Excise guidelines for the tobacco industry

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08 - REVIEWS & OBJECTIONS

8.1 PURPOSE

This chapter deals with:

• the types of review you can ask for
• what decisions you can object to
• when you can seek an external review
• how to request an independent internal review
• how to lodge an objection, and
• how to request an external review.

8.2 INTRODUCTION

We will provide you with a clear explanation of any decision we make about your excise affairs. If you need more information about our decisions, contact us using the details we provide when we advise you of our decision.

If you're not satisfied with a decision we've made, you can ask for it to be reviewed by:

• independent internal review [248]
• objection, ^[249] or
• external review [250]

Where there is more than one review option, we will explain how these differ. For example, some reviews look at questions of law and others involve checking that we followed the correct process in reaching our decision. Which review option is best will depend on your situation.

8.3 POLICY AND PRACTICE

8.3.1 WHAT ARE INDEPENDENT INTERNAL REVIEWS?

Under the Taxpayers' Charter, you can seek an informal (internal) review where you believe that we have made a mistake, not complied with the law, interpreted or applied the law incorrectly.

Your dissatisfaction with our decision may be treated as an independent internal review both prior to or after:

• a notice of assessment issues, and/or
• you receiving notification of the decision in writing.

An independent internal review does not waive or defer your rights to object to the decision.

However, if you choose to pursue an independent internal review, awaiting the outcome of the independent internal review may prejudice your right to object to the decision and, ultimately, your right for external review. For example, the time allowed to lodge an objection may have expired by the time an independent internal review is finalised.

This is particularly crucial if the original decision attracts only a 60-day objection period.

8.3.2 CAN I OBJECT AGAINST ANY DECISION?

No, you can only lodge an objection against those decisions contained in sections 39Q and 162C of the Excise Act. These include decisions:

• made under the licensing provisions of the Excise Act ^[251] such as:
  • refusal to grant a licence
  • imposing and varying conditions on a licence, or
  • suspension, cancellation or refusal to renew a licence
• to demand an amount in relation to excisable goods not kept safely or satisfactorily accounted for when requested ^[252]
• relating to a refund or remission of duty ^[253]
• not to approve payment of drawback. ^[254]

However, if you informally ask us to review a decision we will try to resolve any problems as quickly as possible. If we have made a mistake, we want to fix it at the least cost to both of us.

8.3.3 WHEN CAN I SEEK AN EXTERNAL REVIEW?

For decisions in relation to an objection, or where there is no right of objection, you may be able to apply to the Federal Court or Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

8.4 PROCEDURES

8.4.1 HOW DO I REQUEST AN INDEPENDENT INTERNAL REVIEW?

To request an independent internal review, use the contact details we provide to contact the person or area of the Tax Office handling your case. The review will be conducted by a tax officer who was not involved in making the original decision.

We will advise you of the outcome of our review within 28 days of receiving all the information we need. If we cannot finalise the review within 28 days, or we need more information from you, we will contact you within 14 days to obtain the information we need or negotiate an extended reply date.

8.4.2 FACILITATION PROCESS

Facilitation is a process where an impartial ATO facilitator meets with you (and/or your representative) and the ATO case officer/s to identify the issues in dispute, develop options, consider alternatives and attempt to reach a resolution.   The ATO facilitator will be an officer that has not been involved in the dispute and who is independent and impartial.

A facilitator will not establish facts, take sides, give advice, make a decision or decide who is 'right or wrong'. The facilitator guides the parties through the process and ensures open lines of communication.

You can make a request for facilitation (including via your representative) by emailing facilitation@ato.gov.au. Alternatively the ATO may offer you facilitation to help resolve a dispute.

8.4.3 HOW DO I LODGE AN OBJECTION?

You can lodge an objection by completing an objection form or writing your own objection document. Your objection must:

• be in writing
• lodged within 60 days after you receive the notice of the decision, and
• set out a full and detailed account of the grounds for the objection. [255]

If you are a registered user you can lodge your objection through the business portal at www.bp.ato.gov.au .

You can also lodge your objection:

• by faxing it to 1300 650 128 , or
• by posting it to

Australian Taxation Office

PO Box 3001

PENRITH NSW 2740

If you do not lodge your objection within 60 days we will not consider your objection, unless you provide the reasons for late lodgement. We will consider these reasons before continuing with the objection process.

We will make a decision about your objection within 56 days of receiving it. If we need more information or we cannot make a decision within 56 days, we will contact you within 14 days to obtain the information we need or to negotiate an extended reply date.

If we disallow your objection or if we will not consider your late objection, you can:

• apply to the Administrative Appeals Tribunal (AAT) for a review of the decision, or
• appeal against the decision to the Federal Court.

To obtain a copy of our objection forms and for more information about how to lodge an objection, refer to How to lodge an objection on our website at www.ato.gov.au

For more information about what to do if you believe your legal rights or the standards outlined in the Taxpayers' Charter have not been met, refer to Taxpayers Charter What you need to know (NAT 2548).

8.4.4 HOW DO I REQUEST AN EXTERNAL REVIEW?

We suggest you obtain legal advice if you are considering using external review options provided by the AAT or Federal Court.

8.4.5 WHAT DO I DO IF I NEED MORE INFORMATION?

If you need more information on reviews and objections contact us as follows:

• phone 132866
• e-mail us at ATO-EXC-Tobacco@ato.gov.au , or
• write to us at

Australian Taxation Office

PO Box 3001

PENRITH NSW 2740

We will ordinarily respond to written information requests within 28 days. If we cannot respond within 28 days, we will contact you within 14 days to obtain more information or negotiate an extended response date.

8.5 PRIVATE RULINGS

A ruling is an expression of our opinion of the way a relevant provision applies or would apply to you in the administration or collection of excise duty.

We may, on application by you, make a written ruling on the way we consider a particular provision applies or would apply to in relation to a stipulated set of facts and in a particular circumstance. [256]

8.5.1 HOW DO I APPLY FOR A PRIVATE RULING?

You, your agent or legal personal representative may apply in the approved form for a private ruling. You, your agent or legal personal representative may also withdraw the application at any time before the private ruling is made.

We must confirm the withdrawal in writing for it to have effect. [257]

8.5.2 CAN I RELY ON A PRIVATE RULING?

A private ruling binds us if it applies to you and you act in accordance with it. If you act in accordance with the private ruling 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. [258]

8.5.3 FOR WHAT PERIOD CAN I RELY ON A PRIVATE RULING?

Unless we specify in the private ruling when it begins and ceases to apply, you may rely on the private ruling from the time it is made. [259]

We may revise a private ruling we issue to you. The revised rules will apply from the date it is issued or such later time that we specify in the ruling. The original ruling will cease to apply from that time. [260]

8.5.4 CAN I OBJECT TO A PRIVATE RULING?

You can object to a private ruling that applies to you if you are dissatisfied with it.

However you cannot object against a private ruling if:

• the ruling relates to excise duty, or another amount, payable in relation to the goods; and
• we have made a decision about the excise duty, or other amount, payable in relation to those goods; and
• the decision is reviewable [261]

8.6 LEGISLATION (quick reference guide)

In this chapter we have referred to the following legislation:

8.6.1 Excise Act 1901

Section 39Q - Review of decisions

Section 61A - Permission to remove goods that are subject to CEO's control

Section 155 - Limited dispute rights because of objection against private ruling

Section 162C - Review of decisions

8.6.3 Taxation Administration Act 1953

Part IVC - Taxation objections, reviews and appeals

Section 357-60 - When rulings are binding on the Commissioner

Section 359-5 - Private rulings

Section 359-10 - applying for a private ruling

Section 359-25 - Time of application of private rulings

Section 359-55 - Commissioner may revise a private ruling

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