Update on GST refunds – Bill introducing Division 142 has lapsed

On 26 June 2013 the Tax Laws Amendment (2013 Measures No.4) Bill 2013 was introduced into the House of Representatives which proposed to repeal s 105-65 of Schedule 1 to the TAA and introduce Division 142 into the GST Act. Due to the Federal election being called the Bill has now lapsed. This means that the provisions of s 105-65 of Schedule 1 to the TAA will continue to apply to the payment of GST refunds.

This is good news for those taxpayers who have overpaid GST by reason of a “miscalculation” of GST (eg, under the margin scheme) as the Commissioner accepts that s 105-65 does not apply in those circumstances.

I also note that the transitional provisions in the Bill to introduce Division 142 provided that the new provisions would apply to tax periods starting on or after 17 August 2012, but that taxpayers could rely on the previous laws where they had done one of the following by 26 June 2013, being the date the Bill was introduced into the House (referred to as “the introduction day”):

  • if an amendment is made to an assessment, or is applied to be made, before the introduction day;
  • if an objection is made before the introduction day.

The Bill may well be re-introduced after the election and if so, the provisions may also apply to tax periods starting on or after 17 August 2012. With that in mind, taxpayers who believe that they may have an entitlement to a refund of GST may be able to protect their refund rights under the existing law by applying to amend their assessments or objecting to their assessments. Of course, whether that course of action would be effective would very much depend on the form of the transitional provisions in the re-introduced Bill.

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