Commonwealth Numbered Acts

TAXATION BOARDS OF REVIEW (TRANSFER OF JURISDICTION) ACT 1986No. 48, 1986 - SECT 139

139. Sections 40, 41 and 42 of the Principal Act are repealed and the
following sections are substituted: Objections against assessments, &c.

"40. (1) A taxpayer who is dissatisfied with an assessment may, within 60 days
after service on the taxpayer of notice of the assessment, lodge with the
Commissioner an objection in writing against the assessment.

"(2) An applicant for a refund decision who is dissatisfied with a decision
made on the application may, within 60 days after service on the applicant of
notice of the decision, lodge with the Commissioner an objection in writing
against the decision.

"(3) Sub-section (2) does not apply in relation to a refund decision unless
the application for the refund or payment to which the decision relates was
lodged with the Commissioner within 60 days after the transaction, act or
operation (not being the payment of tax) that is claimed to entitle the
applicant to the refund or payment or within such further time as the
Commissioner allows.

"(4) A person affected by a reviewable decision who is dissatisfied with that
reviewable decision may, within 60 days after service on the person of notice
of the decision, lodge with the Commissioner an objection in writing against
the reviewable decision.

"(5) An objection under this section shall state fully and in detail the
grounds on which the objection is made.

"(6) The Commissioner shall consider each objection and may either disallow it
or allow it wholly or in part.

"(7) The Commissioner shall cause notice in writing of the Commissioner's
decision on each objection to be served on the objector.

"(8) Where an assessment has been amended in any particular, the right of a
taxpayer to object against the amended assessment is limited to a right to
object against alterations or additions in respect of, or matters relating to,
that particular.

"(9) Where a notice incorporates notice of more than one assessment, whether
of tax or of additional tax, the assessments shall, for the purposes of this
Part, be regarded as one assessment. Request for reference

"41. An objector who is dissatisfied with a decision under section 40 on an
objection by the objector may, within 60 days after service on the objector of
notice of the decision, lodge with the Commissioner, in writing, either-

   (a)  a request to refer the decision to the Tribunal; or

   (b)  a request to refer the decision to a specified Supreme Court.
        Applications for extension of time

"42. (1) Where the period for the lodgment by a person of an objection has
ended, the person may, notwithstanding that the period has ended, send the
objection to the Commissioner together with an application in writing
requesting the Commissioner to treat the objection as having been duly lodged.

"(2) Where the period for the lodgment by an objector of a request under
section 41 has ended, the objector may, notwithstanding that the period has
ended, send the request to the Commissioner together with an application in
writing asking that the request be treated as having been duly lodged.

"(3) An application under sub-section (1) or (2) shall state fully and in
detail the circumstances concerning, and the reasons for, the failure by the
person to lodge the objection or request as required by this Act.
Consideration of applications for extension of time for lodging objections

"42A. (1) The Commissioner shall consider each application made under
sub-section 42 (1) and may grant or refuse the application.

"(2) The Commissioner shall give to the person who made the application notice
in writing of the decision on the application.

"(3) A person who is dissatisfied with a decision under sub-section (1) in
respect of an application made by the person may apply to the Tribunal for
review of the decision.

"(4) Where an application under sub-section 42 (1) has been granted, the
person who made the application shall, for the purposes of this Part, be
treated as having duly lodged the objection to which the application relates.
Consideration of applications for extension of time for lodging requests for
reference

"42B. (1) Where the Commissioner receives an application under sub-section 42
(2), the Commissioner shall, as soon as practicable-

   (a)  if the application relates to a request to refer a decision to the
        Tribunal-send the application to the Tribunal; or

   (b)  if the application relates to a request to refer a decision to a
        specified Supreme Court-send the application to that Supreme Court.

"(2) The sending of an application to the Tribunal under paragraph (1) (a)
shall, for the purposes of the Administrative Appeals Tribunal Act 1975, be
deemed to constitute the making by the objector concerned of an application to
the Tribunal to extend the time within which the request may be lodged with
the Commissioner.

"(3) The sending of an application to a Supreme Court under paragraph (1) (b)
constitutes the making by the objector concerned of an application to that
Court to extend the time within which the request may be lodged with the
Commissioner and the application shall be heard by that Court constituted by a
single Judge.

"(4) The Tribunal or the Supreme Court, as the case may be, may grant or
refuse the application.

"(5) Where an application under sub-section 42 (2) has been granted, the
objector shall, for the purposes of this Part, be treated as having duly
lodged the request to which the application relates. Reference to Tribunal or
Court

"42C. (1) Where an objector duly lodges, or is to be treated as having duly
lodged, a request under section 41, the Commissioner shall comply with the
request.

"(2) The referral of a decision on an objection to the Tribunal shall, for the
purposes of the Administrative Appeals Tribunal Act 1975, be deemed to
constitute the making by the objector of an application to the Tribunal for
review of the decision concerned.

"(3) The referral of a decision on an objection to a Supreme Court constitutes
the instituting by the objector concerned of an appeal against the decision,
and that appeal shall be heard by that Court constituted by a single Judge.
Notice to refer

"42D. (1) Subject to sub-sections (2) and (3), if, within 60 days after
receiving a request under section 41 in relation to a decision on an
objection, the Commissioner does not comply with the request, the objector who
made the request may give notice in writing to the Commissioner requiring the
Commissioner to do so and the Commissioner shall, within 60 days after
receiving the notice, comply with the request.

"(2) Where an application under section 42 in relation to a request has been
granted, the objector who made the request is not entitled to give notice
under sub-section (1) in relation to the request before the expiration of 60
days after the day on which the application was granted.

"(3) If, within 60 days after receiving a request under section 41 in relation
to a decision on an objection or, in a case to which sub-section (2) of this
section applies, within 60 days after an application under section 42 in
relation to a request has been granted, the Commissioner, by notice in writing
served on the objector who made the request, requires the objector to give
information relating to the objection, the Commissioner is not required to
comply with the request until the expiration of 60 days after the receipt by
the Commissioner of that information. Procedure on review or appeal

"42E. In proceedings under this Part on a review before the Tribunal or on
appeal to a Supreme Court-

   (a)  the objector is, unless the Tribunal or Court otherwise orders,
        limited to the grounds stated in the objection; and

   (b)  the burden of proving that an assessment is excessive, or a refund
        decision or a reviewable decision is incorrect, lies on the objector.
        Powers of Tribunal in relation to remission decisions

"42F. Notwithstanding section 25 of the Administrative Appeals Tribunal Act
1975, the Tribunal does not have power to review decisions of the Commissioner
relating to the remission of additional tax except decisions relating to the
remission of additional tax under Part VIII where the additional tax payable,
after the making by the Commissioner of the decision, exceeds-

   (a)  in the case of additional tax payable under sub-section 45 (1) because
        of a refusal or failure to furnish a return or information in respect
        of goods-the amount calculated, in respect of the period commencing on
        the last day allowed for furnishing the return or information, as the
        case may be, and ending on-

        (i)    the day on which the return or information is furnished; or

        (ii)   the day on which the assessment of additional tax is made,
whichever first happens, at a rate of 20% per year of the tax properly payable
in respect of those goods;

   (b)  in the case of additional tax payable under sub-section 45 (2) because
        of the making of a false or misleading statement-the amount
        calculated, in respect of the period commencing on the day the amount
        of the excess referred to in that sub-section became due and payable
        and ending on the day on which the assessment of additional tax is
        made, at the rate of 20% per year of that excess;

   (c)  in the case of additional tax payable under section 46 in consequence
        of an alteration in sale value of goods-the amount calculated, in
        respect of the period commencing on the day the amount of the
        difference referred to in that section became due and payable and
        ending on the day on which the assessment of additional tax is made,
        at the rate of 20% per year of the amount of that difference; or

   (d)  if the amount ascertained in accordance with paragraph (a), (b) or (c)
        is less than $20-$20. Proceedings on appeal to Court

"42G. (1) A Supreme Court hearing an appeal under this Part may, if it thinks
fit, state a case in writing for the opinion of the Federal Court of Australia
on a question of law arising on the appeal.

"(2) A Full Court of the Federal Court of Australia shall hear and, by order,
determine the question, and remit the case with its opinion to the Supreme
Court, and may make such order as to the costs of the case stated as it thinks
fit.

"(3) A Supreme Court hearing an appeal under this Part may make such order in
relation to the decision to which the appeal relates as it thinks fit,
including an order confirming or varying the decision.

"(4) An appeal does not lie from an order under sub-section (3) except-

   (a)  to the Federal Court of Australia; or

   (b)  by special leave of the High Court-to that Court.

"(5) An appeal does not lie from a decision of the Federal Court of Australia
in a matter under this Part unless the High Court gives special leave to
appeal. Implementation of decisions

"42H. (1) When a decision of the Tribunal or of a court on an objection under
this Part becomes final, the Commissioner shall, not later than 60 days after
that decision becomes final, take such action, including amending the
assessment, if any, concerned, as may be necessary to give effect to that
decision.

"(2) Where a decision may, by special leave of the High Court, be taken on
appeal to that Court, then, in determining, for the purposes of sub-section
(1), when that decision becomes final-

   (a)  if that decision is a decision of a Supreme Court of a State or
        Territory and neither an appeal is made to the Federal Court of
        Australia within the period for lodging such an appeal nor an
        application made for special leave to appeal to the High Court within
        the period of 30 days after the making of the decision-the decision
        will become final upon the expiration of the later of those periods to
        expire; or

   (b)  if that decision is a decision of the Federal Court of Australia and
        an application is not made for special leave to appeal to the High
        Court within the period of 30 days after the making of the
        decision-the decision will become final upon the expiration of that
        period.

"(3) In this section 'decision', in relation to a court, includes the making
of an order under sub-section 42G (3).