Commissioner issues PSLA on penalties; Addendum to MT 2006/1 re Enterprise.

On 23 August 2012 the Commissioner published PSLA 2012/5 ‘Administration of penalties for making false or misleading statements that result in shortfall amounts.  This replaces PSLA 2006/2 effective 23 August 2012 and it explains how the Commissioner administers the penalty for making a false or misleading statement made on or after 1 April 2004 where the statement results in a shortfall amount.  The PSLA discusses when such a statement will give rise to the administrative penalty and how the penalty is assessed, including any remission of the penalty.  This covers all taxes, including GST.

On 22 August 2012 the Commissioner published Addendum MT2006/1A1 to MT 2006/1 ‘The New Tax System: the meaning of entity carrying on an enterprise for the purposes of entitlement to an Australian Business Number’.  The Addendum updates references to legislation and cases, in particular the decision of the Federal Court in FCT v Swansea Services Pty Ltd [2009] FCA 402.  In doing so, the Ruling incorporates the following aspects from that decision:

  • The words ‘in the form of’ do not support a suggestion that form alone may prevail over substance.  However, those words ‘have the effect of extending the reach of ‘enterprise’ to those activities which are in the form of a business but would not, in the ordinary meaning of ‘business’ be considered such.  But the activity must still be reasonably intended to be profit making in the case of an individual and cannot for any entity simply be a private recreational pursuit or hobby’: paragraph 170A
  • Whether the passive nature of an activity affects the characterisation (of carrying on a business) will turn on the particular context: footnote 68
  • The GST legislation does not preclude investment activities from amounting to the carrying on of an enterprise: footnote 70

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