Industry Research and Development Act 1986
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Hide history notePt IIIA repealed by No 93 of 2011, s 3 and Sch 2 item 34, effective 8 September 2011. For application, savings and transitional provisions see note under Part III heading. Pt IIIA formerly read:
PART IIIA - FUNCTIONS OF BOARD IN RELATION TO INCOME TAX CONCESSIONS
SECTION 39AA OBJECT OF PART
39AA(1)
The object of this Part is to complement the tax incentive provided by sections 73B, 73BA, 73I, 73QA and 73QB of the Income Tax Assessment Act 1936 by giving the Board the role to determine whether eligible companies satisfy the requirements for the incentive.HistoryS 39AA(1) amended by No 164 of 2007, s 3 and Sch 11 item 49, by substituting " , 73QA and 73QB " for " and 73Y " , effective 25 September 2007. For application provision see note under s 39D .
39AA(2)
The object of sections 73B, 73BA, 73I, 73QA and 73QB of the Income Tax Assessment Act 1936 is to provide a tax incentive, in the form of a deduction, to encourage research and development activities in Australia and make eligible companies more internationally competitive by:
(a) encouraging the development by eligible companies of innovative products, processes and services; and
(b) increasing investment by eligible companies in defined research and development activities; and
(c) promoting the technological advancement of eligible companies through a focus on innovation and high technical risk in defined research and development activities; and
(d) encouraging the use by eligible companies of strategic research and development planning; and
(e) creating an environment that is conducive to increased commercialisation of new processes and product technologies developed by eligible companies.The benefits of the tax incentive are targeted by being limited to particular expenditure on certain defined activities.
HistoryS 39AA(2) amended by No 164 of 2007, s 3 and Sch 11 items 49 and 50, by substituting " , 73QA and 73QB " for " and 73Y " and inserting " encourage research and development activities in Australia and " after " deduction, to " , effective 25 September 2007. For application provision see note under s 39D .
SECTION 39A INTERPRETATIONHistoryS 39AA inserted by No 170 of 2001, s 3 and Sch 1 item 2, effective 1 October 2001.
39A(1)
In this Part, unless the contrary intention appears:commercial government bodies guidelines
means guidelines made under section 39HB.company
means any body corporate.dispose of
means dispose of in any way, including by assignment or declaration of trust.eligible company
means a body corporate incorporated under a law of the Commonwealth or of a State or Territory.eligible government bodies
means:
(a) a government body within the meaning of section 73CB of the Income Tax Assessment Act 1936 ; or
(b) an associate (within the meaning of that section) of such a government body.finance
includes debt finance and equity finance.finance scheme
, in relation to research and development activities carried on, or proposed to be carried on, by or on behalf of an eligible company, means a scheme entered into or carried out by any of the parties to the scheme for the purpose, or for purposes that include the purpose:
(a) of enabling the company, or an associate of the company, to obtain finance (whether by way of renewal or otherwise) in connection with those activities; or
(b) of enabling the company, or an associate of the company, to obtain an extension of the period for which finance was obtained in connection with those activities under an earlier scheme.ineligible finance scheme
means a finance scheme that is taken to be an ineligible finance scheme under the finance scheme guidelines.register
means:
(a) in relation to an eligible company:
(i) register under section 39J; or
(ii) register jointly with any other eligible company or eligible companies under section 39P; or
(b) in relation to a research agency - register under section 39F.Register of Commercial Government Bodies
means the Register of Commercial Government Bodies required by section 39HA.result
, in relation to research and development activities, means a result that is capable of being exploited.scheme
means:
(a) an agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) a scheme, plan, proposal, action, course of action or course of conduct.
39A(2)
Subject to subsection (1), expressions used in this Part that are defined by section 73B of the Income Tax Assessment Act 1936 have in this Part, unless the contrary intention appears, the same meanings as in that section.
39A(3)
Subject to subsection (1) and (2), expressions used in this Part that are defined by the Income Tax Assessment Act 1936 (other than section 73B) have in this Part, unless the contrary intention appears, the same meanings as in that Act.
HistoryS 39A inserted by No 59 of 1988, and amended by No 224 of 1992.
SECTION 39B SECTION 39B RELATED COMPANIES
39B
For the purposes of this Part, the question whether 2 or more companies are related to each other shall be determined in the same way as that question would be determined for the purposes of the Corporations Act 2001 .HistoryS 39B amended by No 55 of 2001, s 3 and Sch 3 item 276, by substituting " Corporations Act 2001 " for " Corporations Law " , effecvtive 15 July 2001.
S 39B amended by No 15 of 1999, s 3 and Sch 1 item 7, by substituting " Corporations Law " for " Companies Act 1981 " , effective 9 April 1999.
S 39B inserted by No 59 of 1988.
SECTION 39C SECTION 39C EXPLOITATION OTHERWISE THAN ON NORMAL COMMERCIAL TERMS
39C
The exploitation of a particular result of any activity shall be taken for the purposes of this Part to be an exploitation otherwise than on normal commercial terms if, in the opinion of the Board, any contract or transaction relating to that exploitation would not have been entered into, or contained terms that would not have been contained or would have been different, if the contract or transaction had been entered into by persons dealing with each other at arm's length and from positions of comparable bargaining power.SECTION 39D RESEARCH AND DEVELOPMENT ACTIVITIES FOR THE BENEFIT OF THE AUSTRALIAN ECONOMYHistoryS 39C inserted by No 59 of 1988.
39D(1)
Australian research and development activities are taken to be for the benefit of the Australian economy.
39D(2)
Overseas research and development activities are taken to be for the benefit of the Australian economy if the Board has given a provisional certificate in respect of the activities.
SECTION 39E ADEQUATE AUSTRALIAN CONTENTHistoryS 39D substituted by No 164 of 2007, s 3 and Sch 11 item 51, effective 25 September 2007. No 164 of 2007, s 3 and Sch 11 item 78, contained the following application provision:
78 Application
78(1)
The amendments apply in relation to:
(a) assessments for years of income starting after 30 June 2007; and
(b) registrations under section 39J of the Industry Research and Development Act 1986 for those years of income.
78(2)
A term that is used in this item and has a meaning given by the Income Tax Assessment Act 1936 has the same meaning in this item.
S 39D formerly read:
SECTION 39D EXPLOITATION OTHERWISE THAN FOR THE BENEFIT OF THE AUSTRALIAN ECONOMY
39D(1)
The exploitation of a particular result of an activity shall be taken for the purposes of this Part to be an exploitation otherwise than in a manner that is for the benefit of the Australian economy if, in the opinion of the Board, the profits or gains to residents of Australia accruing directly from the exploitation of a significant aspect of that result are not commensurate with the amount expended in the carrying on of that activity in Australia.
39D(2)
In forming an opinion for the purposes of subsection (1), the Board may have regard to:
(a) the value of the result of the activity;
(b) the profits or gains to non-residents accruing directly from the exploitation of the result of the activity;
(c) the amounts respectively expended in the carrying on of the activity inside and outside Australia; and
(d) any other matters that the Board considers relevant.
S 39D inserted by No 59 of 1988.
39E(1)
The Board shall, as soon as practicable (and, in any event, within 90 days) after the commencement of this Part, formulate in writing guidelines to enable eligible companies to ascertain whether proposed Australian research and development activities will be regarded as having an adequate Australian content for the purposes of this Part.
39E(2)
The Board shall cause the guidelines to be published in the Gazette and made available on request, without charge, to any eligible company.
39E(3)
The Board may use as the basis of the guidelines any of the following matters, but is not limited to those matters:
(a) the proportion of the total expenditure incurred in respect of particular activities that is to be incurred by residents of Australia;
(b) the extent to which particular activities are to be carried out in Australia;
(c) the extent to which particular activities are to be carried out by non-residents, whether the activities are to be carried out in Australia or not;
(d) the extent to which particular activities will involve the use of imported plant or of knowhow or technology acquired outside Australia.
39E(4)
The Board is not entitled, in relation to expenditure incurred by a company on particular activities, to give a certificate stating that it is of the opinion that those activities do not have an adequate Australian content if, at the time when the expenditure was incurred, the activities complied with the guidelines in force at that time.
39E(4A)
The Board may, at any time, and whether or not within 90 days after the commencement of this Part, by instrument in writing, repeal, replace or amend guidelines made under subsection (1).
39E(5)
An instrument formulating guidelines under subsection (1), or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
SECTION 39EA FINANCE SCHEME GUIDELINESHistoryS 39E inserted by No 59 of 1988, amended by Nos 181 of 1994 and 84 of 1995.
39EA(1)
The Board must, as soon as practicable (and, in any event, within 90 days) after the commencement of this section, formulate written guidelines to enable eligible companies to ascertain whether finance schemes in relation to research and development activities carried on, or proposed to be carried on, by eligible companies will be taken to be ineligible finance schemes for the purposes of this Part.
39EA(2)
The Board must cause the finance scheme guidelines to be:
(a) published in the Gazette ; and
(b) made available on request, without charge, to any eligible company.
39EA(3)
In making finance scheme guidelines about a particular kind of scheme, the matters to which the Board is to have regard include, but are not limited to:
(a) the manner in which the scheme was entered into or carried out; and
(b) the form and substance of the scheme; and
(c) matters relating to the research and development activities to which the scheme relates; and
(d) the likelihood that section 73CB of the Income Tax Assessment Act 1936 will apply to expenditure incurred in connection with the research and development activities to which the scheme relates.
39EA(4)
The finance scheme guidelines may confer functions and powers on the Board.
39EA(5)
The first finance scheme guidelines may be expressed to apply to schemes entered into or carried out before the commencement of this section.
39EA(5A)
The Board may, at any time, and whether or not within 90 days after the commencement of this section, by writing, repeal, replace or amend guidelines made under subsection (1).
39EA(6)
An instrument formulating finance scheme guidelines, or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
SECTION 39EB GUIDELINES CONCERNING OVERSEAS RESEARCH AND DEVELOPMENT ACTIVITIESHistoryS 39EA inserted by No 224 of 1992, amended by No 84 of 1995.
39EB(1)
The Board must, as soon as practicable (and, in any event, within 90 days) after the commencement of this section, formulate written guidelines setting out the criteria to be met by eligible companies wishing to obtain a provisional certificate under section 39ED in relation to overseas research and development activities proposed to be carried on by them as part of projects of research and development activities.
39EB(2)
The Board must cause the guidelines to be:
(a) published in the Gazette ; and
(b) made available on request, without charge, to any eligible company.
39EB(3)
The criteria to be set out in the guidelines must include the following criteria:
(a) it must be shown that the proposed overseas research and development activities cannot be carried out in Australia or the external Territories;
(b) it must be shown that the results of the overseas research and development activities will be exploited by the eligible company concerned for the benefit of the Australian economy;
(c) it must be shown that the expenditure:
(i) that is proposed to be incurred by the eligible company in respect of the overseas research and development activities; andwill not exceed 10% of the total expenditure that the company has incurred or proposes to incur on the project of research and development activities.
(ii) in respect of which the company proposes to claim a deduction under section 73B , 73BA , 73BH or 73QA , or a tax offset under section 73I , of the Income Tax Assessment Act 1936 ;HistoryS 39EB(3) amended by No 164 of 2007, s 3 and Sch 11 item 52, by substituting " 73QA " for " 73Y " , effective 25 September 2007. For application provision see note under s 39D .
S 39EB(3) amended by No 170 of 2001, s 3 and Sch 2 item 85 by substituting " , 73BA, 73BH or 73Y, or a tax offset under section 73I, " for " or 73BH " in subpara (c)(ii), effective 30 June 2001.
S 39EB(3) amended by No 170 of 2001, s 3 and Sch 2 item 45 by inserting " or 73BH " after " 73B " in subpara (c)(ii), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
39EB(3A)
The Board may, at any time, and whether or not within 90 days after the commencement of this Part, by writing, repeal, replace or amend guidelines made under subsection (1).
39EB(4)
An instrument formulating guidelines under subsection (1), or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
SECTION 39EC APPLICATIONS FOR PROVISIONAL CERTIFICATESHistoryS 39EB inserted by No 181 of 1994, amended by No 84 of 1995.
39EC(1)
An eligible company that proposes to incur expenditure in carrying on overseas research and development activities in respect of which it proposes to claim a deduction under section 73B , 73BA , 73BH or 73QA , or a tax offset under section 73I , of the Income Tax Assessment Act 1936 may apply to the Board for a provisional certificate in respect of the activities.HistoryS 39EC(1) amended by No 164 of 2007, s 3 and Sch 11 item 53, by substituting " 73QA " for " 73Y " , effective 25 September 2007. For application provision see note under s 39D .
S 39EC(1) amended by No 170 of 2001, s 3 and Sch 2 item 86 by substituting " , 73BA, 73BH or 73Y, or a tax offset under section 73I, " for " or 73BH " , effective 30 June 2001.
S 39EC(1) amended by No 170 of 2001, s 3 and Sch 2 item 46 by inserting " or 73BH " after " 73B " , effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
39EC(2)
The application must:
(a) be in writing; and
(b) describe the project to which the proposed activities relate; and
(c) describe the proposed activities; and
(d) state the respective amounts of expenditure proposed to be incurred by the company on the project that relate to:
(i) Australian research and development activities; and
(ii) overseas research and development activities; and
(iii) if the company proposes to claim a deduction under section 73B , 73BA , 73BH or 73QA , or a tax offset under section 73I , of the Income Tax Assessment Act 1936 in respect of part only of the expenditure on overseas research and development activities - the amount of that part of the expenditure; and
(e) be accompanied by any other information that the Board reasonably requires.HistoryS 39EC(2) amended by No 164 of 2007, s 3 and Sch 11 item 54, by substituting " 73QA " for " 73Y " in para (d)(iii), effective 25 September 2007. For application provision see note under s 39D .
S 39EC(2) amended by No 170 of 2001, s 3 and Sch 2 item 87 by substituting " , 73BA, 73BH or 73Y, or a tax offset under section 73I, " for " or 73BH " in subpara (d)(iii), effective 30 June 2001.
S 39EC(2) amended by No 170 of 2001, s 3 and Sch 2 item 47 by inserting " or 73BH " after " 73B " in subpara (d)(iii), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
SECTION 39ED BOARD'S DECISION ON APPLICATION FOR PROVISIONAL CERTIFICATEHistoryS 39EC inserted by No 181 of 1994.
39ED(1)
After considering an application under section 39EC , the Board must decide to:
(a) grant the application; or
(b) refuse the application.
39ED(2)
If the Board has not made a decision under subsection (1) before whichever time (the eligible time ) is the later of the following times:
(a) the end of the period (the original 90-day period ) of 90 days after the day on which the application was received by the Board;
(b) if the Board, by written notice given to the applicant within the original 90-day period, requests the applicant to give further information about the application - the end of the period of 90 days after the Board receives the further information;then, at the eligible time, the Board is taken (except for the purpose of subsection (3)) to have made a decision under subsection (1) to refuse the application.
39ED(3)
If the Board makes a decision under subsection (1), the Board must give written notice of the decision to the applicant.
39ED(4)
A notice under subsection (3) relating to a refusal must set out the reasons for the refusal.
39ED(5)
The Board must not grant the application unless the Board is satisfied that the applicant meets the criteria set out in the guidelines formulated under section 39EB .
39ED(6)
If the Board grants the application, it must give to the applicant a provisional certificate in respect of the activities to which the application relates.
39ED(6A)
A provisional certificate granted pursuant to an application made after the commencement of this subsection has effect, and is taken always to have had effect, as if it had been given to the applicant on the day on which the application was made.HistoryS 39ED(6A) inserted by No 15 of 1999, s 3 and Sch 1 item 8, effective 9 April 1999.
39ED(7)
A decision under subsection (1) is not invalid merely because it is made after the eligible time unless, before the decision is made, the applicant makes a request to the Board under subsection 39S(2) .Note: Subsection 39S(2) deals with requests to the Board to reconsider decisions.
SECTION 39EE MATTERS TO BE CONTAINED IN PROVISIONAL CERTIFICATEHistoryS 39ED inserted by No 181 of 1994, amended by No 82 of 1996.
39EE(1)
A provisional certificate given to an eligible company under section 39ED must:
(a) describe the overseas research and development activities to which the certificate relates; and
(b) contain a description of the project of research and development activities to which those overseas research and development activities relate; and
(c) state the amount of proposed expenditure on overseas research and development activities in respect of which the company proposes to claim a deduction under section 73B , 73BA , 73BH or 73QA , or a tax offset under section 73I , of the Income Tax Assessment Act 1936 ; and
(d) contain any other matters that the Board considers relevant.HistoryS 39EE(1) amended by No 164 of 2007, s 3 and Sch 11 item 55, by substituting " 73QA " for " 73Y " in para (c), effective 25 September 2007. For application provision see note under s 39D .
S 39EE(1) amended by No 170 of 2001, s 3 and Sch 2 item 88 by substituting " , 73BA, 73BH or 73Y, or a tax offset under section 73I, " for " or 73BH " in para (c), effective 30 June 2001.
S 39EE(1) amended by No 170 of 2001, s 3 and Sch 2 item 48 by inserting " or 73BH " after " 73B " in para (c), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
39EE(2)
After a provisional certificate is given to a company under section 39ED , the company may apply in writing to the Board for the certificate to be amended so as to vary either or both of the following:
(a) the description of the overseas research and development activities;
(b) the amount of the proposed expenditure on overseas research and development activities in respect of which the company proposes to claim a deduction under section 73B , 73BA , 73BH or 73QA , or a tax offset under section 73I , of the Income Tax Assessment Act 1936 .HistoryS 39EE(2) amended by No 164 of 2007, s 3 and Sch 11 item 55, by substituting " 73QA " for " 73Y " in para (b), effective 25 September 2007. For application provision see note under s 39D .
S 39EE(2) amended by No 170 of 2001, s 3 and Sch 2 item 88 by substituting " , 73BA, 73BH or 73Y, or a tax offset under section 73I, " for " or 73BH " in para (b), effective 30 June 2001.
S 39EE(2) amended by No 170 of 2001, s 3 and Sch 2 item 48 by inserting " or 73BH " after " 73B " in para (b), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
39EE(3)
If:
(a) such an application is made; and
(b) the provisional certificate is produced to the Board; and
(c) the Board is satisfied that it is appropriate to amend the certificate having regard to the criteria set out in the guidelines formulated under subsection 39EB(1) ;the Board may amend the certificate accordingly and return the amended certificate to the company.
SECTION 39EF BOARD ' S POWER TO AMEND OR REVOKE PROVISIONAL CERTIFICATE ON ITS OWN INITIATIVEHistoryS 39EE inserted by No 181 of 1994.
39EF(1)
The Board may, on its own initiative, amend or revoke a provisional certificate given to an eligible company under section 39ED as provided in this section.Note:
For the Board ' s power to amend the provisional certificate on application by the company, see subsections 39EE(2) and (3) .
39EF(2)
If the Board is satisfied that the expenditure (the claimed overseas expenditure ):
(a) on the overseas research and development activities to which the certificate relates; and
(b) in respect of which the company has claimed a deduction under section 73B , 73BA , 73BH or 73QA , or a tax offset under section 73I , of the Income Tax Assessment Act 1936 ;exceeds 10% of the total expenditure (the total project expenditure ) incurred by the company on the project of research and development activities, the Board may, in writing, determine that the provisional certificate is amended, as specified in the determination, so that it does not cover so much of the overseas research and development activities as resulted in the claimed overseas expenditure exceeding 10% of the total project expenditure.
HistoryS 39EF(2) amended by No 164 of 2007, s 3 and Sch 11 item 55, by substituting " 73QA " for " 73Y " in para (b), effective 25 September 2007. For application provision see note under s 39D .
39EF(3)
If the Board makes a determination under subsection (2), the provisional certificate has effect, and is taken always to have had effect, as if it had originally been given as amended in accordance with the determination.
39EF(4)
The Board may, in writing, revoke the certificate if the Board is satisfied that the total expenditure incurred by the company on the project of research and development activities consisted solely of expenditure on overseas research and development activities.
39EF(5)
If the Board revokes the provisional certificate under subsection (4), the provisional certificate is taken never to have been given.
39EF(6)
If the Board decides to make a determination under subsection (2) amending the provisional certificate, or to revoke the provisional certificate under subsection (4), the Board must give notice in writing to the company setting out the decision and the reasons for the decision.
SECTION 39F REGISTRATION OF AUSTRALIAN RESEARCH AGENCIESHistoryS 39EF inserted by No 15 of 1999, s 3 and Sch 1 item 9, effective 9 April 1999.
39F(1)
Any body of persons, whether corporate or unincorporate, may make an application to the Board in writing, in accordance with a form approved by the Board, for registration as an Australian research agency for the purpose of performing a particular class of Australian research and development activities on behalf of registered eligible companies or foreign companies.HistoryS 39F(1) amended by No 164 of 2007, s 3 and Sch 11 item 56, by inserting " or foreign companies " at the end, effective 25 September 2007. For application provision see note under s 39D .
39F(2)
The Board shall, in consultation with the Commissioner, as soon as practicable (and, in any event, within 90 days) after the commencement of this Part, formulate in writing criteria to be met by bodies wishing to be registered under this section and shall cause the criteria so formulated to be made available to any person upon request, without charge, and to be published in the Gazette and in such other manner as the Board considers appropriate.
39F(3)
Where a body purported before the commencement of this Part to make an application to the Board for registration as an Australian research agency, the application shall be taken to have been as valid as it would have been if this section has been in force when the application was made.
39F(4)
Subject to subsection (9), where an application has been made in accordance with subsection (1) and the Board is satisfied that the applicant meets the criteria, the Board shall register the applicant as an Australian research agency in respect of such class of Australian research and development activities as the Board considers the applicant is qualified to perform and shall give to the applicant notice in writing of the result of the application.
39F(5)
The registration of an Australian research agency shall be taken to have had effect on and from:
(a) if the body concerned was, on 30 June 1988, an approved Australian research institute - 1 July 1988; or
(b) otherwise - the date on which the application for registration was received by the Board.
39F(6)
Subject to subsections (7) and (9), the Board may, on application made by a registered Australian research agency in writing, in accordance with a form approved by the Board, vary the class of Australian research and development activities in respect of which the agency is registered and shall give to the agency notice in writing of the result of the application.
39F(7)
The Board shall not vary the class of Australian research and development activities in respect of which an Australian research agency is registered so as to include additional activities unless the Board is satisfied that the agency is qualified to perform those additional activities.
39F(8)
The date of effect of such a variation is the date on which the variation is made to the register of Australian research agencies.
39F(9)
Where the Board considers that it will be necessary for the purpose of dealing with an application under this section to make inquiries as to the applicant's qualifications to perform particular Australian research and development activities, the Board may, before dealing with the application, by notice in writing given to the applicant, require the applicant to pay such amount (not exceeding $1,000 or such higher amount as is prescribed) as the Board determines in or towards meeting the cost of the inquiries.
39F(10)
If the Board:
(a) refuses an application to register a body as an Australian research agency; or
(b) refuses an application to register a body as an Australian research agency in respect of, or to vary the registration of a body that is a registered Australian research agency so as to include, particular Australian research and development activities;the notice to the applicant stating the result of the application shall also state the reasons for the refusal.
39F(10A)
The Board may, in consultation with the Commissioner at any time and whether or not within 90 days after the commencement of this Part, by writing, repeal, replace or amend criteria made under subsection (2).
39F(11)
An instrument formulating criteria under subsection (2), or repealing, replacing or amending such criteria, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
SECTION 39FA NOTICES ABOUT CONTINUING REGISTRATION OF AUSTRALIAN RESEARCH AGENCIESHistoryS 39F inserted by No 59 of 1988; amended by Nos 66 of 1991, 181 of 1994 and 84 of 1995.
39FA(1)
The Board may give a body of persons, whether corporate or unincorporate, that is registered under section 39F as an Australian research agency a notice:
(a) asking the body if it wishes to continue to be registered under that section; and
(b) attaching a form to be completed by the body and returned to the Board if the body does wish to continue to be registered.
39FA(2)
The Board must not give the body a notice under subsection (1) within 12 months of when it last gave the body such a notice.
39FA(3)
If the body does not complete and return the form within 30 days, or such longer period as the Board allows, of the body being given the notice, the registration of the body is cancelled, by force of this subsection, at the end of that period.
SECTION 39G CANCELLATION OF REGISTRATION OF RESEARCH AGENCIESHistoryS 39FA inserted by No 15 of 1999, s 3 and Sch 1 item 10, effective 9 April 1999.
39G(1)
The Board shall determine the grounds on which the registration of a research agency may be cancelled and shall cause the grounds so determined to be made available to any person upon request, without charge, and to be published in the Gazette and in such other manner as the Board considers appropriate.
39G(2)
The grounds to be determined under subsection (1) shall include the failure of a research agency to meet a criterion formulated under subsection 39F(2) .
39G(3)
Where the Board is of the opinion that a ground may exist for cancelling the registration of a research agency, the Board shall:
(a) give notice in writing to the research agency stating that it is of that opinion and specifying particulars of the ground concerned; and
(b) invite the research agency to make a written submission to the Board in relation to the matter within 90 days.
39G(4)
If, after the end of that period or the receipt of a submission by the research agency, whichever first happens, and, if such a submission is received, after having regard to the matters raised in the submission, the Board is satisfied that the ground has been established, the Board may cancel the registration of the research agency.
39G(5)
If the Board cancels the registration of a research agency, the Board shall give notice in writing to the agency stating the reasons for the cancellation.
39G(6)
Except as provided by subsections (3) and (4), the Board may not cancel the registration of a research agency.Note:
The registration of a research agency may also be cancelled by force of subsection 39FA(3) .
HistoryS 39G(6) amended by No 15 of 1999, s 3 and Sch 1 item 11, by inserting the Note, effective 9 April 1999.
HistoryS 39G inserted by No 59 of 1988.
SECTION 39H SECTION 39H BOARD TO PUBLICISE PARTICULARS OF REGISTERED RESEARCH AGENCIES
39H
The Board shall:
(a) cause the register of research agencies to be made available for inspection at any reasonable time by any person on request; and
(b) cause to be published in each report of the Board under section 46 a list of the names of registered research agencies as at the end of the year to which the report relates and the classes of activities in respect of which those agencies are respectively registered.SECTION 39HA REGISTER OF COMMERCIAL GOVERNMENT BODIESHistoryS 39H inserted by No 59 of 1988.
39HA(1) Register to be kept by Board.The Board must keep a register, to be known as the Register of Commercial Government Bodies, listing such eligible government bodies as are required to be on the register because of this Part.
39HA(2) Register to be open for inspection.The Board must cause the Register of Commercial Government Bodies to be made available for inspection at any reasonable time by any person on request.
SECTION 39HB COMMERCIAL GOVERNMENT BODIES GUIDELINESHistoryS 39HA inserted by No 224 of 1992.
39HB(1) Board to make guidelines setting out criteria for entry on Register.The Board must, as soon as practicable (and, in any event, within 90 days) after the commencement of this section, formulate written guidelines ( commercial government bodies guidelines ) setting out criteria to be met by eligible government bodies wishing to be entered on the Register of Commercial Government Bodies.
39HB(2) Guidelines to be published etc.The Board must cause the commercial government bodies guidelines to be:
(a) published in the Gazette ; and
(b) made available, without charge, to any interested person.
39HB(3) Matters to be taken into account in making guidelines.In making commercial government bodies guidelines about a particular kind of eligible government body, the matters to which the Board is to have regard include, but are not limited to:
(a) the commercial environment in which the eligible government body operates; and
(b) whether there is a framework for the oversight of the operations, and the monitoring of the performance, of the eligible government body and, if so, the nature of that framework; and
(c) the extent to which the eligible government body is:
(i) bound by regulatory laws of the Commonwealth, the States and the Territories; and
(ii) subject to taxation and charges under the laws of the Commonwealth, the States and the Territories; and
(d) the extent of private sector equity investment (whether direct or indirect through one or more interposed companies, partnerships or trusts) in the eligible government body; and
(e) if the eligible government body is established by or under a law of the Commonwealth, a State or a Territory - the policies of the Commonwealth, the State or the Territory, as the case requires, regarding the issue of the extent to which the eligible government body should be treated as a fully commercial entity.
39HB(4) Tax-exempt bodies ineligible for entry on Register.The commercial government bodies guidelines must set out a criterion to the effect that an eligible government body will not be entered on the Register of Commercial Government Bodies with effect on a particular day if, assuming that the body had derived income on that day, that income would have been exempt from income tax because of a relevant exempting provision (within the meaning of section 160K of the Income Tax Assessment Act 1936 ).
39HB(4A) Board may repeal, replace or amend guidelines.The Board may, at any time and whether or not within 90 days after the commencement of this section, by writing, repeal, replace or amend guidelines made under this section.
39HB(5) Guidelines to be disallowable.An instrument formulating commercial government bodies guidelines, or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
SECTION 39HC APPLICATIONS FOR ENTRY ON THE REGISTER OF COMMERCIAL GOVERNMENT BODIESHistoryS 39HB inserted by No 224 of 1992, amended by No 84 of 1995.
39HC(1)
An eligible government body may apply to the Board to be entered on the Register of Commercial Government Bodies.
39HC(2)
The application must be:
(a) in writing; and
(b) in a form approved by the Board; and
(c) accompanied by such information as the Board requires.
SECTION 39HD BOARD'S DECISION ON APPLICATION FOR ENTRY ON REGISTER OF COMMERCIAL GOVERNMENT BODIESHistoryS 39HC inserted by No 224 of 1992.
39HD(1) Board's decision on application.After considering an application under section 39HC , the Board must decide to:
(a) grant the application; or
(a) refuse the application.
39HD(2) Board deemed to have refused application if no decision made within 90 days.If the Board has not made a decision under subsection (1) before whichever time ( eligible time ) is the later of the following times:
(a) the end of the period ( original 90-day period ) of 90 days after the day on which the application was received by the Board;
(b) if the Board, by written notice given to the applicant within the original 90-day period, requests the applicant to give further information about the application - the end of the period of 90 days after the Board receives the further information;then, at the eligible time, the Board is taken to have made a decision under subsection (1) to refuse the application.
39HD(3) Notice of decision.If the Board makes a decision under subsection (1) before the eligible time, the Board must give written notice of the decision to the applicant.
39HD(4) Reasons for refusal to be given.A notice under subsection (3) relating to a refusal must set out the reasons for the refusal.
39HD(5) When entry takes effect.If the Board decides to grant the application, the entry of the eligible government body takes effect on:
(a) the day on which the decision is made; or
(b) if the applicant requests - such earlier date as the Board specifies.
39HD(6) Entry may take effect on a date earlier than commencement of this section.The Board may specify a date under paragraph (5)(b) that is earlier than the commencement of this section.
39HD(7) Back-dated entries - Register taken to have been in existence.If the Board specifies such an earlier date, this Part and section 73CB of the Income Tax Assessment Act 1936 have effect as if the Register of Commercial Government Bodies had been in existence on that date.
HistoryS 39HD inserted by No 224 of 1992.
SECTION 39HE SECTION 39HE GRANT OF APPLICATION FOR ENTRY ON REGISTER OF COMMERCIAL GOVERNMENT BODIES
39HE
The Board must not grant an application under section 39HC unless the Board is satisfied that the applicant meets the criteria set out in the commercial government bodies guidelines.SECTION 39HF REMOVAL FROM REGISTER OF COMMERCIAL GOVERNMENT BODIESHistoryS 39HE inserted by No 224 of 1992.
39HF(1) Removal of body which does not meet criteria set out in guidelines.The Board must remove an eligible government body from the Register of Commercial Government Bodies if the Board is satisfied that the body does not meet the criteria set out in the commercial government bodies guidelines.
39HF(2) Notification of proposed removal.The Board must not remove an eligible government body from the Register of Commercial Government Bodies unless the Board has:
(a) given a written notice to the body:
(i) stating that the Board is considering removing the body from the Register of Commercial Government Bodies; and
(ii) giving the reasons for considering the removal of the body; and
(b) invited the body to make a written submission to the Board:
(i) within 60 days of receiving the notice; and
(ii) about the proposed removal; and
(c) if such a submission is made within that period - had regard to the matters raised in the submission.
39HF(3) When removal takes effect.If the Board decides to remove the body from the Register of Commercial Government Bodies, the removal takes effect on the day on which the notice mentioned in paragraph (2)(a) was given to the body.
39HF(4) Notification of removal.If the Board decides to remove the body from the Register of Commercial Government Bodies, the Board must give written notice of the removal to the body.
SECTION 39HG APPLICATIONS FOR ADVANCE REGISTRATION OF ELIGIBLE COMPANIESHistoryS 39HF inserted by No 224 of 1992.
39HG(1)
An eligible company may, during a year of income, apply to the Board for advance registration, in relation to proposed research and development activities, in respect of all or any of the following years of income:
(a) the first-mentioned year of income;
(b) the next 2 years of income.HistoryS 39HG(1) amended by No 164 of 2007, s 3 and Sch 11 item 57, by omitting " its " after " in relation to " , effective 25 September 2007. For application provision see note under s 39D .
39HG(2)
The application must:
(a) specify the name of the company; and
(b) specify the year or years of income in respect of which advance registration is sought; and
(c) describe the project to which the proposed research and development activities relate; and
(d) specify and describe the activities; and
(e) specify the expenditure proposed to be incurred by the company in relation to the activities during the year or years of income; and
(f) specify when the activities will be undertaken; and
(g) specify each company on behalf of which the activities will be undertaken.Note:
A company on behalf of which the activities will be undertaken may be the applicant or a foreign company with which the applicant is grouped under section 73L of the Income Tax Assessment Act 1936 .
HistoryS 39HG(2) amended by No 164 of 2007, s 3 and Sch 11 items 58 and 59, by substituting " the " for " its " in para (c) and inserting para (g) and the note at the end, effective 25 September 2007. For application provision see note under s 39D .
39HG(3)
The application must:
(a) be in a form approved by the Board; and
(b) be accompanied by the appropriate fee (if any) prescribed under section 48A .
SECTION 39HH ADVANCE REGISTRATION OF ELIGIBLE COMPANIESHistoryS 39HG inserted by No 82 of 1996.
39HH(1)
Subject to section 39HI, if:
(a) an eligible company applies to the Board for advance registration in accordance with section 39HG ; and
(b) the company provides to the Board such information in relation to the research and development activities proposed in the application as the Board reasonably requires;the Board must grant advance registration to the company, in relation to the activities, in respect of the year or years of income to which the application relates.
HistoryS 39HH(1) amended by No 164 of 2007, s 3 and Sch 11 item 60, by substituting " the research and development activities proposed in the application " for " its proposed research and development activities " in para (b), effective 25 September 2007. For application provision see note under s 39D .
39HH(2)
If the Board refuses to register a company in respect of a year or years of income, the Board must give notice in writing to the company stating the reasons for the refusal.HistoryS 39HH(2) amended by No 170 of 2001, s 3 and Sch 2 item 89 by substituting " , 73BA, 73BH or 73Y, or a tax offset under section 73I, " for " or 73BH " in the note, effective 30 June 2001.
S 39HH(2) amended by No 170 of 2001, s 3 and Sch 2 item 49 by inserting " or 73BH " after " 73B " in the note, effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
Note:
Advance registration does not remove the need to be registered under section 39J or 39P in order to claim a deduction under section 73B , 73BA , 73BH , 73QA or 73QB , or a tax offset under section 73I , of the Income Tax Assessment Act 1936 for expenditure in relation to research and development activities.
SECTION 39HI GROUNDS FOR REFUSAL OF ADVANCE REGISTRATIONHistoryS 39HH amended by No 164 of 2007, s 3 and Sch 11 item 61, by substituting " , 73QA or 73QB " for " or 73Y " in the note, effective 25 September 2007. For application provision see note under s 39D .
S 39HH inserted by No 82 of 1996.
39HI(1)
It is a ground on which the Board is entitled to refuse advance registration of an eligible company, in relation to particular research and development activities in respect of a year or years of income, that the activities are not research and development activities.
39HI(2)
Subject to subsection (3), the regulations may specify other grounds on which the Board is entitled to refuse advance registration of a company in respect of any year of income or in respect of a particular year or years of income.
39HI(3)
The regulations may not specify a ground unless it relates to a matter the determination of which under this Part is a function of the Board.
SECTION 39J REGISTRATION OF ELIGIBLE COMPANIESHistoryS 39HI inserted by No 82 of 1996.
39J(1)
Subject to section 39K , if:
(a) an eligible company applies to the Board for registration in relation to activities of either or both of the following kinds in respect of a year of income:
(i) the eligible company ' s research and development activities;
(ii) activities described in paragraph 73B(14C)(g) of the Income Tax Assessment Act 1936 in relation to the eligible company; and
(aa) the application is in accordance with section 39JD ; and
(b) the company provides to the Board such information in relation to the activities covered by the application as the Board reasonably requires;the Board shall register the company, in relation to those research and development activities, in respect of that year of income.
HistoryS 39J(1) amended by No 164 of 2007, s 3 and Sch 11 items 62 and 63, by substituting para (a) and substituting " the activities covered by the application " for " its research and development activities " in para (b), effective 25 September 2007. For application provision see note under s 39D . Para (a) formerly read:
(a) an eligible company applies to the Board for registration in relation to its research and development activities in respect of a year of income; andNo 15 of 1999, which amended subsec (1A) and inserted subsec (5A) and (5B), contained the following provision:
Treatment of certain applications lodged with the Australian Taxation Office
4(1)
This section applies only to applications made under section 39J of the Industry Research and Development Act 1986 by the following companies:
(a) Aussie Diamond Products Pty Limited (ACN 051 488 656);
(b) Creative Objects Pty Ltd (ACN 065 617 781);
(c) Cutler Brands Pty Ltd (ACN 050 166 160);
(d) Futureweld Pty Ltd (ACN 053 762 744);
(e) Learning Curve Pty Limited (ACN 008 658 624);
(f) NSJA Investments Pty Limited (ACN 007 288 637) (previously known as Strategos Pty Ltd);
4(2)
If, before the commencement of this section:
(a) an application was lodged with the Australian Taxation Office before the end of the period for making the application; and
(b) the application was received by the Board after the end of the period for making the application; and
(c) the company was refused registration under section 39J merely because the application was not made within the period for making the application;the Board must take the application to have been made within the period for making the application and reconsider the application for registration under section 39J as soon as possible after the commencement of this section.
4(3)
If, before the commencement of this section:
(a) an application was lodged with the Australian Taxation Office before the end of the period for making the application; and
(b) the application was received by the Board after the end of the period for making the application; and
(c) the Board decided to register the company under section 39J;the validity of the registration is not affected, and is taken never to have been affected, by the fact that the application was not made within the period for making the application.
4(4)
If, before the commencement of this section:
(a) an application was lodged with the Australian Taxation Office before the end of the period for making the application; and
(b) the application was received by the Board after the end of the period for making the application; and
(c) the Board did not register, or refuse to register, the company under section 39J;the Board must take the application to have been made within the period for making the application and consider the application for registration under section 39J as soon as possible after the commencement of this section.
4(5)
In this section:application
includes a copy of an application.Board
means the Industry Research and Development Board.
39J(1A)
Subject to sections 39JA , 39JB , 39JC , 39JE and 39JF , the Board cannot register a company under this section, in relation to activities, in respect of a year of income:
(a) if the year is the 1992-93 year of income or an earlier year of income - after 2.30 pm Australian Eastern Standard Time on 6 December 1995; or
(b) if the year is the 1993-94 or 1994-95 year of income - unless the application for registration is made before 7 June 1996; or
(c) if the year is the 1995-96 year of income or a later year of income that ends before the commencement of paragraph (d) - unless the application for registration is made after the end of the year of income but within 6 months after the end of that year; or
(d) if the year of income ends on or after the commencement of this paragraph - unless the application for registration is made after the end of the year of income but within 10 months after the end of that year.HistoryS 39J(1A) amended by No 164 of 2007, s 3 and Sch 11 item 64, by omitting " the company ' s research and development " after " in relation to " , effective 25 September 2007. For application provision see note under s 39D .
S 39J(1A) amended by No 15 of 1999, s 3 and Sch 1 items 12 to 14, by substituting " , 39JE and 39JF " for " and 39JE " , inserting " that ends before the commencement of paragraph (d) " [ ie before 9 April 1999] after " or a later year of income " , and by inserting para (d), effective 9 April 1999.
39J(2)
An application by, or a registration of, a company under subsection (1) may relate to a year of income that ended before the commencement of this Part.
39J(3)
Notwithstanding subsection (1), the Board may refuse to register a company in relation to a year of income unless the application is made after the end of that year of income.
39J(4)
The registration of a company in respect of a year of income is not invalid merely because a ground existed on which the Board was entitled to refuse to register the company in respect of that year of income.
39J(5)
The registration of a company in respect of a year of income is irrevocable.
39J(5A)
The Board may alter the registration of a company in respect of a year of income if:
(a) the alteration will correct a mistake in the registration; and
(b) the mistake occurred because the application for registration contained an error in the information required to be specified, or included, in the application under paragraph 39JD(1)(a), (d) or (e) ; and
(c) the Board determines that it is appropriate for the alteration to be made.HistoryS 39J(5A) inserted by No 15 of 1999, s 3 and Sch 1 item 15, effective 9 April 1999.
39J(5B)
If the Board alters the registration of a company in respect of a year of income under subsection (5A), the registration has effect, and is taken always to have had effect, as if it had originally been made as altered.HistoryS 39J(5B) inserted by No 15 of 1999, s 3 and Sch 1 item 15, effective 9 April 1999.
39J(6)
If the Board refuses to register a company in respect of a year of income, the Board shall give notice in writing to the company stating the reasons for the refusal.
SECTION 39JA REGISTRATION: ELIGIBLE COMPANIES WITH A REGISTRATION HISTORYHistoryS 39J inserted by No 59 of 1988, amended by No 82 of 1996.
39JA(1)
For the purposes of this section, an eligible company is taken to have a registration history only if:
(a) the company has been registered under section 39J in respect of at least 2 years of income during the period starting at the beginning of the 1985-86 year of income and ending at the end of the 1992-93 year of income; and
(b) the company was so registered before the end of 12 months after the end of the 1992-93 year of income.
39JA(2)
If an eligible company has a registration history, paragraph 39J(1A)(a) does not apply in relation to the company in respect of a year of income that occurred after the second year of income during the period mentioned in paragraph (1)(a), in respect of which the company was registered before the beginning of the 1993-94 year of income.
39JA(3)
The Board cannot register under section 39J an eligible company that has a registration history in respect of a year of income that occurred after the second year of income during the period mentioned in paragraph (1)(a), in respect of which the company was registered before the beginning of the 1993-94 year of income, unless the application for registration is made before 1 July 1997.
SECTION 39JB REGISTRATION: ELIGIBLE COMPANIES WITH A CLAIM HISTORYHistoryS 39JA inserted by No 82 of 1996.
39JB(1)
For the purposes of this section, an eligible company is taken to have a claim history only if:
(a) the company has claimed a deduction under section 73B of the Income Tax Assessment Act 1936 (otherwise than by way of an application for an amendment of its assessment) in respect of the 1992-93 year of income, or an earlier year of income; and
(b) the company was not registered under section 39J in respect of that year of income; and
(c) an assessment of the amount of the company's taxable income for that year of income was made before 7 December 1995.
39JB(2)
If an eligible company has a claim history, paragraph 39J(1A)(a) does not apply in relation to the company in respect of the year of income to which the deduction mentioned in paragraph (1)(a) related.
39JB(3)
The Board cannot register under section 39J an eligible company that has a claim history in respect of the year of income mentioned in subsection (2) unless the application for registration is made before 1 July 1997.
SECTION 39JC REGISTRATION: ELIGIBLE COMPANIES WITH A TAX LOSS HISTORYHistoryS 39JB inserted by No 82 of 1996.
39JC(1)
For the purposes of this section, an eligible company is taken to have a tax loss history only if:
(a) the company makes an application for registration under section 39J in respect of the 1992-93 year of income, or an earlier year of income; and
(b) the company had no taxable income in that year of income, nor in every subsequent year of income that ended before 7 December 1995.
39JC(2)
If an eligible company has a tax loss history, paragraph 39J(1A)(a) does not apply in relation to the eligible company in respect of the year of income that is the subject of the application mentioned in paragraph (1)(a).
39JC(3)
The Board cannot register under section 39J an eligible company that has a tax loss history in respect of the year of income mentioned in subsection (2) unless the application for registration is made before 1 July 1997.
SECTION 39JD APPLICATIONS UNDER SECTION 39JHistoryS 39JC inserted by No 82 of 1996.
39JD(1)
An application to the Board for registration under section 39J in respect of a year of income must:
(a) specify the name of the eligible company; and
(b) contain the information required by the application form in respect of the activities in relation to which registration is sought; and
(ba) contain a declaration, by an officer of the company who is authorised by the company to make the declaration, stating that the company has, while the activities were carried on, maintained records that substantiate the carrying on of the activities; and
(bb) specify each company on behalf of which each of the activities was undertaken; and
(c) specify the expenditure incurred by the company in relation to the activities during the year of income; and
(d) specify which (if any) of the activities have been the subject of advance registration in respect of that year; and
(e) include such other information as is specified in the regulations.Note 1:
Requirements in the application form or the regulations for the provision of information in respect of an application may be different for different situations.
Note 2:
A company on behalf of which an activity was undertaken might be the eligible company applying for registration or a foreign company with which the applicant is grouped under section 73L of the Income Tax Assessment Act 1936 .
HistoryS 39JD(1) amended by No 164 of 2007, s 3 and Sch 11 items 65 to 69, by omitting " research and development " after " in respect of the " in para (b), substituting " the activities were carried on, maintained records that substantiate the carrying on of the activities " for " carrying on the activities, maintained records that substantiate the company ' s carrying on of the activities " in para (ba), inserting para (bb), substituting " Note 1 " for " Note " in the first note and inserting Note 2 at the end, effective 25 September 2007. For application provision see note under s 39D .
S 39JD(1) amended by No 15 of 1999, s 3 and Sch 1 items 16 and 17, by substituting para (b) and inserting para (ba) and the Note, effective 9 April 1999. Para (b) formerly read:
(b) specify and describe the research and development activities in relation to which registration is sought; and
39JD(2)
The application must:
(a) be in a form approved by the Board; and
(b) be accompanied by the appropriate fee (if any) prescribed under section 48A .
39JD(3)
The company may amend its application at any time before the period under paragraph 39J(1A)(b) or (c) (as the case may be) for making the application ends.
39JD(4)
In this section:application form
means the appropriate form approved by the Board under subsection (2).HistoryS 39JD(4) inserted by No 15 of 1999, s 3 and Sch 1 item 18, effective 9 April 1999.
SECTION 39JE APPLICATION FOR EXTENSION OF TIME IF APPLICATION OTHERWISE SUBJECT TO A 6 MONTH LIMITHistoryS 39JD inserted by No 82 of 1996.
39JE(1A)
This section applies to a year of income of an eligible company that is:
(a) the 1995-96 year of income of the company; or
(b) a later year of income of the company that ends before the commencement of paragraph 39J(1A)(d) .HistoryS 39JE(1A) inserted by No 15 of 1999, s 3 and Sch 1 item 19, effective 9 April 1999.
39JE(1)
The Board may, on a request made under this section by an eligible company, extend the period for making an application for registration under section 39J in respect of a year of income of the company to which this section applies.HistoryS 39JE(1) amended by No 15 of 1999, s 3 and Sch 1 item 20, by substituting ``a year of income of the company to which this section applies ' ' for ``the 1995-96 year of income, or a later year of income ' ' , effective 9 April 1999.
39JE(2)
The Board must not grant a request made in respect of a year of income that occurs after the 1995-96 year of income if it has granted a request under this section in respect of the immediately preceding year of income.
39JE(3)
A request must:
(a) be in writing; and
(b) set out the reasons why the company cannot make an application for registration under section 39J within 6 months after the end of the year of income to which it relates; and
(c) be received by the Board within that period of 6 months.
39JE(4)
If the Board grants a request in respect of a year of income under this section, the company may make an application under section 39J in respect of that year of income within 9 months after the end of that year.
39JE(5)
If a request in respect of a year of income is granted on, or as a result of, a review under section 39S or 39T , the company may make an application under section 39J in respect of that year of income within whichever of the following periods ends last:
(a) 9 months after the end of that year;
(b) 3 months after the day the decision on the review is made.
SECTION 39JF REGISTRATION IF APPLICATION FOR REGISTRATION MADE AFTER EXPIRY OF PERIOD FOR MAKING APPLICATIONHistoryS 39JE inserted by No 82 of 1996.
39JF(1)
The Board may register an eligible company under section 39J in respect of a year of income, despite the fact that the application for registration was not made within the period for making the application, if the Board considers that the application was made after the end of the period due to exceptional circumstances.
39JF(2)
If the Board proposes to refuse to register the company on the ground that the application was not made within the period for making the application, the Board must give written notice to the applicant advising the applicant of:
(a) the proposed refusal; and
(b) the right to lodge a statement and supporting evidence under subsection (3).
39JF(3)
Within 30 days of the Board giving notice to the applicant, the applicant may lodge with the Board a written statement that:
(a) asks the Board to register the company despite the fact that the application was not made within the period for making the application; and
(b) sets out reasons why the application was not made within the period for making the application.If the applicant lodges a statement in accordance with this subsection, the applicant may also lodge evidence to support the statement within that 30 day period.
39JF(4)
The Board must wait until the end of that 30 day period before deciding whether to register the company under section 39J , as mentioned in subsection (1), despite the lateness of the application. When making that decision, the Board must take into account any statement and evidence lodged by the applicant under subsection (3).
SECTION 39K GROUNDS FOR REFUSAL TO REGISTER ELIGIBLE COMPANIESHistoryS 39JF inserted by No 15 of 1999, s 3 and Sch 1 item 21, effective 9 April 1999.
39K(1)
Subject to subsection (1A), it is a ground on which the Board is entitled to refuse to register an eligible company, in relation to particular research and development activities in respect of a year of income, that the activities are not research and development activities.
39K(1A)
If advance registration has been granted to an eligible company, in relation to particular research and development activities in respect of a year of income, the Board must not refuse to register the company in relation to those activities in respect of that year on the ground that they are not research and development activities.
39K(1B)
The Board is entitled to refuse to register an eligible company, in relation to activities described in paragraph 73B(14C)(g) of the Income Tax Assessment Act 1936 in relation to the company in respect of a year of income, on the ground that the activities are not activities that would be Australian-centred research and development activities if subsection 73B(2BA) of that Act had not been enacted.HistoryS 39K(1B) inserted by No 164 of 2007, s 3 and Sch 11 item 70, effective 25 September 2007. For application provision see note under s 39D .
39K(2)
Subject to subsection (3), the regulations may specify other grounds on which the Board is entitled to refuse to register a company in respect of any year of income or in respect of a particular year of income or years of income.
39K(3)
The regulations may not specify a ground unless it relates to a matter the determination of which under this Part is a function of the Board.
39K(4)
The Board need not, before registering a company, satisfy itself that no grounds exist for refusing the registration.
SECTION 39KA GUIDELINES CONCERNING PLANS FOR RESEARCH AND DEVELOPMENT ACTIVITIESHistoryS 39K inserted by No 59 of 1988, amended by No 82 of 1996.
39KA(1)
The Board must, as soon as practicable (and, in any event, within 90 days) after the commencement of this section, formulate written guidelines setting out the requirements for plans for the purposes of subsection 73B(2BA) of the Income Tax Assessment Act 1936 .
39KA(1A)
In formulating the guidelines, the Board must ensure that, having regard to the size and complexity of the activities that are to be carried out in accordance with the plans, the guidelines will not impose undue burdens on eligible companies that are small.
39KA(2)
The Board must cause the guidelines to be:
(a) published in the Gazette ; and
(b) made available on request without charge, to any eligible company.
39KA(3)
The requirements may cover the following matters:
(a) who is to make the plans;
(b) who is to approve the plans;
(c) when the plans are to be made;
(d) what the plans are to contain;
(e) how the plans can be amended;
(f) any other matter.
39KA(4)
The Board may, at any time, and whether or not within 90 days after the commencement of this section, by writing, repeal, replace or amend guidelines made under subsection (1).
39KA(5)
An instrument formulating guidelines under subsection (1), or repealing, replacing or amending such guidelines, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
SECTION 39L CERTIFICATE AS TO RESEARCH AND DEVELOPMENT ACTIVITIESHistoryS 39KA inserted by No 170 of 2001, s 3 and Sch 1 item 7, effective 1 October 2001.
39L(1)
The Board may, and shall if requested in writing by the Commissioner to do so, give to the Commissioner a certificate stating whether particular activities that have been or are being carried on by or on behalf of a person were or are research and development activities.
39L(2)
If the Board issues a certificate to the effect that particular activities were not or are not research and development activities, the Board must give notice in writing to the person concerned stating the reasons for issuing the certificate.
39L(3)
If the activities were or are carried on on behalf of a foreign company grouped under section 73L of the Income Tax Assessment Act 1936 with an eligible company that was or is incurring expenditure in relation to the carrying on of the activities, the Board must give a copy of the notice to the eligible company.HistoryS 39L(3) inserted by No 164 of 2007, s 3 and Sch 11 item 71, effective 25 September 2007. For application provision see note under s 39D .
SECTION 39LAAA CERTIFICATE AS TO AUSTRALIAN-CENTRED RESEARCH AND DEVELOPMENT ACTIVITIESHistoryS 39L inserted by No 59 of 1988; amended by Nos 167 of 1989 and 66 of 1991.
39LAAA(1)
The Board may give to the Commissioner a certificate stating whether particular activities were Australian-centred research and development activities.
39LAAA(2)
The Board must give to the Commissioner a certificate described in subsection (1) if the Commissioner gives the Board a written request to do so.
39LAAA(3)
If:
(a) the activities covered by a certificate given under this section were or are carried on on behalf of a foreign company grouped under section 73L of the Income Tax Assessment Act 1936 with an eligible company that incurred expenditure in relation to the carrying on of the activities; and
(b) the certificate states that the activities were not Australian-centred research and development activities;the Board must give notice in writing to the eligible company, stating the reasons for giving the certificate.
SECTION 39LAAB CERTIFICATE AS TO ACTIVITIES THAT WOULD BE AUSTRALIAN-CENTRED RESEARCH AND DEVELOPMENT ACTIVITIES APART FROM NEED FOR PLANHistoryS 39LAAA inserted by No 164 of 2007, s 3 and Sch 11 item 72, effective 25 September 2007. For application provision see note under s 39D .
39LAAB(1)
The Board may give to the Commissioner a certificate stating whether particular activities were activities that would have been Australian-centred research and development activities if subsection 73B(2BA) of the Income Tax Assessment Act 1936 had not been enacted.Note 1:
Subsection 73B(2BA) of the Income Tax Assessment Act 1936 says activities are not research and development activities unless they are carried on in accordance with a plan that complies with any guidelines formulated by the Board under section 39KA of this Act that are in force at the time.
Note 2:
Activities may be ones that would have been Australian-centred research and development activities if subsection 73B(2BA) of the Income Tax Assessment Act 1936 had not been enacted, whether or not the activities were carried on in accordance with such a plan.
39LAAB(2)
The Board must give to the Commissioner a certificate described in subsection (1) if the Commissioner gives the Board a written request to do so.
39LAAB(3)
If:
(a) the activities covered by a certificate given under this section were or are carried on on behalf of a foreign company grouped under section 73L of the Income Tax Assessment Act 1936 with an eligible company that incurred expenditure in relation to the carrying on of the activities; and
(b) the certificate states that the activities were activities that would have been Australian-centred research and development activities if subsection 73B(2BA) of the Income Tax Assessment Act 1936 had not been enacted;the Board must give notice in writing to the eligible company, stating the reasons for giving the certificate.
SECTION 39LAA CERTIFICATE AS TO OVERSEAS RESEARCH AND DEVELOPMENT ACTIVITIESHistoryS 39LAAB inserted by No 164 of 2007, s 3 and Sch 11 item 72, effective 25 September 2007. For application provision see note under s 39D .
39LAA(1)
The Board may, and must if requested in writing by the Commissioner to do so, give to the Commissioner a certificate stating whether particular activities that have been or are being carried on by or on behalf of an eligible company in respect of a project are the overseas research and development activities described in the provisional certificate given to the company.
39LAA(2)
If the Board gives a certificate under subsection (1), the Board must give to the company concerned:
(a) a copy of the certificate; and
(b) if the Board decided that particular activities were not the overseas research and development activities described in the provisional certificate - a statement of the reasons for its decision.
SECTION 39LA CERTIFICATE AS TO CORE TECHNOLOGYHistoryS 39LAA inserted by No 181 of 1994.
39LA(1)
The Board may, and must if requested in writing by the Commissioner to do so, give to the Commissioner a certificate stating whether particular technology that an eligible company has acquired, or has acquired the right to use, for the purposes of particular research and development activities that have been or are being carried on by or on behalf of the company was core technology in relation to those activities.
39LA(2)
If the Board issues a certificate to the effect that particular technology was not core technology, the Board must give notice in writing to the eligible company concerned stating the reasons for issuing the certificate.
SECTION 39M CERTIFICATE AS TO EXPLOITATION OF RESULTS, OR AUSTRALIAN CONTENT, OF ACTIVITIESHistoryS 39LA inserted by No 35 of 1990, amended by No 66 of 1991.
39M(1)
Where:
(a) expenditure has been incurred by a company registered under section 39J or 39P :
(i) on particular research and development activities; or
(ii) in the acquisition or construction of plant, an asset or a building, or an extension, alteration or improvement to a building, for use in particular research and development activities; and
(b) the Board is of the opinion that:
(i) any of the results of those research and development activities have been exploited otherwise than on normal commercial terms; or
(ia) those research and development activities are not for the benefit of the Australian economy; or
(ii) those research and development activities do not have an adequate Australian content; or
(iii) it would have been reasonable to expect there to have been some exploitation, after the commencement of this subparagraph, of the results of those research and development activities but no such exploitation has occurred;the Board may, subject to subsection 39E(4) , give a certificate in writing to the Commissioner:
(c) stating that it is of that opinion;
(d) specifying the research and development activities concerned; and
(e) giving the reasons for its opinion.HistoryS 39M(1) amended by No 164 of 2007, s 3 and Sch 11 item 73, by substituting para (b)(i) and (b)(ia) for para (b)(i), effective 25 September 2007. For application provision see note under s 39D .
Para (b)(i) formerly read:
(i) any of the results of those research and development activities have been exploited otherwise than:
(A) on normal commercial terms; or
(B) in a manner that is for the benefit of the Australian economy; orS 39M(1) amended by No 170 of 2001, s 3 and Sch 2 item 90 by inserting " , an asset " after " plant " in subpara (a)(ii), effective 30 June 2001.
S 39M(1) amended by No 15 of 1999, s 3 and Sch 1 item 22, by inserting subpara (1)(b)(iii), effective 9 April 1999.
39M(2)
The Board shall not give a certificate under this section in relation to a company unless the Board has:
(a) given notice in writing to the company stating that it is considering giving the certificate, specifying the activities to which the certificate would relate and informing the company of the reasons why it is considering giving the certificate;
(b) invited the company to make a written submission to the Board in relation to the matter within 90 days; and
(c) if such a submission is made within that period, had regard to the matters raised in the submission.
SECTION 39MA CERTIFICATE ABOUT INELIGIBLE FINANCE SCHEMESHistoryS 39M inserted by No 59 of 1988.
39MA(1)
If:
(a) expenditure has been incurred in connection with particular research and development activities by a company registered under section 39J or 39P ; and
(b) the Board is of the opinion that there was or is an ineligible finance scheme in relation to those research and development activities;the Board may give a written certificate to the Commissioner:
(c) stating that it is of that opinion; and
(d) specifying the research and development activities concerned; and
(e) giving the reasons for its opinion.
39MA(2)
The Board must not give a certificate under this section in relation to a company unless the Board has:
(a) given a written notice to the company:
(i) stating that the Board is considering giving the certificate; and
(ii) specifying the activities to which the certificate would relate; and
(iii) informing the company of the reasons why it is considering giving the certificate; and
(b) invited the company to make a written submission to the Board in relation to the matter within 90 days; and
(c) if such a submission is made within that period - had regard to the matters raised in the submission.
SECTION 39N CERTIFICATE OF NON-COMPLIANCEHistoryS 39MA inserted by No 224 of 1992.
39N(1)
Where:
(a) the Board requests a company to give to the Board particular information relating to activities carried on by or on behalf of the company, or activities in relation to which the company incurred expenditure, being information needed by the Board for the purpose of performing any of its functions, or the exercise of any of the powers, under this Part; and
(b) the company does not give the information within a reasonable period;the Board may, by notice in writing to the company, require the company to give the information to the Board within 30 days after the notice is received by the company.
HistoryS 39N(1) amended by No 164 of 2007, s 3 and Sch 11 items 74 and 75, by omitting " registered " after " the Board requests a " and inserting " or activities in relation to which the company incurred expenditure, " after " on behalf of the company, " in para (a), effective 25 September 2007. For application provision see note under s 39D .
39N(2)
If such a notice is given and the company fails to comply with the notice, the Board may give a certificate to the Commissioner stating that the company has failed to comply with a notice under this section in respect of the activities concerned.
39N(3)
A notice under subsection (1) shall:
(a) state that, if the company fails to comply with the notice within the period specified in the notice, the Board may give a certificate under subsection (2) in respect of the activities to which the notice relates; and
(b) set out the terms of subsections 73B(33A) , 73BF(4) and 73BM(4) of the Income Tax Assessment Act 1936 .HistoryS 39N(3) amended by No 170 of 2001, s 3 and Sch 2 item 91 by inserting " , 73BF(4) " before " and 73BM(4) " in para (b), effective 30 June 2001.
S 39N(3) amended by No 170 of 2001, s 3 and Sch 2 item 50 by substituting " subsections 73B(33A) and 73BM(4) " for " subsection 73B(33A) " in para (b), effective 12 pm, by legal time in the Australian Capital Territory, on 29 January 2001.
39N(4)
To avoid doubt, a notice under subsection (1) has effect whether the particular information that is the subject of the notice and the Board ' s request is identified in the notice or request wholly or partly:
(a) by reference to the functions to be performed or the powers to be exercised; or
(b) by another means.HistoryS 39N(4) inserted by No 164 of 2007, s 3 and Sch 11 item 76, effective 25 September 2007. For application provision see note under s 39D .
SECTION 39P JOINT REGISTRATIONHistoryS 39N inserted by No 59 of 1988.
39P(1A)
This section has effect subject to section 39PA .
39P(1)
A person may apply to the Board on behalf of 2 or more eligible companies for the joint registration of those eligible companies in respect of a year of income or years of income in relation to a proposed project or proposed projects comprising or including research and development activities.
39P(2)
The application shall:
(a) specify the companies concerned;
(b) contain such particulars of the project, or each project, as the Board requires;
(c) specify the total amount of the expenditure expected to be incurred by the companies in the year of income or years of income in respect of the research and development activities comprised or included in the project or projects;
(d) specify, in respect of each company in relation to the research and development activities comprised or included in the project or each project, the amount of expenditure expected to be incurred in the year of income or each year of income in each of the following classes of expenditure:
(i) research and development expenditure other than contract expenditure;
(ii) plant expenditure; and
(e) set out proposals for the exploitation of any results of the research and development activities.
39P(3)
If the Board is of the opinion in relation to the project, or in relation to a particular one or more of those projects, that:
(a) the activities in respect of which the expenditure is proposed to be incurred are research and development activities;
(b) at least one of the companies is not related to any of the others;
(c) the total amount of the expenditure expected to be incurred as mentioned in paragraph (2)(c) will exceed $500,000;
(d) if there was or is a finance scheme in relation to the research and development activities - the finance scheme is not an ineligible finance scheme;
(f) the results of the research and development activities will be exploited:
(i) on normal commercial terms; and
(ii) in a manner that is for the benefit of the Australian economy;
(g) the research and development activities will have an adequate Australian content; and
(h) there are no grounds under section 39K on which the Board would be entitled to refuse to register either or any of the companies in respect of the year of income or any of the years of income under section 39J if the companies had made separate applications for registration;the Board may register the companies jointly in respect of the year of income or the years of income in relation to that project or in relation to that particular one or more of those projects, as the case requires.
39P(3A)
If the Board refuses to register the companies jointly in relation to the project or projects specified in the application, the Board must give notice in writing to the companies stating the reasons for the refusal.
39P(4)
If, after registering companies jointly under subsection (3) in respect of a year of income or years of income, the Board becomes of the opinion that:
(a) the whole or any part of the money paid by the companies has not been or is not being expended in respect of research and development activities;
(b) any of the results of the research and development activities have not been, or will not be, exploited as mentioned in paragraph (3)(f);
(c) the research and development activities do not, or will not, have an adequate Australian content; or
(d) either or any of the companies has, before the completion of the project or projects in respect of which money paid by the company has been expended, disposed of to another person all or any of the company's rights in respect of the exploitation of any of the results of the relevant research and development activities, or an interest (whether legal or equitable) in all or any of those rights;the Board may give to the Commissioner a certificate stating that it is of that opinion.
39P(5)
The Board shall not give a certificate under this section that affects a company or companies unless the Board has:
(a) given notice in writing to the company or each company stating that the Board is considering giving the certificate and informing the company of its reasons for so considering;
(b) given to the company or each company a reasonable opportunity to make a written submission in relation to the matter; and
(c) if such a submission is made within a reasonable time, had regard to the matters raised in the submission.
SECTION 39PA LIMITATION OF BOARD'S POWER TO REGISTER COMPANIES JOINTLYHistoryS 39P inserted by No 59 of 1988; amended by Nos 35 of 1990, 66 of 1991, 224 of 1992, 181 of 1994, and 78 and 82 of 1996.
39PA(1)
Subject to this section, the Board must not, after the commencement of this section, register eligible companies jointly.
39PA(2)
If, before 5 pm, by legal time in the Australian Capital Territory, on 23 July 1996 (the commencement time ) a favourable advance approval opinion was given in respect of 2 or more eligible companies in relation to a proposed project comprising or including research and development activities, subsection (1) does not prohibit the Board, upon an application made under subsection 39P(1) not later than the end of 12 months after that time, from registering the companies jointly in relation to the project in respect of the year of income or years of income specified in the application.
39PA(3)
If:
(a) before the commencement time, an application was made under section 39P to register 2 or more eligible companies jointly in relation to a proposed project in respect of a year of income or years of income; and
(b) by the commencement time, the Board had not, in respect of the application, registered or refused to register the companies jointly;subsection (1) does not prohibit the Board, in respect of the application, from registering the companies jointly.
39PA(4)
If, before the commencement time, the Board refused under section 39P to register 2 or more eligible companies jointly in relation to a proposed project in respect of a year of income or years of income:
(a) where the Administrative Appeals Tribunal decided, on a review of a decision of the Board confirming the refusal, that the companies should be registered jointly in relation to the proposed project in respect of the year of income or one of the years of income but the registration to give effect to the decision had not been effected before that time - subsection (1) does not prohibit the companies from being registered jointly to give effect to the Tribunal's decision; and
(b) subsection (1) does not:
(i) prohibit the Board after that time from reconsidering its decision under section 39S or prohibit the Administrative Appeals Tribunal after that time from reviewing a decision of the Board confirming the refusal; and
(ii) where the Board on the reconsideration, or the Tribunal on the review, decides that the companies should be registered jointly in relation to the proposed project in respect of the year of income or one or more of the years of income - prohibit the companies from being so registered jointly.
39PA(5)
In this section:favourable advance approval opinion
, in relation to 2 or more eligible companies in respect of a proposed project, means an informal written opinion given by the Board, otherwise than in connection with a decision by the Board under the finance scheme guidelines, that:
(a) the proposed project would comprise or include research and development activities; and
(b) a proposed finance scheme in relation to those activities would not be taken to be an ineligible finance scheme for the purposes of this Part.
SECTION 39PB EXTENSION OF JOINT REGISTRATION TO COMPLETE PROJECTHistoryS 39PA inserted by No 78 of 1996.
39PB(1)
If 2 or more companies are registered jointly in relation to a project in respect of a year of income or years of income, a person may, before the end of that year of income or of the later or latest of those years of income, as the case may be, and not later than 30 June 2000, apply to the Board on behalf of the companies for an extension of the registration to include a later year of income or later years of income in which the companies propose to incur research and development expenditure or interest expenditure in respect of research and development activities comprised or included in the project.
39PB(2)
The application must:
(a) be in writing in accordance with a form approved by the Board; and
(b) contain such particulars of the extension as are necessary to enable the Board to make a decision.
39PB(3)
Subject to subsection (4), if the Board is satisfied that an extension of the registration is necessary to enable the companies to complete the project, the Board may grant the extension for a year of income or years of income not later than the 2004-05 year of income.
39PB(4)
The Board must not grant the extension unless the Board is satisfied that, if the extension were granted:
(a) the companies would not incur expenditure in relation to research and development activities other than those comprised or included in the particulars of the project as stated in the application for the registration under subsection 39P(2) ; and
(b) the companies would not incur any core technology expenditure in relation to research and development activities other than core technology expenditure identified in the application for registration under subsection 39P(2) ; and
(c) the companies would exploit any results of the research and development activities as mentioned in paragraph 39P(3)(f) ; and
(d) the total amount of the expenditure expected to be incurred by the companies in respect of the research and development activities comprised or included in the project in the years of income in respect of which the companies would be jointly registered (including the year of income or years of income covered by the extension) would not exceed the total amount of the expenditure that was expected to be incurred by the companies in respect of those activities as specified in the application for the registration in accordance with paragraph 39P(2)(c) .
39PB(5)
If the Board refuses to grant the extension, the Board must give written notice to the companies stating the reasons for the refusal.
39PB(6)
If, after granting the extension, the Board becomes of the opinion that:
(a) the companies have incurred expenditure in relation to research and development activities other than those comprised or included in the particulars of the project as stated in the application for the registration under subsection 39P(2) ; or
(b) the companies have incurred core technology expenditure in relation to research and development activities other than core technology expenditure identified in the application for registration under subsection 39P(2) ; or
(c) the total amount of the expenditure incurred by the companies in respect of the research and development activities comprised or included in the project in the years of income in respect of which the companies are jointly registered (the actual expenditure in relation to research and development activities ) has exceeded the total amount of the expenditure that was expected to be incurred by the companies in respect of those activities as specified in the application for the registration in accordance with paragraph 39P(2)(c) (the expected expenditure in relation to research and development activities );the Board must give the Commissioner a certificate stating that it is of that opinion and stating the day on which, in its opinion, the expenditure in relation to research and development activities referred to in paragraph (a) or (b) was incurred or the actual expenditure in relation to research and development activities referred to in paragraph (c) exceeded the expected expenditure in relation to research and development activities referred to in that paragraph, as the case may be.
39PB(7)
The Board must not give a certificate under subsection (6) that affects a company or companies unless the Board has:
(a) given written notice to the company or each company stating that the Board is considering giving the certificate and telling the company of its reasons for so considering; and
(b) given the company or each company a reasonable opportunity to make a written submission in relation to the matter; and
(c) if such a submission is made within a reasonable time - had regard to the matters raised in the submission.
SECTION 39Q COPIES OF CERTIFICATE TO BE GIVEN TO PERSONS AFFECTEDHistoryS 39PB inserted by No 78 of 1996.
39Q
Where the Board gives to the Commissioner a certificate under this Part that affects a person, the Board shall at the same time serve a copy of the certificate on the person.SECTION 39R SERVICE OF NOTICES ETC.HistoryS 39Q inserted by No 59 of 1988, amended by No 66 of 1991.
39R
A notice or other document that is required to be given to or served on a person under this Part may be given or served by sending to the person, by telegraph, telex, facsimile service or other similar means of communication, a message to the effect of the notice or other document.SECTION 39S INTERNAL REVIEW OF DECISIONSHistoryS 39R inserted by No 59 of 1988, amended by No 66 of 1991.
39S(1)
This section applies to a decision of the Board under section 39ED , subsection 39EE(3) , subsection 39EF(2) or (4) , subsection 39F(4) , (6) , (7) or (9) , section 39FA , 39HH , 39J , 39JE , 39L , 39LAAA , 39LAAB , 39LAA or 39LA , subsection 39P(3) or 39PB(3) .Note:
A decision of the Board whether to register a company as mentioned in subsection 39JF(1) is a decision of the Board under section 39J to which this section applies.
HistoryS 39S(1) amended by No 164 of 2007, s 3 and Sch 11 item 77, by inserting " 39LAAA, 39LAAB, " after " 39L, " , effective 25 September 2007. For application provision see note under s 39D .
S 39S(1) amended by No 15 of 1999, s 3 and Sch 1 items 23 to 25, by inserting " subsection 39EF(2) or (4), " after " 39EE(3), " , inserting " 39FA, " before " 39HH " , and inserting the Note, effective 9 April 1999.
39S(1A)
This section also applies to a decision of the Board under the finance scheme guidelines.
39S(2)
A person who is affected by a decision of the Board may, if dissatisfied with the decision, by notice given to the Board:
(a) within the period of 21 days after receiving notice of the decision; or
(b) within such further period as the Board allows;request the Board to reconsider the decision.
39S(3)
The request must set out the reasons for making the request.
39S(4)
Upon receipt of the request, the Board must reconsider the decision and may, subject to subsection (5), confirm or revoke the decision or vary the decision in such manner as the Board thinks fit.
39S(5)
If the Board does not confirm, revoke or vary a decision before the end of the period of 60 days after the day on which the Board received the request under subsection (2) to reconsider the decision, the Board is taken (except for the purpose of subsection (6)), at the end of that period, to have confirmed the decision under subsection (4).
39S(6)
Where the Board confirms, revokes or varies a decision, the Board must, by notice served on the applicant, inform the applicant of the result of the reconsideration of the decision, and the reasons for confirming, varying or revoking the decision, as the case may be.
39S(7)
Where the Board gives a notice to an applicant under subsection (6) informing the applicant that a decision has been revoked or varied, the Board must advise the Commissioner of particulars of the notice.
39S(8)
The confirmation, revocation or variation under subsection (4) of a decision is not invalid merely because it is done after the end of the period referred to in subsection (5) unless, before it is done, the applicant makes an application to the Administrative Appeals Tribunal under section 39T for review of the decision.
SECTION 39T REVIEW OF DECISIONS BY ADMINISTRATIVE APPEALS TRIBUNALHistoryS 39S inserted by No 66 of 1991; amended by Nos 224 of 1992, 181 of 1994, and 78 and 82 of 1996.
39T(1)
Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Board:
(a) that have been confirmed or varied under subsection 39S(4) ; or
(b) under subsection 39G(4) , section 39HD , 39HF , 39M or 39MA or subsection 39N(2) , 39P(4) or 39PB(6) .
39T(2)
Where a decision is taken, under subsection 39S(5) , to be confirmed, section 29 of the Administrative Appeals Tribunal Act 1975 applies as if the prescribed time for making application for review of the decision were the period commencing on the day on which the decision is taken to be confirmed and ending on the 28th day after that day.
39T(3)
Where a request is made under subsection 39S(2) in respect of a decision, section 41 of the Administrative Appeals Tribunal Act 1975 applies as if the making of the request were the making of an application to the Administrative Appeals Tribunal for review of that decision.
39T(4)
The hearing of a proceeding relating to a decision covered by subsection (1) must take place in private and the Administrative Appeals Tribunal may, by order:
(a) give directions as to the persons who may be present; and
(b) give directions of a kind referred to in paragraph 35(2)(b) or (c) of the Administrative Appeals Tribunal Act 1975 .
SECTION 39U STATEMENTS TO ACCOMPANY NOTIFICATION OF DECISIONSHistoryS 39T inserted by No 66 of 1991; amended by Nos 224 of 1992 and 78 of 1996.
39U(1)
Where the Board makes a decision to which section 39S applies and gives to a person whose interests are affected by the decision notice in writing of the decision, that notice must include a statement to the effect that:
(a) the person may, if dissatisfied with the decision, seek a reconsideration of the decision by the Board in accordance with subsection 39S(2) ; and
(b) the person may, subject to the Administrative Appeals Tribunal Act 1975 , if dissatisfied with a decision made by the Board upon that reconsideration confirming or varying the first-mentioned decision, make application to the Administrative Appeals Tribunal for review of the decision so confirmed or varied.
39U(2)
Where the Board confirms or varies a decision under subsection 39S(4) and gives to a person notice in writing of the confirmation or variation of the decision, that notice must include a statement to the effect that the person may, subject to the Administrative Appeals Tribunal Act 1975 , if dissatisfied with the decision so confirmed or varied, make application to the Administrative Appeals Tribunal for review of the decision.
39U(3)
Where the Board makes a decision under subsection 39G(4) , section 39HD , 39HF , 39M or 39MA or subsection 39N(2) or 39P(4) and gives to a person whose interests are affected by the decision notice in writing of the decision, that notice must:
(a) in all cases - include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal, by or on behalf of any person whose interests are affected by the decision, for review of the decision; and
(b) except where subsection 28(4) of that Act applies - include a statement to the effect that a request may be made under section 28 of that Act by or on behalf of such a person for a statement setting out the findings on material questions of fact, referring to the evidence or the material on which those findings were based and giving the reasons for the decision.
39U(4)
A failure to comply with this section does not affect the validity of the decision.
SECTION 39V TAX CONSEQUENCES OF VARIATION OR REVOCATION OF REVIEWABLE DECISIONSHistoryS 39U inserted by No 66 of 1991, amended by No 224 of 1992.
39V(1)
For the purposes of the Income Tax Assessment Act 1936 , where a decision of the Board under this Part is revoked or set aside in accordance with section 39S of this Act or section 43 of the Administrative Appeals Tribunal Act 1975 , the decision is taken to have never been made.
39V(2)
Subject to subsection (1), for the purposes of the Income Tax Assessment Act 1936 , where a decision of the Board under this Part is varied in accordance with section 39S of this Act or section 43 of the Administrative Appeals Tribunal Act 1975 , the decision is taken to have been originally made as varied.
39V(3)
Section 170 of the Income Tax Assessment Act 1936 does not prevent the amendment of an assessment at any time for the purpose of giving effect to this section.
HistoryS 39V inserted by No 66 of 1991.
Pt IIIA inserted by No 59 of 1988.
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