expected to incur additional compliance costs as a
result of the proposed changes, except in circumstances where they apply
for private rulings involving a valuation issue.
Summary of regulation impact statement
Regulation impact on business
Impact: The amendments to the existing law reduce the periods allowed
for the Australian Taxation Office (ATO) to amend a taxpayer's liability
in a wide range of situations and provide a better framework for the
provision of ATO advice by introducing ways to make that advice more
accessible, timely, and binding in a wider range of cases.
Main points:
· This measure introduces a standard amendment period of
2 years for taxpayers with simple affairs, including most
individuals and very small business taxpayers. The amendment
period for other taxpayers, such as taxpayers with complex
affairs and large businesses, generally remains at 4 years. The
amendment period for loss and nil liability returns will be made
the same as for a return incurring a positive liability.
4
General outline and financial impact
· The amendment period for assessments where a taxpayer has
sought a scheme benefit in relation to income tax (including
where Part IVA of the Income Tax Assessment Act 1936 is
invoked) will be 4 years.
· The unlimited amendment period for cases of fraud or evasion
will continue to apply.
· The new law will provide improved ways for taxpayers to find
out the Commissioner of Taxation's (Commissioner's) view on
how certain laws apply, so that the risks of uncertainty when
self assessing, or working out their tax obligations or
entitlements, are reduced. This is achieved by:
- making rulings available to many taxpayers on a wide
range of matters;
- ensuring that the Commissioner provides rulings in a
timely manner;
- enabling the Commissioner to obtain, and make rulings
based on, relevant information;
- protecting taxpayers from increases in tax and from
penalties and interest where they rely on rulings;
- limiting the ways the Commissioner can alter rulings to
a taxpayer's detriment; and
- giving protection from interest charges where a taxpayer
relies on other advice from the Commissioner, or on the
Commissioner's general administrative practice.
5
Chapter 1
The Report on Aspects of Income Tax
Self Assessment
Outline of chapter
1.1 This chapter summarises the self assessment system for income
tax and explains the background to the Report on Aspects of Income Tax
Self Assessment (the Report) that recommended the changes proposed in
this Bill.
The self assessment system
1.2 Since 1986-87, income tax in Australia has operated under a
self assessment system. Before self assessment, taxpayers were obliged
by law to make a `full and true disclosure' of the relevant information to
the Australian Taxation Office (ATO) to permit the ATO to apply the law
to their circumstances -- in other words, assessment of taxpayers'
liabilities was performed by the ATO.
1.3 Under the self assessment system, taxpayers' returns are
generally accepted at face value, subject to post-assessment audit or other
verification by the ATO. Under this system, while the ATO issues notices
of assessment to create the formal obligation to pay tax, a taxpayer's
statement in their return is taken to represent their view about how the law
applies to their circumstances.
1.4 In 1989-90, the returns of companies and superannuation funds
became subject to a system of full self assessment, under which the
taxpayer calculates their liability and pays their tax when lodging their
return. The ATO does not issue notices of assessment to these taxpayers.
1.5 For both individuals and full self assessment taxpayers, the ATO
may review and amend an assessment within a prescribed period.
1.6 The self assessment system was modified in 1992 by the
Taxation Laws Amendment (Self Assessment) Act 1992 to include a
system to permit the ATO to issue binding public and private rulings, a
regime of penalties for understatements of income tax liability, an
extension of the period within which a taxpayer could object against an
assessment, and a system of interest for underpayments and late payments
of income tax.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
The Review of Aspects of Income Tax Self Assessment
1.7 On 24 November 2003, the Treasurer announced
the Review of Aspects of Income Tax Self Assessment (the Review) in
Press Release No. 98. The purpose of the Review, which was conducted
by the Treasury, was to determine whether the self assessment
arrangements struck the right balance between protecting the rights of
individual taxpayers and protecting the revenue for the benefit of the
Australian community.
1.8 In March 2004, the Government released a discussion paper that
examined this balance in light of a number of aspects of Australia's
income tax self assessment system and comparable international
arrangements. In response to the discussion paper, the Review received
over 30 formal submissions, plus numerous phone calls, emails and
background papers from interested parties, and held face to face
consultation with taxpayer representatives, professional bodies and other
government agencies.
1.9 On 16 December 2004, the Treasurer announced the
Government's response to the Report and released the Report to the public
in Press Release No. 106. The Report identified a number of refinements
to the self assessment system to reduce uncertainty for taxpayers, while
preserving the ATO's capacity to collect legitimate income tax liabilities.
The Treasurer announced that the Government would adopt the
30 legislative recommendations made in the Report, and that the
Commissioner of Taxation had advised the Treasurer that the ATO would
implement the administrative recommendations as soon as practicable.
Implementing the legislative recommendations in the Report
1.10 This Bill implements the second part of the Government's
legislative response to the Report, by amending the existing law to reduce
the periods allowed for the ATO to amend a taxpayer's liability in a wide
range of situations and establishes a new regime for ATO advice.
1.11 The amendment periods for most taxpayers will be shortened
from 4 to 2 years, with the exception of large business taxpayers and
taxpayers with complex tax affairs. The period for amendments relying
on anti-avoidance provisions will be reduced from 6 to 4 years.
8
The Report on Aspects of Income Tax Self Assessment
1.12 The advice and rulings provisions expand the scope for ATO
advice, expand the number of products by which the ATO can be bound
and give taxpayers more protection from primary tax, interest and
penalties than the existing regime.
1.13 In its response to the Report, the Government also announced
that improvements would be made to mitigate the interest and penalty
consequences of taxpayer errors arising from uncertainties in the self
assessment system. The amendments to implement these improvements
were contained in the Tax Laws Amendment (Improvements to Self
Assessment) Act (No. 1) 2005, which received Royal Assent on
29 June 2005.
9
Chapter 2
Amendment of assessments
Outline of chapter
2.1 Schedule 1 to this Bill amends the Income Tax Assessment
Act 1936 (ITAA 1936) to make a number of changes to reduce the periods
during which the Commissioner of Taxation (Commissioner) may amend
income tax assessments in a range of circumstances. The period in which
the Commissioner can amend an assessment for most individuals or very
small business taxpayers will be standardised at 2 years. A 4-year period
of review will apply for taxpayers with more complex affairs.
2.2 The period for review and amendment of assessments involving
arrangements with a dominant tax avoidance purpose will be 4 years.
This will reduce the amendment period where the general anti-avoidance
provision (Part IVA) applies from 6 years and also apply to other cases
with a dominant tax avoidance purpose.
2.3 Where a taxpayer returns a nil tax liability for an income year,
the taxpayer will now have a limited period of review -- either 2 or
4 years, depending on the complexity of their affairs -- rather than an
unlimited period of review, as is presently the case.
2.4 This Bill also restructures and redrafts section 170 of the
ITAA 1936, which is the main provision covering amended assessments.
A number of provisions have been converted to tables.
Context of amendments
2.5 These provisions have been developed as part of the
Government's response to the recommendations made in the Report on
Aspects of Income Tax Self Assessment (the Report). Background to
the Report, and the recommendations made, is in Chapter 1 of this
explanatory memorandum.
Operation of current provisions
2.6 Currently, the standard period for the Commissioner to amend
an assessment is 4 years. If the underassessment of tax was due to fraud
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
or evasion, the Commissioner can amend the assessment at any time. The
Commissioner has 6 years to amend an assessment to give effect to a
Part IVA determination to cancel a tax benefit (section 177G of the
ITAA 1936). Certain special circumstances described in the legislation
also give rise to unlimited review periods (see paragraph 2.13).
2.7 For certain individuals with very simple tax affairs, called
shorter period of review (SPOR) taxpayers (the definition of SPOR
taxpayers is contained in section 6AD of the ITAA 1936), the current
period for amendment is 2 years.
2.8 Where the amendment is initiated by the taxpayer the time limits
outlined above generally also apply. The Commissioner can rely on a
statement by a taxpayer in making an amendment to increase or decrease a
liability (commonly called a `self amendment'), in the same way the
Commissioner can rely on a statement in a return (subsection 169A(1)).
If the Commissioner does amend an assessment relying on a taxpayer's
request, then the amendment period with respect to that particular is
refreshed.
2.9 The time limits for lodgment of objections against assessments
correspond to the periods for amendment of assessments (section 14ZW
of the Taxation Administration Act 1953). Taxpayers can request the
Commissioner to deal with objections lodged outside those time limits as
if they had been lodged within time (subsection 14ZW(2)). The
Commissioner must consider the request and decide whether to agree to it
or refuse it (subsection 14ZX(1)).
2.10 If a taxpayer applies for an amendment of their assessment
before the period for amendment ends, and has supplied to the
Commissioner all information necessary for deciding the application,
amendment is allowed even though the period for amendment has elapsed
(subsection 170(6) of the ITAA 1936).
Nil liability (including loss) returns
2.11 For individual taxpayers, the time periods for amendment
currently start to run when tax becomes due and payable under an
assessment. Therefore, if a taxpayer has a nil liability or a loss in an
income year so that no tax is `due and payable', the Commissioner
effectively has an unlimited period to review their affairs
(subsection 170(2) of the ITAA 1936).
12
Amendment of assessments
2.12 A recent Federal Court decision indicates that full self
assessment taxpayers, such as companies and the trustees of approved
deposit funds, eligible superannuation funds or pooled superannuation
trusts, similarly face an unlimited review period when they lodge nil
liability returns (FCT v BCD Technologies Pty Ltd [2005] FCA 708).
Other unlimited periods of review
2.13 There are numerous specific provisions that have unlimited
periods of review. The majority of these provisions are listed in
subsections 170(10) and (10AA) of the ITAA 1936, but some are found in
other parts of the tax laws or contained in legislation other than tax laws
(eg, subsection 56(3) of the Child Support (Assessment) Act 1989).
Summary of new law
2.14 The purpose of these amendments is to ensure that the time
during which taxpayers experience uncertainty over whether they have
correctly self assessed their income tax liability approaches the minimum
required for the Australian Taxation Office (ATO) to identify the majority
of incorrect assessments of that type and correct them.
2.15 The Government has decided that the period during which the
Commissioner may amend the assessment of an individual or very small
business taxpayer to increase or decrease their tax liability should be
reduced to 2 years. Taxpayers excluded from the 2-year amendment
period will generally have a 4-year amendment period, unless a special
amendment period applies.
2.16 A business will be treated as a very small business in any
income year in which it is eligible for, and has elected to participate in,
the simplified tax system (STS). The STS is dealt with in Division 328 of
the Income Tax Assessment Act 1997 (ITAA 1997).
2.17 Taxpayers with more complex affairs, including businesses that
are not in the STS, have a 4-year amendment period. This reflects the
greater time generally needed for the ATO to complete compliance
activity for this type of taxpayer. Therefore, the 2-year amendment period
excludes:
· a taxpayer that carries on a business (or is a partner in a
business) that is not in the STS;
13
Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
· a taxpayer that is a beneficiary of a trust estate at any time in
that income year, unless the trust is an STS taxpayer or the
trustee of the trust (in that capacity) is a full self assessment
taxpayer (eg, a corporate unit trust, public trading trust or
superannuation fund);
· a taxpayer if, in that year, that taxpayer or another entity
entered into or carried out a scheme (either alone or with
others) for the sole or dominant purpose of the taxpayer
obtaining a scheme benefit in relation to income tax from the
scheme; and
· other high risk and special cases prescribed by regulation.
2.18 Fraud or evasion cases will continue to have an unlimited
amendment period, as people who engage in calculated behaviour to
evade tax should remain permanently at risk.
2.19 The current powers to extend the standard amendment periods
generally continue to apply, an example being the power of the
Federal Court to extend time where the Commissioner has commenced an
examination of a taxpayer's affairs.
2.20 The present 6-year amendment period for the Commissioner to
give effect to Part IVA (the general anti-avoidance provision) and certain
other anti-avoidance provisions is abolished. Schemes where someone
entered into or carried out the scheme with a dominant purpose of the
taxpayer avoiding tax will, like other complex cases, be subject to a
4-year amendment period. This will not be limited to where Part IVA
applies -- it also applies where a scheme is defeated by any other
provision, provided the relevant purpose is present.
2.21 From the 2004-05 income year, the amendment period for loss
and nil liability assessments will be the same as the period for assessments
with positive liabilities. Transitional rules for taxpayers who lodged nil
liability returns for earlier income years will enable those taxpayers to
obtain finality for those earlier years.
2.22 Because these amendments significantly revise and update the
former section 170 of the ITAA 1936, the whole section has been
restructured and renumbered.
14
Amendment of assessments
Comparison of key features of new law and current law
New law Current law
A majority of taxpayers have a A majority of taxpayers have a
2-year amendment period. Some 4-year amendment period.
classes of taxpayer are excluded
from the 2 year period in the law and
some cases are dealt with by the
regulations.
Taxpayers with more complex affairs A majority of taxpayers have a
have a 4-year amendment period. 4-year amendment period.
The shorter period of review (SPOR) Shorter period of review (SPOR)
class of taxpayer is no longer taxpayers are entitled to a reduced
required. amendment period.
Nil assessments (including loss Nil and loss returns have an
cases) have a limited amendment unlimited review period.
period, of 2 or 4 years, depending on
the circumstances of the taxpayer.
The amendment period for avoidance The amendment period for avoidance
arrangements, including where arrangements subject to Part IVA
Part IVA applies, is 4 years. and certain other avoidance
provisions is 6 years.
Normal amendment periods apply for Substantiation and car expenses
substantiation and car expenses provisions have unlimited
provisions. amendment periods.
The review period commences when The review period commences when
the Commissioner gives the taxpayer an assessment becomes due and
the notice of assessment. payable.
Detailed explanation of new law
A shorter standard amendment period
2.23 The majority of taxpayers will have their tax affairs for a
particular income year finalised 2 years after the Commissioner gives
them a notice of assessment for that income year.
Eligibility for the 2-year amendment period
2.24 Most taxpayers will be subject to the standard 2-year
amendment period. A taxpayer will be excluded from the standard
amendment period only if he or she has complex affairs and therefore fits
within one of the categories of exclusion outlined in subsection 170(1).
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
New items 1 to 3 of subsection 170(1) set up the standard period for
taxpayers with simple affairs and item 4 deals with the default amendment
period of 4 years. Items 5 and 6 of subsection 170(1) establish unlimited
amendment periods for fraud or evasion and for giving effect to decisions
on review or appeal, while subsections 170(9) to (10A) set out special
amendment periods (other special amendment periods are currently found
throughout the tax laws and other Acts).
Individual taxpayers
2.25 The Commissioner may amend the assessment of an individual
taxpayer within 2 years after the day on which the Commissioner gave
notice of the assessment, unless the individual:
· carries on a business and is not an STS taxpayer for that year;
· is a partner in a partnership that carries on a business that is
not an STS taxpayer for that year;
· is acting in the capacity of a trustee of a trust estate in that
year (see paragraph 2.27 for special rules relating to this
case);
· is a beneficiary of a trust estate in that year, except where the
trust is an STS taxpayer or the trustee of the trust (in their
capacity as trustee) is a full self assessment taxpayer for that
year;
· or another person entered into or carried out a scheme
(either alone or with others) for the sole or dominant purpose
of obtaining a scheme benefit in relation to income tax from
the scheme for that year; or
· is excluded from the 2-year period by regulation.
[Schedule 1, item 1, item 1 in the table in subsection 170(1)]
This 2-year time limit is subject to items 5 and 6, subsections 170(9) to
(10A) and other special amendment periods found throughout the income
tax laws and other Acts.
Companies
2.26 The Commissioner may amend the assessment of a company
that is an STS taxpayer for the year of income of that assessment, within
2 years after the day on which the Commissioner gave notice of the
assessment, unless the company:
· is a partner in a partnership that carries on a business that is
not an STS taxpayer for that year;
16
Amendment of assessments
· is acting in the capacity of a trustee of a trust estate in that
year (see paragraph 2.27 for special rules relating to this
case);
· is a beneficiary of a trust estate in that year, except where the
trust is an STS taxpayer or the trustee of the trust (in their
capacity as trustee) is a full self assessment taxpayer for that
year;
· or another person entered into or carried out a scheme
(either alone or with others) for the sole or dominant purpose
of the company obtaining a scheme benefit in relation to
income tax from the scheme for that year; or
· is excluded from the 2-year period by regulation.
This 2-year time limit is subject to items 5 and 6, subsections 170(9)
to (10A) and other special amendment periods found throughout the
income tax laws and other Acts. Section 166A of the ITAA 1936 deems
that the Commissioner is taken to have given notice of an assessment on
the day on which the return is lodged.
[Schedule 1, item 1, item 2 in the table in subsection 170(1)]
Trustees
2.27 The Commissioner may amend the assessment of a trustee of a
trust estate that is an STS taxpayer within 2 years after the day on which
the Commissioner gave notice of the assessment, unless the trustee:
· is a partner in a partnership that carries on a business that is
not an STS taxpayer for that year;
· is a beneficiary of another trust estate in that year, except
where the trust is an STS taxpayer or the trustee of the trust
(in their capacity as trustee) is a full self assessment taxpayer
for that year;
· or another person entered into or carried out a scheme
(either alone or with others) for the sole or dominant purpose
of the trust obtaining a scheme benefit in relation to income
tax from the scheme for that year; or
· is excluded from the 2-year period by regulation.
Item 3 is subject to items 5 and 6, subsections (9) to (10A) and other
special amendment periods found throughout the income tax laws and
other Acts.
[Schedule 1, item 1, item 3 in the table in subsection 170(1)]
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Exclusion for avoidance schemes
2.28 As outlined above, an exclusion from the 2-year amendment
period for avoidance cases applies to individuals, companies and trustees
otherwise eligible for a 2-year amendment period. Avoidance cases are
complex and therefore a 4-year amendment period is warranted.
2.29 For the exclusion to apply, it must be reasonable to conclude
that someone entered into or carried out a scheme (not necessarily the
taxpayer) for the sole or dominant purpose described. That purpose is for
the taxpayer to obtain a scheme benefit in relation to income tax from the
scheme for that income year and is objectively determined having
regard to any relevant factors. The matters listed in section 177D of
the ITAA 1936 provide guidance as to what is likely to be relevant in
objectively determining the purpose. As in section 177D, a person's
actual subjective purpose is not relevant.
2.30 Scheme benefit has the same meaning as in the scheme penalty
provisions in Schedule 1 of the Taxation Administration Act 1953
(TAA 1953) and scheme has the same meaning as in those provisions and
in Part IVA of the ITAA 1936.
2.31 The exclusion is not limited to cases where Part IVA
applies -- it can also apply where the benefit sought is unavailable
because of any provision of the law, provided the relevant purpose
is present.
2.32 Finally, the exclusion does not depend on whether the
taxpayer is actually entitled to the benefit in question. If the necessary
purpose is present, the longer 4-year amendment period applies, whether
or not the taxpayer is entitled to the benefit.
Other exclusion by regulation
2.33 Because taxpayers' financial affairs are constantly evolving and
from time to time new arrangements emerge, the law includes a
mechanism by which sets of circumstances can be excluded from the
standard amendment period by allowing for exclusion `in any other
circumstance prescribed by the regulations'. The Legislative Instruments
Act 2003 restricts the retrospective application of regulations and provides
for consultation on regulations affecting businesses. [Schedule 1, item 1,
paragraph (f) in column 3 of item 1, paragraph (e) in column 3 of item 2 and
paragraph (d) in column 3 of item 3 in the table in subsection 170(1)]
Determining whether the 2-year amendment period applies
2.34 Eligibility for the standard 2-year amendment period depends on
the actual tax affairs of the taxpayer for that year, and not the taxpayer's
18
Amendment of assessments
or the Commissioner's understanding of the status of the affairs at the
time of the assessment.
Example 2.1
George includes in his 2004-05 tax return his salary and a share of his
interest in the net income of a partnership that he wrongly believes to
be an STS taxpayer for that year. In 2008, the Commissioner adjusts
the net partnership income and issues an amended assessment to
George reflecting that adjustment. Although the amended assessment
was issued more than 2 years after George received his notice of
assessment, he is not eligible for the standard amendment period for
2004-05 because he is a partner in a partnership that was not a
STS business.
Example 2.2
In her 2004-05 return, Rachael declares her salary and a distribution
from a non-STS trust. Therefore, it appears that she is not eligible for
the standard amendment period. Three years after she receives her
notice of assessment for 2004-05, she discovers that the trust was an
STS trust. Rachael is eligible for the standard amendment period for
the 2004-05 income year.
The 4-year amendment period
2.35 A taxpayer that is not eligible for the standard 2-year
amendment period will be subject to a 4-year amendment period, unless
they fall within items 5 or 6, subsections 170(9) to (10A) or other special
amendment period. Generally speaking, non-STS businesses, however
structured, and individuals with complex financial affairs will fall into the
4-year amendment period, rather than the standard 2-year period.
[Schedule 1, item 1, item 4 in the table in subsection 170(1)]
Exclusions from limited amendment periods
2.36 The provisions outlining eligibility for the 2 or 4-year
amendment periods, as outlined above, are all subject to the following
exclusions.
Fraud or evasion
2.37 The Commissioner can, as is presently the case, amend an
assessment at any time if the Commissioner is of the opinion that there
has been fraud or evasion. The omission of the phrase referring to `an
avoidance of tax' from the old paragraph 170(2)(a) is not expected to have
practical significance. [Schedule 1, item 1, item 5 in the table in subsection 170(1)]
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Unlimited amendment period to give effect to objection and appeal
2.38 The Commissioner has an unlimited period to give effect to a
decision on a review or appeal, or as a result of an objection made by the
taxpayer, or pending a review or appeal. [Schedule 1, item 6, section 170,
subsection 170(1)]
Other unlimited amendment periods
2.39 Section 170 lists a number of provisions that are not subject to
time limits. These are discussed in paragraphs 2.55 to 2.57.
Commissioner may amend an amended assessment
2.40 Every amended assessment is an assessment for all purposes of
the income tax law, unless the law provides otherwise (section 173 of the
ITAA 1936). This rule means that the Commissioner is able to amend an
amended assessment. However, the amended assessment provisions
ensure that, when the Commissioner amends an assessment, a fresh
amendment period only arises for the particular that was amended.
2.41 The new provisions restructure and re-express the rules about
amending assessments. They reflect the new shorter periods for
amendments, especially the 2-year period applying to individuals and
businesses in the STS, but otherwise work in the same way as the
existing law.
2.42 The Commissioner can amend an amended assessment at any
time within the limited amendment period applying to the original
assessment. However, after that period expires, the Commissioner can
only amend an amended assessment in the following cases (or if there is
a special or unlimited time for amendment, for example because of fraud
or evasion). [Schedule 1, item 1, subsections 170(1) and (2)]
2.43 The first case is where the Commissioner amends an earlier
assessment about a particular in a way that reduces a taxpayer's liability
and the Commissioner accepts a statement made by the taxpayer in
making the amendment. This is commonly called a self amendment.
Here, the Commissioner may amend the later assessment about that
particular to increase the taxpayer's liability. [Schedule 1, item 1, item 1 in
the table in subsection 170(3)]
2.44 The second case is where the Commissioner amends an earlier
assessment about a particular in a way that increases a taxpayer's liability
or reduces the liability (other than in a self amendment). The
Commissioner may amend the later assessment about that particular in a
way that reduces the taxpayer's liability. [Schedule 1, item 1, item 2 in the table
in subsection 170(3)]
20
Amendment of assessments
2.45 In these cases, there is a refreshed amendment period, of either
2 or 4 years (according to the amendment period applying to the
taxpayer's original assessment), but only for the particular in question.
[Schedule 1, item 1, subsection 170(3)]
Example 2.3
Emily is an individual taxpayer who is subject to the standard 2-year
amendment period. Eighteen months after her original assessment,
Emily requests that the Commissioner amend her assessment to allow a
deduction for work-related expenses. The Commissioner accepts
Emily's statement, amends her assessment accordingly, and then
Emily's standard amendment period expires. However, on further
examination, the work-related expenses are not deductible. In
addition, the Commissioner identifies that Emily has incorrectly
deducted some interest expenses in the relevant year. The
Commissioner has until 2 years after the day on which he gave notice
of the amended assessment to amend the amended assessment to deny
the deduction for work-related expenses. However, the Commissioner
is out of time to amend to deny the deduction for the interest expenses.
2.46 If in the first case (see paragraph 2.43), the Commissioner
amends an assessment about a particular to correct a self amendment, the
Commissioner cannot, under the second case (see paragraph 2.44), amend
again about that particular (but could, for example, amend to give effect to
an objection to the most recent assessment). This structure is designed to
stop the amendment period being extended multiple times by alternating
first case and second case assessments. [Schedule 1, item 1, subsection 170(4)]
Example 2.4
Using Example 2.3, if the Commissioner amends to disallow the
work-related expenses within 2 years of the amended assessment, as
provided for in column 3 of item 1 in subsection 170(3),
the Commissioner cannot amend under item 2 in the table in
subsection 170(3) to reduce the liability. However, if Emily objects
against the amended assessment within time, the Commissioner can
amend at any time to give effect to the objection.
Commencement of the amendment period
2.47 The day of commencement of the amendment period will now
be the day that the notice of assessment is given by the Commissioner,
instead of the day that the tax is due and payable. This is to accommodate
loss and nil liability assessments which have no tax due and payable, but
are now eligible for limited amendment periods. This change will further
shorten amendment periods, commonly by 21 days.
21
Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Extensions of the amendment period
2.48 The rewritten section 170 maintains the existing rules that allow
for extension of amendment periods in three cases:
· where the taxpayer applies for an amendment in the approved
form before the end of the amendment period;
· where the taxpayer applies for a private ruling before the end
of the amendment period and the Commissioner makes a
ruling in response to the application; and
· where the Commissioner has started to examine a taxpayer's
affairs but has not completed that examination by the end of
the amendment period, the period can be extended in two
cases: first, by Federal Court order where it is satisfied that
the failure to complete the examination was due to the
taxpayer's behaviour; secondly, by the consent of the
taxpayer.
[Schedule 1, item 1, subsections 170(6) to (8)]
Definition of assessment
2.49 The definition of `assessment' is amended to include nil liability
assessments, with the result that nil assessments for the income years
2004-05 and later years will be eligible for the same amendment period as
assessments of a positive liability with the same characteristics.
2.50 Currently, the primary meaning of assessment is the
ascertainment of taxable income and the tax payable thereon. This is
extended to cover the ascertainment that a taxpayer has no taxable income
because his or her total deductions equal or exceed total assessable
income. The new definition covers the case where the Commissioner
ascertains that there is a taxable income but no tax is payable (eg, because
the taxable income is below the tax-free threshold or because tax offsets
reduce the tax payable to nil). [Schedule 1, item 16, subsection 6(1)]
2.51 The meaning of assessment does not extend to the ascertainment
of the amount of a tax loss. The deductibility of a tax loss will be
determined in the year that the taxpayer has income against which to
offset the loss, in accordance with normal deduction principles.
22
Amendment of assessments
Example 2.5
A company returns losses of $10 million in the first year, $12 million
in the second year, $5 million in year 3 and $3 million in year 4. In
year 5, the taxpayer returns a taxable income of $10 million after
deducting $30 million for losses of previous years. During year 6, the
taxpayer is audited with the result that the company's first year return
was incorrect and should have returned a taxable income of $8 million.
Under the new law, the ATO would be unable to issue an assessment
of a positive liability for year one. However, the year 5 assessment
can be amended to disallow the $10 million deduction claimed for the
loss brought forward from year one.
2.52 The amendments to insert paragraphs (f) and (g) into the
definition of `assessment' in subsection 6(1) are required because the
existing amendment provisions apply, through deeming provisions, to the
assessment of additional tax under section 128TE (penalty for setting out
incorrect amounts in dividend statements) and the assessment of tax
payable under section 159GZZZZH (tax payable where infrastructure
borrowing certificate cancelled). The new amendment provisions do not
use the words needed to pick up the deeming rules. Consequently, to
ensure that the amendment rules continue to apply in these cases, this Bill
adds the ascertainment of this penalty or tax to the definition of
assessment.
2.53 Under the current law, a taxpayer may not object against the
Commissioner ascertaining that the taxpayer has no liability. Under the
new law, a taxpayer's objection rights will be broader in one respect -- a
taxpayer will be able to object against a nil liability assessment in the
unusual case where the taxpayer is seeking to move to a positive liability.
Otherwise, there will continue to be no objection rights in nil liability
cases. Where a taxpayer wants to dispute the quantum of a tax loss, that
can be done in the income year the loss is deducted. [Schedule 1, items 17
and 18, section 175A]
Remaining subsections in section 170
2.54 Subsection 170(9A) has been repealed, as the circumstance it
referred to (amendment of an assessment of a deceased estate) is covered
by the new general rules allowing amendments, so that a special rule is
unnecessary. Subsections (9E) and (9F) have been repealed as they relate
to the SPOR provisions and are no longer needed. [Schedule 1, item 21,
subsections 170(9A), (9E) and (9F)]
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
2.55 Subsection 170(10) (which sets out specific unlimited
amendment periods in the ITAA 1936) has been converted to the same
tabular style as subsection 170(10AA) (specific unlimited amendment
periods in the ITAA 1997). [Schedule 1, items 3 to 7, subsection 170(10)]
2.56 In reformatting subsection 170(10), the following provisions
have been omitted because they have no ongoing operation for the
2004-05 income year and later income years.
Provision reference Subject
26AAB Assessable income from the sale of a leased
motor vehicle.
31C Purchase of trading stock not at arm's length.
36AAA Alternative election in case of disposal, death or
compulsory destruction of live stock.
36AA Compensation for death, disposal or compulsory
destruction of live stock.
36A(8) Disposal on change of ownership or interests in
trading stock.
70A Cost of mains electricity connections.
74B(4) Certain election expenses not deductible.
75D(4) Deduction of expenditure on prevention of
land degradation.
Subdivision B of Development allowance.
Division 3 of Part III
Subdivision BA of General investment allowance.
Division 3 of Part III
Subdivision F of Substantiation of certain expenses for years of
Division 3 of Part III income up to and including 1993-94.
122B(2) Purchase of mining or prospecting right or
information.
122BA(7) Allowable capital expenditure in respect of
cash-bidding payments to acquire exploration or
prospecting authorities.
122JD(2) Purchase of quarrying or prospecting right or
information.
122T Recoupment of expenditure on mining or
quarrying.
123A(2) or (3) Application of the Subdivision covering transport
of certain minerals.
123BD(4) or (5) Application of the Subdivision covering transport
of quarry materials.
24
Amendment of assessments
Provision reference Subject
124AB(3) Purchase of prospecting or mining rights or
information.
124ABA(4) Allowable capital expenditure in respect of cash
bidding payments for exploration permits and
production licences.
124AQ Recoupment of expenditure on prospecting or
mining for petroleum.
Division 16C of Income equalisation deposits.
Part III
221YRA(2) Interest or royalty not an allowable deduction until
payment made to Commissioner on account of tax.
Part XII Drought investment allowance.
Schedule 2A Calculating car expense deductions.
Schedule 2B Substantiation rules.
2.57 Subsection 170(10AB), which gives an unlimited amendment
period for amounts you must repay, has been repealed and reintroduced as
item 22 in subsection 170(10AA). In subsection 170(10AA), item 10
(car expenses) and item 210 (substantiation) have been repealed,
consistent with Recommendation 3.8 of the Report.
2.58 Subsection 170(13) (dealing with certain company assessments)
has been repealed, as the anti-avoidance issues it relates to are now
subject to the 4-year amendment period. [Schedule 1, item 8,
subsection 170(13)]
2.59 Definitions of `limited amendment period', `scheme',
`scheme benefit' and `STS taxpayer' have been introduced into subsection
170(14), and the definition of `tax' has been repealed as it is no longer
necessary. [Schedule 1, items 9 to 13, subsection 170(14)]
2.60 Section 170A is also repealed as it is no longer necessary. That
section states that `Where a provision of this Act authorises the
Commissioner to amend an assessment, that provision does not limit the
power of the Commissioner to amend an assessment in accordance with
any other provision of this Act'. The various sections outside section 170
that provide for special amendment periods generally make this clear by
using words such as `...notwithstanding anything in section 170...' or
`...despite anything in this Act...'. [Schedule 1, item 14, section 170A]
25
Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Application and transitional provisions
2.61 These amendments apply to assessments for the 2004-05 income
year and later income years. [Schedule 1, items 15 and 19]
2.62 Transitional provisions apply for nil liability returns for
the 2003-04 income year and earlier income years (see paragraphs 2.62
to 2.70).
Nil liability returns for the 2003-04 income year and earlier income years
2.63 To ensure that nil liability returns from previous years do
not remain open to review indefinitely, Recommendation 3.5 of the
Report proposed that nil liability (non-loss) returns become final after
4 years and loss returns become final after 6 years. This Bill gives effect
to that recommendation through a new section 171A. Essentially, prior
years are given a limited review period tailored according to the
circumstances and information provided to the Commissioner.
2.64 If a taxpayer's return for the 2003-04 income year or an earlier
year shows a nil liability, but not a loss, the Commissioner will generally
have until the later of 31 October 2008, or 4 years from the date of
lodgment of the return, to issue an assessment. [Schedule 1, item 20, item 1 in
the table in subsection 171A(1)]
Example 2.6
James lodges his return for the income year ended 30 June 2002 in
September 2002, showing taxable income below the threshold at
which tax became payable for that year. The Commissioner has until
31 October 2008 to issue an assessment showing a positive liability for
James' 2002 income year.
Example 2.7
Isabelle delays the lodgment of her return for the income year ended
30 June 2002 until 1 July 2005. When lodged, it shows taxable
income below the threshold at which tax became payable. The
Commissioner has until 1 July 2009 to issue an assessment showing a
positive liability for Isabelle's 2002 income year.
2.65 If the taxpayer also deducted a tax loss in the nil liability year,
the Commissioner will have 6 years from the later of the date of lodgment
of the 2004-05 return or the date of lodgment of the nil return. [Schedule 1,
item 20, item 2 in the table in subsection 171A(1)]
26
Amendment of assessments
2.66 If a taxpayer's return for the 2003-04 income year or an earlier
year shows a nil liability due to a loss in that year, no portion of which has
been carried forward to the 2004-05 return, the Commissioner will have
6 years from the later of the date of lodgment of the 2004-05 return, or the
lodgment of that prior year return, to issue an assessment. [Schedule 1,
item 20, item 3 in the table in subsection 171A(1)]
2.67 If a taxpayer's return for the 2003-04 income year or an earlier
year shows a nil liability due to a loss in that year, some of which has
been carried forward to the 2004-05 return, and the taxpayer notified the
Commissioner of this, the Commissioner will have 6 years from the later
of the date the information is provided and the date of lodgment of the nil
return to issue an assessment. [Schedule 1, item 20, item 4 in the table in
subsection 171A(1)]
2.68 When a taxpayer becomes a member of a consolidated group
and transfers their loss to a head company, that taxpayer loses their
income tax identity. Section 171A ensures that the benefit of the limited
assessment period is extended to the original taxpayer as well as to the
consolidated group.
· Where the taxpayer is not required to lodge a return for the
2004-05 year of income, the head company of the
consolidated group can fulfil the requirement by lodging its
return for that year [Schedule 1, item 20, items 2 and item 3,
paragraph (a) in the table in subsection 171A(1)].
· If for example, the original taxpayer made a tax loss that was
transferred to one consolidated group, but then moved to a
second consolidated group and left its undeducted tax loss
with the first group, the declaration of the tax loss by the first
group would suffice to trigger the limited 6-year amendment
period for the original taxpayer [Schedule 1, item 20 and item 4 in
the table in subsection 171A(1)].
Example 2.8
JKL Pty Ltd's return for the 2001-02 income year disclosed a nil
taxable income and JKL deducted a tax loss in that year. In 2003-04,
JKL became part of the Ozceuticals consolidated group. For 2004-05,
JKL does not lodge a return but the head company of the Ozceuticals
consolidated group lodges a return on 1 December 2005.
The Commissioner cannot make an assessment for JKL for the
2001-02 income year after 1 December 2011.
27
Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
2.69 Item 4 allows taxpayers who are not required to lodge
2004-05 returns to notify the Commissioner of prior years losses without
needing to lodge a return for the 2004-05 year.
Example 2.9
Andrew fails to lodge his return on time for the income year ended
30 June 2004. With his return for 2004-05, lodged on
1 February 2006, Andrew advises the Commissioner, in the approved
form, that he has a carry forward loss from 2003-04. When offset
against other income in 2004-05, the result is a taxable income below
the threshold at which tax becomes payable in that year. Andrew later
lodges his return for the 2003-04 income year on 1 September 2006.
The Commissioner has until 1 September 2012 to issue an assessment
showing a positive liability for Andrew's 2003-04 income year.
2.70 As with the rules for positive liability assessments, where a
taxpayer that returned a nil liability has committed fraud or evasion, the
Commissioner will have an unlimited time to make an assessment (just as
for amending an assessment). Other special review periods will also
continue to apply. [Schedule 1, item 20, subsection 171A(2)]
Consequential amendments
SPOR provisions no longer necessary
2.71 Because eligibility for the 2-year period of review is much
broader than the requirements that previously applied to the shorter period
of review (SPOR) class of taxpayers, the SPOR classification and the
provisions relying on it are no longer necessary. One consequence of this
change has been to remove a special record-retention period of 2 years
(instead of the normal 5 years) that applied to SPOR taxpayers for
payment summaries, Medicare levy family agreements and taxpayer
declarations for returns lodged by tax agents. [Schedule 1, items 21, 22,
26 and 27]
2.72 To minimise unnecessary record keeping, under the new law
taxpayers will only need to keep records for the 5 years or such a shorter
period as determined by the Commissioner. The Commissioner will be
able to make a determination by legislative instrument for a class of
taxpayers or in writing for an individual taxpayer. [Schedule 1, items 23,
24, 33, 34 and 36, subsections 251R(6F) and (6FA) of the ITAA 1936,
subsections 18-100(1) and 388-65(3), Schedule 1 of the TAA 1953]
2.73 The group of taxpayers for whom the Commissioner can
exercise this power will be much larger than the current class of shorter
period of review (SPOR) taxpayers. Moreover, where appropriate, the
28
Amendment of assessments
Commissioner can shorten the retention period to less than the current
2-year period.
Objection periods to reflect amendment periods
2.74 The objection provisions are altered to correspond with the new
amendment periods. If the taxpayer is eligible for the standard
amendment period, they must lodge any objection with the Commissioner
within 2 years after the notice of assessment is given to the taxpayer. If a
4-year amendment period applies, the objection must be lodged within
4 years after the notice of assessment is given to the taxpayer. There has
been no change to the rules relating to objections made under section 78A
of the Fringe Benefits Tax Assessment Act 1986 or section 160AL of the
ITAA 1936. [Schedule 1, item 28, paragraphs 14ZW(1)(aa) and (aaa) of the
TAA 1953]
2.75 For objections against a private ruling, the time allowed has
been reduced to 2 years after the last day allowed for lodging a return for
that income year (or 60 days after the notice of the decision was given to
the person, whichever is later), for those taxpayers who qualify for the
standard amendment period. The time limit for a person with a 4-year
amendment period has not changed. [Schedule 1, item 29, subsections 14ZW(1A)
and (1AA) of the TAA 1953]
2.76 Changes have also been made to references in the objection
provisions. [Schedule 1, items 30 and 31, paragraphs 14ZW(1B)(b) and
14ZW(1BA)(b) of the TAA 1953]
Nil assessments
2.77 There is a series of consequential amendments, particularly to
the assessment rules for income tax, to reflect that the Commissioner may
now make an assessment that a taxpayer has no taxable income or that no
tax is payable on the taxable income. [Schedule 1, items 38 to 45,
sections 161AA, 166, 166A, 168 and 169 of the ITAA 1936]
2.78 The crediting rules in the pay as you go provisions are similarly
amended to reflect the expanded definition of assessment, although no
change in outcome will follow. Taxpayers will be entitled to credits in the
same way at the same time. [Schedule 1, items 46 to 58, sections 18-15, 18-20, 18-
25, 18-27, 45-30 and 45-865, Schedule 1 to the TAA 1953 and section 8K of the
Taxation (Interest on Overpayments and Early Payments) Act 1983]
Date of effect
2.79 These consequential amendments generally apply for the
2004-05 income year and later income years. [Schedule 1, items 25, 32 and 59]
29
Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
2.80 The new record retention rules for payment summaries apply
from the financial year beginning 1 July 2004 and the record retention
rules for declarations apply to declarations made on or after 1 April 2004.
[Schedule 1, items 35 and 37]
30
Chapter 3
ATO advice
Outline of chapter
3.1 Schedule 2 to this Bill amends the Income Tax Assessment
Act 1936 (ITAA 1936) and the Taxation Administration Act 1953
(TAA 1953) to implement a new framework for Australian Taxation
Office (ATO) advice. This chapter deals with that framework.
Context of amendments
3.2 This Bill implements the Government's response to the
recommendations made in the Report on Aspects of Income Tax
Self Assessment (the Report). Background to the Report and its
recommendations is in Chapter 1 of this Bill.
3.3 The ATO gives a wide range of advice to taxpayers and their
representatives about how, in the Commissioner of Taxation's
(Commissioner's) opinion, the tax law applies, or would apply. That
advice ranges from general information for the public to advice relating to
specific taxpayers and arrangements.
3.4 Since 1992, the tax law has made certain categories of ATO
advice, called rulings, binding on the ATO. Where the ATO has issued a
ruling that applies to a taxpayer, the taxpayer is not liable to pay more tax
than the ruling requires, even if the ruling turns out to be wrong. In such a
case, the taxpayer cannot be liable for penalties or interest either. Some
non-ruling advice from the ATO also currently gives taxpayers protection
from penalties.
3.5 The Report recommended that the current system be expanded
in scope and effectiveness to provide protection in a wider range of
circumstances (Recommendation 2.1).
Public rulings
3.6 Under the current law, the Commissioner may make public
rulings on the way in which, in the Commissioner's opinion, a particular
tax law would apply to a person or class of persons in relation to an
arrangement or a class of arrangements.
31
Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.7 Public rulings are labelled as such, published and Gazetted and
may be withdrawn. Under the current law, rulings can only be binding in
relation to matters affecting a taxpayer's liability.
3.8 The Report recommended expanding the category of
matters that a public ruling may deal with to cover matters of
administration, procedure, collection and ultimate conclusions of fact
(Recommendation 2.2). The Report also concluded that, even if some
other general information products might not be suitable for inclusion in
the formal ruling series, some of them such as TaxPack should be able to
have the same protection for certain categories of taxpayers. Thus the
Report recommended that the Commissioner be empowered to declare
that advice provided for the general information of non-business
self-preparers be binding (Recommendation 2.3).
Private rulings
3.9 Under the current law, private rulings are available to taxpayers
in certain circumstances. The basic framework for private rulings is as
follows:
· A person may apply for a private ruling about the way in
which, in the Commissioner's opinion, a tax law would apply
to them.
· The Commissioner is required to comply with a private
ruling application unless the request falls into one of a
number of stipulated categories.
· Once a person receives a private ruling, the Commissioner is
bound by the interpretation in the ruling if the tax payable
under the law would exceed that payable under the ruling.
3.10 Among a range of improvements, the Report recommended:
· expanding the category of matters on which private rulings
can be provided (Recommendation 2.11);
· providing an avenue for review where an application for a
private ruling has not been determined within 60 days
(Recommendation 2.15);
· allowing the Commissioner to make reasonable
assumptions in dealing with a private ruling request
(Recommendation 2.16);
32
ATO advice
· allowing the Commissioner to consider information
other than that supplied by the applicant in making a
private ruling, provided the applicant is informed
(Recommendation 2.17);
· clarifying the rules where rulings are inconsistent
(Recommendation 2.19);
· allowing the Commissioner to take account of additional
information supplied after making the private ruling
application (Recommendation 2.21); and
· allowing future trustees of a trust estate to rely on
private rulings obtained by their predecessors
(Recommendation 2.22).
Oral rulings
3.11 The current provisions governing oral rulings were enacted in
1999 (by A New Tax System (Tax Administration) Act 1999) in response
to a recommendation made in Tax Reform: not a new tax, a new tax
system (ANTS). These provisions were intended to allow taxpayers with
very simple affairs to rely on oral advice received from the ATO in much
the same way as written private rulings.
3.12 Before the oral rulings provisions were enacted the
Commissioner was not legally bound by oral advice, although there were
administrative practices to achieve this result in some cases.
3.13 Currently oral rulings are:
· available to individuals who apply to the Commissioner for a
ruling on the way in which the income tax law applies to
them (although a person can apply on another's behalf in
very limited circumstances);
· only available on interpretative matters that are
straightforward or simple; and
· legally binding on the Commissioner if they result in a lower
amount of final tax payable by the taxpayer.
3.14 The Report recommended extending the availability of oral
rulings to all non-business issues raised by self-preparing individual
taxpayers unless the issues are so complex that they would better be dealt
with in writing (Recommendation 2.23).
33
Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Other advice and general administrative practice
3.15 Under the current law, taxpayers are protected from
administrative penalties to the extent that they follow non-ruling advice
given to them or their agents by the ATO or a statement in an ATO
publication, or if they act consistently with the ATO's general
administrative practice. There is no similar protection from interest
charges, although the Commissioner has the power to remit them in
certain circumstances.
3.16 The Report recommended extending that protection to cover
interest charges (Recommendation 2.1) and that taxpayers who rely on
public rulings in draft form should also be protected from penalties and
interest in the event that the final ruling is issued in different terms, to
their detriment (Recommendation 2.7).
Summary of new law
3.17 This Bill replaces the existing provisions on rulings entirely.
It makes certain categories of ATO advice -- called rulings -- legally
binding on the Commissioner where taxpayers rely on rulings that apply
to them. The categories of rulings are:
· public rulings;
· private rulings; and
· oral rulings.
3.18 In some cases this Bill also gives taxpayers protection from
interest charges in the absence of a ruling. This protection applies where
they reasonably and in good faith rely on:
· advice (other than a ruling), or a written statement in a
publication by the Commissioner, unless the advice is
labelled as non-binding; or
· the Commissioner's general administrative practice.
This Bill does not address the question of protection from penalties in
these circumstances because section 284-215 of Schedule 1 to the
TAA 1953 remains in force, covering that ground. Between this Bill and
section 284-215, Recommendation 2.1 is given effect in full.
34
ATO advice
Comparison of key features of new law and current law
New law Current law
The expanded rulings regime applies The rulings regime applies to income
to provisions of Acts and regulations tax, withholding tax, mining
applying to income tax, withholding withholding tax, Medicare levy, fringe
tax, mining withholding tax, benefits tax, franking deficit tax,
Medicare levy, fringe benefits tax, venture capital deficit tax,
franking deficit tax, venture capital over-franking tax and product grant
deficit tax, over-franking tax and and benefit laws.
product grants and benefits, including
provisions about the administration
and collection of those taxes relevant
to the rulings regime.
A ruling binds the Commissioner if If there is a ruling on the way in which
the ruling applies to a taxpayer and the a tax law applies to a person in
taxpayer relies on the ruling. A relation to an arrangement, and that
taxpayer relies on a ruling when they law applies to a person in relation to
act (or omit to act) in accordance with that arrangement in a different way,
the ruling. and the amount of tax would be lower
A taxpayer can stop relying on a (or the amount of the grant or benefit
ruling by acting (or omitting to act) in would be higher) under the ruling,
a way that is not in accordance with then the tax liability (or grant or
the ruling, within their period of benefit) is determined according to the
review. ruling.
Relying on a ruling provides Relying on a ruling provides
protection from additional primary protection from additional primary
tax, penalties and interest. Relying on tax, penalties and interest. Relying on
other advice or general administrative other advice or general administrative
practice provides protection from practice provides protection from
penalties and interest. penalties.
Public rulings may apply to all entities Public rulings may apply to any
or a class of entities, either generally person or class of persons in relation
or in relation to a particular scheme or to an arrangement or class of
class of schemes. arrangements.
Public rulings may be made on any Public rulings may be made on issues
matter involved in the application of a relating to the calculation of a tax
provision, including matters relating to liability, but not on matters relating to
administration, procedure, collection administration, procedure, collection
and ultimate conclusions of fact. or on questions of fact.
35
Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
New law Current law
Public rulings may be withdrawn by A public ruling may be withdrawn at
publishing notice of the withdrawal. any time. A public ruling that is
The withdrawal may take effect from withdrawn continues to apply to
the day the notice is published or such arrangements begun to be carried out
later date as specified in the ruling. A before the withdrawal.
public ruling that is withdrawn
continues to apply to schemes begun
to be carried out before the
withdrawal.
Private rulings are statements about Private rulings may deal with how the
the way in which the Commissioner Commissioner considers a tax law or
considers a relevant provision applies tax laws would apply to a person in
or would apply to a specified scheme. respect of a year of income in relation
They may cover anything involved in to an arrangement, or how a product
the application of the provision, grant or benefit law would apply to a
including valuations of any thing. The person in respect of a claim period in
Commissioner may charge for a relation to an arrangement.
private ruling on a valuation issue.
The Commissioner may decline to The Commissioner is not required to
make a private ruling if he or she comply with an application for a
considers that making the ruling private ruling if any of the listed
would prejudice or unduly restrict the circumstances are present. For
administration of a taxation law; the example, the Commissioner is not
matter to be ruled on is already being, required to comply with an application
or has been considered; or where the for a private ruling if there is already a
matter to be ruled on is how the private ruling on the matter sought to
Commissioner would exercise a power be ruled on, or if the application is
under a relevant provision, and the frivolous or vexatious.
Commissioner decides whether to
exercise the power.
The Commissioner is taken not to The Commissioner may withdraw a
have made a private or oral ruling by private ruling by serving notice on the
later issuing an inconsistent public applicant or issuing an inconsistent
ruling, provided that neither the public ruling. If the relevant
scheme nor the income year (or other arrangement has begun, (or the
period) to which the private or oral relevant income year has
ruling relates has begun. commenced), the Commissioner may
only withdraw the ruling in limited
circumstances.
36
ATO advice
New law Current law
If a taxpayer has applied for a private If a taxpayer has applied for a private
ruling and the Commissioner has ruling and the Commissioner has
neither made the ruling nor declined to neither made the ruling nor told the
make the ruling within 60 days, the applicant that the application will not
applicant may issue a written notice be complied with nor asked for further
requiring the Commissioner to make information from the taxpayer, the
the ruling. If the Commissioner fails taxpayer may ask the Commissioner
to make the ruling or declines to rule for a written statement of the reasons
within 30 days, this leads to an why the consideration of the
objection right. application has been delayed.
The Commissioner must ask for The Commissioner must ask for
further information from the taxpayer further information from the taxpayer
if the private or oral ruling cannot be if the private or oral ruling cannot be
made without that further information. made without that further information.
The Commissioner may take into The Commissioner is not empowered
account additional information to rely on information provided by an
supplied by the applicant after the entity other than the applicant.
application was made but before the
private or oral ruling is given.
The Commissioner may rely on
information from other sources,
provided that the Commissioner tells
the applicant what the information is,
and gives them a reasonable
opportunity to respond before making
the private or oral ruling.
For a private or oral ruling, the If the Commissioner considers that the
Commissioner can make assumptions correctness of a private ruling would
about a future event or other matter, depend on assumptions made about a
provided the Commissioner informs future event or other matter, the
the applicant of the assumptions and Commissioner may decline to make
gives the applicant a reasonable the ruling, or may make assumptions
opportunity to respond. as the Commissioner considers to be
appropriate.
No change. A taxpayer may object to a private
ruling and appeal from an objection
decision.
An individual, non-business taxpayer A limited class of taxpayer may apply
may apply for an oral ruling on how for an oral ruling on how the income
the tax law applies to them. tax law applies to them.
The Commissioner has the power to The Commissioner can only give an
decline to make an oral ruling where oral ruling where the taxpayer's tax
the question being asked relates to a affairs fall within specified categories
business matter or a complex matter. and the taxpayer's inquiry is simple.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
New law Current law
The validity of any ruling is not The validity of an oral ruling or
affected because there is a procedural private ruling is not affected because
defect in the making of that ruling. there is a procedural defect in the
making of that ruling.
A document signed by the The production of a notice of,
Commissioner, a or the notice of the withdrawal of,
Second Commissioner or a a private ruling or a document signed
Deputy Commissioner, which purports by the Commissioner, a
to be a copy of a public or private Second Commissioner or a
ruling, or of a notice of withdrawal of Deputy Commissioner, purporting to
a public ruling is conclusive evidence be a copy of such a notice, is
of the proper making of either type of conclusive evidence of the proper
ruling, or of the withdrawal of the making of the private ruling or its
public ruling. withdrawal.
Detailed explanation of new law
Object
3.19 The object of the new law is to provide improved ways for
taxpayers to find out the Commissioner's view about how certain laws
apply to them, so that the risks of uncertainty when self assessing, or
working out their tax obligations or entitlements, are reduced.
3.20 This object is achieved by:
· making advice in the form of rulings by the Commissioner
available to many taxpayers on a wide range of matters;
· ensuring that the Commissioner provides rulings in a timely
manner;
· enabling the Commissioner to obtain, and make rulings based
on, relevant information;
· protecting taxpayers from increases in tax and from penalties
and interest where they rely on rulings;
· limiting the ways the Commissioner can alter rulings to a
taxpayer's detriment; and
· giving protection from interest charges where a taxpayer
relies on other advice from the Commissioner, or on the
Commissioner's general administrative practice.
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Common rules for all rulings
Provisions that are relevant for rulings
3.21 This Bill governs rulings about income tax, withholding tax,
mining withholding tax, the Medicare levy, fringe benefits tax, franking
deficit tax, venture capital deficit tax and over-franking tax, plus rulings
about a grant or benefit mentioned in section 8 of the Product Grants and
Benefits Administration Act 2000. The listing technique allows the scope
of the rulings regime to be expanded if future events prove that it is
suitable to apply to other taxes administered by the Commissioner
(Recommendation 7.2).
3.22 Section 357-55, read in conjunction with subsections 358-5(2)
and 359-5(2), allows the Commissioner to make rulings about any aspect
of the taxes and entitlements listed. The Commissioner may make rulings
on all the matters and circumstances in which rulings are currently made
and the authority is extended to cover any aspect of the tax or entitlement,
including the collection and recovery of the tax, and its administration, or
the administration or payment of a relevant grant or benefit. Note,
however, that the Commissioner may decline to make a private ruling
(see paragraph 3.77) or an oral ruling (see paragraph 3.122). [Schedule 2,
item 1, section 357-55 of Schedule 1 to the TAA 1953]
When a ruling binds the Commissioner
3.23 A ruling binds the Commissioner if the ruling applies to the
taxpayer and the taxpayer relies on the ruling. [Schedule 2, item 1,
subsection 357-60(1) of Schedule 1 to the TAA 1953]
3.24 A ruling applies to a taxpayer if the taxpayer is a member of the
class to whom the ruling applies (in the case of a public ruling), or it is
given in response to an application (in the case of a private or oral ruling)
and the facts, assumptions or conditions set out in the ruling are met. The
ruling applies for the period specified, while the law to which it relates
remains in force. Where the law is merely re-made, the ruling continues
to apply (see paragraph 3.34), but where the law is repealed or materially
amended, the ruling ceases to apply.
3.25 A taxpayer relies on a ruling when the taxpayer acts (or omits
to act) in accordance with it. The taxpayer does not need to know of the
existence of a public ruling in order to rely on it.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.26 If a taxpayer acts (or has acted, or omits to act) in the way
stated, a ruling that applies to a taxpayer binds the Commissioner and the
Commissioner must not apply the provision in a way that is inconsistent
with the ruling. However, if the scheme is not implemented in the way set
out in the ruling, or material facts were omitted from the ruling
application, or misleadingly or inaccurately stated, the ruling does not
bind the Commissioner. [Schedule 2, item 1, paragraph 357-60(1)(b) of Schedule 1
to the TAA 1953]
Example 3.1
Raelene applies for and obtains a private ruling that states that a
payment from a company is not assessable income. Raelene lodges
her tax return, omitting to include the amount in assessable income.
The ruling is binding on the Commissioner because it applies to
Raelene and she has relied on it.
3.27 A taxpayer may rely on a ruling at any time unless prevented
from doing so by a time limit imposed by a taxation law, for example, the
taxpayer's period of review for their assessment. It is not necessary for
the taxpayer to rely on a ruling at the first opportunity, but the opportunity
must in practice be taken before the end of the time in which they can
request an amendment of their assessment. [Schedule 2, item 1,
subsection 357-60(2) of Schedule 1 to the TAA 1953]
Stopping relying on a ruling
3.28 A taxpayer may change their mind and stop relying on a ruling
and, having stopped relying on a ruling, may rely on it again at a later
time. A taxpayer stops relying on a ruling by acting, or omitting to act, in
a way that is not in accordance with the ruling. However, the ability for
such changes of mind to affect a taxpayer's liability is limited by relevant
time limits contained in taxation laws. [Schedule 2, item 1, section 357-65 of
Schedule 1 to the TAA 1953]
Law more favourable than ruling
3.29 Where a taxpayer relies on a ruling that applies to them, the
Commissioner may nevertheless apply a relevant provision of the law as if
the taxpayer had not relied on the ruling, if doing so would produce a
more favourable result for the taxpayer. The Commissioner can do this
unless prevented by a relevant time limit in the tax law. However, the
Commissioner does not have a duty to consider the ruling at the time of
processing the taxpayer's self assessment. [Schedule 2, item 1, section 357-70
of Schedule 1 to the TAA 1953]
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3.30 The interaction of the provision that rulings bind the
Commissioner with the proviso that the Commissioner may apply a more
favourable interpretation of the law means that rulings bind the
Commissioner in the following ways:
· To the extent that a ruling determines a tax liability or an
amount (or whether there is a tax liability or an amount)
under a relevant provision, the amount must be determined in
accordance with the ruling. However, if the Commissioner
concludes that the ruling was wrong, the Commissioner may
adopt the correct position if it is more favourable to the
taxpayer than was set out in the ruling.
· To the extent that a ruling expresses the Commissioner's
opinion on an ultimate conclusion of fact for the purposes of
a relevant provision (eg, whether the taxpayer is a resident or
is carrying on a business), the Commissioner is bound to
follow his or her expressed opinion, or adopt the correct
conclusion if that is more favourable for the taxpayer to
whom the ruling applies.
· To the extent that a ruling deals with matters of
administration, procedure, collection or any other matter
involved in the application of a relevant provision, the
Commissioner must not act inconsistently with the ruling to
the taxpayer's detriment.
[Schedule 2, item 1, sections 357-60 and 357-70 of Schedule 1 to the TAA 1953]
Inconsistent rulings
3.31 The rules governing cases where two inconsistent rulings apply
to the same taxpayer are listed in the table at subsection 357-75(1). The
structure of the table is such that a taxpayer may always choose to rely on
a public ruling that applies to them and they may choose to rely on a
private ruling that specifically addresses their circumstances,
notwithstanding an apparent inconsistency with a prior public ruling. It
allows the Commissioner to correct erroneous private and oral rulings by
a public ruling, but only where the taxpayer has not already entered into
the relevant scheme and the relevant income year or other period has not
commenced. Finally, it allows a taxpayer to check or clarify a private or
oral ruling (although the Commissioner may decline to rule if there is
already a ruling on the matter, see paragraph 3.78), but only if they do so
honestly, by disclosing the existence of the prior ruling when they apply
for the later ruling. A special rule for revising private rulings allows the
Commissioner to correct a private ruling with another private ruling in
limited circumstances (see paragraphs 3.97 to 3.99). [Schedule 2, item 1,
subsection 357-75(1) of Schedule 1 to the TAA 1953]
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.32 The table in subsection 357-75(1) also governs cases where
there are three or more inconsistent rulings. In such cases, the rules in the
table should be applied to each combination of two rulings in the order in
which they were made, to determine whether any of the rulings are taken
not to have been made, and then to determine which of the remaining
rulings the taxpayer can rely on. [Schedule 2, item 1, subsection 357-75(2) of
Schedule 1 to the TAA 1953]
Other common rules
3.33 For the purposes of these provisions, if a contract requiring a
scheme has been entered into, the scheme is taken to have begun to be
carried out. For instance, a company might enter into a contract requiring
the construction of a pipeline, which will not commence for another
6 months. The scheme of constructing the pipeline will have begun to be
carried out when the contract was made. [Schedule 2, item 1, section 357-80 of
Schedule 1 to the TAA 1953]
3.34 If the Commissioner has made a ruling about a relevant
provision and that provision is re-enacted or remade, the ruling is taken to
be about the re-enacted or remade provision, so far as the new law
expresses the same ideas as the old law. If the law is changed, the ruling
ceases to apply. [Schedule 2, item 1, section 357-85 of Schedule 1 to the TAA 1953]
3.35 The validity of the ruling is not affected by the fact that a
provision relating to the form of the ruling or the procedure for making it
has not been complied with. For example, if the Commissioner issues a
public ruling, but fails to publish notice of the making of that ruling in the
Gazette as required by subsection 358-5(4) of this Bill, a taxpayer to
whom it applies may nevertheless rely on the ruling and it will bind the
Commissioner. [Schedule 2, item 1, section 357-90 of Schedule 1 to the TAA 1953]
Common rules for public and private rulings
3.36 To improve flexibility and timeliness in communications
between the Commissioner and other entities for the purposes of a public
ruling or a private ruling, communications may be made electronically.
The Commissioner may therefore provide an electronic copy of a private
ruling to an applicant, where the applicant is willing and able to receive it
in that form. [Schedule 2, item 1, section 357-95 of Schedule 1 to the TAA 1953]
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3.37 A document signed by the Commissioner, a
Second Commissioner or a Deputy Commissioner that purports to be
a copy of a public or private ruling, or of a notice of withdrawal of a
public ruling is conclusive evidence of the proper making of either type
of ruling, or of the withdrawal of the public ruling. This provision does
not apply to the withdrawal of private rulings, as private rulings cannot
be withdrawn, although they can be revised in limited circumstances
(see paragraph 3.97). [Schedule 2, item 1, section 357-100 of Schedule 1 to
the TAA 1953]
Common rules for private and oral rulings
3.38 To make a private or oral ruling, the Commissioner may require
further information. The Commissioner must first ask for that information
from the taxpayer. The Commissioner may also obtain information
necessary for a ruling in other ways, but is not obliged to do so. While the
Commissioner cannot refuse to rule simply because insufficient
information was provided with the initial application, where the
Commissioner asks the applicant for additional information, but it is not
provided within a reasonable time, the Commissioner may decline to rule.
3.39 The Commissioner should make a private ruling within 60 days.
Failure to do so allows the taxpayer to take action to have their
application determined, which may lead to an objection right
(see paragraph 3.109). However, where the Commissioner requests
additional information from a taxpayer, the 60-day period is suspended
until the information requested is received by the Commissioner
(see paragraph 3.96). If a response is not received within a reasonable
time the Commissioner may decline to rule. [Schedule 2, item 1,
section 357-105 of Schedule 1 to the TAA 1953]
3.40 Issuing a ruling may depend on an assumption about an
unknown fact, such as a future event. If the Commissioner considers that
correctly making a private or oral ruling would depend on an assumption,
the Commissioner may make the assumption and tell the applicant about
it, giving a reasonable time for their response, or may decline to make
the ruling.
3.41 Where the Commissioner informs the applicant of any proposed
assumption, the 60-day period after which a taxpayer can require the
Commissioner to make the private ruling is suspended until the
Commissioner receives the applicant's response about the assumptions.
[Schedule 2, item 1, section 357-110 of Schedule 1 to the TAA 1953]
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.42 The Commissioner may take into account additional information
provided by the applicant after the initial application, whether provided in
response to a request for further information or otherwise. [Schedule 2,
item 1, section 357-115 of Schedule 1 to the TAA 1953]
3.43 In considering an application for a private ruling or an oral
ruling, the Commissioner may rely on relevant information provided by
an entity other than the applicant, whenever the relevant information is
provided, as long as the Commissioner tells the applicant that the
Commissioner intends to take the information into account and gives the
applicant a reasonable opportunity to respond.
3.44 If disclosure of the relevant information is not possible because
such action would breach the tax secrecy provisions, privacy legislation or
the confidentiality of the person providing the information, the
Commissioner must not use that information in making a ruling. If the
Commissioner considers that information that cannot be disclosed is
material to the outcome of the ruling, the Commissioner may decline to
rule. It is expected that this circumstance would be very rare.
3.45 Where the Commissioner informs the applicant within 60 days
of receiving the application that he or she intends to take into account the
relevant information, the 60-day period after which a taxpayer can
require the Commissioner to make the private ruling requested is
suspended until the Commissioner receives the applicant's response
about the information. [Schedule 2, item 1, section 357-120 of Schedule 1 to
the TAA 1953]
3.46 Making an application for a private or an oral ruling does not
affect the taxpayer's other obligations or the Commissioner's right to
exercise powers. For example, a taxpayer who applies for a ruling is not
excused from their obligation to lodge a tax return or pay their tax
liabilities, and the Commissioner remains empowered to make or
amend their assessment (in accordance with the laws governing periods
of review) or undertake collection action. [Schedule 2, item 1, section 357-125
of Schedule 1 to the TAA 1953]
Public rulings
What is a public ruling?
3.47 A public ruling is binding written advice, published by the
Commissioner for the information of taxpayers generally, on the way in
which, in the Commissioner's opinion, a provision of a tax law would
apply. Thus a public ruling may be relied on by anyone to whom it
applies. A public ruling may be stated to apply to:
· entities generally, or a class of entities;
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ATO advice
· entities generally, or a class of entities, in relation to a class
of schemes; or
· entities generally, or a class of entities, in relation to a
particular scheme.
[Schedule 2, item 1, subsection 358-5(1) of Schedule 1 to the TAA 1953]
3.48 As noted in the Report, general advice provided by the ATO
should wherever possible be made in a style that is simple and easy to
understand. Public rulings with a potentially limited readership may be
tailored to the needs of the target audience.
3.49 A public ruling may deal with anything involved in the
application of a provision, including issues relating to liability,
administration, procedure, collection, and ultimate conclusions of fact.
[Schedule 2, item 1, subsection 358-5(2) of Schedule 1 to the TAA 1953]
3.50 The Commissioner must publish notice of the making of a
public ruling in the Gazette. A public ruling may also be published by
electronic or other means and must state that it is a public ruling.
However, the validity of the ruling is not affected by a procedural defect
(see paragraph 3.35). [Schedule 2, item 1, subsections 358-5(2) and (4) of
Schedule 1 to the TAA 1953]
3.51 The structure of section 358-5 provides flexibility so that, in
addition to broad statements that anyone may rely on, the Commissioner
may tailor public rulings to a set of arrangements applying to a range of
taxpayers (ie, class or product rulings) where a qualified, conditional or
more limited statement is required. A single document labelled a public
ruling may in practice contain a number of separate expressions of
opinion about provisions, thus consisting of a number of separate rulings.
This approach allows the Commissioner flexibility. (It is particularly
relevant to electronic information where it is not always clear what is a
separate document.) By using this flexibility, the Commissioner may give
effect to Recommendation 2.3 and declare that advice such as TaxPack or
E-tax is a public ruling for a class of taxpayers, such as individual,
non-business self-preparers.
Example 3.2
The Commissioner issues an information booklet which is stated to be
a public ruling and to apply to taxpayers who are `non-business
individual self-preparers who have acted in good faith and reasonably
relied on the ruling'. This public ruling is for an identifiable class of
entities even though the booklet itself contains information relevant to
a broader class.
Kerry and Simon are non-business self-preparers. Kerry, in preparing
her own tax return acts in good faith and reasonably relies on the
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
public ruling. However, Simon, unreasonably attempts to exploit a
typographical error in the booklet despite being notified of the error by
the ATO before he relies on it.
Kerry can rely on the ruling but Simon cannot, as Simon does not fall
within the identifiable class of entities to which the ruling applies.
When do public rulings apply?
3.52 A public ruling binds the Commissioner from the time it is
published, or from such earlier or later time as is specified in the ruling.
[Schedule 2, item 1, subsection 358-10(1) of Schedule 1 to the TAA 1953]
3.53 Taxpayer uncertainty may arise where public rulings are
withdrawn and not replaced or where the Commissioner changes an
established interpretation or practice. Therefore, a public ruling that
changes the Commissioner's general administrative practice or overturns a
previous ruling cannot apply earlier than the day on which it is published
if that change is less favourable to the taxpayer than the practice. Where a
final ruling takes a position contrary to that canvassed in a draft ruling
that represents the Commissioner's general administrative practice (see
paragraph 3.130), that final ruling cannot apply retrospectively, to a
taxpayer's detriment. [Schedule 2, item 1, subsection 358-10(2) of Schedule 1 to the
TAA 1953]
3.54 A public ruling may specify the time when it ceases to apply.
This power would usually be used when changing from one public
position to another, over time. Where a public ruling does not specify the
time at which it ceases to apply, it will apply until it is withdrawn.
[Schedule 2, item 1, section 358-15 of Schedule 1 to the TAA 1953]
3.55 The Commissioner withdraws a public ruling, either wholly or
in part, by publishing notice in the Gazette. The withdrawal is effective
from the time specified in the notice, and this time cannot be
retrospective. Where a public ruling is withdrawn, that ruling continues
to apply to schemes to which it applied that had begun to be carried out
before the withdrawal took place, but does not apply to schemes that
begin to be carried out after the withdrawal. [Schedule 2, item 1, section 358-20
of Schedule 1 to the TAA 1953]
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ATO advice
3.56 For the withdrawal of a public ruling to be valid, all the
requirements mentioned in section 358-20 must be complied with.
Where all the requirements are not met, the public ruling remains in force
(which contrasts with the making of a ruling, where lack of formality does
not affect the validity of the ruling). As a result, if the Commissioner
purports to withdraw a public ruling, but fails to publish notice of the
withdrawal in the Gazette, the public ruling continues to apply until it is
effectively withdrawn.
3.57 The timing rules specifically recognise that, in many cases, it
would be inappropriate for a public ruling to be withdrawn on short notice
and accordingly grant the Commissioner flexibility to defer withdrawal.
For example, a product ruling is a form of public ruling issued to provide
investor certainty that the taxation benefits claimed in the promotion of an
investment product are indeed available to investors. Many hundreds or
thousands of investors may invest on the basis of the claims, as endorsed
by the Commissioner.
3.58 If the Commissioner decided that an aspect of such a ruling was,
on reflection, incorrect, and withdrawal occurred late in the financial year,
in the peak investing period, the result might be that investors on different
days would receive radically different tax outcomes. This might occur
irrespective of how well the withdrawal was publicised. In some cases the
viability of the investment or the timing of the project and its returns
might be prejudiced by the sudden withdrawal of projected investment,
with detrimental consequences for those who invested while the ruling
was in force. In such a case it may be entirely appropriate for the
withdrawal or modification to take effect from the beginning of the
following financial year, even if that is some months away.
3.59 In other cases, it might emerge that aspects of a public ruling are
outdated or incorrect due to changing circumstances, technological
developments or judicial decisions. While it is less than ideal for a ruling
to remain in force where the Commissioner has doubts about its
correctness, nevertheless the consequences of precipitate withdrawal may
be worse. For example, although a ruling may no longer be absolutely
correct, it may take some time to produce a replacement and the existing
position may be the best alternative to provide taxpayers with certainty in
the interim. Recognising that public rulings are premium products, often
relied upon by many taxpayers through their practitioners, and are not
issued lightly, it is appropriate that they should generally only be
withdrawn when either, they are able to be adequately replaced by another
product that meets the need originally identified, or they are clearly no
longer needed.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.60 As a result, in appropriate circumstances, the Commissioner may
leave a public ruling in force even though there are doubts about its
correctness. In each case of the proposed withdrawal of a public ruling,
the Commissioner is entitled to have regard to the consequences for
taxpayers of an immediate date of effect of withdrawal and may therefore
delay the date to minimise those consequences.
Private rulings
What is a private ruling?
3.61 A private ruling is a written expression of the Commissioner's
opinion on the way in which the Commissioner considers a relevant
provision applies, or would apply, to a taxpayer who has sought an
opinion. [Schedule 2, item 1, section 359-5 of Schedule 1 to the TAA 1953]
What can you apply for a private ruling on?
3.62 A private ruling may deal with anything involved in the
application of a relevant provision, including issues relating to liability,
administration, procedure and collection, and ultimate conclusions of fact.
This includes being able to provide a ruling which covers the value of any
thing (see paragraph 3.86).
3.63 As with public and oral rulings, the Commissioner is bound by
the ruling if the ruling applies to the taxpayer and the taxpayer relies on it
(see paragraphs 3.23 to 3.27).
3.64 The essential difference between a private ruling and a public
ruling is that a private ruling deals with a specific course of action by a
particular person, whereas a public ruling is provided for the information
of taxpayers generally, or a class of taxpayers.
3.65 A single document may contain opinions about a number of
provisions and may therefore constitute a number of private rulings. A
private ruling may deal with any matter involved in the application of a
relevant provision, including matters relating to liability, administration,
procedure and collection, and ultimate conclusions of fact. However, in
expanding the range of situations in which the Commissioner may provide
a private ruling, the intent is not to oblige the Commissioner to provide a
ruling when the more appropriate course would be to take other authorised
action such as issuing an assessment, exercising a discretion, conducting
an audit, initiating recovery action or otherwise performing his or her
statutory responsibilities. Thus, the Commissioner may decline to rule in
certain circumstances (see paragraphs 3.77 to 3.85).
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3.66 By considering and exercising an administrative power such as
the power to extend time to pay a tax liability, the Commissioner is not
making a ruling.
Applying for a private ruling
3.67 Any taxpayer, their agent (which includes the taxpayer's tax
agent) or their legal personal representative may apply for a private ruling.
Trustees may apply for private rulings about the affairs of the trust, and
partners may apply for private rulings on behalf of partnerships. With
some limited exceptions, the ruling applies only to the entity in respect of
whom the application was made. However, a private ruling given to a
trustee in respect of the tax affairs of a trust continues to apply where a
new trustee is appointed and a ruling relating to the affairs of the trust also
applies to the beneficiaries of the trust. In situations where the trustee is
replaced, the private ruling continues to apply to the new trustee, or any
trustee replacing the new trustee, provided the ruling would have applied
to the former trustee. [Schedule 2, item 1, subsection 359-10(1) and section 359-30
of Schedule 1 to the TAA 1953]
3.68 An application for a private ruling must be made in a form
approved by the Commissioner. The Commissioner can approve a form
under section 388-50 of Schedule 1 to the TAA 1953. In stating the form
that a ruling application may take, the Commissioner may require certain
information to be supplied. [Schedule 2, item 1, subsection 359-10(2) of
Schedule 2 to the TAA 1953]
3.69 An applicant may withdraw their application for a private ruling
(orally or in writing) at any time before the ruling is made. The
Commissioner must give written confirmation of the withdrawal.
[Schedule 2, item 1, subsection 359-10(3) of Schedule 1 to the TAA 1953]
Additional information
3.70 As outlined earlier under common rules for private and oral
rulings (see paragraphs 3.38 to 3.46), there are four ways the
Commissioner may get information about matters that are not in a private
ruling application in order to make the private ruling:
· The Commissioner must ask the applicant to provide
additional information where the Commissioner considers it
is required.
· The applicant may volunteer additional information after the
application is made.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
· The Commissioner may rely on information supplied by an
entity other than the applicant, provided that the applicant is
made aware of that information and has an opportunity to
comment on it.
· The Commissioner may make an assumption that the
Commissioner considers to be most appropriate in the
circumstances, provided the applicant is informed of this
assumption and given a reasonable opportunity to respond.
Making a private ruling
Private rulings to be given to applicants
3.71 The Commissioner makes a private ruling by recording the
ruling in writing and giving a copy of it to the applicant, either on paper
or electronically. [Schedule 2, item 1, section 359-15 of Schedule 1 to the
TAA 1953]
What a private ruling must contain
3.72 A private ruling must:
· be in writing;
· state that it is a private ruling;
· specify the relevant scheme;
· identify the entity to which it applies; and
· identify the relevant provision to which it relates.
[Schedule 2, item 1, subsection 359-5(1) and section 359-20 of Schedule 1 to
the TAA 1953]
3.73 A private ruling should state any assumptions the Commissioner
has made in making the ruling, or additional information from another
entity that has been relied on.
3.74 Where a provision relating to the making of a private ruling is
not complied with, the ruling will still be a valid private ruling (per
section 357-90, see paragraph 3.35). For instance, if the private ruling
responding directly to a taxpayer's application does not state explicitly
that it is a private ruling, this does not preclude a taxpayer from relying on
the ruling.
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When does a private ruling apply?
3.75 The private ruling may specify the time it begins to apply and
the time it ceases to apply, for example, a specified income year. This can
be any time (in the future or the past), but a ruling cannot retrospectively
replace another ruling to the taxpayer's detriment. If the ruling does not
specify the date (or refer to a specified event) from which it begins, then
the ruling applies from when the ruling is made. [Schedule 2, item 1,
subsections 359-25(1) to (3) of Schedule 1 to the TAA 1953]
3.76 If the private ruling does not specify an end time, it ceases to
apply at the end of the income year or other accounting period in which it
started to apply. The reason for having a deemed end time for a private
ruling where no end time is specified is to provide certainty about the
period covered by their ruling. If an end time is not provided, it could be
argued that the private ruling applied for the length of operation of the
scheme in question. Therefore, if the taxpayer and the Commissioner
want a private ruling to apply indefinitely, the taxpayer should request
that the Commissioner explicitly state that there is no end time for that
ruling. [Schedule 2, item 1, subsection 359-25(4) of Schedule 1 to the TAA 1953]
Circumstances in which the Commissioner may decline to make a
private ruling
3.77 The Commissioner must comply with an application to make a
private ruling unless there is a basis to decline. [Schedule 2, item 1,
subsection 359-35(1) of Schedule 1 to the TAA 1953]
3.78 The Commissioner may decline to make a private ruling if the
Commissioner considers that;
· making the ruling would prejudice or unduly restrict the
administration of a taxation law;
· the matter sought to be ruled on is already being, or has been
considered by the Commissioner for the taxpayer; or
· the matter sought to be ruled on is how the Commissioner
would exercise a power under a relevant provision and the
Commissioner decides to exercise the power (or not to).
[Schedule 2, item 1, subsections 359-35(2) and (3) of Schedule 1 to the TAA 1953]
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3.79 The question of whether making the ruling would prejudice or
unduly restrict the Commissioner's administration is a matter for the
Commissioner. While the Commissioner is not expected to decline to rule
lightly, a decision to decline is not reviewable under the tax law.
However, it may be reviewable under the Administrative Decisions
(Judicial Review) Act 1977.
3.80 Private rulings do not replace the Commissioner's
decision-making power under the tax law, and applications should not be
allowed to interfere with the proper administration of the tax law. If a
taxpayer wants the Commissioner to exercise a particular power under the
law, the appropriate course would normally be to ask the Commissioner to
exercise that power, rather than to seek a ruling. For example, a taxpayer
should normally ask the Commissioner for an extension of time to pay a
tax-related liability rather than seeking a ruling on the issue. [Schedule 2,
item 1, subsection 359-35(3) of Schedule 1 to the TAA 1953]
3.81 The Commissioner may also decline to make a private ruling
where:
· the Commissioner has asked the taxpayer to give further
information under section 357-105 and the taxpayer does not
provide it in a reasonable time (see paragraph 3.39);
· the Commissioner considers that information provided by an
entity other than the applicant is material to the outcome of
the ruling, but providing the ruling with that information
would breach the tax secrecy provisions, privacy legislation
or the confidentiality of the person providing the information
(see paragraphs 3.40 to 3.45); or
· an applicant does not agree to pay the amount charged by the
Commissioner for a valuation, or a review of an applicant's
valuation (see paragraph 3.90).
3.82 The purpose of these exclusions is to allow the Commissioner to
focus efforts on increasing certainty for taxpayers in the most genuine and
worthy cases. The ATO is not in the business of giving advice as a purely
academic exercise, or assisting unscrupulous people to provide doubtful
tax planning advice, or allowing some taxpayers to divert the ATO's
resources to meet their needs to the detriment of others and the robustness
of the system as a whole. Currently the ATO receives millions of requests
for advice a year and only a fraction of them need to be dealt with in the
formal private ruling system.
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ATO advice
3.83 Examples where making a ruling would prejudice or unduly
restrict the administration of a tax law include where:
· the application is frivolous or vexatious or not seriously
contemplated;
· complying with the request for the private ruling would not
have any practical consequences for the taxpayer, for
example, because it relates to a transaction that occurred
some years ago and the taxpayer's amendment period has
already expired; or
· making the private ruling would unreasonably divert
resources from other matters to which the Commissioner
must attend in the course of administering the taxation laws.
[Schedule 2, item 1, subsection 359-35(3) of Schedule 1 to the TAA 1953]
3.84 Other examples of circumstances in which the Commissioner
might decline to give a private ruling include the following:
Scenario 1
A product ruling applies to Tim, and he asks for a private ruling on the
same issue.
Scenario 2
Ingrid requests a private ruling where her liabilities or obligations will
not be affected by the outcome of the ruling because the opportunity
for her to act on the advice has passed.
Scenario 3
Alex, a scheme promoter, lodges a series of requests about the
effectiveness of a number of tax avoidance schemes (so that it is
unlikely he is seriously contemplating any one of them).
Scenario 4
Amanda asks for a private ruling about how the Commissioner would
exercise the discretion to remit a penalty in hypothetical
circumstances.
Scenario 5
Nicholas asks for a private ruling on whether a particular course of
conduct will result in the Commissioner referring the circumstances to
the Director of Public Prosecutions (DPP) for possible prosecution.
[Schedule 2, item 1, subsections 359-35(2) and (3) of Schedule 1 to the TAA 1953]
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.85 Where the Commissioner declines to give a private ruling,
written reasons for doing so must be given to the applicant. [Schedule 2,
item 1, subsection 359-35(4) of Schedule 1 to the TAA 1953]
Private ruling requiring a valuation
3.86 With private ruling requests which would require the
determination of the value of any thing (which includes any property,
service or intangible asset), the applicant may provide the Commissioner
with a valuation or ask the Commissioner for a valuation.
3.87 Where the Commissioner is requested by the applicant to
provide a valuation, the Commissioner may refer the valuation aspect of
the ruling to a valuer. If the Commissioner refers the valuation to a
valuer, the Commissioner must tell the applicant that this has occurred and
must also tell the applicant when the valuer has completed its work.
[Schedule 2, item 1, paragraph 359-40(1)(a) and subsections 359-40(2) and (3) of
Schedule 1 to the TAA 1953]
3.88 Where the Commissioner is provided with a valuation by the
applicant, the Commissioner may accept the valuation, or may refer it to a
valuer for review. If the Commissioner refers the valuation to a valuer for
review, the Commissioner must tell the applicant that this has occurred
and tell the applicant when the valuer has completed its review work.
[Schedule 2, item 1, paragraph 359-40(1)(b) and subsections 359-40(2) and (3) of
Schedule 1 to the TAA 1953]
3.89 A typical situation where the Commissioner may accept a
valuation provided with a private ruling application would be where the
valuation or a similar valuation has been provided previously and was
accepted by the Commissioner.
Example 3.3
Arif has previously received a valuation from a valuer in relation to the
value of an investment property, which was accepted by the
Commissioner. Arif subsequently applies for a private ruling and
submits the valuation received from the valuer with his application for
the Commissioner to consider.
The Commissioner accepts the valuation without referring it for further
review.
3.90 Where the applicant asks the Commissioner for a valuation, or
provides the Commissioner with a valuation for review, the Commissioner
may charge the applicant the relevant amount worked out in accordance
with the regulations. Where a taxpayer does not agree to pay the relevant
amount, the Commissioner will be unable to comply with the taxpayer's
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ATO advice
request for a private ruling requiring a valuation and the Commissioner
may then decline to make the private ruling sought. A taxpayer who pays
the charge can deduct the charge under section 25-5 of the Income Tax
Assessment Act 1997 (ITAA 1997)as expenditure for managing their tax
affairs. [Schedule 2, item 1, subsection 359-40(4) of Schedule 1 to the TAA 1953]
3.91 A private ruling request for the valuation of a gift or
contribution for the purposes of Division 30 of the ITAA 1997 is not
covered by section 359-40, as Division 30 has valuation requirements
specific to that Division. [Schedule 2, item 1, subsection 359-40(5) of Schedule 1
to the TAA 1953]
Making related rulings
3.92 Where the Commissioner is making a private ruling sought by
an applicant, the Commissioner may make the ruling a ruling on a
different provision (eg, a ruling on section 8-1 of the ITAA 1997 rather
than section 51 of the ITAA 1936), or make an additional private ruling.
The additional private ruling may be about the way in which another
relevant provision or provisions would apply, or about how a relevant
provision applies or would apply to a related scheme. [Schedule 2, item 1,
section 359-45 of Schedule 1 to the TAA 1953]
3.93 However, Recommendation 2.16 of the Report stated that the
Commissioner should refrain from ruling on issues not directly raised in a
private ruling application without the applicant's agreement. This is to
ensure timely responses and allow self assessing taxpayers to make their
own judgements about tax obligations, notwithstanding that they have
chosen to ask a question on another matter. Where the Commissioner
considers that other aspects of the tax law could affect the accuracy of the
private ruling response, the ruling should contain appropriate caveats or
statements that the advice is issued subject to certain assumptions or
limitations.
Example 3.4
Nan asks for a ruling about whether a receipt from an asset sale is
ordinary income but in examining the ruling the ATO considers that
there would also be capital gains tax implications. The ruling should
address the income tax question, noting that there may be capital gains
tax implications, but not addressing them.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Determining private rulings in a reasonable time
3.94 Once an applicant has lodged an application for a private ruling,
it is important that the Commissioner rules within a reasonable time. The
Report concluded that there ought to be a mechanism by which a taxpayer
could crystallise the Commissioner's decision, in order to be able to
decide whether or not to challenge it. As a result, if 60 days have passed
since the ruling request was lodged and the Commissioner has not made
the ruling or declined to rule, the applicant can give a written notice
requiring the Commissioner to make the private ruling. [Schedule 2, item 1,
subsection 359-50(1) of Schedule 1 to the TAA 1953]
3.95 If, 30 days after being given that written notice, the
Commissioner has not made the ruling, or has not declined to make the
ruling, then the applicant will have the right to object in the manner set
out in Part IVC of the TAA 1953 and, as part of their objection, they must
lodge their own draft private ruling. (This ruling will have no status at
law apart from its role in the objection proceedings, and the applicant may
not rely on it until and unless confirmed on objection or appeal.)
[Schedule 2, item 1, subsections 359-50(3) and (4) of Schedule 1 to the TAA 1953]
3.96 However, if during the 60-day period the Commissioner
requests that the applicant provide further information, tells the applicant
about assumptions or information provided by a third party that the
Commissioner proposes to take into account, or refers a valuation to a
valuer, the 60-day period is extended as detailed in the table in subsection
359-50(2). Where two or more circumstances detailed in the table apply,
any overlap between the periods of extension is ignored. [Schedule 2, item 1,
subsection 359-50(2) of Schedule 1 to the TAA 1953]
Example 3.5
Victoria requests a private ruling. The Commissioner requests further
information (under section 357-105) from Victoria 20 days after she
lodges her application. Ten days later the Commissioner informs
Victoria that he or she proposes to take into account information
provided by a third party. Victoria responds to the Commissioner on
both issues 25 days later.
The 60-day period mentioned in subsection 359-50(1) is extended by
25 days. The period of overlap between the Commissioner's request
for further information and the Commissioner informing Victoria that
the Commissioner proposes to take into account information provided
by a third party is ignored.
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ATO advice
Making revised private rulings
3.97 The Commissioner may revise a private ruling if a private ruling
was previously made and neither the scheme to which the earlier ruling
relates, nor the income year or other accounting period, has begun. Where
the scheme or the period to which the earlier private ruling related has
begun, the ruling is not revised and the applicant would still be able to
rely on it. The Commissioner may make a revised private ruling whether
or not there is an application for the revised ruling. [Schedule 2, item 1,
subsections 359-55(1) and (3) of Schedule 1 to the TAA 1953]
3.98 Where a revised private ruling is properly made, the private
ruling in its initial form will stop applying to the applicant, and they will
no longer be able to rely on it. [Schedule 2, item 1, subsection 359-55(4) of
Schedule 1 to the TAA 1953]
3.99 Revised rulings must be copied to the applicant in the same way
as other private rulings. [Schedule 2, item 1, subsection 359-55(2) of Schedule 1 to
the TAA 1953]
Objection, review and appeal rights
3.100 There are two distinct avenues of objection, review and appeal
rights in relation to private rulings:
· a person may object against a private ruling that applies to
that person [Schedule 2, item 1, subsections 359-60(1) and (2) of
Schedule 1 to the TAA 1953]; or
· a person may object against the Commissioner's failure to
make a ruling after being given a notice to make the ruling
[Schedule 2, item 1, subsections 359-50(3) and (4) of Schedule 1 to
the TAA 1953].
Objection against private ruling
3.101 Where a person to whom a private ruling applies is dissatisfied
with it, they may object against it in the manner set out in Part IVC of the
TAA 1953, and the ruling will be a taxation decision for the purposes of
that Part. [Schedule 2, item 1, subsections 359-60(1) and (2) of Schedule 1 to
the TAA 1953]
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.102 A person cannot object against a private ruling if:
· there is an assessment for them for the income year or other
accounting period to which the ruling relates; or
· the ruling relates to withholding tax or mining withholding
tax that has become due and payable.
[Schedule 2, item 1, subsection 359-60(3) of Schedule 1 to the TAA 1953]
3.103 Where a taxpayer has received an assessment from the
Commissioner and wishes to object against aspects of that assessment,
that taxpayer must object against the assessment and not the private
ruling. [Schedule 2, item 1, subsection 359-60(3) of Schedule 1 to the TAA 1953]
3.104 Having received the taxpayer's objection against a private
ruling, the Commissioner is obliged under Part IVC of the TAA 1953 to
consider it and either allow it in whole or part, or disallow it. This
decision will constitute an objection decision that may be considered by
the Administrative Appeals Tribunal or the Federal Court.
3.105 Where a taxpayer receives a private ruling which covers a
number of income years or accounting periods there is nothing to prevent
the taxpayer relying on the ruling for certain income years or accounting
periods, and objecting against the others. A taxpayer may choose not to
rely on the ruling instead of objecting against it.
Example 3.6
Ian receives a private ruling which covers 3 income years. Ian relies
on the ruling for the first 2 income years, and then decides to object
against the ruling for the 3rd income year before lodging his return for
that year.
The Commissioner may consider new matters on objection
3.106 In deciding whether to allow an objection under Part IVC of the
TAA 1953 against a private ruling, the Commissioner may consider any
additional information that the Commissioner did not originally consider
when making the ruling. For information which does not come from the
taxpayer but which the Commissioner proposes to consider at the
objection stage, the Commissioner must tell the taxpayer what this
information is and give the applicant a reasonable opportunity to respond
before allowing or disallowing the objection. [Schedule 2, item 1,
subsections 359-65(1) and (2) of Schedule 1 to the TAA 1953]
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ATO advice
3.107 However, if the Commissioner considers that the additional
information is such that the scheme to which the application related is
materially different from the scheme revealed by the additional
information, the Commissioner must request the applicant to make an
application for another private ruling and the taxpayer's objection is taken
not to have been made. [Schedule 2, item 1, subsection 359-65(3) of Schedule 1 to
the TAA 1953]
A successful objection decision will alter a ruling
3.108 A private ruling has effect as altered by an objection decision.
[Schedule 2, item 1, section 359-70 of Schedule 1 to the TAA 1953]
Objection against Commissioner's failure to make a private ruling
3.109 If the Commissioner has not issued a ruling or declined to make
the ruling within 60 days of the application being lodged, the applicant
may give the Commissioner a notice requiring him or her to make the
ruling. The 60-day period for the Commissioner to make the ruling before
the applicant has a right to serve a notice can be extended by a range of
actions the Commissioner takes, provided those actions are taken within
60 days of the application being made. The actions by the Commissioner
that can extend the 60 days by the time it takes to receive a response are:
· requesting further information from the applicant;
· telling the applicant about assumptions that the
Commissioner proposes to make;
· telling the applicant about third party information that the
Commissioner proposes to take into account; or
· telling the applicant that the Commissioner has referred a
valuation to a valuer.
3.110 If the Commissioner has not made the ruling or declined to make
the ruling within 30 days of the notice requiring him or her to rule, the
applicant may object against the failure to make the ruling. In lodging an
objection an applicant is required to lodge a draft private ruling.
[Schedule 2, item 1, subsections 359-50(3) and (4) of Schedule 1 to the TAA 1953]
3.111 Having received the taxpayer's objection against the failure to
make a ruling, including their draft private ruling, the Commissioner must
make a ruling in the same terms as the draft ruling lodged with the
objection, or make a different private ruling. [Schedule 2, item 22,
subsection 14ZY(1) of the TAA 1953]
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.112 If the Commissioner has not issued a ruling within 60 days of
the objection against the failure to make a ruling being lodged, the
Commissioner is taken to have disallowed the objection. [Schedule 2,
item 24, subsection 14ZYB of the TAA 1953]
Example 3.7
Karen requests a ruling and, after 60 days have passed, requests the
Commissioner to make the ruling. The ruling is not made within
30 days. Karen objects to the Commissioner's failure to make the
ruling and lodges her own draft private ruling with the objection.
Oral rulings
What is an oral ruling?
3.113 An oral ruling is a form of binding advice that the ATO can
provide in response to an individual's oral application. An individual or
their legal personal representative (but not their tax agent), may apply to
the Commissioner for an oral ruling on how, in the Commissioner's
opinion, the tax law applies, or would apply, to them. As with public and
private rulings, the ATO is legally bound by an oral ruling if the
individual relies on that advice. [Schedule 2, item 1, section 360-5 of Schedule 1
to the TAA 1953]
3.114 Oral rulings differ from general advice given to taxpayers
through services such as call centres. Oral rulings provide the individual
with protection from additional primary tax and any penalties or interest
that would otherwise be payable. Reliance on other oral advice given by
the ATO provides protection only from penalties and interest. [Schedule 2,
item 1, sections 357-60 and 361-5 of Schedule 1 to the TAA 1953]
Applying for an oral ruling
3.115 Any individual taxpayer may apply to the Commissioner for an
oral ruling on how the Commissioner considers the law applies to them.
A tax agent cannot apply for an oral ruling on a taxpayer's behalf.
[Schedule 2, item 1, subsection 360-5(1) of Schedule 1 to the TAA 1953]
3.116 A taxpayer must apply for an oral ruling orally, in the manner
the Commissioner has approved. [Schedule 2, item 1, subsection 360-5(2) of
Schedule 1 to the TAA 1953]
3.117 The Commissioner will give the taxpayer or their legal personal
representative the ruling orally, in a manner approved by the
Commissioner. The Commissioner must provide the taxpayer with a
registration identifier to distinguish oral rulings from other oral advice.
[Schedule 2, item 1, subsections 360-5(3) and (4) of Schedule 1 to the TAA 1953]
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ATO advice
3.118 A taxpayer is not entitled to receive a written record of the
oral ruling. However, the taxpayer can later apply for a written private
ruling on the same issue which can be binding if the prior ruling is
disclosed (see paragraph 3.31). [Schedule 2, item 1, subsection 360-5(5) of
Schedule 1 to the TAA 1953]
Making an oral ruling
Circumstances in which the Commissioner may decide not to make an
oral ruling
3.119 The Commissioner must give the ruling unless the advice the
taxpayer seeks relates to a business matter, is complex, or the matter to be
ruled on is being, or has already been, considered by the Commissioner.
[Schedule 2, item 1, subsection 360-5(3) of Schedule 1 to the TAA 1953]
3.120 Business is defined in the ITAA 1997 as including any
profession, trade, employment, vocation or calling, but does not include
occupation as an employee.
3.121 Examples of circumstances where the Commissioner might
consider that an oral ruling relates to a complex matter include where:
· the answer turns on the interpretation of facts that require
examination of documents;
· the facts and circumstances on which the answer is to be
based are open to a number of possible interpretations;
· the answer turns on a chain of decisions or conclusions to
reach the final decision; or
· the relevant law is complex and would require significant
research or analysis.
3.122 The Commissioner may decide not to give an oral ruling if the
matter sought to be ruled on is already being, or has been, considered for
the person to whom the ruling would apply. This would include where an
audit on the taxpayer's affairs is being undertaken or where the taxpayer
has already been given a ruling on the matter. [Schedule 2, item 1,
paragraph 360-5(3)(b) of Schedule 1 to the TAA 1953]
3.123 The Commissioner may give an oral ruling on matters of
liability, administration, procedure, collection and ultimate conclusions of
fact involved in the application of a tax law.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.124 Paragraphs 3.38 to 3.45 discuss the ways in which the
Commissioner can obtain information on which to base the ruling.
Withdrawal of an oral ruling
3.125 A taxpayer or their legal personal representative can withdraw
an application for an oral ruling before the Commissioner makes the
ruling. [Schedule 2, item 1, section 360-10 of Schedule 1 to the TAA 1953]
3.126 The rules set out in paragraph 3.31 apply where an oral ruling is
inconsistent with a public ruling or a private ruling.
Commissioner determinations
3.127 The manner in which oral applications are made or withdrawn
under section 360-5 must be determined by the Commissioner in writing.
Other advice and general administrative practice
3.128 ATO advice and practice that does not fall into any category of
ruling may also protect taxpayers from certain adverse consequences.
At present, taxpayers are protected from certain shortfall penalties if
they follow:
· advice given to the taxpayer or their agent by the
Commissioner;
· the Commissioner's general administrative practice under
the law; or
· a statement in a publication approved in writing by the
Commissioner.
3.129 The new provisions ensure that taxpayers will also be protected
from both the shortfall interest charge and the general interest charge if:
· they reasonably rely in good faith on non-ruling advice given
to them or their agent by the Commissioner or a statement in
a publication by the Commissioner, unless the advice or the
statement or publication is labelled as non-binding; or
· they reasonably rely in good faith on the Commissioner's
general administrative practice.
[Schedule 2, item 1, subsection 361-5(1) of Schedule 1 to the TAA 1953]
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ATO advice
3.130 General administrative practice will usually be established by
the ATO having communicated consistently to a wide range of taxpayers
on a particular issue. A general administrative practice is usually adopted
for the efficient administration of the taxation system and will often be
documented in a Law Administration Practice Statement, General
Administration Law Administration Practice Statement, an ATO policy
document (eg, the ATO Receivables Policy), or other precedential material
(such as an ATO Interpretive Decision). An example is
Law Administration Practice Statement PS LA 2003/8 which sets out the
rules developed to lessen the cost of accounting for low cost assets for
taxpayers carrying on a business. Where a draft public ruling represents
the Commissioner's only public statement on an issue, the draft ruling
will usually represent the Commissioner's general administrative practice.
3.131 A general administrative practice is not established merely
because there are several similar private rulings on a matter, although
evidence of a significant number of uncontradicted private rulings on a
matter over time will tend to support such a conclusion. Similarly, a bare
failure by the Commissioner to take some action within his power does
not establish a general administrative practice, but a repeated failure to
exercise that power after the issue is drawn to the Commissioner's
attention will tend to do so. Again, mere silence or failure to issue a
public ruling on a matter does not constitute general administrative
practice, but it will be established where, following identification of an
issue, ATO officers have accepted it as the basis on which taxpayers
should treat the issue in a range of situations.
3.132 Although the provisions referred to in paragraphs 3.128
and 3.129 refer to penalty and interest being foregone, the
Commissioner's acceptance that there has been a general administrative
practice can also result in no further primary tax being payable. Where
the Commissioner changes a general administrative practice in a way that
is less favourable for taxpayers, he is not obliged to amend assessments
that were raised consistently with a practice in place at a particular time.
The Bill needs no special provision to bring this about because it is an
inherent part of the Commissioner's general power to administer the tax
laws to make judgments about what returns to review and amend.
Accordingly, the Commissioner would commonly decide to make a
change in general practice prospective where the new practice is less
favourable for taxpayers. Furthermore, in some cases it would be
appropriate for the new practice to start at a future date (eg, because
taxpayers need time to adjust their accounting systems). However,
consistent with the Report at page 13, the Commissioner would generally
not take this approach where tax avoidance is involved or the previous
practice has been exploited in an unintended way.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
3.133 A taxpayer's protection from the general interest charge under
subsection 361-5(1) will cease 21 days after the Commissioner notifies
the taxpayer of the correct amount of tax payable under the law. This is
consistent with the normal position under income tax that an amended
assessment is due and payable 21 days after the Commissioner gives it to
the taxpayer and general interest charge starts to accrue if it is not paid.
If circumstances warrant (eg, if the liability is substantial and unexpected
and the taxpayer has to significantly restructure their financial affairs to
meet the payment), the Commissioner can defer the payment date (which
also defers the date when the general interest charge can start to accrue).
The Commissioner also has the power to remit the interest charge in
whole or in part, particularly if the Commissioner contributed to the delay
in payment and the taxpayer took reasonable action to mitigate the effects
of the Commissioner's actions. [Schedule 2, item 1, subsection 361-5(2) of
Schedule 1 to the TAA 1953]
3.134 Further, section 284-215 to Schedule 1 of the TAA 1953 should
be ignored in applying subsection 361-5(1) of this Bill. Section 284-215
treats you, for the shortfall penalty provisions, as having no shortfall if the
shortfall is caused by you relying on ATO general administrative practice
or certain ATO advice. If that section were not ignored, taxpayers may
not obtain the intended interest protection because the protection
mechanism refers to there being a shortfall amount (or scheme shortfall
amount). [Schedule 2, item 1, subsection 361-5(3) of Schedule 1 to the TAA 1953]
Consequential amendments
Provisions in the current law that are no longer necessary
3.135 As a consequence of implementing the new framework for
advice and rulings in Schedule 1 to the TAA 1953, the old tax rulings
regime and the rulings provisions in a selected number of Acts will be
repealed. Further flow on consequential amendments to a number of Acts
are required to update or amend definitions and references to the old
rulings regimes, so the law operates as intended. [Schedule 2, items 2 to 16,
18, 26 and 27 of Schedule 1 to the TAA 1953]
Objection periods to reflect changes to the advice and rulings regime
3.136 There have been some alterations and inserts to Part IVC of the
TAA 1953 to correspond with the new advice and rulings regime. The
consequential amendments allow taxpayers to object where the
Commissioner fails to make a private ruling, and allow the taxpayer to
lodge a draft private ruling with the objection. These changes are
discussed in detail in earlier paragraphs (see paragraph 3.100 to 3.112).
[Schedule 2, items 17 and 19 to 25 of Schedule 1 to the TAA 1953]
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ATO advice
3.137 Where there is a taxation objection against the Commissioner
failing to make a private ruling, and the Commissioner at the end of the
relevant objection period does not make a private ruling in the same terms
as the draft ruling lodged or make a different private ruling, the
Commissioner is taken to have disallowed the objection. In this case, the
taxpayer can apply to the Administration Appeals Tribunal or appeal to
the Federal Court against the Commissioner's deemed disallowance of the
objection. [Schedule 2, items 22, 24 and 25 of Schedule 1 to the TAA 1953]
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Chapter 4
Regulation impact statement
Background
4.1 Since 1986-87, Australia has operated a system of self
assessment of income tax. Under self assessment, taxpayers' returns are
generally accepted at face value in the first instance and the Australian
Taxation Office (ATO) may verify the accuracy of the return and, if
necessary, amend an assessment within a prescribed period. From
1989-90, the returns of companies and superannuation funds became
subject to a system of full self assessment under which the taxpayer
calculates their liability and pays their tax when lodging their return.
4.2 Before self assessment, taxpayers provided the ATO with
relevant information and the ATO applied the law to assess their liabilities
accordingly. Where taxpayers provided all relevant information, errors of
fact could be corrected by the ATO but mistakes of law could not be.
Under that system, the majority of risk and the cost of mistakes of law by
the ATO were borne by all taxpayers. Self assessment relieved the ATO
of the obligation to examine returns lodged by taxpayers and allowed the
ATO to amend errors of calculation, mistakes of fact and mistakes of law
after processing the initial assessment and collecting the tax payable or
paying a refund. In some circumstances, returns may be re-opened many
years after the original assessment. In this way, the introduction of self
assessment shifted the balance of risk and uncertainty towards taxpayers.
The change to self assessment meant that the ATO's resources could be
used more efficiently, allowing more revenue to be collected for the same
administrative cost.
4.3 Under self assessment, taxpayers may be uncertain about how
the law applies to their circumstances. Uncertainty exposes taxpayers to
costs (such as a requirement to pay additional tax, penalties and interest,
or the costs of professional advice and litigation) if a shortfall is detected
by the ATO. Uncertainty may have implications for taxpayer perceptions
about the fairness of the tax system and consequently may affect the level
of voluntary compliance by taxpayers. Finally, uncertainty about the tax
consequences of a proposed transaction may have adverse economic
implications, as taxpayers may be unwilling to enter into economically
beneficial transactions if they are not able to obtain assurance about their
taxation consequences.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
4.4 In a Press Release on 24 November 2003 (No. 098), the
Treasurer commissioned a review of aspects of the income tax self
assessment system (the Review) to examine whether the right balance had
been struck between protecting the rights of individual taxpayers and
protecting the revenue for the benefit of the whole Australian community.
4.5 On 16 December 2004, the Treasurer announced the
Government's response to the Report of Aspects of Income Tax
Self Assessment (the Report) and released the Report to the public in
Press Release No. 106. The Treasurer announced that the Government
would adopt the 30 legislative recommendations made in the Report, and
that the Commissioner of Taxation (Commissioner) had advised the
Treasurer that the ATO would implement the relevant administrative
recommendations as soon as practicable.
Specification of policy objective
4.6 The broad policy objective is to reduce the level of uncertainty
for taxpayers and the risks and costs associated with self assessment,
while preserving the capacity of the ATO to collect legitimate tax
liabilities.
Implementation and analysis
4.7 The Review examined many aspects of the income tax
assessment system and recommended:
· improving certainty through providing for a better framework
for the provision of ATO advice and introducing ways to
make that advice more accessible and timely, and binding in
a wider range of cases;
· improving certainty by reducing the periods allowed for the
ATO to increase a taxpayer's liability in a wide range of
situations;
· mitigating the interest and penalty consequences of taxpayer
errors arising from uncertainties in the self assessment
system; and
· providing for future improvements through better policy
processes, law design and administrative approaches.
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Regulation impact statement
4.8 An analysis of each aspect will not be addressed within this
regulation impact report due to some of the measures, namely penalty and
interest change, being dealt with in an earlier analysis.
General impact group identification
4.9 The measures will have an impact on all taxpayer groups
(individual self-preparers, individuals who use tax agents, very small
businesses, superannuation funds, trusts, partnerships, small and medium
businesses and large businesses) and their advisers.
4.10 The proposals will also have an impact on the ATO as
administrator of the tax law.
4.11 The total administrative cost of the following 2 measures is
estimated to be $58.8 million over 4 years. The cost to revenue of these
proposals is estimated to be $28 million over 4 years. Although these
costs are considerable, the package will significantly benefit taxpayers.
Amendment of assessments
Specific objective
4.12 The objective is to ensure that the time during which taxpayers
experience uncertainty about whether they have correctly self assessed
their income tax liability more accurately reflects their risk profile and the
revenue consequence of an error in their assessment.
Specific implementation options
4.13 Many individuals who are not in business and some very small
businesses have straightforward tax affairs. While the law currently
allows 4 years from the date of the original assessment to amend
assessments for these taxpayers, the ATO generally completes its
compliance activity for the vast majority within 2 years.
4.14 Subject to certain exceptions, the amendment period for
increasing the liability of individuals and very small businesses is reduced
from the present 4 years to 2 years. The 2-year amendment period will
exclude:
· a taxpayer that carries on a business, or is a partner in a
business, that is not in the STS;
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
· a taxpayer that is a beneficiary of a trust estate at any time in
that income year, unless the trust is an STS taxpayer or a full
self assessment taxpayer (eg, a corporate unit trust, public
trading trust or superannuation fund);
· a taxpayer if, in that year, that taxpayer or another entity
entered into or carried out a scheme (either alone or with
others) for the sole or dominant purpose of the taxpayer
obtaining a scheme benefit in relation to income tax from the
scheme for that year; and
· other high risk or special cases prescribed by regulation.
4.15 Taxpayers with complex affairs, including businesses that are
not in the simplified tax system (STS), will have a 4-year amendment
period.
4.16 Fraud and evasion cases will continue to have an unlimited
amendment period, as people who engage in calculated behaviour to
evade tax should remain permanently at risk.
4.17 The proposed measure will also:
· shorten the amendment period for the anti-avoidance
provisions from 6 years to 4 years;
· make the period during which the ATO can amend nil
liability and loss cases equivalent to the period for
amendments creating liabilities; and
4.18 Amendments to the existing law will apply to assessments for
2004-05 and later income years. Special transitional rules will apply in
relation to nil liability returns for the 2003-04 income year and earlier
income years.
Impact group identification and analysis
4.19 All taxpayers will potentially be affected by the changes.
Benefits
4.20 The proposed measure will change the periods during which
assessments can be amended, providing additional certainty for taxpayers
whose assessments are amended to create a liability (270,000 taxpayers in
2003-04).
70
Regulation impact statement
4.21 The time that elapses before an assessment can no longer be
amended represents a major aspect of uncertainty for taxpayers. To the
extent that this time can be reduced or made clearly known, the `costs' of
uncertainty will be reduced. Formalising a shorter period will increase
certainty for a very large number of taxpayers at little cost. More
specifically:
· the period for the ATO to increase the liability of individuals
and very small businesses would be reduced from 4 years to
2 years. All eligible individual non-business taxpayers
(8 million) and STS taxpayers (425,000 small businesses)
whose assessments are amended will potentially benefit from
this measure.
· the present 6-year amendment period for the Commissioner
to give effect to the anti-avoidance provisions is abolished, so
that a 4-year amendment period applies for taxpayers who
seek a scheme benefit in relation to income tax.
Costs
4.22 Although a shorter period of review is proposed, this will not
alter the record-keeping obligations for taxpayers. Therefore, the
compliance costs are likely to remain unaffected.
4.23 These proposals are estimated to have a revenue cost
of $28 million over 4 years.
4.24 The administrative costs of this proposal are estimated to
be $35.8 million over 4 years, comprising $33.9 million over 4 years for
the ATO and $1.9 million over 4 years for the Treasury.
4.25 Approximately $21.6 million will be required to improve the
ATO's data collection process and the additional workload to maintain
reliability. $12.3 million has been allocated to implement changes to the
business system in order to capture and report losses.
ATO advice
Specific objective
4.26 The objective of reviewing the law is to improve the
arrangements for a taxpayer to find out the Commissioner's view about
how the taxation laws apply, so that the risks of uncertainty when they are
self assessing are reduced.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Specific implementation options
4.27 The ATO provides taxpayers and tax practitioners with a range
of advice on how to apply the income tax law, through formal rulings and
other products. Currently, different types of ATO advice confer varying
degrees of protection for taxpayers.
4.28 To address uncertainty, the Review proposed that all ATO
advice provide a level of protection for taxpayers who have acted in good
faith and have reasonably relied on advice that is later determined to be
incorrect.
4.29 In the case of advice that is legally binding, taxpayers will be
protected from amended assessments raising further primary tax, penalties
and interest charges. In the case of any other written advice (unless that
advice is clearly labelled non-binding) and oral advice provided by formal
enquiry centres, taxpayers will be protected from penalty and interest
charges. Taxpayers will receive similar protection where they act in
accordance with long standing general administrative practice.
4.30 The categories of legally binding advice will be expanded to
cover matters of administration, procedure and collection, and the
Commissioner will be permitted to declare that other products for use by
individual non-business self-preparers will provide the same protection as
legally binding rulings.
4.31 Further amendments to existing law allow an individual
non business taxpayer to apply for an oral ruling on how the tax law
applies to them. Currently, a limited class of taxpayer may apply for an
oral ruling on how the income tax law applies to them.
4.32 This measure replaces the existing provisions on rulings
entirely. It makes certain categories of ATO advice (called rulings)
legally binding on the Commissioner where taxpayers rely on rulings that
apply to them. The categories of rulings are:
· public rulings;
· private rulings; and
· oral rulings.
72
Regulation impact statement
Public rulings
4.33 This measure expands the category of matters that a public
ruling may deal with to cover matters of administration, procedure,
collection and ultimate conclusions of fact. Thus the Commissioner may
declare that advice provided for the general information of non-business
self-preparers be binding.
Private rulings
4.34 Under the proposal, a range of changes will be made. These
include:
· expanding the category of matters on which private rulings
can be provided;
· providing an avenue for review where an application for a
private ruling has not been determined within 60 days;
· allowing the Commissioner to make reasonable
assumptions in dealing with a private ruling request;
· allowing the Commissioner to consider information
other than that supplied by the applicant in making a
private ruling, provided the applicant is informed;
· clarifying the rules where rulings are inconsistent; and
· allowing the Commissioner to take account of additional
information supplied after making the private ruling
application.
Oral rulings
4.35 This measure will extend the availability of oral rulings to all
non-business issues raised by self-preparing individual taxpayers unless
the issues are so complex that they would better be dealt with in writing.
Impact group identification and analysis
4.36 All taxpayers and their advisers would potentially be affected by
the changes to the framework for ATO advice.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Benefits
4.37 Overall, these amendments to the existing provisions will
improve:
· the flexibility in communication methods between taxpayers
and the ATO;
· timeliness of the provision of rulings; and
· certainty by making it clear that any written interpretive
document the Commissioner publishes may be declared to be
a public ruling.
4.38 This measure will have a positive effect on the responsiveness
and reliability of ATO advice. Taxpayers should gain confidence that
they are assessing their tax liabilities in line with the ATO's
interpretation.
Costs
4.39 The administrative costs of these proposals, comprising
additional funds for the ATO to improve quality and timeliness, are
estimated to be $23 million over 4 years.
4.40 In particular, $8 million will be allocated to improving the
timeliness of private rulings. Approximately $11 million has been
allocated to improving the oral ruling system, including introducing a
voice recording system.
4.41 There are not expected to be ongoing capital costs associated
with this measure. Ongoing costs will only comprise operational and
maintenance costs.
4.42 The revenue cost for the proposals is unquantifiable, but is
unlikely to have a discernible impact against the forward estimates.
4.43 Taxpayers are not expected to incur additional compliance costs
as a result of the proposed changes, except in circumstances where they
apply for private rulings involving a valuation issue.
4.44 Where the taxpayer asks the Commissioner for a valuation, or
provides the Commissioner with a valuation for review, the Commissioner
may charge the applicant. However, this charge may simply replace the
previous cost to the taxpayer of obtaining his or her own valuation.
74
Regulation impact statement
4.45 Charges levied by the Commissioner with respect to valuations
will be tax deductible for the taxpayer.
4.46 A cost recovery impact statement is currently being drafted by
the ATO to evaluate the impact of the Commissioner charging for private
rulings involving a valuation.
Consultation
4.47 The Review invited public submissions and there has been
extensive consultation with tax practitioners, business groups and
agencies with a governance role in the tax system (namely the
Australian National Audit Office, the Commonwealth Ombudsman,
Inspector General of Taxation, ATO and the Office of Small Business).
4.48 Consultation for the Review included:
· The Review's discussion paper (released on 29 March 2004)
outlined details for making a submission to the Review. The
Review received over 30 comprehensive and detailed
submissions from individuals, professional associations,
companies and representatives of taxpayers.
· A website containing information on the Review including
details for contacting the Review, as well as an electronic
registration form to receive a copy of the Review's
discussion paper on its release.
· The Review held consultative meetings with professional
representatives around Australia.
· All formal public submissions received were published on
the Treasury website, when the Report was released on
16 December 2004.
· Public consultation on the legislative provisions for these
measures was conducted from February 2005 with industry
groups and tax practitioners.
4.49 Submissions received by the Review indicated some criticism of
existing legislation and identified some inadequacies in administering the
law. These comments are summarised in the Report.
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
4.50 In addition, comments received about the draft legislation
indicate the changes to existing law have broad support from industry
groups, tax professionals and Government.
Conclusion and recommended option
4.51 It is expected that the range of measures will facilitate greater
confidence and a certainty within the system. The amendments to the
existing law replace the existing provisions on review periods and ATO
advice entirely. While the measure should considerably improve
certainty, it will not affect the capacity of the ATO to collect legitimate
income tax liabilities.
4.52 The Treasury and the ATO will monitor the implementation of
these measures, as part of the whole taxation system, on an ongoing basis.
76
Index
Schedule 1: Assessments
Bill reference Paragraph number
Item 1, item 1 in the table in subsection 170(1) 2.25
Item 1, item 1 in the table in subsection 170(3) 2.43
Item 1, paragraph (f) in column 3 of item 1, paragraph (e) in 2.33
column 3 of item 2 and paragraph (d) in column 3 of item 3 in the
table in subsection 170(1)
Item 1, item 2 in the table in subsection 170(1) 2.26
Item 1, item 2 in the table in subsection 170(3) 2.44
Item 1, item 3 in the table in subsection 170(1) 2.27
Item 1, item 4 in the table in subsection 170(1) 2.35
Item 1, item 5 in the table in subsection 170(1) 2.37
Item 1, subsections 170(1) and (2) 2.42
Item 1, subsection 170(3) 2.45
Item 1, subsection 170(4) 2.46
Item 1, subsections 170(6) to (8) 2.48
Items 3 to 7, subsection 170(10) 2.55
Item 6, section 170, subsection 170(1) 2.38
Item 8, subsection 170(13) 2.58
Items 9 to 13, subsection 170(14) 2.59
Item 14, section 170A 2.60
Items 15 and 19 2.61
Item 16, subsection 6(1) 2.50
Items 17 and 18, section 175A 2.53
Item 20, item 1 in the table in subsection 171A(1) 2.64
Item 20, item 2 in the table in subsection 171A(1) 2.65
Item 20, items 2 and 3, paragraph (a) in the table in 2.68
subsection 171A(1)
Item 20, item 3 in the table in subsection 171A(1) 2.66
Item 20, item 4 in the table in subsection 171A(1) 2.67
Item 20 and item 4 in the table in subsection 171A(1) 2.68
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Bill reference Paragraph number
Item 20, subsection 171A(2) 2.70
Item 21, subsections 170(9A), (9E) and (9F) 2.54
Items 21, 22, 26 and 27 2.71
Items 23, 24, 33, 34 and 36, subsections 251R(6F) and (6FA) of the 2.72
ITAA 1936, subsections 18-100(1) and 388-65(3), Schedule 1 of
the TAA 1953
Items 25, 32 and 59 2.79
Item 28, paragraphs 14ZW(1)(aa) and (aaa) of the TAA 1953 2.74
Item 29, subsections 14ZW(1A) and (1AA) of the TAA 1953 2.75
Items 30 and 31, paragraphs 14ZW(1B)(b) and 14ZW(1BA)(b) of 2.76
the TAA 1953
Items 35 and 37 2.80
Items 38 to 45, sections 161AA, 166, 166A, 168 and 169 of the 2.77
ITAA 1936
Items 46 to 58, sections 18-15, 18-20, 18-25, 18-27, 45-30 and 2.78
45-865, Schedule 1 to the TAA 1953 and section 8K of the
Taxation (Interest on Overpayments and Early Payments) Act 1983
Schedule 2: ATO advice
Bill reference Paragraph number
Item 1, section 357-55 of Schedule 1 to the TAA 1953 3.22
Item 1, sections 357-60 and 357-70 of Schedule 1 to the TAA 1953 3.30
Item 1, sections 357-60 and 361-5 of Schedule 1 to the TAA 1953 3.117
Item 1, subsection 357-60(1) of Schedule 1 to the TAA 1953 3.23
Item 1, paragraph 357-60(1)(b) of Schedule 1 to the TAA 1953 3.26
Item 1, subsection 357-60(2) of Schedule 1 to the TAA 1953 3.27
Item 1, section 357-65 of Schedule 1 to the TAA 1953 3.28
Item 1, section 357-70 of Schedule 1 to the TAA 1953 3.29
Item 1, subsection 357-75(1) of Schedule 1 to the TAA 1953 3.31
Item 1, subsection 357-75(2) of Schedule 1 to the TAA 1953 3.32
Item 1, section 357-80 of Schedule 1 to the TAA 1953 3.33
Item 1, section 357-85 of Schedule 1 to the TAA 1953 3.34
Item 1, section 357-90 of Schedule 1 to the TAA 1953 3.35
Item 1, section 357-95 of Schedule 1 to the TAA 1953 3.36
Item 1, section 357-100 of Schedule 1 to the TAA 1953 3.37
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Index
Bill reference Paragraph number
Item 1, section 357-105 of Schedule 1 to the TAA 1953 3.39
Item 1, section 357-110 of Schedule 1 to the TAA 1953 3.41
Item 1, section 357-115 of Schedule 1 to the TAA 1953 3.42
Item 1, section 357-120 of Schedule 1 to the TAA 1953 3.45
Item 1, section 357-125 of Schedule 1 to the TAA 1953 3.46
Item 1, subsection 358-5(1) of Schedule 1 to the TAA 1953 3.47
Item 1, subsection 358-5(2) of Schedule 1 to the TAA 1953 3.49
Item 1, subsections 358-5(2) and (4) of Schedule 1 to the 3.50
TAA 1953
Item 1, subsection 358-10(1) of Schedule 1 to the TAA 1953 3.52
Item 1, subsection 358-10(2) of Schedule 1 to the TAA 1953 3.53
Item 1, section 358-15 of Schedule 1 to the TAA 1953 3.54
Item 1, section 358-20 of Schedule 1 to the TAA 1953 3.55
Item 1, section 359-5 of Schedule 1 to the TAA 1953 3.61
Item 1, subsection 359-5(1) and section 359-20 of Schedule 1 to 3.72
the TAA 1953
Item 1, subsection 359-10(1) and section 359-30 of Schedule 1 to 3.67
the TAA 1953
Item 1, subsection 359-10(2) of Schedule 2 to the TAA 1953 3.68
Item 1, subsection 359-10(3) of Schedule 1 to the TAA 1953 3.69
Item 1, section 359-15 of Schedule 1 to the TAA 1953 3.71
Item 1, subsections 359-25(1) to (3) of Schedule 1 to the 3.75
TAA 1953
Item 1, subsection 359-25(4) of Schedule 1 to the TAA 1953 3.76
Item 1, subsection 359-35(1) of Schedule 1 to the TAA 1953 3.77
Item 1, subsections 359-35(2) and (3) of Schedule 1 to 3.78, 3.84
the TAA 1953
Item 1, subsection 359-35(3) of Schedule 1 to the TAA 1953 3.80, 3.83
Item 1, subsection 359-35(4) of Schedule 1 to the TAA 1953 3.85
Item 1, paragraph 359-40(1)(a) and subsections 359-40(2) and (3) 3.87
of Schedule 1 to the TAA 1953
Item 1, paragraph 359-40(1)(b) and subsections 359-40 (2) and (3) 3.88
of Schedule 1 to the TAA 1953
Item 1, subsection 359-40(4) of Schedule 1 to the TAA 1953 3.90
Item 1, subsection 359-40(5) of Schedule 1 to the TAA 1953 3.91
Item 1, section 359-45 of Schedule 1 to the TAA 1953 3.92
Item 1, subsection 359-50(1) of Schedule 1 to the TAA 1953 3.94
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Tax Laws Amendment (Improvements to Self Assessment) Bill (No. 2) 2005
Bill reference Paragraph number
Item 1, subsection 359-50(2) of Schedule 1 to the TAA 1953 3.96
Item 1, subsections 359-50(3) and (4) of Schedule 1 to 3.95, 3.100, 3.110
the TAA 1953
Item 1, subsections 359-55(1) and (3) of Schedule 1 to 3.97
the TAA 1953
Item 1, subsection 359-55(2) of Schedule 1 to the TAA 1953 3.99
Item 1, subsection 359-55(4) of Schedule 1 to the TAA 1953 3.98
Item 1, subsections 359-60(1) and (2) of Schedule 1 to 3.100, 3.101
the TAA 1953
Item 1, subsection 359-60(3) of Schedule 1 to the TAA 1953 3.102
Item 1, subsections 359-65(1) and (2) of Schedule 1 to 3.106
the TAA 1953
Item 1, section 359-70 of Schedule 1 to the TAA 1953 3.108
Item 1, section 360-5 of Schedule 1 to the TAA 1953 3.113
Item 1, subsection 360-5(1) of Schedule 1 to the TAA 1953 3.115
Item 1, subsection 360-5(2) of Schedule 1 to the TAA 1953 3.116
Item 1, subsection 360-5(3) of Schedule 1 to the TAA 1953 3.120
Item 1, subsections 360-5(3) and (4) of Schedule 1 to 3.117
the TAA 1953
Item 1, paragraph 360-5(3)(b) of Schedule 1 to the TAA 1953 3.122
Item 1, subsection 360-5(5) of Schedule 1 to the TAA 1953 3.118
Item 1, section 360-10 of Schedule 1 to the TAA 1953 3.125
Item 1, subsection 361-5(1) of Schedule 1 to the TAA 1953 3.129
Item 1, subsection 361-5(2) of Schedule 1 to the TAA 1953 3.133
Item 1, subsection 361-5(3) of Schedule 1 to the TAA 1953 3.134
Items 2 to 16, 18, 26 and 27 of Schedule 1 to the TAA 1953 3.135
Items 17 and 19 to 25 of Schedule 1 to the TAA 1953 3.136
Item 22, subsection 14ZY(1) of the TAA 1953 3.111
Items 22, 24 and 25 of Schedule 1 to the TAA 1953 3.137
Item 24, subsection 14ZYB of the TAA 1953 3.112
80