Commissioner publishes draft GST Determination on objecting to a private ruling dealing with s 105-65 of the TAA and refunds of overpaid GST

Today the Commissioner published draft GST Determination GSTD 2013/D4 ‘Goods and services tax: can you object to a private ruling that the Commissioner makes on the way in which section 105-65 of Schedule 1 to the Taxation Administration Act 1953 applies or would apply to you?’

The draft Determination has been issued in response to the decision of the Tribunal in Naidoo and Commissioner of Taxation [2013] AATA 443 where the Tribunal found that it had no jurisdiction to hear an application to review a decision of the Commissioner with respect to s 105-65. On 23 August 2013 the Commissioner published a  Decision Impact Statement confirming that he accepted the decision of the Tribunal and that the Tribunal has no jurisdiction to consider an application with respect of the Commissioner’s refusal to exercise his discretion under s 105-65 to refund overpaid GST. My post discussing the Decision Impact Statement can be accessed here.

The issue addressed in the draft GST Determination is whether taxpayers have jurisdiction to object to a private ruling dealing with the application of s 105-65. The view is that an objection can only be made to a private ruling if an assessment has not been made. This means:

  • for tax periods prior to 1 July 2012, if no assessments have been made an objection can be made to a private ruling on the application of s 105-65;
  • for tax periods post 1 July 2012, due to the introduction of the self-assessment regime, GST returns are regarded as assessments – therefore, an objection cannot be made to a private ruling dealing with s 105-65 if it relates to a tax period in which a GST return has been lodged. Accordingly, an objection can be made if the private ruling relates to future tax periods.  As observed by the Commissioner, given that s 105-65 is about the refund of overpaid GST, this is unlikely to frequently occur in practice.

Comments are invited on the draft Determination by 6 November 2013.