Part IIB – Running Balance Accounts, Application of payments and credits, and related matters
Division 3A – Refunds of RBA surpluses and credits
8AAZLF Commissioner must refund RBA surpluses and credits
8AAZLG Retaining refunds until information or notification is given
8AAZLGA Retaining refunds while Commissioner verifies information
Cases
Sanctuary Australasia Pty Ltd and Commissioner of Taxation [2013] AATA 371 – the applicant was not entitled to object to the retaining of a refund under s 8AALGA where the Commissioner had subsequently issued a “nil” assessment – the applicant was required to object to this assessment (Case analysis)
International cases
Contract Pacific Ltd v CIR [2010] NZSC 136 – GST refunds, obligation of Commissioner to pay refunds pending investigation – first instance – [2008] NZHC 1733
Almond Properties v The Commissioner of Inland Revenue [2003] NZCA 221 – GST refunds, delay in payment by Commissioner pending investigation
Division 4 – Miscellaneous provisions about tax debts
8AAZN Overpayments made by the Commissioner under taxation laws
Cases
Deputy Commissioner of Taxation v De Angelis [2008] SASC 103 – Taxation – conclusive nature of Notice of Assessment – meaning of “administrative overpayment”, under s8AAZN of the Taxation Administration Act 1953 (“TAA”) – allocation of overpayment to a Running Balance Account in order to recover the debt and interest, under s8AAZD and s8AAZF of the TAA – whether appellant entitled to recover the debt and interest in the absence of notice under s8AAZN(2) of the TAA.
Deputy Commissioner of Taxation v Price [2010] QSC 196 – where the plaintiff made an “administrative overpayment” to the defendant – where the plaintiff established a Running Business Account for the defendant – where the plaintiff charged a general interest charge in the Running Business Account – whether the plaintiff can obtain summary judgment against the defendant for the balance of a Running Business Account
Wynnum Holdings No.1 Pty Ltd and Commissioner of Taxation [2011] AATA 296 – GST – attempted recovery by the Commissioner of an amount paid to the applicant – preliminary issues to be decided – whether the Commissioner’s claim for recovery is out of time – whether amount paid can be characterised as “unpaid net amount” or “unpaid indirect tax” – whether Commissioner is prevented from recovering amount by a previous ruling in the applicant’s favour – applicant unsuccessful on preliminary issues – matter to be listed for further directions
Swanbat Pty Ltd and Commissioner of Taxation [2013] AATA 891 – at [101]: the payment of a refund in respect of a tax period in respect of which the 4 year limitation period in s 105-55 of Schedule 1 has expired “may well be a mistake and within the meaning of an ‘administrative overpayment’, as defined in s 8AAZN(3) of the TAA”; at [105]: an administrative overpayment under s 8AAZN does not necessarily form part of an ‘assessment’ for the purposes of the GST Act and an administrative overpayment cannot properly be applied as GST when calculating the taxpayer’s net amount and it cannot be properly included in an assessment – the correct approach would be to issue a notice, as provided for by s 8AAZN(2) – Case analysis
Part IVC – Taxation objections, reviews and appeal
Division 3 – Taxation objections
14ZU How taxation objections are to be made
14ZV Limited objection rights in the case of certain amended taxation decisions
14ZVA Limited objection rights because of objection against private ruling
14ZW When taxation objections are to be made
14ZX Commissioner to consider applications for extension of time
14ZY Commissioner to decide taxation objections
14ZYA Person may require Commissioner to make an objection decision
14ZYB Requiring Commissioner to make a private ruling
14ZZ Person may seek review of, or appeal against, Commissioner’s decision
Cases
Van Gestel and Commissioner of Taxation [2014] AATA 396 – a taxpayer who claimed to be the victim of “identity theft” where input tax credits were claimed on the taxpayer’s BAS was “dissatisfied” with the objection decision of the Commissioner and could seek review to the Tribunal
Division 4 – AAT review of objection decisions and extension of time refusal decisions
14ZZA Modified AAT Act to apply
14ZZB Sections 27, 28, 41 and 44A of the AAT Act not apply to certain decisions
14ZZC Modification of section 29 of the AAT
14ZZD Modification of section 30 of the AAT Act
14ZZE Hearings before Tribunal to be held in private if applicant so requests
Cases
DLMD and Commissioner of Taxation [2017] AATA 739 – GST in respect of supplies by brothel – interlocutory application for confidentiality orders re publication of witness names and hearing in private – application for reception of evidence by telephone – private hearing pursuant to s 14ZZE of the Taxation Administration Act 1953(Cth) – private hearing requirement does not automatically prohibit publication of name of particular witnesses
14ZZF Modification of section 37 of the AAT Act
14ZZG Modification of section 38 of the AAT Act
14ZZJ Modification of section 43 of the AAT Act
14ZZK Grounds of objection and burden of proof
14ZZL Implementation of Tribunal decisions
14ZZM Pending review not to affect implementation of taxation decisions
Division 5 – Court appeals against objection decisions
14ZZO Grounds of objection and burden of proof
Cases
McDonald’s Australia Ltd v Commr of Taxation [2008] FCA 37 – at [13]: an application for summary judgment by the applicant (which bears the onus of proof) can properly be described as ambitious, particularly where the proceeding is at an early stage, no evidence has been filed, there has been no discovery, no subpoenas have been issued and there are no formal pleadings. It must also be borne in mind that the Commissioner has no first hand knowledge of the underlying facts and circumstances – at [14]-[15]: the Commissioner’s appeal statement might provide a proper basis for summary judgment notwithstanding the burden of proof lying on the taxpayer
14ZZP Order of court on objection decision
14ZZQ Implementation of court order in respect of objection decision
14ZZR Pending appeal not to affect implementation of taxation decisions
SCHEDULE 1 – COLLECTION AND RECOVERY
CHAPTER 3 – Collection, recovery and administration of other taxes
Part 3-10 – Indirect taxes
Division 105 – General rules for indirect taxes
Subdivision 105A – Assessments
105-3 Application of Subdivision (prior to 1 July 2012)
105-5 Commissioner may make assessment of indirect tax
105-10 Request for assessment
105-15 Indirect tax liabilities do not depend on assessment
105-20 Commissioner must give notice of assessment
105-25 Amendment of assessment
Cases
McDonald’s Australia Ltd v Commr of Taxation [2008] FCA 37 – at [8]-[11]: the issue of an amended assessment does not invalidate an assessment issued under s 105-5 but becomes the operative assessment
105-30 Later assessment prevails in case of inconsistency
Subdivision 105B – Review of indirect tax decisions
105-40 Reviewable indirect tax decisions
Subdivision 105C – Limits on credits, refunds and recovering amounts
105-50 Time limit on recovery by the Commissioner
Cases
Re Tomker Pty Ltd (in Liquidation) [2016] VSC 656 – the expiration of the four year limitation period in s 105-50 of Schedule 1 to the TAA went to the substance of the tax liability rather than just to its recoverability. Accordingly, if the four year period had expired, the tax amount was not ‘payable’ and it could be plausibly argued that there was no debt at all.
The Hotel Apartment Purchaser and Commissioner of Taxation [2013] AATA 567 – the taxpayer’s net amount became payable 28 days after the end of the tax period and the time for the Commissioner to issue a notification expired 4 years from that date, not from the date of the end of the tax period – (Case analysis)
Brookdale Investments Pty Ltd and Commissioner of Taxation [2013] AATA 154 – at [80]: a notice under s 105-50 need not identify the amount which the Commissioner says is owing – s 105-50 does not stipulate that any particular formality is required by a notice under the section, provided the notice brings to the taxpayers attention that the Commissioner claims an entitlement to an unpaid net amount – (Case analysis)
Cyonara Snowfox Pty Ltd v Commissioner of Taxation [2012] FCAFC 177 – a notice of assessment is a notification for the purposes of s 105-50(3)(a) notwithstanding that the amount stated in the assessment is accepted by the Commissioner to be incorrect because the taxpayer was entitled to an amount of input tax credits – tribunal [2010] AATA 137 and [2011] AATA 124
Wynnum Holdings No 1 Pty Ltd and Commissioner of Taxation [2011] AATA 296 – s 105-50 does not operate to prevent the ability of the Commissioner to recover overpaid refunds of input tax credits – at [35]: an amount of “indirect tax” does not include amounts claimed as input tax credits because they are not the “tax that is payable under the GST law and imposed as goods and services tax”
Russell v Commissioner of Taxation [2009] FCA 1224 – at [255]: s 105-50 only applies where a net amount is payable to the Commissioner – the section does not apply where the only controversy is about an entitlement to an input tax credit
105-55 Time limit on refunds etc from the Commissioner
Cases
North Sydney Developments Pty Ltd and Commissioner of Taxation [2014] AATA 363 – letter given to Commissioner was a valid notification for the purposes of s 105-55(1)(a) of Schedule 1 to the TAA in relation to input tax credits – at [13]: a communication relied on as a notification for the purposes of TAA Schedule 1 s 105-55(1)(a) does not have to specify an input tax credit amount; at [31]: a notification requires no greater specification than the tax period involved, and the nature of the refund or input tax credit claimed
Swanbat Pty Ltd and Commissioner of Taxation [2013] AATA 891 – at [34]: a taxpayer’s entitlement to a refund for a tax period prior 1 July 2008 is subject to the operation of s 105-55 as amended from 1 July 2008; at [43] the self-assessment regime that came into effect on 1 July 2012 does not interrupt the scope of time limits in s 105-50 or 105-55 in respect of tax periods prior to 1 July 2012 – therefore, lodging a revised BAS for the June 2008 quarter more than 4 years after 30 June 2008 does not stop or reset the clock in respect of the 4 year entitlement to a refund; at [46]: s 105-55 has substantive operation and there is no discretion to extent the 4 year period; [at 56]: an application for a private ruling may be sufficient to serve as notice of an entitlement to a refund for the purposes of s 105-55 – Case analysis
Tom and Commissioner of Taxation [2013] AATA 28 – lodgment of revised activity statements after expiry of 4 year period did not constitute a valid notification for the purposes of s 105-55
Dandenong Motors Unit Trust and Commissioner of Taxation [2012] AATA 920 – s 105-55 (pre-amendment) operated to extinguish the entitlement of a taxpayer to a refund of overpaid GST to the extent that the taxpayer reported a negative net amount
MTAA Superannuation Fund (RG Casey Building) Property Pty Ltd and Commissioner of Taxation [2011] AATA 769 – document lodged by the applicant was a valid notification for the purposes of s 105-55
National Jet Systems Pty Ltd and Commissioner of Taxation [2011] AATA 766 – document lodged by the applicant was a valid notification for the purposes of s 105-55
Central Equity Limited v Commissioner of Taxation [2011] FCA 908 – document lodged by the applicant was a valid notification for the purposes of s 105-55 as a notification of “the refund, other payment or credit” – at [77] the specificity sought by the Commissioner in the notification was unnecessary
Clontarf Developments Pty Ltd and Commissioner of Taxation [2010] AATA 1065 – applicant not entitled to refund of input tax credits where claim made outside 4 year time period
Australian Leisure Marine Pty Ltd and Commissioner of Taxation [2010] AATA 620 – applicant not entitled to refund of input tax credits where claim made outside 4 year time period – at [17]: s 105-55 has substantive effect in that the expiry of the four year time limit extinguishes the right of a taxpayer to notify the Commissioner of an entitlement to the input tax credit. As such the provision denies the entitlement of an entity to an input tax credit – at [18]: the Commissioner (and the Tribunal) has no discretion to extend the time limit in s 105-55.
Rulings and Determinations
MT 2009/1 – Austlii – Miscellaneous taxes: notification requirements for an entity under section 105-55 of Schedule 1 to the Taxation Administration Act 1953
105-65 Restrictions on refunds
Cases
Naidoo and Commissioner of Taxation [2013] AATA 443 – s 105-65 is not a necessary step in establishing a taxpayer’s liability in respect of refunds, but is a procedural provision – the section can only operate after the net amount has been established – the Tribunal did not have jurisdiction under s 14ZZ to review a decision made by the Commissioner with respect to s 105-65 as that finding did not alter the taxpayers net amount – (Case analysis)
The Private Tutor and Commissioner of Taxation [2013] AATA 136 – at [19]: the section does not give the Commissioner authority to recover an amount from a taxpayer by assessing a net amount pursuant to s 17-15 which he knows to be incorrect – (Case analysis)
International All Sports v Commissioner of Taxation [2011] FCA 824 – the provision does not extend to amounts overpaid by reason of a mistaken application of the formula in s 126-10(1) dealing with gambling supplies – overpayments not made in relation to taxable supplies
KAP Motors Pty Ltd v Commissioner of Taxation [2008] FCA 159 – the provision does not extend to a transaction which does not constitute a supply
International Cases – Courts
Marks and Spencer plc v Customs and Excise [2009] UKHL 8; [2009] STC 452; [2009] 1 All ER 939 – food, whether teacakes were biscuits, claim for refund of VAT, limitation of refunds where claimant unjustly enriched, effect of passing on VAT to customers, retrospective legislation, effect of community law – judgment of House of Lords referring to ECJ – [2005] UKHL 53 – request for preliminary ruling by ECJ – [2006] UKHL 69 – judgment of European Court of Justice – [2008] EUECJ C-309/06; [2008] STC 1408
Fleming v Her Majesty’s Revenue and Customs [2008] UKHL 2 – refunds of VAT, effectiveness of legislation to limit refund claims
Rulings and Determinations
MT 2010/1 – Austlii – Miscellaneous tax: restrictions on GST refunds under section 105-65 of Schedule 1 to the Taxation Administration Act 1953
Subdivision 110F – review of GST decision
110-50 Reviewable GST decisions
CHAPTER 4 – Generic assessment, collection and recovery rules
Part 4-1 Returns and Assessments
Division 155 – Assessments
Subdivision 155-A – Making assessments
155-5 Commissioner may make assessments
155-10 Commissioner must give notice of assessment
155-15 Self-assessment
155-20 Assessment of indirect tax on importations and customs dealing
155-25 Special assessment
155-30 Delays in making assessments
Subdivision 155-B – Amending assessments
155-35 Amendment during period of review
155-40 Amendment during period of review – certain applications taken to be notices
155-45 Amendment on application
155-50 Amendment to give effect to private ruling
155-55 Amendment to give effect to certain anti-avoidance declarations
155-60 Amendment because of review, objection or fraud
155-65 Amending amended assessments
155-70 Refreshed period of review
155-75 Refunds of amounts overpaid
155-80 Amended assessments are assessments
Subdivision 155-C – Validity and review of assessments
155-85 Validity of assessment
155-90 Review of assessments
Division 284 – Administrative penalties for statements, unarguable positions and schemes
Subdivision 284-A – General provisions
284-15 When a matter is reasonably arguable
284-20 Which statements this Division applies to
284-25 Statement by Agents
284-30 Application of Division to trusts
284-35 Application of Division to partnerships
Subdivision 284-B Penalties relating to statements
284-75 Liability to penalty
284-80 Shortfall amounts
284-85 Amount of penalty
284-90 Base penalty amount
284-95 Joint and several liability of directors of corporate trustee that makes a false or misleading statement
Division 288 – Miscellaneous administrative provisions
288-40 Penalty for failing to register or cancel registration
288-45 Penalty for failing to issue tax invoice etc
288-46 Penalty for failing to ensure tax information about supplies of low value goods is included in customs documents
288-50 Penalty for both principal and agent issuing certain documents
Division 444 – Obligations of entities on behalf of other entities
444-30 Partnerships
Cases
Yacoub v Commissioner of Taxation [2012] FCA 678 – enterprise found to be a partnership (and not a 50/50 joint venture) – the applicant was therefore jointly and severally liable for all the unpaid GST (case analysis)
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