Tax Laws Amendment (Improvements to Self Assessment) Act (No. 2) 2005 (161 of 2005)

Schedule 2   ATO advice

Part 1   Rulings

Taxation Administration Act 1953

1   Division 360 in Schedule 1

Repeal the Division, substitute:

Division 357 - Object and common rules

Table of Subdivisions

Guide to Division 357

357-A Object of this Part

357-B Common rules for rulings

Guide to Division 357

357-1 What this Division is about

This Division sets out the object of this Part, and common rules that apply to public, private and oral rulings. (For the rules specific to each of those kinds of ruling, see Divisions 358, 359 and 360.)

A ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to you.

A ruling binds the Commissioner if it applies to you and you act in accordance with it. If you do act in accordance with it and the law turns out to be less favourable to you than the ruling provides, you are protected by the ruling from any adverse consequences.

The Division also sets out some other general rules for rulings.

Subdivision 357-A - Object of this Part

Table of sections

357-5 Object of this Part

357-5 Object of this Part

(1) The object of this Part is to provide a way for you to find out the Commissioner's view about how certain laws administered by the Commissioner apply to you so that the risks to you of uncertainty when you are self assessing or working out your tax obligations or entitlements are reduced.

(2) This object is achieved by:

(a) making advice in the form of rulings by the Commissioner available on a wide range of matters and to many taxpayers; and

(b) ensuring that the Commissioner provides rulings in a timely manner; and

(c) enabling the Commissioner to obtain, and make rulings based on, relevant information; and

(d) protecting you from increases in tax and from penalties and interest where you rely on rulings; and

(e) protecting you from decreases in entitlements where you rely on rulings; and

(f) limiting the ways the Commissioner can alter rulings to your detriment; and

(g) giving you protection from interest charges where you rely on other advice from the Commissioner, or on the Commissioner's general administrative practice.

Subdivision 357-B - Common rules for rulings

Table of sections

Rules for all rulings

357-50 Scope of Division

357-55 The provisions that are relevant for rulings

357-60 When rulings are binding on the Commissioner

357-65 Stopping relying on a ruling

357-70 Commissioner may apply the law if more favourable than the ruling

357-75 Inconsistent rulings

357-80 Contracts for schemes

357-85 Effect on ruling if relevant provision re-enacted

357-90 Validity of ruling not affected by formal defect

Common rules for public and private rulings

357-95 Electronic communications

357-100 Evidence

Common rules for private and oral rulings

357-105 Further information must be sought

357-110 Assumptions in making private or oral ruling

357-115 Additional information provided by applicant

357-120 Commissioner may take into account information from third parties

357-125 Applications and objections not to affect obligations and powers

Rules for all rulings

357-50 Scope of Division

This Division applies to *public rulings, *private rulings and *oral rulings.

357-55 The provisions that are relevant for rulings

Provisions of Acts and regulations of which the Commissioner has the general administration are relevant for rulings if the provisions are about any of the following:

(a) *tax;

(b) Medicare levy;

(c) fringe benefits tax;

(d) *franking tax;

(e) *withholding tax;

(f) *mining withholding tax;

(g) the administration or collection of those taxes;

(h) a grant or benefit mentioned in section 8 of the Product Grants and Benefits Administration Act 2000, or the administration or payment of such a grant or benefit.

357-60 When rulings are binding on the Commissioner

(1) A ruling binds the Commissioner in relation to you (whether or not you are aware of the ruling) if:

(a) the ruling applies to you; and

(b) you rely on the ruling by acting (or omitting to act) in accordance with the ruling.

Example 1: A public ruling is expressed to apply to a class of entities in relation to a particular scheme. Tim is a member of that class of entities and he is one of a number of taxpayers who enter into that scheme. The ruling applies to Tim.

Tim relies on the ruling by lodging an income tax return that is in accordance with the ruling.

Under the ruling, Tim's deductions in relation to the scheme are worked out to be a particular amount. Because Tim has relied on the ruling, the Commissioner must use that amount in making Tim's assessment (unless Tim stops relying on the ruling or the law is more favourable to him: see sections 357-65 and 357-70).

Example 2: Cecelia applies for, and obtains, a private ruling that, when she makes a payment in specified circumstances, she would not have to withhold an amount under a relevant provision. Cecelia makes the payment in the circumstances specified in the ruling, so the ruling applies to her.

Cecelia relies on the ruling by not withholding an amount from the payment. The Commissioner must not apply the provision in relation to Cecelia in a way that is inconsistent with the ruling (unless Cecelia stops relying on the ruling or the law is more favourable to her: see sections 357-65 and 357-70).

Note 1: A ruling about the amount of tax payable that binds the Commissioner provides protection in relation to that amount. There is no shortfall interest charge or tax shortfall penalty payable in respect of that amount as there can be no shortfall in tax payable.

Note 2: A ruling about the operation of a provision would stop applying to you if the provision is repealed, or is amended to have a different effect. However, if the provision is re-enacted and expresses the same ideas as the old provision, the ruling would still apply: see section 357-85.

(2) You may rely on the ruling at any time unless prevented from doing so by a time limit imposed by a *taxation law. It is not necessary to do so at the first opportunity.

357-65 Stopping relying on a ruling

(1) You can stop relying on a ruling. You do this by acting (or omitting to act) in a way that is not in accordance with the ruling.

Note: There is no penalty for a shortfall resulting from failing to follow a ruling. However, there are penalties for shortfalls resulting from failing to take reasonable care, and from taking a position about a large income tax item that is not reasonably arguable: see Division 284.

(2) You may stop relying on a ruling at any time unless prevented from doing so by a time limit imposed by a *taxation law.

(3) Having stopped relying on a ruling, you may rely on the ruling again unless prevented from doing so by a time limit imposed by a *taxation law.

357-70 Commissioner may apply the law if more favourable than the ruling

(1) The Commissioner may apply a relevant provision to you in the way it would apply if you had not relied on a ruling if:

(a) doing so would produce a more favourable result for you; and

(b) the Commissioner is not prevented from doing so by a time limit imposed by a *taxation law.

(2) The Commissioner does not have a duty to consider whether to apply subsection (1) to you, whether he or she is requested to do so by you or by any other entity.

357-75 Inconsistent rulings

(1) The rules in this table have effect if:

(a) a ruling and a later ruling both apply to you; and

(b) the 2 rulings are inconsistent.

However, the rules in the table only apply to the extent of the inconsistency.

(2) If 3 or more rulings apply to you and the rulings are inconsistent, apply the rules in the table to each combination of 2 rulings in the order in which they were made.

357-80 Contracts for schemes

For the purposes of this Part, if a contract requiring a *scheme has been entered into, the scheme is taken to have begun to be carried out.

357-85 Effect on ruling if relevant provision re-enacted

If:

(a) the Commissioner makes a ruling about a relevant provision (the old provision ); and

(b) that provision is re-enacted or remade (with or without modifications, and whether or not the old provision is repealed);

the ruling is taken also to be a ruling about that provision as re-enacted or remade (the new provision ), but only so far as the new provision expresses the same ideas as the old provision.

Note 1: Section 357-55 specifies the relevant provisions.

Note 2: Ideas in taxation provisions are not necessarily different just because different forms of words are used: see section 15AC of the Acts Interpretation Act 1901 and section 1-3 of the Income Tax Assessment Act 1997.

357-90 Validity of ruling not affected by formal defect

The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with.

Common rules for public and private rulings

357-95 Electronic communications

A communication between the Commissioner and another entity made for the purposes of a *public ruling or *private ruling may be made electronically.

357-100 Evidence

The production of:

(a) a *public ruling or *private ruling; or

(b) a document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner, purporting to be a copy of the ruling or of a notice of withdrawal of a public ruling;

is conclusive evidence of the proper making of the ruling, or of the withdrawal of the public ruling.

Common rules for private and oral rulings

357-105 Further information must be sought

(1) If the Commissioner considers that further information is required to make a *private ruling or an *oral ruling, the Commissioner must request the applicant to give that information to him or her.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner requests further information under this section, that period is extended: see subsection 359-50(2).

(2) The Commissioner may decline to make the ruling if the applicant does not give the information to the Commissioner within a reasonable time.

Note: The Commissioner must give the applicant written reasons for declining to make a private ruling: see section 359-35.

357-110 Assumptions in making private or oral ruling

(1) If the Commissioner considers that the correctness of a *private ruling or an *oral ruling would depend on which assumptions were made about a future event or other matter, the Commissioner may:

(a) decline to make the ruling; or

(b) make such of the assumptions as the Commissioner considers to be most appropriate.

(2) Before making the ruling, the Commissioner must:

(a) tell the applicant which assumptions (if any) the Commissioner proposes to make; and

(b) give the applicant a reasonable opportunity to respond.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner tells the applicant about assumptions the Commissioner proposes to make under this section, that period is extended: see subsection 359-50(2).

357-115 Additional information provided by applicant

In considering an application for a *private ruling or an *oral ruling, the Commissioner may take into account additional information provided by the applicant after the application was made (whether in response to a request under section 357-105 or otherwise).

357-120 Commissioner may take into account information from third parties

In making a *private ruling or an *oral ruling, the Commissioner may take into account any relevant information provided by an entity other than the applicant (whenever it was provided) if the Commissioner:

(a) tells the applicant what that information is and that the Commissioner intends to take the information into account; and

(b) gives the applicant a reasonable opportunity to respond before making the ruling.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner tells the applicant about third party information under this section, that period is extended: see subsection 359-50(2).

357-125 Applications and objections not to affect obligations and powers

The fact that you have applied for a *private ruling or an *oral ruling, or have made an objection against a private ruling, does not affect:

(a) your obligation to lodge a return or do anything else; or

(b) the Commissioner's power to make or amend an assessment or do anything else.

Division 358 - Public rulings

Guide to Division 358

358-1 What this Division is about

A public ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to entities generally or a class of entities.

The Commissioner must publish the ruling.

A public ruling may be withdrawn.

Note: Division 357 has some rules that relate to rulings generally.

Table of sections

Making public rulings

358-5 What is a public ruling?

358-10 Application of public rulings

358-15 When a public ruling ceases to apply

Withdrawing public rulings

358-20 Withdrawing public rulings

Making public rulings

358-5 What is a public ruling?

(1) The Commissioner may make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to:

(a) entities generally or a class of entities; or

(b) entities generally, or a class of entities, in relation to a class of *schemes; or

(c) entities generally, or a class of entities, in relation to a particular scheme.

Note: Section 357-55 specifies the relevant provisions.

(2) Such a ruling may cover any matter involved in the application of the provision.

(3) Such a ruling is a public ruling if it:

(a) is published; and

(b) states that it is a public ruling.

(4) The Commissioner must publish notice of the making of a *public ruling in the Gazette.

Note: The validity of a ruling is not affected merely because a provision of this Part relating to the form of the ruling or the procedure for making it has not been complied with: see section 357-90.

358-10 Application of public rulings

(1) A *public ruling applies from the time it is published or from such earlier or later time as is specified in the ruling.

(2) A *public ruling that relates to a *scheme does not apply to you if the scheme has begun to be carried out when the ruling is published and:

(a) the ruling changes the Commissioner's general administrative practice; and

(b) the ruling is less favourable to you than the practice.

358-15 When a public ruling ceases to apply

(1) A *public ruling may specify the time at which it ceases to apply.

(2) If a *public ruling does not do this, it applies until it is withdrawn.

Withdrawing public rulings

358-20 Withdrawing public rulings

(1) The Commissioner may withdraw a *public ruling, either wholly or to an extent, by publishing notice of the withdrawal.

(2) The withdrawal takes effect from the time specified in the notice. That time must not be before the time the notice is published.

(3) To the extent that a *public ruling is withdrawn, it continues to apply to *schemes to which it applied that had begun to be carried out before the withdrawal but does not apply to schemes that begin to be carried out after the withdrawal.

Note: A scheme is taken to have begun to be carried out if a contract requiring the scheme has been entered into: see section 357-80.

(4) The Commissioner must publish notice of the withdrawal of a *public ruling in the Gazette.

Division 359 - Private rulings

Guide to Division 359

359-1 What this Division is about

A private ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to you in relation to a specified scheme. Private rulings are usually made on application by you, your agent or your legal personal representative.

The Commissioner must make the ruling applied for, except in certain cases. If you are entitled to receive a ruling, you can object if the Commissioner takes too long to make it.

The Commissioner must record the ruling in writing and give a copy of it to you. The ruling must include certain details.

If you are dissatisfied with the ruling, you may object to it.

Note: Division 357 has some common rules that affect private rulings.

Table of sections

Private rulings

359-5 Private rulings

359-10 Applying for a private ruling

359-15 Private rulings to be given to applicants

359-20 Private rulings must contain certain details

359-25 Time of application of private rulings

359-30 Ruling for trustee of a trust

359-35 Dealing with applications

359-40 Valuations

359-45 Related rulings

359-50 Delays in making private rulings

359-55 Revised private rulings

359-60 Objections, reviews and appeals relating to private rulings

359-65 Commissioner may consider new information on objection

359-70 Successful objection decision alters ruling

Private rulings

359-5 Private rulings

(1) The Commissioner may, on application, make a written ruling on the way in which the Commissioner considers a relevant provision applies or would apply to you in relation to a specified *scheme. Such a ruling is called a private ruling .

Note: Section 357-55 specifies the relevant provisions.

(2) A *private ruling may cover any matter involved in the application of the provision.

359-10 Applying for a private ruling

(1) You, your *agent or your *legal personal representative may apply to the Commissioner for a *private ruling.

(2) An application for a *private ruling must be made in the *approved form.

(3) You, your *agent or your *legal personal representative may withdraw the application at any time before the ruling is made. The Commissioner must confirm the withdrawal in writing.

359-15 Private rulings to be given to applicants

The Commissioner makes a *private ruling by recording the ruling in writing and giving a copy of it to the applicant. The copy may be given electronically.

359-20 Private rulings must contain certain details

(1) A *private ruling must state that it is a private ruling.

(2) A *private ruling must identify the entity to whom it applies and specify the relevant *scheme and the relevant provision to which it relates.

Note 1: The Commissioner must tell the applicant which assumptions the Commissioner made in making the ruling: see section 357-110.

Note 2: Section 357-55 specifies the relevant provisions.

359-25 Time of application of private rulings

(1) A *private ruling may specify the time from which it begins to apply and the time at which it ceases to apply.

(2) The specified start time, or end time, may be before, when, or after the *private ruling is made and may be determined by reference to a specified event.

(3) A *private ruling that does not specify a start time applies from the time when it is made.

(4) A *private ruling that does not specify an end time ceases to apply at the end of the income year or other accounting period in which it started to apply.

359-30 Ruling for trustee of a trust

A *private ruling given to or for the trustee of a trust and relating to the affairs of the trust also applies to:

(a) the beneficiaries of the trust; and

(b) another trustee who is appointed to replace a trustee.

359-35 Dealing with applications

(1) The Commissioner must comply with an application for a *private ruling and make the ruling. However, this obligation is subject to subsections (2) and (3).

(2) The Commissioner may decline to make a *private ruling if:

(a) the Commissioner considers that making the ruling would prejudice or unduly restrict the administration of a *taxation law; or

(b) the matter sought to be ruled on is already being, or has been, considered by the Commissioner for you.

(3) The Commissioner may also decline to make a *private ruling if the matter sought to be ruled on is how the Commissioner would exercise a power under a relevant provision and the Commissioner has decided or decides whether or not to exercise the power.

Example: Michael applies for a private ruling on the way in which the Commissioner might exercise the Commissioner's discretion under section 255-10 (deferring the payment time). Rather than make the ruling, the Commissioner decides to defer the time at which an amount would otherwise be payable by Michael.

Note: The Commissioner may also decline to make a private ruling if:

(a) the Commissioner has requested the applicant to give further information under section 357-105 and the applicant has not given it to the Commissioner within a reasonable time; or

(b) the Commissioner considers that the correctness of a private ruling would depend on which assumptions were made about a future event or other matter (see section 357-110).

(4) The Commissioner must give the applicant written reasons for declining to make a *private ruling.

359-40 Valuations

(1) If making a *private ruling would require determining the value of any thing, the Commissioner may:

(a) refer the valuation to a valuer; or

(b) refer a valuation provided by the applicant to a valuer for review.

Note: The Commissioner may request further information: see section 357-105.

(2) If the Commissioner refers the valuation to a valuer, the Commissioner must tell the applicant that he or she has done so.

(3) When the valuer has completed its work in relation to the valuation, the Commissioner must tell the applicant that it has done so.

Note: The Commissioner should make a private ruling within 60 days. However, if the Commissioner refers a valuation to a valuer under this section, that period is extended: see subsection 359-50(2).

(4) The Commissioner may charge the applicant an amount in accordance with the regulations for the valuer making or reviewing the valuation.

(5) This section does not apply to a valuation of a gift or contribution for the purposes of Division 30 of the Income Tax Assessment Act 1997.

359-45 Related rulings

If the Commissioner is making a *private ruling (the first ruling ) you sought on the way in which, in the Commissioner's opinion, a relevant provision applies or would apply to you, the Commissioner may:

(a) make the first ruling a ruling on the way in which another relevant provision applies or would apply to you; or

(b) make an additional private ruling on the way in which:

(i) another relevant provision applies or would apply; or

(ii) a relevant provision applies or would apply to you in relation to a *scheme related to the scheme to which the first ruling applies.

Note: Section 357-55 specifies the relevant provisions.

359-50 Delays in making private rulings

(1) The applicant for a *private ruling may give the Commissioner a written notice requiring him or her to make the ruling if, at the end of 60 days after the application was made, the Commissioner has neither:

(a) made the ruling; nor

(b) told the applicant that the Commissioner has declined to make the ruling.

(2) The 60 day period mentioned in subsection (1) is extended in a circumstance applicable under the table by the extension period applicable to that circumstance. If 2 or more circumstances are applicable, ignore any overlap between the periods of extension.

(3) The applicant may object, in the manner set out in Part IVC, against the Commissioner's failure to make the ruling if the Commissioner:

(a) does not make the ruling within 30 days of the notice under subsection (1) being given; and

(b) has not otherwise declined to make the ruling by the end of that period.

(4) The applicant must lodge with the objection a draft *private ruling.

359-55 Revised private rulings

(1) The Commissioner may make a revised *private ruling that applies to you if:

(a) the Commissioner had previously made a private ruling that applies to you; and

(b) when the Commissioner makes the revised private ruling:

(i) the *scheme to which the earlier ruling relates has not begun to be carried out; and

(ii) if the earlier ruling relates to an income year or other accounting period - that year or period has not begun.

Note: Your private ruling may be affected by a later inconsistent public ruling: see section 357-75.

(2) The Commissioner must give you a copy of the revised *private ruling. The copy may be given electronically.

(3) The Commissioner may make the revised *private ruling in the circumstances mentioned in paragraph (1)(b) whether or not there is an application for the revised ruling.

(4) When the revised *private ruling is made, the ruling in its initial form stops applying to you.

359-60 Objections, reviews and appeals relating to private rulings

(1) You may object against a *private ruling that applies to you in the manner set out in Part IVC if you are dissatisfied with it.

(2) The ruling is taken to be a taxation decision (within the meaning of that Part).

(3) However, you cannot object against a *private ruling if:

(a) there is an assessment for you for the income year or other accounting period to which the ruling relates; or

(b) the ruling relates to *withholding tax or *mining withholding tax that has become due and payable.

359-65 Commissioner may consider new information on objection

(1) In deciding whether to allow (wholly or in part), or to disallow, an objection under Part IVC against a *private ruling, the Commissioner may consider any additional information that the Commissioner did not consider when making the ruling.

(2) For information you do not have, the Commissioner must tell you what the information is and give you a reasonable opportunity to respond before allowing or disallowing the objection.

(3) However, if the Commissioner considers that the additional information is such that the *scheme to which the application related is materially different from the scheme to which the ruling relates:

(a) the Commissioner must request the applicant to make an application for another *private ruling; and

(b) the objection is taken not to have been made.

359-70 Successful objection decision alters ruling

A *private ruling has effect as altered by an objection decision (within the meaning of Part IVC) made by the Commissioner if:

(a) the Commissioner made the decision allowing, wholly or in part, a taxation objection (within the meaning of that Part) against the ruling; and

(b) the period in which an appeal against, or an application for the review of, the decision may be made has ended without such an appeal or application being made.

Note: See sections 14ZZC and 14ZZN for the time limits.

Division 360 - Oral rulings

Guide to Division 360

360-1 What this Division is about

An oral ruling is an expression of the Commissioner's opinion of the way in which a relevant provision applies, or would apply, to you. Oral rulings are given on oral application by you or your legal personal representative.

Oral rulings can only be given for individuals.

The Commissioner must give the ruling unless he or she considers that the advice you are seeking relates to a business matter or a complex matter.

The Commissioner must give the ruling orally and must give you a registration identifier for the ruling.

Note: Division 357 has some common rules that affect oral rulings.

Table of sections

Oral rulings

360-5 Applying for and making of oral rulings

360-10 Withdrawing an application for an oral ruling

360-15 Commissioner determinations

Oral rulings

360-5 Applying for and making of oral rulings

(1) If you are an individual, you or your *legal personal representative may apply to the Commissioner for advice on the way in which the Commissioner considers a relevant provision applies or would apply to you in relation to a specified *scheme.

Note: Section 357-55 specifies the relevant provisions.

(2) An application under this section must be made orally and in the manner determined under section 360-15.

(3) The Commissioner must give you or your *legal personal representative that advice unless:

(a) the Commissioner considers that the advice sought relates to a *business matter or a complex matter; or

(b) the matter sought to be ruled on is already being, or has been, considered by the Commissioner for you.

That advice is an oral ruling .

Note: The Commissioner may also decline to make an oral ruling if:

(a) the Commissioner has requested you to give further information under section 357-105 and you have not given it to the Commissioner; or

(b) the Commissioner considers that the correctness of an oral ruling would depend on which assumptions were made about a future event or other matter (see section 357-110).

(4) The Commissioner must give that advice orally and in the manner determined under section 360-15. That advice must include a registration identifier for the ruling.

Note: The Commissioner must tell you which assumptions the Commissioner made in making the ruling: see section 357-110.

(5) You are not entitled to receive a written record of that advice.

Note: However, you may be able to apply for a private ruling on the matter under Division 359.

360-10 Withdrawing an application for an oral ruling

(1) You or your *legal personal representative may withdraw an application under section 360-5 before the Commissioner makes the *oral ruling.

(2) The withdrawal must be done orally and in the manner determined under section 360-15.

360-15 Commissioner determinations

The Commissioner must, by writing, determine:

(a) the manner in which oral applications are to be made under section 360-5 or are to be withdrawn; and

(b) the manner in which the Commissioner is to give oral advice under that section.

Division 361 - Non-ruling advice and general administrative practice

Table of sections

361-5 Non-ruling advice and general administrative practice

361-5 Non-ruling advice and general administrative practice

(1) You are not liable to pay the *general interest charge or the *shortfall interest charge under a relevant provision to the extent that the charge would relate to a *shortfall amount or a *scheme shortfall amount that was caused by:

(a) you reasonably relying in good faith on:

(i) advice (other than a ruling) given to you or your *agent by the Commissioner; or

(ii) a statement in a publication approved in writing by the Commissioner;

unless the advice, or the statement or publication, is labelled as non-binding; or

(b) you reasonably relying in good faith on the Commissioner's general administrative practice.

Note 1: Section 357-55 specifies the relevant provisions.

Note 2: Section 284-215 also provides protection from administrative penalties for similar reliance on advice, statements or general administrative practice.

(2) However, subsection (1) does not apply to any *general interest charge accruing more than 21 days after the Commissioner notifies you of the correct position.

(3) Ignore the operation of section 284-215 in applying subsection (1).