Income Tax Assessment Act 1936
[
CCH Note:
Act No 56 of 2010, s 4, contains the following provision:
4 Amendment of assessments
]
(1)
Section
170
of the
Income Tax Assessment Act 1936
does not prevent the amendment of an assessment if:
(a)
the assessment was made before the commencement of Schedule 2 to this Act
[
4 June 2010]; and
(b)
the amendment is made for the purpose of giving effect to item 1 or 2 of that Schedule; and
(c)
the amendment is made within 4 years after the end of the income year in which the relevant CGT event happened.
(2)
Section
170
of the Income Tax Assessment Act 1936 does not prevent the amendment of an assessment if:
(a)
the assessment was made before the commencement of this section
[
3 June 2010]; and
(b)
the amendment is made within 2 years after that commencement; and
(c)
the amendment is made for the purpose of giving effect to Schedule 5 to this Act.
[ CCH Note: The sections listed in the first column provide that s 170 does not prevent the amendment of an assessment made before the commencement of such sections for the purpose of giving effect to the respective Acts or parts of Acts listed in the last column. Note: No 75 of 2010, s 3 and Sch 6 repealed unlimited periods for amending assessments that were effective prior to 2006.
| Section |
Commencement
Date |
Act |
| s 4 of No 88 of 2009 | 18.9.09 | No 88 of 2009 |
| s 4 of No 164 of 2007 | 25.9.07 | No 164 of 2007 |
| s 4 of No 78 of 2007 | 21.6.07 | No 78 of 2007 |
| s 4 of No 168 of 2006 | 12.12.06 | No 168 of 2006 |
| s 4 of No 58 of 2006 | 22.6.06 | No 58 of 2006] |
The Commissioner may amend an assessment as follows:
| Amendment of assessments | ||
| Time of amendment | Qualification | |
| 1 | The Commissioner may amend an assessment of an individual for a year of income within 2 years after the day on which the Commissioner gives notice of the assessment to the individual. | This item does not apply:
(a) if the individual carries on a business at any time in that year unless the individual is a small business entity or medium business entity for that year; or (b) if the individual is a partner in a partnership that carries on a business at any time in that year unless the partnership is a small business entity or medium business entity for that year; or (c) to an individual in the capacity of a trustee of a trust estate at any time in that year (see item 3 for this case); or |
| (d) if the individual is a beneficiary of a trust estate at any time in that year unless the trust is a small business entity or medium business entity for that year or the trustee of the trust (in that capacity) is a full self-assessment taxpayer for that year; or | ||
| (e) if it is reasonable to conclude that any person entered into or carried out a scheme (either alone or with others) for the sole or dominant purpose of the individual obtaining a scheme benefit in relation to income tax from the scheme for that year; or | ||
| (f) in any other circumstance prescribed by the regulations. | ||
| This item is subject to items 5 and 6. | ||
| 2 | The Commissioner may amend an assessment of a company that is a small business entity or medium business entity for the year of income to which the assessment relates within 2 years after the day on which the Commissioner gives notice of the assessment to the company. | This item does not apply:
(a) if the company is a partner in a partnership that carries on a business at any time in that year unless the partnership is a small business entity or medium business entity for that year; or (b) to a company in the capacity of a trustee of a trust estate at any time in that year (see item 3 for this case); or (c) if the company is a beneficiary of a trust estate at any time in that year unless the trust is a small business entity or medium business entity for that year or the trustee of the trust (in that capacity) is a full self-assessment taxpayer for that year; or |
| (d) if it is reasonable to conclude that any person entered into or carried out a scheme (either alone or with others) for the sole or dominant purpose of the company obtaining a scheme benefit in relation to income tax from the scheme for that year; or | ||
| (e) in any other circumstance prescribed by the regulations. | ||
| This item is subject to items 5 and 6. | ||
| 3 | The Commissioner may amend an assessment of a person (in the capacity of a trustee of a trust estate) for a year of income if the trust is a small business entity or medium business entity for that year.
The Commissioner may amend the assessment within 2 years after the day on which he or she gives notice of the assessment to the person. |
This item does not apply:
(a) if the person (in that capacity) is a partner in a partnership that carries on a business at any time in that year unless the partnership is a small business entity or medium business entity for that year; or; (b) if the person (in that capacity) is a beneficiary of another trust estate at any time in that year unless the other trust is a small business entity or medium business entity for that year or the trustee of the other trust (in that capacity) is a full self-assessment taxpayer for that year; or (c) if it is reasonable to conclude that any person entered into or carried out a scheme (either alone or with others) for the sole or dominant purpose of the person (in that capacity) obtaining a scheme benefit in relation to income tax from the scheme for that year; or (d) in any other circumstance prescribed by the regulations. This item is subject to items 5 and 6. |
| 4 | If item 1, 2 or 3 does not apply, the Commissioner may amend an assessment within 4 years after the day on which he or she gives notice of the assessment to the taxpayer. | This item is subject to items 5 and 6. |
| 5 | The Commissioner may amend an assessment at any time if he or she is of the opinion there has been fraud or evasion. | None. |
| 6 | The Commissioner may amend an assessment at any time: | None. |
| (a) to give effect to a decision on a review or appeal; or | ||
| (b) as a result of an objection made by the taxpayer or pending a review or appeal. |
Note 1:
This section applies to assessments where no tax is payable: see the definition of assessment in subsection 6(1) .
Note 2:
This section also applies to amended assessments: see section 173 . However, there are limits on how amended assessments can be amended: see subsections (2) and (3) of this section.
Note 3:
The amendment period mentioned in item 1, 2, 3 or 4 may be extended: see subsections (5) to (7) .
View history note
Hide history note170(1A)
(Repealed by No 161 of 2005)
Limit on amending amended assessments under subsection (1)
170(2)
The Commissioner cannot amend an amended assessment under item 1, 2, 3 or 4 of the table in subsection (1) if the limited amendment period for the original assessment concerned has ended.
Note:
The Commissioner can amend amended assessments at any time under item 5 or 6 of the table in subsection (1) .
Refreshed amendment period for amending amended assessments
170(3)
If the Commissioner amends an assessment (the earlier assessment ) as set out in column 2 of the following table, he or she may, under this subsection, amend the assessment (the later assessment ) that results from that amendment in the way set out in column 3 within: (a) if item 1, 2 or 3 of the table in subsection (1) applies to the original assessment concerned (which may or may not be the earlier assessment) - 2 years after the day on which he or she gives notice of the later assessment to the taxpayer; or (b) otherwise - 4 years after that day.
| Amendment of later assessments | ||
| Column 1 | Column 2 | Column 3 |
| Item | In this case: | the position is: |
| 1 | The Commissioner amends the earlier assessment about a particular in a way that reduces a taxpayer ' s liability and the Commissioner accepts a statement made by the taxpayer in making the amendment | The Commissioner may amend the later assessment about that particular in a way that increases the taxpayer ' s liability. |
| 2 | The Commissioner amends the earlier assessment about a particular in a way that: | The Commissioner may amend the later assessment about that particular in a way that reduces the taxpayer ' s liability. |
| (a) | increases a taxpayer ' s liability; or | |
| (b) | reduces a taxpayer ' s liability (other than in a case covered by item 1) |
Note 1:
The earlier assessment may be the original assessment or an amended assessment.
Note 2:
The Commissioner can amend the later assessment at any time under item 5 or 6 of the table in subsection (1) .
Note 3:
The amendment period mentioned in paragraph (3)(a) or (b) may be extended: see subsections (5) to (7) .
170(4)
The Commissioner cannot amend an assessment under item 2 of the table in subsection (3) about a particular if he or she has previously amended an assessment under item 1 of that table about that particular.
170(4A)
(Repealed by No 161 of 2005)
170(4B)
(Repealed by No 161 of 2005)
170(4C)
(Repealed by No 161 of 2005)
Extensions - applications by taxpayer
170(5)
The Commissioner may amend an assessment even though the limited amendment period has ended if, before the end of that period, the taxpayer applies for an amendment in the approved form. The Commissioner may amend the assessment to give effect to the decision on the application.
170(5A)
(Repealed by No 161 of 2005)
Extensions - giving effect to private rulings
170(6)
The Commissioner may amend an assessment even though the limited amendment period has ended if: (a) the taxpayer applies for a private ruling under Division 359 in Schedule 1 to the Taxation Administration Act 1953 before the end of that period; and (b) the Commissioner makes a private ruling under that Division because of the application.
The Commissioner may amend the assessment to give effect to the ruling.
170(6A)
(Repealed by No 161 of 2005)
170(6AA)
(Repealed by No 161 of 2005)
170(6B)
(Repealed by No 91 of 2000)
Extensions - Federal Court orders or taxpayer consent
170(7)
If: (a) the Commissioner has started to examine the affairs of a taxpayer in relation to an assessment; and (b) the Commissioner has not completed the examination before the end of the limited amendment period or that period as extended;
the limited amendment period may be extended as follows:
| Extensions of limited amendment period | |||
| In this case: | the position is: | ||
| 1 | The Commissioner, before the end of the limited amendment period or that period as extended, applies to the Federal Court of Australia for an order extending the limited amendment period | The Court may order an extension of the limited amendment period for a specified period if it is satisfied that it was not reasonably practicable, or it was inappropriate, for the Commissioner to complete the examination within the limited amendment period, or that period as extended, because of: | |
| (a) | any action taken by the taxpayer; or | ||
| (b) | any failure of the taxpayer to take action that would have been reasonable for the taxpayer to take. | ||
| 2 | The Commissioner, before the end of the limited amendment period or that period as extended, requests the taxpayer to consent to extending the limited amendment period | The taxpayer may, by notice in writing, consent to extending the limited amendment period for a specified period. |
170(8)
The limited amendment period for an assessment may be extended more than once under subsection (7) .
Other amendment periods
170(9)
Notwithstanding anything contained in this section, when the assessment of the taxable income of any year includes an estimated amount of income, or of profits or gains of a capital nature, derived by the taxpayer in that year from an operation or series of operations the profit or loss on which was not ascertainable at the end of that year owing to the fact that the operation or series of operations extended over more than one or parts of more than one year, the Commissioner may at any time within 4 years after ascertaining the total profit or loss actually derived or arising from the operation or series of operations, amend the assessment so as to ensure its completeness and accuracy on the basis of the profit or loss so ascertained.
170(9A)
(Repealed by No 161 of 2005)
170(9B)
(Repealed by No 101 of 2013)
170(9C)
(Repealed by No 101 of 2013)
170(9D)
This section does not prevent the amendment of an assessment at any time if the amendment is made, in relation to a contract that after the making of the assessment is found to be void ab initio , to ensure that Part 3-1 or 3-3 of the Income Tax Assessment Act 1997 (about CGT) is taken always to have applied to the contract as if the contract had never been made.
170(9E)
(Repealed by No 161 of 2005)
170(9F)
(Repealed by No 161 of 2005)
170(10)
Nothing in this section prevents the amendment, at any time, of an assessment for the purpose of giving effect to any of the provisions of this Act set out in this table.
| Amendment of assessments | ||
| Item | Provision | Brief description |
| 1 | Section 23AB | Income of certain persons serving with an armed force under the control of the United Nations |
| 2 | (Repealed by No 101 of 2006 ) | |
| 3 | Section 26AG | Certain film proceeds included in assessable income |
| 4 | Subsection 47(2B) | Distributions by liquidator |
| 5 | Section 51AD | Deductions not allowable in respect of property used under certain leveraged arrangements |
| 6 | Section 51AH | Deductions not allowable where expenses incurred by employee are reimbursed |
| 7 - 9 | (Repealed by No 101 of 2006 ) | |
| 10 | Section 78A | Certain gifts not to be allowable deductions |
| 11 | (Repealed by No 101 of 2006 ) | |
| 12 - 13 | (Repealed by No 75 of 2010) | |
| 14 | Section 82KL | Tax benefit not allowable in respect of certain recouped expenditure |
| 15 | (Repealed by No 101 of 2006 ) | |
| 16 | Subsection 82SA(2) | Interest on certain convertible notes to be an allowable deduction - where loan made on or after 1 January 1976 |
| 17 | Section 100A | Present entitlement arising from reimbursement agreement |
| 18 | Subdivision C of Division 6D of Part III | Trustee beneficiary non-disclosure tax on share of net income |
| 19 | (Repealed by No 101 of 2006 ) | |
| 20 | Section 105AB | Additional period for distribution by liquidator |
| 21 | Section 121AT | Other tax consequences of demutualisation |
| 22 | Division 9C of Part III | Assessable income diverted under certain tax avoidance schemes |
| 23 | Former Division 10BA of Part III | Australian films |
| 24 | (Repealed by No 101 of 2013) | |
| 25 | Division 16D of Part III | Certain arrangements relating to the use of property |
| 26 | Subsection 159GZZZH(2) | Post-cancellation disposals of eligible interests etc. |
| 27 | Section 160ABB | Rebate in respect of certain payments by the Commonwealth Savings Bank of Australia |
| 27A | Subsection 170B(7) | Removal of protection relating to discontinued announcement because of later inconsistent return |
| 28 | Section 271-105 in Schedule 2F | Amounts subject to family trust distribution tax not assessable |
| 29 | (Repealed by No 79 of 2010 ) |
170(10AA)
Nothing in this section prevents the amendment, at any time, of an assessment for the purpose of giving effect to any of the provisions of the Income Tax Assessment Act 1997 set out in this table.
| Amendment of assessments | ||
| Item | Provision | Brief description |
| 1A | (Repealed by No 109 of 2014) | |
| 1 | (Repealed by No 75 of 2010) | |
| 5 | Subsection 26-25(3) | Deduction for interest or royalty if withholding tax paid |
| 10 | (Repealed by No 161 of 2005) | |
| 15 | Subsection 26-25A(2) | Deduction for salary, wages etc. if labour mobility program withholding tax paid |
| 20 | (Repealed by No 75 of 2010) | |
| 22 | Section 59-30 | Repayment of amounts |
| 23 | Subdivision 61-G | Private health insurance offset complementary to Part 2-2 of the Private Health Insurance Act 2007 |
| 24 | (Repealed by No 49 of 2019) | |
| 25 | (Repealed by No 41 of 2011) | |
| 26 | Section 83A-310 | Forfeiture of ESS interests acquired under an employee share scheme |
| 28 | Section 83A-340 | Rights that become rights to acquire shares |
| 30 | Subsection
104-10(3)
or
(6)
Subsection 104-25(2) Subsection 104-45(2) Subsection 104-90(2) Subsection 104-110(2) Subsection 104-205(2) Subsection 104-225(5) Subsection 104-230(5) |
The time of a CGT event is decided by there being a contract entered into |
| 35 | (Repealed by No 41 of 2011) | |
| 40 | Paragraph 104-15(4)(a) | CGT event B1: agreement ends without title passing |
| 50 | Subsection 104-40(5) | Exception to CGT event D2 where option is exercised |
| 60 | Section 108-15 | Disposal of collectable that is part of a set |
| 70 | Section 108-25 | Disposal of personal use asset that is part of a set |
| 80 | Section 116-45 | Modification to capital proceeds for non-receipt |
| 90 | Section 116-50 | Modification to capital proceeds for amounts you repay |
| 100 | Subsection 122-25(4) | Right or option etc. exercised after roll-over to acquire trading stock |
| 110 | Subsection 122-135(4) | Right or option etc. exercised after roll-over to acquire trading stock |
| 120 | Subdivision 124-B | Roll-over for assets compulsorily acquired, lost or destroyed |
| 130 | Subsection 126-5(3) | CGT event B1: agreement ends without title passing |
| 140 | Subsection 126-45(3) | CGT event B1: agreement ends without title passing |
| 150 | Subsection 126-50(3) | Right or option etc. exercised after roll-over to acquire trading stock |
| 160 | Section 126-70 | Capital loss disregarded despite choice for no roll-over |
| 165 | Subsection 138-15(5) | CGT event B1: agreement ends without title passing |
| 168 | Subsection 160-16(1) | Change of a loss carry back choice |
| 170 | Subsection 165-115ZA(2) | Reduction in respect of reduced cost base etc. of debt disregarded if commercial debt forgiveness provisions apply |
| 173 | Division 250 | Asset is put to a tax preferred use by a tax preferred end user |
| 174 | Section 295-25 | Commissioner makes an assessment as if an entity were a complying superannuation entity or a pooled superannuation trust for the income year and:
(a) the entity does not become one; or (b) the Australian Prudential Regulation Authority (APRA) does not receive certain documents about the entity within a specified period |
| 175 | Section 295-30 | Notice under section 342 of the Superannuation Industry (Supervision) Act 1993 or under regulations made for the purposes of that section is revoked, or the decision to give the notice is set aside |
| 176 | Subsection 295-195(3) | An amount is excluded from the assessable income of a complying superannuation fund or an RSA provider because of the exercise of an option by the trustee or provider |
| 177 | Section 295-270 | Commissioner makes an assessment on the basis of an amount of pre-1 July 88 funding credits being anticipated for an income year and:
(a) it becomes clear that those credits will not be available; or (b) APRA does not receive certain documents within a specified period |
| 178 | 295-490(2) | Deduction is denied because financial assistance funding levy is remitted or there is a refund of an overpayment of the levy |
| 180 | (Repealed by No 75 of 2010)
|
|
| 185 | Former Subdivision 375-H | Deductions for shares in a film licensed investment company |
| 190 | Subdivision 385-E | Primary producer elects to spread or defer tax on profit from forced disposal or death of live stock |
| 200 | Section 385-160 | Disentitling event happens in relation to your primary production business |
| 210 | Division 393 | Farm management deposits |
170(10AB)
Nothing in this section prevents the amendment, at any time, of an assessment for the purpose of reflecting information contained in an AMMA statement (within the meaning of the Income Tax Assessment Act 1997 ) if: (a) the statement is given by an AMIT for a year of income to an entity that is or was a member of the AMIT in respect of the year of income; and (b) the statement is so given later than 3 months after the end of the year of income.
170(10AB)
(Repealed by No 161 of 2005)
170(10A)
(Repealed by No 93 of 2011)
170(11)
Nothing in this section prevents the amendment, at any time, of an assessment to decrease the liability of a taxpayer for the purpose of giving effect to section 24 of the International Tax Agreements Act 1953 .
170(12)
Nothing in this section prevents the amendment, at any time, of an assessment to increase the liability of a taxpayer if: (a) the Commissioner amends a DPT assessment to decrease the liability of the taxpayer to diverted profits tax; and (b) that increase is attributable to that decrease.
170(13)
(Repealed by No 161 of 2005)
Definitions
170(14)
In this section, unless the contrary intention appears:
double taxation agreement
(Repealed by No 101 of 2013)
DPT assessment
has the meaning given by the
Income Tax Assessment Act 1997
.
international tax sharing treaty
(Repealed by 58 of 2006)
limited amendment period
, for an assessment, means the period within which the Commissioner may amend the assessment:
(a) under item 1, 2, 3 or 4 of the table in subsection (1) ; or
(b) under paragraph (3)(a) or (b) .
medium business entity
, for a year of income, means an entity (within the meaning of the
Income Tax Assessment Act 1997
) who:
(a) is not a small business entity for the year of income; and
(b) would be a small business entity for the year of income if:
(i) each reference in Subdivision 328-C (about what is a small business entity) of that Act to $10 million were instead a reference to $50 million; and
(ii) the reference in paragraph 328-110(5)(b) of that Act to a small business entity were instead a reference to an entity (within the meaning of that Act) covered by this definition.
prescribed provision
(Repealed by No 101 of 2013)
relevant provision
(Repealed by No 101 of 2013)
scheme
has the meaning given by subsection
995-1(1)
of the
Income Tax Assessment Act 1997
.
scheme benefit
has the meaning given by section
284-150
in Schedule
1
to the
Taxation Administration Act 1953
.
STS taxpayer
(Repealed by
No 80 of 2007
)
"tax"
(Repealed by No 161 of 2005)
"the United Kingdom agreement"
(Repealed by No 123 of 2003)
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