Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon. P.J. Keating, M.P.)Notes on Clauses
PART I - PRELIMINARY
By this clause the amending Act is to be cited as the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986.
Under sub-clause 2(1), the amending Act, except as provided in sub-clause 2(2), is to come into operation on 1 July 1986. But for this clause the amending Act would, by virtue of sub-section 5(1A) of the Acts Interpretation Act 1901, come into operation on the twenty-eighth day after the Royal Assent.
By sub-clause 2(2), Parts VII and VIII and section 31 will come into operation or be deemed to have come into operation, immediately after the commencement of the Fringe Benefits Tax Assessment Act 1986. Part VII will amend the Fringe Benefits Tax Assessment Act 1986, Part VIII will amend the Fringe Benefits Tax (Application to the Commonwealth) Act 1986, while section 31 will amend sub-section 14(3) of the Crimes (Taxation Offences) Act 1980 to be inserted in that Act by the Fringe Benefits Tax (Miscellaneous Provisions) Bill 1986. By clause 2 of Fringe Benefits Tax Assessment Bill 1986, the Fringe Benefits Tax Assessment Act 1986 is to come into operation on the day on which it receives the Royal Assent, while the Fringe Benefits Tax (Application to the Commonwealth) Act 1986 is to come into operation on the same day.
PART X - AMENDMENTS OF THE INCOME TAX ASSESSMENT ACT 1936
This clause facilitates references to the Income Tax Assessment Act 1936 which, in Part X, is referred to as "the Principal Act".
Sub-section 6(1) of the Principal Act contains a number of definitions to assist in the interpretation of the Act.
Clause 70 proposes to insert in sub-section 6(1) a definition of "Tribunal" which, for the purposes of the Principal Act, is to mean the Administrative Appeals Tribunal. This definition will facilitate references to the Administrative Appeals Tribunal throughout the Principal Act.
Clause 71: Officers to observe secrecy
Clause 71 proposes an amendment of section 16 of the Principal Act (the secrecy provisions), under which the disclosure of information concerning the income tax affairs of persons acquired in the course of official duties is prohibited except in certain specified circumstances.
Sub-section 16(4) provides that the secrecy provisions do not prohibit the disclosure of information to certain persons for specified purposes and paragraph 16(4)(b) presently authorizes disclosure of taxation information to a Board exercising any function under any Act administered by the Commissioner. This would include a Taxation Board of Review.
The amendment proposed by this clause will insert paragraph 16(4)(c) so as to authorise the disclosure of taxation information to the Administrative Appeals Tribunal in connection with taxation review proceedings under an Act of which the Commissioner of Taxation has the general administration. Thus, not only will disclosure of income tax information be authorised in income tax review proceedings, but such information, where relevant, could be disclosed to the Tribunal in proceedings to review, for example, the refusal to grant a departure authorisation certificate under Part IVA of the Taxation Administration Act 1953.
Clause 72: Promoters recoupment tax
Clause 73: Tax benefit not allowable in respect of certain recouped expenditure
Sub-sections 78B(5) and 82KL(9) of the Principal Act provide that a taxpayer may object against a decision of the Commissioner of Taxation relating to particular requests by the taxpayer for amendment of an assessment. Consistent with other objection provisions of the Act, such as section 185, sub-sections 78B(5) and 82KL(9) require that the objection be posted to or lodged with the Commissioner within 60 days after service of notice of the decision on the taxpayer's request for amendment of an assessment.
The amendments proposed of sub-sections 78B(5) and 82KL(9) by clauses 72 and 73, respectively, are designed to ensure that an objection must be lodged with the Commissioner and not merely posted to him within the 60 day time limit. However, under further amendments (refer to notes on clause 80), the Commissioner is to be empowered to extend the time for lodging an objection. A similar amendment to that being made by these clauses is to be made to section 185 and other objection provisions in the various taxation laws - see notes on clause 79.
Clause 74: Reviews and appeals
Section 128P of the Principal Act provides that the objection and appeal provisions in Part V of the Act apply to the refusal by the Commissioner of Taxation of an application made under section 128F or 128H for a certificate exempting a person from the payment of withholding tax on interest paid to a non-resident.
Where such a refusal is referred under the present law to a Taxation Board of Review for review, sub-section 128P(2) provides that the Board may either confirm the refusal or direct the issue of an exemption certificate.
This clause proposes to omit sub-section (2) and is consequential upon the substitution of the Administrative Appeals Tribunal for a Board of Review in Part V of the Act - see notes on clauses 79 to 91 - and the insertion of section 200B in the Principal Act - see notes on clause 89.
Clause 75: Consequential adjustments to assessable income and allowable deductions
The amendment proposed by this clause is to the same effect as those being made by clauses 72 and 73. It will mean that, subject to any extension of time, an objection by a taxpayer under sub-section 136AF(6) must be lodged with the Commissioner and not merely posted within the 60 day time limit.
Clause 76: Reviews and appeals
Section 160AL of the Principal Act provides that the objection and appeal provisions in Part V of the Act apply to determinations of credit by the Commissioner under Division 19 of Part III of the Act in like manner as they apply assessments. The omission of paragraph 160AL(1)(b) by this clause is consequential upon the repeal by clause 80 of section 188 which requires the payment of a statutory fee of $2.00 in connection with requests for reference or appeals. Sub-section 188(2) provides for the refund of the statutory fee when an assessment is reduced as a result of a decision by a Board of Review or court. As the requirement for a statutory fee is to the abolished, paragraph 160AL(1)(b) will become redundant.
The omission of paragraph 160AL(1)(d) by this clause is consequential upon the repeal by clause 82 of section 191 of the Principal Act. That section provides that, where after a decision on an objection the Commissioner reduces an assessment, the reduced assessment is the assessment to be dealt with on a reference or appeal. Paragraph 160AL(1)(d) is, therefore, also redundant.
Clause 77: Cancellation of tax benefits, etc
The amendment proposed by this clause is in line with those being made by clauses 72, 73 and 77 and will mean that an objection by a taxpayer under sub-section 177F(7) must be lodged with the Commissioner of Taxation within the 60 day time limit.
Division 1 of Part V of the Principal Act, which comprises sections 178 to 184, deals with matters relating to the establishment and constitution of the Taxation Boards of Review. As the Boards of Review are to be abolished and their jurisdiction transferred to a special division of the Administrative Appeals Tribunal, Division 1 of Part V is to be repealed by this clause.
Section 185 of the Principal Act provides that a taxpayer may object against an assessment within 60 days after service of notice of the assessment. Section 185 requires that an objection be posted to or lodged with the Commissioner within a 60 day time limit.
The amendment of section 185 proposed by paragraph (a) of clause 79 is designed to ensure that an objection against an assessment should be lodged with the Commissioner and not merely posted within the specified time limit. A similar amendment is to be made to other objection provisions in the various taxation laws. These amendments will bring the various objection provisions into line with the provisions requiring requests for reference or appeal to be received by the Commissioner within 60 days and will eliminate a source of dispute as to when an objection was actually posted.
As a result of the proposal to give the Commissioner a discretion to extend the time for lodgment of objections (refer to notes on clause 80), a taxpayer will not be disadvantaged by the amendment proposed by paragraph (a) of this clause because an objection is not received within the required time, for example, because of a postal delay. In such circumstances, it could be expected that the Commissioner would grant an extension of time for lodgment of the objection.
The amendments proposed by paragraphs (b) and (c) of clause 79 omit the present proviso to section 185 and insert new sub- sections 185(2) and (3). The proviso to section 185 restricts the right of objection against an amended assessment to the extent of the imposition of a fresh liability or the increase in an existing liability in respect of any particular matter. The intended policy of the existing proviso is to limit the grounds of objection against an amended assessment to those which could not have been raised against the original assessment.
In Federal Commissioner of Taxation v Offshore Oil N.L., however, the Federal Court of Australia held that the proviso to section 185 imposes a monetary limit, but not a subject matter limit, on the grounds of objection against an amended assessment. The insertion of sub-section 185(2) will ensure that the intended policy of the law is clear.
New sub-section 185(2) (replacing the existing proviso) is to the effect that the grounds of objection against an amended assessment are confined to a subject matter limit. For example, where an assessment is amended to include additional interest income of $100 in assessable income, a taxpayer may object on grounds relating only to that additional interest income of $100. Such grounds could include not only that some or all of the income was not assessable, but also that a deduction was allowable for expenses incurred in deriving that income.
The subject matter limitation may be further illustrated by a case where a request is made by a taxpayer for an amended assessment to include additional rental income of $1,000 and to allow deductions against that income of $1,200. If, for example, the Commissioner includes the additional income but disallows a deduction claimed of $400 in respect of repairs, the taxpayer may object against the amended assessment on grounds relating to the rental income. This would therefore enable the taxpayer to object against the whole of the disallowed claim of $400 for repairs even though, if the taxpayer were successful, the amended taxable income would be less than the taxable income originally assessed.
New sub-section 185(3) will provide that where, under sub- section 227(2) of the Act, notice of an assessment of additional penalty tax payable by a taxpayer is incorporated in the notice of assessment of the ordinary tax payable by the taxpayer, there is deemed to be only one assessment for the purposes of an objection under section 185.
This amendment will effectively restore the position which existed prior to the Taxation Laws Amendment Act 1984. That Act inserted section 227 into the Principal Act to provide for a separate assessment of additional tax payable under Part VII of the Act. Before the enactment of section 227, additional tax payable under Part VII effectively formed part of a single assessment of taxable income and the tax payable thereon. Accordingly, only one objection and appeal could have been lodged covering both the ordinary tax and the additional penalty tax.
The insertion of new sub-section 185(3) will ensure that a taxpayer will not be entitled to appeal, in respect of the same year of income, to a Supreme Court in relation to (say) the assessment of the ordinary tax and to the Administrative Appeals Tribunal against the assessment of addition tax.
The amendments proposed by paragraphs (b) and (c) of this clause will apply, by the operation of clause 219, in respect of objections against amended assessments made on or after 1 July 1986.
Clause 80: Repeal of sections 187, 188 and 189 and substitution of new sections
Clause 80 will repeal sections 187, 188 and 189 of the Principal Act which deal with requests by taxpayers for reference to a Taxation Board of Review or appeals to a Supreme Court. New sections 187, 188, 188A, 188B, 189 and 189A are to be inserted in the Principal Act by this clause in substitution for the repealed sections.
Section 187 : Request for reference
Under existing section 187 of the Principal Act, a taxpayer who is dissatisfied with the decision by the Commissioner on an objection against an assessment, may request the Commissioner to either refer the decision to a Taxation Board of Review for review or treat the objection as an appeal and refer it to a specified Supreme Court of a State or Territory.
The effect of new section 187 is to substitute the Administrative Appeals Tribunal for a Taxation Board of Review to undertake the administrative review of decisions on objections. It also continues, as an alternative avenue of review, the right of a taxpayer to have the Commissioner's decision reviewed by a Supreme Court. However, rather than the objection being treated as an appeal to be forwarded to a Supreme Court, new section 187 will require the Commissioner to refer his decision on the objection to the specified Supreme Court for review. The Court will, therefore, in line with the procedure before the Administrative Appeals Tribunal, be reviewing the decision on the objection against the assessment rather than the assessment itself. By new sub- section 189 (3) (see notes on clause 80), the referral of such an objection decision to a Supreme Court is to be treated as being an appeal against the decision.
A request to refer a decision on an objection to either the Tribunal or a Supreme Court will be required to be lodged within the existing section 187 time limit of 60 days from service of notice of the decision on the objection. It will also continue to be necessary to make the request in writing.
Section 188 : Applications for extension of time
New section 188, together with new sections 188A and 188B, will enable an extension of time to be granted for lodgment of objections and requests for reference or appeal.
Under existing law there is a 60 day time limit for lodgment of objections and requests for reference or appeal. There is no provision in the law allowing the Commissioner, a Board of Review or court to extend this time, which the courts have said is not capable of discretionary extension.
New sub-section 188(1) will allow a taxpayer to apply to the Commissioner where the time limit has expired for an extension of time in which to lodge an objection. The application is to be in writing and must be accompanied by the notice of objection. Under sub-section 188(2) an application may be lodged for an extension of time to lodge a request under section 187 of the Principal Act for either reference of a decision on an objection to the Tribunal or to a specified Supreme Court. The application is to be lodged in writing with the Commissioner and must be accompanied by the relevant request for reference.
By new sub-section 188(3), it will be necessary for a taxpayer, in an application for an extension of time, to provide full details of the reasons why the objection or request was not lodged within the 60 day time limit.
Section 188A : Consideration of applications for extension of time for lodging objections
New section 188A, together with new sections 188 and 188B, will enable an extension of time to be granted for lodgement of objections and requests for reference or appeal.
Under existing law there is a 60 day time limit for lodgment of objections and requests for reference or appeal. There is no provision in the law allowing the Commissioner, a Board of Review or court to extend this time, which the courts have said is not capable of discretionary extension.
Under proposed sub-section 188A(1), the Commissioner will have the power to grant an extension of time for the lodgment of an objection upon receipt of an application for such an extension. It is intended that the accepted principles applied by judicial or quasi- judical bodies in extending time will be applied in determining whether or not an extension of time is to be granted.
The kind of circumstances in which it might be expected that an extension would be granted would include delay in lodgement of the objection caused by the illness of the taxpayer or of the taxpayer's agent, the absence of the taxpayer overseas at the time of issue of the notice of assessment or other factors that the taxpayer could demonstrate were outside his or her control. A taxpayer would generally have to satisfy the Commissioner that the objection, together with the application for an extension, was lodged as soon as circumstances permitted. Delays in the post would also generally be grounds for the granting of an extension of time. It is not envisaged that taxpayers could delay for an unreasonable period of time the lodgement of objections and applications for extension of time.
By new sub-section 188A(2), the Commissioner is required to give to the taxpayer written notice of the decision on an application for extension of time.
Under sub-section 188A(3), a taxpayer may apply to the Tribunal for a review of a refusal by the Commissioner to grant the taxpayer's application for the extension of time. An application for review made in accordance with this sub-section is to be made direct to the Tribunal and is not, as with requests for reference on objection decisions, to be lodged with the Commissioner.
New sub-section 188A(4) will ensure that, where an application for an extension of time is granted, the objection is to be treated as having been lodged in time.
Section 188B : Consideration of applications for extension of time for lodging requests for reference
New section 188B will confer on the Tribunal and Supreme Courts a discretion to extend the time for lodging a request for reference to the Tribunal or Court.
Under new sub-section 188B(1), an extension of time application relating to a request for reference to the Tribunal is to be sent by the Commissioner to the Tribunal. Where the application relates to an appeal to a Supreme Court, the Commissioner is required to refer the application to that Supreme Court.
By new sub-section 188B(2), once an application is sent to the Tribunal by the Commissioner, it is to be treated as an application to the Tribunal to extend the time for lodgment with the Commissioner of a request for reference of an objection decision to the Tribunal. This will have the effect of bringing into operation sub-sections 29(7) to (10) of the Administrative Appeals Tribunal Act 1975 and, if the Commissioner wishes to oppose the granting of the extension, require the Tribunal to conduct a hearing into the matter.
New sub-section 188B(3) similarly provides that an application sent to a Supreme Court is to be treated as an application to the Supreme Court to extend the time for the lodgment with the Commissioner of a request for reference to that Supreme Court. The application is to be heard by a single Judge of the Supreme Court.
Sub-section 188B(4) will authorise the Tribunal or Supreme Court to grant or refuse an application for an extension of time. In considering an application, the Tribunal or Court would relay on the accepted principles applied by the courts in entertaining applications for extensions of statutory time limits. In brief, those principles include questions of public interest in the finality of decision-making, the likelihood or otherwise of prejudice to the respondent, the extent of the delay in the application for an extension of time and the question of the onus on an applicant to prove that an extension of time should be granted.
New sub-section 188B(5) ensures that, where an application for an extension of time to lodge a request is granted by the Tribunal or Court, the request is to be treated as having been lodged in time.
Section 189 : Reference to Tribunal or Court
If a request for reference to the Tribunal or Court is received within the 60 day limit prescribed by section 187 or is treated as having been received in time by reason of an extension of time being granted under proposed section 188B, the Commissioner will be obliged by new sub-section 189(1) to refer the request to the Tribunal or Court in accordance with the request.
By new sub-section 189(2), a reference received by the Tribunal from the Commissioner is to be treated by the Tribunal in the same manner as an application for review of a decision made direct to the Tribunal. The provisions of the Administrative Appeals Tribunal Act 1975 relating to the review of decisions, as modified for taxation reviews (refer to notes on clause 196), will therefore apply in reviewing the Commissioner's decision on the objection.
Under new sub-section 189(3), the reference of a decision on an objection to a Supreme Court will constitute an appeal by the taxpayer to the Court against the Commissioner's decision on the objection. The appeal is to be heard by a single Judge of the Supreme Court.
Section 189A : Notice to refer
Under existing section 189 of the Principal Act, if the Commissioner does not refer a request for reference or appeal to a Board of Review or Supreme Court, the taxpayer may at any time after the expiration of 60 days from the time the Commissioner received the request, give notice to the Commissioner to do so. The Commissioner must then refer the request within 60 days after being given notice. Existing section 189 contains a proviso to the effect that, if the Commissioner makes a request for information relating to the objection within 60 days of receiving the request for reference or appeal, the Commissioner is not obliged to refer the request to the Board or Court until the expiration of 60 days after the receipt of the information requested. New sub-sections 169A(1) and (3) apply in the same manner as existing section 189 in respect of requests for reference to the Tribunal or a court made under proposed new section 187.
Sub-section 189A(2) will ensure that, where an extension of time to lodge a request has been granted under section 188B, the 60 day period (after which a taxpayer is entitled to give notice to the Commissioner under sub-section 189A(1) to have the request sent on to the Tribunal or court) commences on the day the extension application is granted.
Clause 81: Grounds of objection and burden of proof
By section 185 of the Principal Act, an objection against an assessment must be in writing and must state fully and in detail the grounds upon which the taxpayer relies in disputing the assessment. Existing paragraph 190(a) provides that the taxpayer is limited to the grounds stated in the objection in any subsequent review or appeal. The amendment by paragraph (a) of clause 81 is a drafting change so that review and appeal proceedings are referred to by their correct description, while paragraph (b) of this clause will amend paragraph 190(a) to give the Tribunal or court a discretion to allow a taxpayer to amend the grounds of objection.
It is expected that, in exercising the discretion, the general principles on which courts have permitted amendments of pleadings in other areas of the law will generally be applied. For example, the discretion is likely to be exercised where the need for an amendment of the grounds of objection arises as a result of the Commissioner relying on arguments in defence of an assessment where the particular basis was not adverted to in the adjustment sheet accompanying the notice of assessment.
Clause 82: Repeal of sections 191 and 192
Section 191 of the Principal Act provides that where, after a decision on an objection, the Commissioner reduces an assessment, the reduced assessment is the assessment to be dealt with on a reference or appeal. Clause 82 will repeal this section of the Principal Act. This amendment is consequential upon the proposed operation of section 43 of the Administrative Appeals Tribunal Act 1975 and the amendments being made by clause 88, which will make it clear that the powers of the Tribunal and a Supreme Court will be limited to reviewing decisions on objections and will not extend to making or amending assessments. As the assessment itself will not be dealt with by the Tribunal or a court, section 191 is no longer necessary.
Clause 82 will also repeal section 192 which empowers a Board of Review to review decisions referred to it. The repeal of section 192 is consequential upon the transfer of jurisdiction of the Boards of Review to the Tribunal.
Paragraph (a) of this clause will omit sub-section 193(1) of the Principal Act which confers on the Boards of Review all the powers of the Commissioner of Taxation, including the power to make and amend assessments and determinations. The powers of the Tribunal which will replace the Boards are specified in section 43 of the Administrative Appeals Tribunal Act 1975. Broadly, for the purpose of reviewing a decision, the Tribunal has all the powers and discretions of the decision-maker and it may confirm, vary or set aside the decision. However, unlike the present Board of Review, the Tribunal will not be empowered to directly make or amend assessments or determinations.
Under existing sub-section 193(2), the powers of a Board of Review to review a decision of the Commissioner of Taxation concerning remission of penalty tax imposed by Part VII of the Principal Act under sections 222 (failure to furnish a return), 223 (false or misleading statements), 224 (use of specific tax avoidance schemes), 225 (avoidance by transfer pricing) and 226 (general tax avoidance) is restricted to cases where, broadly, the penalty tax after remission exceeds the greater of $20 or 20% per annum of the relevant primary tax. By sub-section of 193(3) of the Principal Act, in cases where a trustee of a trust estate is made personnally liable under sub-section 223(4) for additional tax resulting from the making of a false or misleading statement relating to the affairs of the trust estate, the Board of Review is empowered to review a remission decision where the additional tax after remission exceeds $20. Paragraphs (b) and (c) of clause 83 will amend sub- sections 193(2) and (3) so that the existing principles and restrictions relating to the review by a Board of Review of a decision by the Commissioner to remit additional tax will apply to reviews by the Tribunal.
Clause 84: Repeal of sections 194, 195 and 196
Existing section 194 of the Principal Act provides that all sittings of a Board of Review at least 2 members must be present to form a quorum. As a general rule, all 3 members of a Board sit on each reference and, in accordance with paragraph 194(b), the decision of the majority prevails. This clause will repeal section 194 which has become redundant as a consequence of the transfer or jurisdiction to the Tribunal.
The Tribunal will be constituted for taxation reviews in the same way as for other reviews by the Tribunal in its other jurisdictions. Broadly, under Part III of the Administrative Appeals Tribunal Act 1975, the President of the Tribunal may direct that the Tribunal be constituted by either 1 or 3 members for the purposes of a particular review. Depending on the importance of the case as a precedent and the complexity of the issues, the President may constitute the Tribunal by a Federal Court Judge, a Deputy President, a senior member or a member together with, in the case of a 3 person Tribunal, 2 other senior members or members.
Clause 84 will also repeal section 195 of the Principal Act which deals with decisions of a Board of Review. Under existing law, a Board of Review in giving its decision may confirm or vary (i.e., increase or decease) the assessment under review. As mentioned earlier in the notes on clause 83, the Tribunal may confirm or vary the decision under review, being the Commissioner's decision on the objection, but it will not be empowered to amend an assessment. By proposed new section 200B, the Commissioner of Taxation will, where necessary, be required to amend the assessment to give effect to the Tribunal's decision - refer to notes on clause 89. An effect of the repeal of section 195 is that the Tribunal, unlike a Board of Review, will not be able to order an increase in the taxable income of a taxpayer, although, subject to the Commissioner's power to amend an assessment under section 170 of the Principal Act, an assessment could be amended to increase it, should the review by the Tribunal reveal that the original taxable income was too low.
Clause 84 also proposes the repeal of section 196 of the Principal Act which provides appeal rights from a decision of a Board of Review to a supreme Court. Appeal rights in respect of taxation decisions of the Tribunal will, as with appeals from other decisions of the Tribunal, be to the Federal Court of Australia in accordance with section 44 of the Administrative Appeals Tribunal Act 1975. That section provides a right of appeal on a question of law from any decision of the Tribunal.
Clause 85: Practice and procedure of Supreme Courts
The amendment by this clause is a drafting measure consequential upon the amendments proposed by clause 84. As explained in the notes on that clause, the right of appeal from a decision of the Tribunal will lie to the Federal Court. The jurisdiction of the Supreme Court in relation to proceedings under Part V of the Principal Act will be limited to the review of objection decisions referred direct to that Court. Clause 85 omits existing sub-section 196A(2) of the Principal Act and substitutes new sub-section 196A(2) to ensure that the sections will apply only in relation to decisions on objections referred for review direct to the Supreme Court.
Clause 86: Repeal of section 197
The repeal of section 197 of the Principal Act by this clause is as a consequence of proposed sub-section 189(3) being inserted by clause 80. Existing section 197, which provides that a Supreme Court hearing an appeal under Part V of the Act shall be constituted by a single Judge of the Court, will be re-enacted as new sub- section 189(3).
Clause 87: Case stated to Federal Court of Australia
The amendment proposed to section 198 of the Principal Act is consequential upon the repeal, by clause 86, of section 197. The amendment will substitute a reference to sub-section 189(3) for the reference to section 197 in existing section 198. That section allows a Supreme Court hearing on appeal under Part V to state a case for the opinion of the Federal Court on a question of law arising on the appeal.
Clause 88: Order of Court on appeal
Clause 88 will amend section 199 of the Principal Act to make it clear that, as with the Tribunal, a Supreme Court hearing an appeal under Part V of the Act is reviewing the Commissioner's decision on the objection.
The intended policy of existing sub-section 199(1) is that a Supreme Court may order that the assessment under appeal be confirmed, set aside or in some way varied. Where an order is made either setting aside or varying an assessment, the practice is that the Commissioner of Taxation amends the assessment to give effect to the order of the Court. However, in a recent case before the Supreme Court of Victoria - Just Jeans Pty Ltd v Federal Commissioner of Taxation - the Court made orders allowing the company's appeals and at the same time amended the assessments under appeal. As a result of the amendment of the assessments by the Court, the Commissioner was required by order of the Federal Court of Australia to refund to the company the tax in dispute, together with interest, notwithstanding that the Commissioner had appealed from the decision of the Supreme Court.
The amendment proposed by this clause will omit sub-section 199(1) and substitute a new sub-section 199(1) which will make it clear that a Supreme Court may make an order only in relation to the decision of the Commissioner on the objection that has been referred to the Court. The Commissioner will, under proposed section 200B, be required to give effect to the Court's order including, where appropriate, by amending the assessment - see following notes on clause 89.
Clause 89: Implementation of decisions
As explained in the notes on clause 83 and 88, the powers of the Tribunal and Supreme Courts under the proposed amendments will, broadly, be limited to confirming or varying a decision on an objection and will not extend to making or amending assessments. In conjunction with those changes, clause 89 will insert new section 200B in the Principal Act to require the Commissioner, where necessary, to give effect to a decision of the Tribunal or court (such as, for example, by amending an assessment) no later than 60 days after the decision on the review or appeal has become final. A decision will not be regarded as having become final until all subsequent appeals, if any, have been finalised. Where no appeal has been lodged against a decision, the decision will become final upon the expiration of the time required for lodging an appeal (not including any such further time as may be allowed by a court).
Sub-section 200B(2) contains special provisions that apply only where a decision is able to be appealed from by special leave of the High Court. This could occur, for example, where a decision of the Tribunal in taken on appeal to the Full Federal Court, either because the Tribunal was constituted by, or included, a presidential member or a further appeal from a single Judge of the Federal Court was instituted. As a decision of the Full Federal court is only able to be appealed from by special leave of the High Court and,because, technically, special leave may be applied for at any time, the sub- section makes it clear such a decision of the Full Federal Court will be taken as having become final upon the expiration of 30 days after the decision is given, unless an application for special leave to appeal has been lodged with the High Court within that time. Where, however, a decision may be appealed from as of right to the Federal Court or, with special leave, to the High Court (see, for example, section 200 of the Income Tax Assessment Act 1936), paragraph 200B(2)(a) provides that the decision will become final at the expiration of either the period for lodging the appeal with the Federal Court or 30 days, whichever is the later.
Clause 90: Pending review or appeal not to affect assessment
Section 201 of the Principal Act stipulates that the requirement to pay income tax under an assessment is not suspended pending the outcome of an appeal or reference against the assessment. The amendment to omit existing sub-section 201(1) and substiute new sub-section 201(1) is a drafting measure which effectively replaces the word "reference" by "review". A reference to the Tribunal is technically described as, and will be referred to in the sub-section as, a review. The present operation of section 201 will not, in a practical sense, be altered by the proposed amendment so that liability to pay tax under an assessment will not be suspended pending the outcome of a review of, or appeal against, the Commissioner's decision on an objection to which the assessment relates.
Clause 91: Repeal of section 202
Section 202 authorises the refund of any tax overpaid, including additional penalty tax, in cases where an alteration of an assessment on an appeal or reference has reduced a person's tax liability. Alternatively, the Commissioner may apply the amount overpaid against any liability of the person arising under any taxation law that the Commissioner administers, and refund any balance. In the converse situation, any increase in the amount of tax as a result of an appeal or reference is recoverable from the taxpayer. Where additional tax for late payment has been imposed under section 207 and tax is reduced by amendment, the amount of that additional tax is recalculated as though the amount by which the tax has been reduced was never payable.
The repeal by clause 91 of section 202 is consequential upon changes proposed by clause 89 which will require the Commissioner, where necessary, to amend assessments to give effect to decisions of the Tribunal or a court. Refunds resulting from amendments made by the Commissioner are authorised by section 172 which, in relation to tax overpaid, is similar in effect to existing section 202. Existing sub-section 170(7) gives the Commissioner unlimited power to amend an assessment in order to give effect to a decision on a review or appeal. It is no longer necessary to provide for the recovery of any increase in tax because, as explained in the notes on clause 88, the Tribunal or a court will not be able to directly order an increased assessment.
Clause 92: Assessment where no administration
Section 220 of the Principal Act facilitates the recovery of tax owing by a deceased taxpayer, where probate has not been granted or letters of administration taken out within 6 months of death, by authorising the Commissioner to make an assessment of the amount of tax payable in respect of income derived up to the date of death. Any person claiming an interest in the estate is entitled to object against the assessment within 60 days of the first publication of the notice of assessment. Paragraph (a) of clause 92 will amend sub-section 220(3) so that an objection must be lodged and not merely posted within the 60 day limit. This amendment is in line with that being made by clause 79 - refer to notes on that clause.
Where a person claiming an interest in an estate lodges an objection under sub-section 220(3), or a person who has subsequently been grated probate or taken out letters of administration lodges an objection under sub-section 220(7), the respective sub-sections provide that the provisions of the Act relating to objections and appeals apply as if that person were the taxpayer. The amendments by paragraphs (b) and (d) are drafting changes so that the provisions of the Act relating to objections and appeals are referred to in sub-sections (3) and (7) by their correct description of "provisions...relating to objections, reviews and appeals". The amendment of sub-section 220(4) by paragraph (c) is consequential upon the amendments by clauses 88 and 89.
Clause 93: Review of decisions
Section 221U of the Principal Act grants employers objection rights against decisions of the Commissioner not to remit certain penalties imposed under the Pay-As-You-Earn provisions of the Act. By sub-section 221U(1), an objection must be posted or lodged within a 60 day time limit. Clause 93 will amend sub-section 221U(1) so that an objection must be lodged and not merely posted within the 60 day limit. The amendment is to the same effect as that made by clause 79 - refer to notes on that clause.
Clause 94: Notification and review of decisions
By sub-section 221YHT(2) of the Principal Act, a person dissatisfied with certain specified decisions of the Commissioner made pursuant to provisions relating to the prescribed payments system, may post or lodge an objection against those decisions within a 60 day time limit. Clause 94 will amend sub-section 221YHT(2) so that the objection must be lodged and not merely posted within the 60 day limit. This amendment is in line with that made by clause 79 - refer to notes on that clause.
Clause 95: Cancellation or suspension of registration of tax agents
By sub-section 251K(5) of the Principal Act, a decision under section 251K relating to the suspension or cancellation of the registration of a tax agent is reviewable by the Administrative Appeals Tribunal. Clause 95 is a drafting change which will omit the words "Administrative Appeals" from sub-section 251K(5). The omitted words are unnecessary because of the insertion of the definition of "Tribunal" in sub-section 6(1) of the Principal Act by clause 70.
Clause 96: Unregistered tax agents not to charge fees
Section 251L stipulates that a person who is not a registered tax agent must not charge a fee in relation to the transaction of income tax business on behalf of others. By sub-section 251L(4), however, a solicitor or counsel is not prohibited from acting in the course of his or her profession in any proceedings before a board. The amendment of sub-section 251L(4) by this clause will ensure that a solicitor or counsel may also appear on behalf of a taxpayer before a court or the Tribunal without the need to become registered as a tax agent.
Clause 97: Preparation of returns, etc., on behalf of registered tax agents
Section 251N stipulates that a registered tax agent must not allow a person, other than an employee of the tax agent or another registered tax agent, to prepare a return or objection or conduct any income tax business on his or her behalf. By sub-section 251N(3), however, a registered tax agent may employ a solicitor or counsel to act in the course of his or her profession in any proceedings before a board. The amendment of sub-section 251N(3) by this clause it similar in effect to the amendment proposed by clause 96 and will ensure that a solicitor or counsel who is not a registered tax agent may also appear before a court or the Tribunal.
Clause 98: Release of taxpayers from liability in cases of hardship
Under section 265 of the Principal Act, a Relief Board consisting of the Commissioner, the Secretary to the Department of Finance and the Comptroller-General of Customs or of substitutes for all or any of them appointed by the Minister from time to time, may grant a release from payment of tax in cases where, broadly, payment would entail serious hardship. Existing sub-section 265(3) provides that the Relief Board may refer an application for relief to a Board of Review for the purpose of obtaining a report on the financial circumstances of the applicant. Where the tax involved is $10,000 or greater, the application must be referred to a Board of Review for a report before release is granted.
Paragraph (a) of clause 98 will amend sub-section 265(3) so that, in substitution for a Board of Review, the application is to be referred to the Tribunal.
By existing sub-sections 265(4) and (4A), a member or the secretary of a Board of Review is to be designated by the Chairman of the Board of Review for purposes of dealing with a particular application or all applications included in a class of applications. Paragraph (b) of this clause will substitute new sub-section 265(4) for existing sub-sections 265(4) and (4A). Under new sub-section 265(4) the reporting on the financial circumstances of an applicant for tax relief will not be carried out by the Registrar or a Deputy Registrar of the Tribunal designated by the President of the Tribunal.
PART XXVII - AMENDMENTS OF THE TAXATION ADMINISTRATION ACT 1953
This clause facilitates references to the Taxation Administration Act 1953 which, in part XXVII, is referred to as "the Principal Act".
Section 2 of the Principal Act contains several definitions to assist in the interpretation of the Act. Clause 191 proposes to insert in section 2 a definition of "Tribunal" which, for the purposes of the Principal Act, is to mean the Administrative Appeals Tribunal. This definition is a drafting device to facilitate subsequent references in the Principal Act to the Administrative Appeals Tribunal.
Section 14A of the Principal Act contains definitions to assist in the interpretation of Part IV (Exchange Control - Taxation Certificates) of the Act. Clause 192 will amend section 14A to omit the definitions of "Board of Review" and "Supreme Court". The amendments are consequential upon the transfer of the jurisdiction of Taxation Boards of Review to the Administrative Appeals Tribunal and the abolition of the Boards. As appeals from decisions of the Tribunal are to the Federal Court, the Supreme Courts will no longer have any jurisdiction in relation to proceedings under Part IV of the Principal Act. Accordingly, both definitions will be redundant.
Under section 14G of the Principal Act, where the Commissioner of Taxation refuses an application for a tax clearance certificate, the applicant may post to or lodge with the Commissioner an objection within 60 days after being served with a notice of refusal. Paragraph (a) of clause 193 will amend sub-section 14G(1) to provide that an objection must be lodged with the Commissioner and not merely posted within the 60 day time limit. Similar amendments are being made to the objection provisions of the other taxation laws - see notes on clause 79.
The substitution of sub-section 14G(3) by paragraph (b) is a drafting improvement and new sub-section 14G(3) is to the same effect as existing sub-section 14C(3). Paragraph (b) of clause 193 will also omit sub-section 14G(4) which deals with requests for reference to a Board of Review. New provisions relating to reviews of decisions on objections by the Administrative Appeals Tribunal are being inserted in the Principal Act by clause 194.
Clause 194: References to the Tribunal
Clause 194 will repeal section 14H of the Principal Act which contains provisions relating to reviews of objection decisions by Boards of Review and appeals from decisions of the Boards to Supreme Courts. The provisions for the transfer of proceedings between Supreme Courts, contained in section 14HB, are also to be repealed, as appeals from the Tribunal are to the Federal Court of Australia. The clause will substitute new sections 14H, 14HA, 14HB, 14HC, 14HD, 14HE, 14HF and 14HC for the repealed sections.
Section 14H : Request for reference
Under existing sub-section 14G(4) of the Principal Act, a person who is dissatisfied with the Commissioner's decision on an objection against a refusal to issue a tax clearance certificate, may request the Commissioner to refer the decision to a Taxation Board of Review for reconsideration.
By the omission of existing sub-section 14G(4) by clause 193 and the insertion of new section 14H by clause 194, the Administrative Appeals Tribunal will become the reviewing body in place of a Board of Review. Under new section 14H, requests by persons dissatisfied with decisions by the Commissioner of Taxation on an objection will be for reference to the Tribunal. A request to refer a decision on an objection will be required to be lodged within the existing 60 day time limit.
Section 14HA : Application for extension of time
New section 14HA, together with new sections 14HB and 14HC, will enable an extension of time to be granted for lodgment of objections and requests for reference.
Section 14HA is to the same broad effect as new section 188 of the Income Tax Assessment Act 1936 and is explained in the notes on clause 80.
Section 14HB : Consideration of applications for extension of time for lodging objections
New section 14HB will have substantially the same effect as proposed section 188A of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 80.
Section 14HC : Consideration of applications for extension of time for lodging requests for reference
Proposed section 14HC will provide the Tribunal with a discretion to extend the time for lodging a request for reference to the Tribunal. The section is to the same broad effect as proposed section 188B of the Income Tax Assessment Act 1936 insofar as that section applies to requests for reference to the Tribunal - refer to notes on clause 80.
Section 14HD : Reference to Tribunal
By sub-section 14HD(1), the Commissioner will be obliged to refer a request under section 14H to the Tribunal where the request is actually received within the 60 day limit, or is treated as having been received in time by reason of the granting of an extension of time under proposed section 14HC. Under sub-section 14HD(2), a reference received by the Tribunal from the Commissioner is to be treated by the Tribunal in the same manner as an application for review of a decision made by a person direct to the Tribunal.
New section 14HD is to the same broad effect as proposed section 189 of the Income Tax Assessment Act 1936 and the notes on clause 80 may be referred to for a more detailed explanation.
Section 14HE : Notice to refer
This section mirrors proposed section 189A of the Income Tax Assessment Act 1936, an explanation of the effect of which is given in the notes on clause 80.
Section 14HF : Procedure on review
Paragraph (a) of section 14HF will re-enact the general rule, contained in the present paragraph 14H(2)(a), that a person requesting a review of a decision on an objection is limited in any subsequent review of the decision to the grounds stated in the objection. New paragraph 14HF(a) will, however, provide the Tribunal with a discretion to allow a person to amend the grounds of objection. This amendment is in line with that proposed by clause 81 to section 190 of the Income Tax Assessment Act 1936 - see notes on that clause.
Paragraph 14HF(b) re-enacts existing paragraph 14H(2)(b) so that, in a review before the Tribunal, the onus of proving that a decision to refuse to issue a tax clearance certificate is correct lies on the person who requested the review.
Section 14HG : Implementation of decisions
Sub-section 14HG(1) will require the Commissioner to take any action necessary to give effect to the decision of the Tribunal within 60 days of the decision becoming final. Generally, this would mean that the Commissioner would be required to issue the tax clearance certificate that had been sought.
Sub-section 14HG(2) will have substantially the same effect as similar provisions in other taxation laws - see notes on clause 10 relating to sub-section 76F(2) of the Australian Capital Territory Taxation (Administration) Act 1969.
The effect of section 14HG is comparable to proposed section 200B of the Income Tax Assessment Act 1936 an explanation of which is contained in the notes on clause 89.
Clause 195: Repeal of section 14P
Section 14P of the Principal Act, which relates to the practice and procedure of Supreme Courts in relation to proceedings under Part IV of the Principal Act, is to be repealed by this clause. As appeals from a decision of the Tribunal will be to the Federal Court, the Supreme Courts will no longer have any jurisdiction under Part IV of the Principal Act.
Clause 196: Review of decisions by Administrative Appeals Tribunal
A new Part IVB is to be inserted in the Principal Act by clause 196. The new Part will contain provisions relating to the review by the Administrative Appeals Tribunal of decisions under the various taxation laws as result of the transfer of the jurisdiction of the Taxation Boards of Review to the Tribunal.
Broadly, the new provisions will modify the operation and effect of certain provisions of the Administrative Appeals Tribunal Act 1975 (AAT Act) insofar as they apply to review of taxation decisions by the Taxation Appeals Division of the Tribunal.
Section 14ZB contains a number of definitions of terms used in new Part IVB. Each term is to have the given meaning unless the contrary intention appears.
- "extension of time application"
- is to mean an application made under a "relevant enactment" (see later notes on that definition) for an extension of time to lodge a request for reference to the Tribunal. The term is used in proposed sections 14ZF and 14ZK.
- "extension of time decision"
- is defined to mean a decision of the Commission of Taxation under a "relevant enactment" (see notes on that definition) refusing an application to treat an objection as having been lodged within the time specified. The expression is used throughout new Part IVB to identify decisions of this kind for the purposes of modifying the operation of the AAT Act in relation to them.
- "objection decision"
- means a decision of the Commissioner on
an objection, as that term is defined in section 3 of the
Taxation (Interest on Overpayments) Act 1983 as well as objections:
- •
- against refund decisions under sub-section 40(2) of the Sales Tax Assessment Act (No. 1) 1930; and
- •
- under the Pay-roll Tax Assessment Act 1941.
- Broadly, the definition will cover decisions on objections lodged under the various taxation laws, being decisions which the Commissioner may be requested to refer to the Tribunal for review. It does not, however, include decisions on objections against reviewable decisions, as that term is defined by proposed section 39A of the Sales Tax Assessment Act (No. 1) 1930, as it is intended that, as a general rule, the provisions of the AAT Act will continue to apply as at present to reviewable decisions. The term "objection decision" is used throughout new Part IVB for the purposes of modifying the operation of the AAT Act in relation to this kind of decision.
- "relevant enactment"
- is defined to mean an Act which is referred to in the definition of "objection" in section 3 of the Taxation (Interest on Overpayments) Act 1983, as well as the Pay-roll Tax Assessment Act 1941. The term will therefore cover all taxation laws under which a decision of the Commissioner on an objection may be referred to the Tribunal for review.
- Acts included under the definition will be the:
- •
- Australian Capital Territory Taxation (Administration) Act 1969;
- •
- Bank Accounts Debits Tax Administration Act 1982;
- •
- Estate Duty Assessment Act 1914;
- •
- Fringe Benefits Tax Assessment Act 1986;
- •
- Gift Duty Assessment Act 1941;
- •
- Income Tax Assessment Act 1936;
- •
- Pay-roll Tax Assessment Act 1941;
- •
- Pay-roll Tax (Territories) Assessment Act 1971;
- •
- Acts providing for the assessment of sales tax;
- •
- Taxation Administration Act 1953;
- •
- Taxation (Unpaid Company Tax) Assessment Act 1982;
- •
- Trust Recoupment Tax Assessment Act 1985; and
- •
- Wool Tax (administration) Act 1964.
Section 14ZC : Provisions of Administrative Appeals Tribunal Act apply subject to modifications
Section 14ZC provides that the Administrative Appeals Review Tribunal Act applies to the review of objection decisions, extension of time decisions and extension of time applications (see earlier notes on this clause) subject to any modifications of that Act as provided for in new sections 14ZD to 14ZK of the Principal Act.
Section 14ZD : Sections 27, 28, 29, 41 and 44A of the Administrative Appeals Tribunal Act not to apply to certain decisions
By sub-section 14ZD(1), sections 27 and 41 of the Administrative Appeals Review Tribunal Act will not apply to the review by the Tribunal of decisions on objections or decisions refusing to extend the time for the lodgement of objections.
Section 27 of the Administrative Appeals Review Tribunal Act enables an application to the Tribunal for review of a decision to be made by any person whose interests are affected by the decision. As it is a principle of our taxation system that disputes by persons against assessments or decisions of the Commissioner of Taxation are matters solely between the taxpayer concerned and the Commissioner, it is not appropriate for section 27 to operate in relation to taxation reviews to enable persons other than the taxpayer to seek a review of a decision.
Under sub-section 41(2) of the Administrative Appeals Review Tribunal Act, the Tribunal is empowered in its discretion to stay the operation of a decision under review by the Tribunal. As the decision under review is the decision on an objection and not the decision to make an assessment, determination, etc., sub-section 41(2) would not have any practical operation. In any event, the concept of staying a decision that requires the payment of tax is inconsistent with those provisions of the various taxation laws which provide that tax remains payable notwithstanding that the assessment concerned is subject to review or appeal (see, for example, section 201 of the Income Tax Assessment Act 1936). Accordingly, section 41 will not operate in relation to the review of objection decisions and extension of time decisions (defined terms).
By sub-section 14ZD(2), sections 28, 29 and 44A of the Administrative Appeals Review Tribunal Act are not to apply to objection decisions made under the various taxation laws that are able to be referred to the Tribunal for review.
Section 28 of the Administrative Appeals Review Tribunal Act gives to a person who is entitled to apply to the Tribunal for review of a decision, the right to request the decision-maker to furnish a statement setting out, broadly, the findings on material questions of fact and giving the reasons for the decision. Such a statement must be furnished within 28 days of it being requested. Under section 37 of the Administrative Appeals Review Tribunal Act, such a statement must be furnished to the Tribunal within 28 days after the decision-maker has received notice of an application for review of the decision. Existing taxation laws require a statement of reasons to be supplied by the Commissioner of Taxation at the time of referral of a request for reference to a Taxation Board of Review.
The Administrative Review Council, in its report on the review of taxation decisions by Boards of Review, recommended that section 28 of the Administrative Appeals Review Tribunal Act not apply to taxation reviews by the Tribunal. The recommendation was based on the view that the requirements of section 28 would not be workable in relation to taxation reviews because of the expected high volume of cases and the potentially heavy burden a large number of requests for reasons would place on the Commissioner.
The Council further proposed that the time scale for the provision of a statement of reasons, under section 37 of the Administrative Appeals Review Tribunal Act, was not appropriate to taxation reviews and it recommended that the present arrangement whereby a statement of reasons is supplied by the Commissioner at the time of referral of a request be maintained.
Subject to some modification, which will be discussed in the following notes on new section 14ZG, it is proposed to give effect to the recommendations of the Administrative Review Council. Accordingly, section 28 of the Administrative Appeals Review Tribunal Act will not apply to the review of objection decisions.
Section 29 of the Administrative Appeals Review Tribunal Act provides for the manner in which application may be made to the Tribunal for review of a decision. This provision will not be applicable to the review of objection decisions because, in accordance with the amendments proposed by this Bill, requests for review by the Tribunal of an objection decision must be lodged with the Commissioner of Taxation in the first instance. Where, under the various taxation laws, the Commissioner refers such a request to the Tribunal, the referral will constitute, for the purposes of the Administrative Appeals Review Tribunal Act, the making of an application to the Tribunal - see notes on proposed section 189 of the Income Tax Assessment Act 1936 (clause 80).
Under section 44A of the Administrative Appeals Review Tribunal Act, the institution of an appeal to the Federal Court from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision, unless a stay order is obtained from the Federal Court. Proposed new provisions, however, in the various taxation laws (see, for example, section 200B of the Income Tax Assessment Act 1936) require the Commissioner to give effect to a decision of the Tribunal only after the decision has become final, that is, after any appeals from the decision have been fully determined - see notes on clause 89. As section 44A of the Administrative Appeals Review Tribunal Act is inconsistent with this policy, the section is not to apply to the review of objection decisions.
Sub-section 14ZD(3) will provide that, in addition to not applying to objection decisions, section 29 of the Administrative Appeals Review Tribunal Act will not have any application in relation to a decision on an objection against a reviewable decision as that term is defined by proposed section 39A of the Sales Tax Assessment Act (No. 1) 1930 (refer notes on clause 138 for the meaning of a reviewable decision). Under the existing law, a person dissatisfied with a decision on an objection against a reviewable decision may make direct application to the Tribunal for a review of the reviewable decision. As explained in the notes on clause 139, objections against reviewable decisions under the sales tax law will now be incorporated into the general objection, review and appeal provisions of that law.
As a consequence of the incorporation of objections against reviewable decisions into the general objection, review and appeal provisions, the Tribunal will no longer be empowered to review a reviewable decision, but rather will review the decision on the objection against the reviewable decision. The manner of applying for such a review will no longer be by direct application to the Tribunal, but by request to the Commissioner to refer his decision on the objection to the Tribunal. Accordingly, as with other decisions on objections, section 29 of the Administrative Appeals Review Tribunal Act is to have no application to decisions on objections against reviewable decisions.
Section 14ZE : Modification of section 30 of Administrative Appeals Tribunal Act
Section 30 of the Administrative Appeals Review Tribunal Act provides that the parties to a proceeding before the Tribunal are the person applying for the review, the person who made the decision and any other person made a party to the proceeding by the Tribunal. In addition, the Attorney-General may intervene in a proceeding before the Tribunal and thereby become a party to the proceeding. The circumstances under which the Attorney-General might be expected to intervene in a taxation review are very limited. One such circumstance calling for intervention by the Attorney-General might be where the interpretation of a provision of the Administrative Appeals Review Tribunal act is being debated.
Under existing taxation laws, the only parties to a proceeding before a Taxation Board of Review are the person who sought the review and the Commissioner. In order to maintain the principle of confidentiality in taxation hearings, new section 14ZE will modify the operation of section 30 of the Administrative Appeals Review Tribunal Act in relation to the review of objection decisions and extension of time decisions. The section proposes notionally to substitute a modified section 30 dealing with the review of such decisions.
Sub-section (1) of the substituted section 30 is essentially the same as sub-section 30(1) of the Administrative Appeals Review Tribunal Act which sets out who the parties to a proceeding before the Tribunal are to be. The modification of section 30 is contained in the substituted sub-section 30(2) which will provide that a third party may only be joined in a taxation review with the consent of the person who requested the review. This will ensure that the person requesting a review has control over who, other than the Commissioner or Attorney-General, may take part in a hearing and thus become privy to the taxation affairs of that person.
Although the Attorney-General is able to intervene in a proceeding, the circumstances of such an intervention are intended to be quite limited and will not extend to matters relating to the substantive issues in dispute under the relevant taxation law. The Attorney-General would only be expected to seek to intervene where matters concerning the interpretation of the Administrative Appeals Review Tribunal Act are under consideration and those matters would be dealt with separately from the substantive issues.
Substituted sub-section 30(3), which is the same as sub-section 30(3) of the Administrative Appeals Review Tribunal Act, makes it clear that the Commissioner of Taxation will be described as such in taxation review proceedings.
Section 14ZF : Application of section 35 of Administrative Appeals Tribunal Act
Section 35 of the Administrative Appeals Review Tribunal Act requires that proceedings before the Tribunal be held in public unless the Tribunal otherwise directs. Existing Taxation Board of Review hearings are conducted in private unless the person requesting the review seeks a public hearing.
In order to preserve the privacy of taxation affairs afforded to persons under existing review procedures, section 14ZF will ensure that proceedings before the Tribunal in relation to the review of objection decisions, extension of time decisions and extension of time applications will be heard in private unless the person requesting the review or making the application wishes otherwise.
Section 14ZG : Modification of section 37 of Administrative Appeals Tribunal Act
As indicated earlier in the notes on section 14ZD, section 37 of the Administrative Appeals Review Tribunal Act requires a decision-maker to furnish to the Tribunal a statement of reasons for the decision when a review of the decision by the Tribunal has been requested. The statement required under section 37 must set out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, as well as giving the reasons for the decision.
The statement, together with all relevant documents, must be furnished to the Tribunal within 28 days after the decision-maker has received notice of an application for review of the decision. Sub-section 37(2) allows the Tribunal to seek from the decision- maker additional documents which, in the Tribunal's opinion, may be relevant to the review.
In relation to reviews by a Taxation Board of Review, the Commissioner is required to furnish a statement of reasons at the time of referral of a request to the Board of Review. It has been held that this statement need only be a statement of the Commission's ultimate conclusions and does not have to reveal the reasoning processes used in reaching those conclusions.
Section 14ZG will modify the operation of section 37 of the Administrative Appeals Review Tribunal Act in relation to reviews by the Tribunal of objection decisions under the various taxation laws. The section proposes to notionally substitute a modified section 37 to apply to the review of such decisions.
Substituted sub-section 37(1) will provide that, where the Commissioner refers an objection decision to the Tribunal, the Commissioner shall furnish to the Tribunal the prescribed number of copies of a statement of reasons for the decision and certain documents.
Paragraph 37(1)(a) applies to decisions referred to the Tribunal before 1 July 1988. The statement required in respect of such referrals will be same as that presently provided to a Taxation Board of Review under, for example, Income Tax sub-regulation 35(1). In addition, documents (broadly, a copy of the taxpayer's return, notice of assessment, notice of the objection decision and request for reference) which the Commissioner presently provides to a Board of Review will also be required to be sent to the Tribunal.
Paragraph 37(1)(b) will apply to decisions referred to the Tribunal on or after 1 July 1988. In respect of such referrals, sub- paragraph 37(1)(b)(i) provides that the statement required to be furnished will be the same as that provided to the Tribunal in accordance with paragraph 37(1)(a) of the Administrative Appeals Review Tribunal Act. Sub-paragraph 37(1)(b)(ii) re-states paragraph 37(1)(b) of the Administrative Appeals Review Tribunal Act and will require the Commissioner to lodge all documents in the possession or under the control of the Commissioner which are considered by him to be relevant to the review of the objection decision.
Sub-section 37(2) basically restates sub-section 37(2) of the Administrative Appeals Review Tribunal Act and will empower the Tribunal, in respect of objection decisions referred on or after 1 July 1988, to seek documents additional to those provided under sub-paragraph 37(1)(b)(ii).
Sub-section 37(3), which re-states existing sub-section 37(3) of the Administrative Appeals Review Tribunal Act, makes clear that documents may be produced in accordance with section 37 notwithstanding any rule of law relating to privilege or the public interest.
Sub-section (37)(4), which re-states sub-section 37(4) of the Administrative Appeals Review Tribunal Act, allows the Regulations to prescribe, for the purposes of sub-section (1), different numbers of copies for different classes of statements or documents, or different numbers of copies in relation to different classes of objections. Regulation 11 of the Administrative Appeals Tribunal Regulations prescribes the number of copies of the various documents required.
Section 14ZH : Application of section 38 of Administrative Appeals Tribunal Act
Under section 38 of the Administrative Appeals Review Tribunal Act, the Tribunal is empowered to seek statements of reasons additional to that provided to the Tribunal under paragraph 37(1)(a) of the Administrative Appeals Review Tribunal Act - see notes on section 14ZG. By section 14ZH, section 38 is modified so as to apply in respect of reviews of objection decisions which are referred to the Tribunal on or after 1 July 1988.
Section 14ZJ : Modification of section 41 of Administrative Appeals Tribunal Act
As explained in the notes on sub-section 14ZD(1), sub-section 41(2) of the Administrative Appeals Review Tribunal Act empowers the Tribunal in its discretion to stay the operation of a decision under review.
Under existing sales tax law, a person dissatisfied with a decision on an objection against a reviewable decision may apply direct to the Tribunal for review of the reviewable decision. Thus, upon request being made to the Tribunal by the person applying for such a review, the Tribunal, as previously explained, would be empowered under sub-section 41(2) of the Administrative Appeals Review Tribunal Act to stay the operation or implementation of the reviewable decision.
In accordance with amendments proposed by this Bill, a person who is dissatisfied with a decision on an objection against a reviewable decision will in future request the Commissioner to refer the decision on the objection to the Tribunal. The decision which will be reviewed by the Tribunal is, therefore, the Commissioner's decision on the objection and it is that decision which would, but for the proposed section 14ZJ, be the decision to be stayed by the operation of sub-section 41(2), of the Administrative Appeals Review Tribunal Act. For practical purposes, that would serve no useful purpose as the reviewable decision would remain in force and unaffected by the stay order.
To ensure that the position under the existing law is maintained and that sub-section 41(2) of the Administrative Appeals Review Tribunal Act will apply to enable the operation or implementation of the original decision to be stayed, section 41 of the Administrative Appeals Review Tribunal Act in its application to a reviewable decision is to apply to both the decision on the objection and the (original) reviewable decision.
Section 14ZK : Application of section 43 of Administrative Appeals Tribunal Act
Sub-section 43(2) of the Administrative Appeals Review Tribunal Act deals with the giving of reasons by the Tribunal for its decisions. Section 14ZK proposes to notionally add to section 43 two sub-sections - sub-sections 43(2c) and (2d) - to apply in relation to taxation proceedings that involve review of objection decisions, extension of time decisions and extension of time applications (see notes on proposed section 14ZB for an explanation of those terms).
New sub-section 43(2C) will require the Tribunal to ensure that, in giving its reasons for decision in respect of a proceeding not held in public, it does not disclose the identity of the parties (other than the Commissioner) to the proceeding or enable their identity to be readily ascertained. This will enable a continuation of the existing practice of the Taxation Boards of Review of preparing reasons for the decision in a form that ensures the anonymity of the taxpayer and other persons concerned.
New sub-section 43(2D) will make it clear that, notwithstanding that a proceeding before the Tribunal is held in private, the publication of the Tribunal's reasons for its decisions will be permitted, thus ensuring the continued availability of precedents for use by taxpayers and their professional advisers.
Clause 197: Powers of Federal Court in respect of taxation matters
This clause will insert a new section 17A in the Principal Act. Under section 15 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), the Federal Court has the power to order a stay of any proceedings relating to a decision that is subject to review under that Act, while under section 16, the Court may direct any of the parties involved to do or refrain from doing anything which the Court considers necessary to do justice between the parties. It would therefore be possible for a person who requested a review by the Tribunal of a taxation decision to institute an action under the ADJR Act in connection with proceedings before the Tribunal and seek to have the Federal Court invoke its powers under section 15 or 16 of that Act to prevent the recovery of unpaid tax. Such an order would be contrary to the policy that tax remains payable and may be recovered notwithstanding that the matter is subject to review.
New section 17A will ensure that, in the course of a review of any decision of the Tribunal made in connection with a taxation proceeding, the Federal Court will not be authorised under the provisions of section 15 or 16 of the ADJR Act to make an order preventing or restraining the Commissioner of Taxation from recovering tax or duty payable under a taxation law.
Clause 198 will omit paragraph 18(a) of the Principal Act which provides that regulations may be made in relation to the practice and procedure of a Supreme Court in connection with proceedings to which section 14P of the Act applies. As section 14P is to be repealed by clause 195, paragraph 18(a) will no longer be necessary.
PART II - AMENDMENTS OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
This clause facilitates references to the Administrative Appeals Tribunal Act 1975 which, in Part II, is referred to as the "Principal Act".
The Administrative Appeals Tribunal (Tribunal) is made up of a General Administrative Division and 3 other specialised Divisions specified in sub-section 19(2) of the Principal Act or in the regulations. Paragraph (a) of clause 4 will insert new paragraph 19(2) (ba) in the Principal Act to create a special Division to be known as the Taxation Appeals Division. The present jurisdiction of the Taxation Boards of Review will, from 1 July 1986, be transferred to the Administrative Appeals Tribunal and that jurisdiction will be exercised by the new Taxation Appeals Division of the Tribunal.
Paragraph (b) of clause 4 proposes to insert new sub-section 19 (3A) in the Principal Act. Under sub-section 19(3) of the Act, a non- presidential member of the Tribunal is required to be assigned to a particular Division or Divisions of the Tribunal. New sub-section 19(3A) will mean that prior to the assignment of a member to the Taxation Appeals Division, the Attorney-General will need to have consulted with the Treasurer concerning the suitability of the person to take part in reviews of taxation decisions. The provision recognises the specialist nature and complexity of the taxation law and that persons appointed to review taxation decisions made by the Commissioner of Taxation ought to posses a high level of expertise in that area of the law. This will be achieved by providing for consultation between the Attorney-General and the Treasurer (who has ministerial responsibility for the various taxation Acts) on appointments to the Taxation Appeals Division of the Tribunal.
PART III - AMENDMENTS OF THE AUSTRALIAN CAPITAL TERRITORY TAXATION (ADMINISTRATION) ACT 1969
This clause facilitates references to the Australian Capital Territory Taxation (Administration) Act 1969 which, in this Part, is referred to as "the Principal Act".
Sub-section 4(1) of the Principal Act contains a number of definitions to assist in the interpretation of the Act. Paragraph (a) of clause 6 will amend sub-section 4(1) to omit the definition of "Board of Review". Paragraph (b) proposes to insert in sub-section 4(1) a definition of "Tribunal" which, for the purposes of the Act, means the Administrative Appeals Tribunal. This definition is a drafting device to facilitate subsequent references in the Principal Act to the Administrative Appeals Tribunal.
Clause 7 proposes an amendment of section 7 of the Principal Act which prohibits, subject to certain exceptions, disclosure of information concerning the affairs of persons acquired in the course of official duties. By paragraph 7(2)(a) of the Act, an officer is permitted to disclose information to a Taxation Board of Review. The amendment proposed by this clause will omit the reference to Board of Review consequent upon the Boards' abolition. Instead, disclosure will be permitted to the Administrative Appeals Tribunal in connection with proceedings under an Act of which the Commissioner of Taxation has the general administration. This amendment is in line with that proposed to the secrecy provisions contained in the Income Tax Assessment Act 1936 - see notes on clause 71.
Clause 8: Review of revocation of authority
Under section 20 of the Principal Act, if a banker is convicted of an offence under the Act, the Commissioner of Taxation may revoke an authority grated to the banker to supply or use cheque forms impressed, printed or perforated in accordance with the approved style. Where such an authority is revoked, section 21 of the Act provides that an application may be made to the Administrative Appeals Tribunal for review of the revocation. The amendment of section 21 proposed by clause 8 is a drafting measure which will omit the words "Administrative Appeals" and is consequential upon the insertion by clause 6 of the definition of "Tribunal" in sub- section 4(1).
Clause 9: Objections to assessments and decisions
Sub-sections 74(1) and (1A) of the Principal Act provide that a person may object against an assessment or certain decisions relating to the tax status of the registration of a velicle in the person's name. The objection, which must be in writing, must be posted to or lodged with the Commissioner within 60 days after the date the assessment or decision is made. The amendments of sub- sections 74(1) and (1A) proposed by paragraph (a) of clause 9 are designed to ensure that an objection must be lodged with the Commissioner and not merely posted within the 60 day time limit. Similar amendments are being made to the objection provisions of the other taxation laws - see notes on clause 79.
By paragraph (b) of clause 9, existing sub-sections 74(5) to (7) will be omitted and new sub-sections 74(5) and (6) substituted. The omission of existing sub-sections 74(5) and (6), together with the repeal by clause 10 of sections 75 and 76, which deal with reviews by a Taxation Board of Review and any subsequent appeal to the Supreme Court of the Australian Capital Territory, are consequential upon the transfer of the present jurisdiction of the Boards of Review to the Administrative Appeals Tribunal.
New sub-section 74(5) replaces existing sub-section 74(7), and it and new sub-section 74(6) will have substantially the same effect as proposed sub-sections 185(2) and (3) of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 79.
Clause 10 will repeal sections 75 and 76 of the Principal Act which contain provisions relating to reviews by a Board of Review and appeals from a decision of a Board to the Supreme Court of the Australian Capital Territory. New sections 75, 76 76A, 76B, 76C, 76D, 76E and 76F are to be inserted in the Principal Act by this clause in substitution for the repealed sections.
Section 75 : Request for reference
Under existing sub-section 74(5) of the Principal Act, an objector who is dissatisfied with the Commissioner's decision on an objection may request the Commissioner to refer the decision to a Taxation Board of Review for reconsideration.
By the omission of existing sub-section 74(5) by clause 9 and the insertion of new section 75 by clause 10, the Administrative Appeals Tribunal will become the reviewing body in place of a Board of Review. Under new Section 75 requests by persons dissatisfied with decisions by the Commissioner of Taxation on an objection will be for reference to the Tribunal.
Section 76 : Applications for extension of time
New section 76, together with new sections 76A and 76B, will enable an extension of time to be granted for lodgment of objections and requests for reference.
Under the existing law there is a 60 day time limit for lodgment of objections and requests for reference. The law does not aurthorise the Commissioner or a Board of Review to extend the time limit. New sub-section 76(1) will allow a taxpayer to apply to the Commissioner for an extension of time to lodge an objection where the time limit has expired, while, by new sub-section 76(2), an application may be lodged with the Commissioner for an extension of time to lodge a request for reference under new section 75 to the Tribunal.
Under new sub-section 76(3) it will be necessary for a taxpayer to provide full details in an application for an extension of time of the reasons why the objection or request was not lodged within the 60 day time limit.
New section 76 is to the same broad effect as new section 188 of the Income Tax Assessment Act 1936 and is explained in the notes on clause 80.
Section 76A : Consideration of applications for extension of time for lodging objections
New section 76A will have substantially the same effect as proposed section 188A of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 80.
Section 76B : Consideration of application for extension of time for lodging requests for review
New section 76B will provide the Administrative Appeals Tribunal with a discretion to extend the time for lodging a request for reference to the Tribunal. By sub-section 76B(1), an extension of time application relating to a request for reference to the Tribunal is to be sent by the Commissioner to the Tribunal. New sub-section 76(b)(2) requires the application to be treated by the Tribunal in a similar manner to applications for extension of time made to the Tribunal under sub-section 29(7) of the Administrative Appeals Tribunal Act 1975.
Sub-section 76B(3) will authorise the Tribunal to grant or refuse an application for an extension of time.
Sub-section 76B(4) provides that, where an application for extension of time for a request is granted by the Tribunal, the applicant has full rights in respect of the request as if it had been lodged within the 60 day time limit.
New section 76B is to the same broad effect as proposed section 188B of the Income Tax Assessment Act 1936 - see notes on clause 80.
Section 76C : Reference to Tribunal
By sub-section 76C(1), the Commissioner is obliged to refer a request under section 75 to the Tribunal where the request is actual received within the 60 day limit or is treated as having been received in time by reason of the granting of an extension of time under proposed section 76B. Under sub-section 76C(2), a reference received by the Tribunal from the Commissioner is to be treated by the Tribunal in the same manner as an application for review of a decision made by a person direct to the Tribunal.
New section 76C is to the same broad effect as new section 189 of the Income Tax Assessment Act 1936 - see notes on clause 80 for a more detailed explanation.
This section mirrors proposed section 189A of the Income Tax Assessment Act 1936. An explanation of its effect may be found in the notes on clause 80.
Section 76E : Procedure on Review
Paragraph (a) of section 76E re-enacts the general rule contained in the present sub-section 76(2) of the Principal Act that a person requesting a review of a decision on an objection is limited to the grounds stated in the objection. New paragraph 76E(a) will also provide the Tribunal with a discretion to allow a person to amend the grounds of objection. This amendment is in line with that proposed by clause 81 to section 190 of the Income Tax Assessment Act 1936 - see notes on that clause.
Paragraph 76E(b) re-enacts existing sub-section 75(4) so that, in a review before the Tribunal, the onus of proving that the decision or assessment to which the review relates is incorrect, lies on the person who made the request for review.
Section 76F : Implementation of decisions
New sub-section 76F(1) is comparable to proposed section 200B of the Income Tax Assessment Act 1936. Its effect is explained in the notes on clause 89.
New sub-section 76F(2) contains a special provision that applies only where a decision of the Tribunal is taken on appeal to the full Federal Court. This could occur either because the Tribunal was constituted by, or included, a presidential member or a further appeal from a single judge of the Federal Court was instituted. As a decision of the Full Federal Court is only able to be appealed from by special leave of the High Court and, because, technically, special leave may be applied for at any time, the sub-section makes it clear such a decision of the Full Federal Court will be taken as having become final upon the expiration of 30 days after the decision is given, unless an application for special leave to appeal has been lodged with the High Court within that time.
Clause 11: Pending appeal or reference not to affect assessment, etc.
The amendments proposed by this clause to substitute new sub- section 77(1) are drafting measures consequential upon the substitution of the Administrative Appeals Tribunal as the body to review taxation decisions. Appeals from a decision of the Tribunal will be to the Federal Court. New sub-section 77(1) therefore omits the reference to a Board of Review and the Supreme Court of the Australian Capital Territory contained in existing sub-section (1) and re-enacts the principle that duty or tax may be recovered notwithstanding that a review by the Administrative Appeals Tribunal or an appeal is pending.
A similar provision is contained in the Income Tax Assessment Act 1936 - see notes on clause 90.
Clause 12: Adjustment of duty or tax after appeal
Paragraphs (a) and (c) of clause 12 will omit sub-sections 78(1) and (2) and paragraph 78(4)(a) of the Principal Act which deal with the variation of assessments following a reference or appeal. The amendments are consequential upon those made by clause 10, which provides in proposed section 76F that the Commissioner is, where necessary, to amend an assessment to give effect to a decision of the Tribunal. Adjustments of duty or tax resulting from amended assessments are dealt with by sub-section 71(3) of the Principal Act.
The amendments made by paragraphs (b) and (d) are drafting measures which amend sub-section 78(3) and paragraph 78(4)(b) to make it clear that those provisions (which deal respectively with the giving of notice of, and the calculation of additional tax or duty for late payment in the case of, the setting aside of a prescribed decision) apply to decisions on objections, reviews or appeals.
These amendments are in line procedures to apply under the Income Tax Assessment Act 1936 - see notes on clause 91.
Clause 13: Evidence of assessments
The amendment made by this clause effects a drafting improvement by omitting superfluous words.
Clause 14: Appearances by Commissioner and Registrar
Sub-section 98(1) of the Principal Act enables the Commissioner of Taxation of the Registrar of Motor Vehicles in the Australian Capital Territory to appear personally or be represented by a barrister, solicitor or appointed officer in proceedings before a court or Board of Review. Clause 14 will substitute the reference to "Board of Review" with a reference to the Tribunal.
PART IV AMENDMENTS OF THE BANK ACCOUNT DEBITS TAX ADMINISTRATION ACT 1982
This clause facilitates references to the Bank Account Debits Tax Administration Act 1982 which, in this Part, is referred to as "the Principal Act".
Sub-section 3(1) of the Principal Act contains definitions to assist in the interpretation of the Act. Paragraph (a) of clause 16 proposes to omit the definition of "Board of Review" from sub- section 3(1). Paragraph (b) will amend sub-section 3(1) to insert a definition of "Tribunal" which, for the purposes of the Act, means the Administrative Appeals Tribunal. This definition is used to facilitate subsequent references in the Principal Act to the Administrative Appeals Tribunal.
Section 7 of the Principal Act generally prohibits disclosure by officers of information acquired in the course of their official duties. Under paragraph 7(4)(a) of the Act, an officer is permitted to disclosure information to a Board of Review. The amendment proposed by clause 17 will omit the reference to the Board of Review as a result of the Boards' abolition. Instead, disclosure will be permitted to the Tribunal in connection with proceedings under Acts of which the Commissioner of Taxation administers.
Clause 18 will amend section 20 of the principal Act which contains definitions of terms used in Part V (Objections, Reviews and Appeals) of that Act. The amendment will insert in section 20 a definition of "objector" which, for purposes of Part V of the Act, will mean a person who has lodged an objection or is to be treated as having duly lodged an objection (i.e., where an extension of time is granted). The definition replaces the parenthetical referential words being omitted by paragraph (a) of clause 19.
Under existing section 22 of the Principal Act a person may object against an assessment and certain decisions made under the Act. The amendment proposed by paragraph (a) is the counterpart of the proposed insertion by clause 18 of the definition of "objector" in section 20 of the Principal Act. Paragraph (b) of clause 19 will amend section 22 which presently allows for an objection to be posted or lodged within a 60 day time limit. Under the amendment an objection must be lodged within the 60 day limit and not merely posted. Similar amendments are being made to the objection provisions of the other taxation laws. The insertion of new sub-sections 22(4) and (5) by paragraph (c) of clause 19 will provide a subject - matter limitation upon a person's right of objection against an amended assessment and require a single objection to be made against a notice of more than one assessment. These amendments have substantially the same effect as proposed sub-sections 185(2) and (3) of the Income Tax Assessment Act 1936. A more detailed explanation of the amendments being made by this clause is given in the notes on clause 79 which deal with comparable amendments of the income tax law.
Clause 20: Reviews and appeals
Clause 20 will repeal sections 23, 24 and 25 of the Principal Act which deal with requests of reference to a Taxation Board of Review and appeals to a Supreme Court. Several new sections will be substituted for the repealed sections which, broadly, will allow for reviews by the Tribunal of decisions on objections or appeals against such decisions to the Supreme Court.
Section 23 : Request for reference
Section 24 : Applications for extension of time
Section 25 : Consideration of applications for extension of time for lodging objections
Section 25A : Consideration of applications for extension of time for lodging requests for reference
Section 25B : Reference to Tribunal or Court
New sections 23 to 25C, inclusive will allow a person who is dissatisfied with a decision on an objection to request the Commissioner to refer the decision to the Tribunal or a Supreme Court of a State or Territory. The time limits within which objections and requests for reference must be lodged will be capable of extension by the Commissioner, the Tribunal or a Supreme Court, as the case may be.
These new sections will have substantially the same effect as proposed sections 187 to 189A of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 80.
Section 25D : Procedure on review or appeal
New section 25D largely restates existing sub-section 23(4) and will provide that an objector will be limited, except as mentioned below, in a review of a decision on an objection or an appeal to the grounds stated in the objection (paragraph (a)) and the onus of proving that the decision or assessment to which the review or appeal relates is incorrect will be on the objector (paragraph (b)). New section 25D will, however, give the Tribunal or Supreme Court a discretion to allow a person to amend the grounds of objection. This amendment is comparable to that proposed by clause 81 to section 190 of the Income Tax Assessment Act 1936 - see notes on that clause.
Section 25E : Review of remission decisions
The power of a Board of Review to review decisions of the Commissioner under existing sub-section 24(4) of the Principal Act is limited to certain remissions of additional tax stipulated in section 17 of the Principal Act. (i.e remissions of additional tax relating to failure to furnish a return and the making of false or misleading statements).
New section 25E will similarly limit the Tribunal's power to review such remission decisions relating to the remission of additional tax under existing section 17.
Clause 21: Decision of Supreme Court
Existing section 26 of the Principal Act authorises a single judge of a Supreme Court to hear and determine an appeal. A Supreme court may state a case for the opinion of the Federal Court of Australia.
This clause will omit sub-sections 26(1) and (2) and substitute a new sub-section 26(1) which will provide for a Supreme Court, hearing an appeal against a decision on an objection, to make such orders, including an order confirming or varying the decision, as the Court thinks fit.
The amendment is to the same effect as that being made to section 199 of the Income Tax Assessment Act 1936 by clause 88.
Clause 22: Repeal of section 27
Section 27 of the Principal Act provides for appeals to a Supreme Court from decisions of a Board of Review or for a Board to state a case to a Supreme Court. As a consequence of the transfer of jurisdiction in taxation disputes from the Boards of Review to the Tribunal, clause 22 will repeal section 27. This amendment is similar to the repeal of section 196 of the Income Tax Assessment Act 1936 by clause 84 - refer to notes on that clause for a fuller explanation.
Clause 23: Appeals from Supreme Court and Federal Court
Section 28 of the Principal Act presently specified the avenues of appeal from a decision of a Supreme Court as being:
- •
- by leave of the Federal Court, to that Court; or
- •
- by special leave of the High Court, to that Court.
As a consequence of the repeal of section 27 by clause 22, paragraph (a) of this clause will omit the reference to appeals under that section. Paragraph (b) will amend paragraph 28(1)(a) to allow for appeals to lie as of right from a decision of a Supreme Court direct to the Federal Court. Because Supreme Courts will in future to solely a first tier in appeals against objection decisions, it will no longer be necessary to obtain leave to appeal to the Federal Court from a decision of the Supreme Court.
Clause 24: Practice and procedure of Supreme Courts
The amendment by clause 24 to substitute new sub-section 29(2) is substantially to the same effect as the substitution of section 196A(2) of the Income Tax Assessment Act 1936 by clause 85 - refer to notes on that clause.
Clause 25: Implementation of decisions and effect of pending reviews and appeals
Clause 25 proposes the repeal of section 30 of the Principal Act and the substitution of two new sections - sections 29A and 30.
Section 29A : Implementation of decisions
New section 29A is comparable to proposed section 200B of the Income Tax Assessment Act 1936. Its effect is explained in the notes on clause 89.
Section 30 : Pending review or appeal not to affect assessment, etc.
New section 30 substantially restates the existing section and re-enacts, with some minor drafting changes, the principle that tax may be recovered notwithstanding that a review or an appeal is pending.
Clause 26: Variation of prescribed decisions
Existing section 31 of the Principal Act provides that the Commissioner shall notify the objector of the result if a prescribed decision is varied and stipulates that any tax overpaid or underpaid shall respectively be refunded or recoverable.
The amendments proposed by this clause are of a drafting nature and reflect in section 31 the transfer of jurisdiction to the Administrative Appeals Tribunal and the amendments of section 26 of the principal Act (see notes on clause 21).
Clause 27: Repeal of section 32
Section 32 of the Principal Act authorises the recovery or refund of tax where an assessment is varied on reference or appeal. Under amendments proposed in this Bill (refer to notes on clause 25 relating to the insertion of new section 29A) the Commissioner will, where necessary, be required to amend an assessment to give effect to a decision of the Tribunal or a court. Refunds resulting from amendments of assessments are dealt with by sub-section 18(2A) of the Principal Act, whilst tax may be recovered under section 34.
Section 32 is no longer necessary and will therefore be repealed.
Clause 28 proposes amendments of section 33 of the Principal Act of a drafting nature and will omit superfluous words.
PART V - AMENDMENT OF THE CRIMES (TAXATION OFFENCES) ACT 1980
This clause facilitates references to the Crimes (Taxation Offences) Act 1980 which, in Part V, is referred to as "the Principal Act".
Clause 30: Application of Part I and Part II in relation to income tax
The Principal Act is drafted so as to create offences that apply to arrangements and transactions entered into to evade sales tax. Section 13 of the Principal Act makes the adjustments that are necessary for the offences created in relation to sales tax to also apply to arrangements and transactions entered into to evade income tax. Sub-section 13(3) is to the effect that, for certain purposes of the Principal Act in its relation to income tax offences, the possibility that an assessment might be amended does not mean that income tax assessed is not finally determined. An exception to this rule is where there is an undecided objection, a pending review by a Board of Review or an undecided appeal to a Supreme Court.
Clause 30 will make an amendment of sub-section 13(3) of the Principal Act to take account of the transfer of jurisdiction in tax disputes to the Administrative.
Appeals Tribunal and reflect the requirement in proposed section 200B of the Income Tax Assessment Act 1936 that the Commissioner is to amend assessments to give effect to decisions of the Tribunal or Supreme Courts on review of objection decisions.
Clause 31: Application of Part I and Part II in relation to fringe benefits tax
By clause 2(2), clause 31 will come into operation immediately after the commencement of the Fringe Benefits Tax Assessment Act 1986.
Clause 31 will amend proposed section 14 of the Principal Act to be inserted by the Fringe Benefits Tax (Miscellaneous Provisions) bill 1986. Proposed section 14 is to the same effect as section 13, but modifies the operation of the Principal Act so that it applies to fringe benefits tax arrangements and transactions. Likewise, the amendment of sub-section 14(3) is in line with that of sub-section 13(3) - see notes on clause 30 - and reflects proposed section 86E of the Fringe Benefits Tax Assessment Act 1986 that will require the Commissioner to give effect to decisions of the Administrative Appeals Tribunal and Supreme Courts on decisions relating to objections against fringe benefits tax assessments.
PART VI - AMENDMENTS OF THE ESTATE DUTY ASSESSMENT ACT 1914
This clause facilitates references to the Estate Duty Assessment Act 1914 which, in Part VI, is referred to as "the Principal Act".
Although estate duty is levied only on the estates of persons dying before 1 July 1979, assessments and amendments of assessments are still being made and these may be subject to objection, review or appeal. Accordingly, amendments of the Principal Act to transfer jurisdiction to review objection decisions to the Administrative Appeals Tribunal are necessary.
Section 3 of the Principal Act contains a number of definitions to assist in the interpretation of the Act. Clause 33 will amend sub- section 3(1) to omit the definition of "Board of Review" and insert a definition of "Tribunal" which, for the proposes of the Act, means the Administrative Appeals Tribunal. This definition is a drafting device to facilitate subsequent references in the Principal Act to the Administrative Appeals Tribunal.
Clause 34: Application of Part
Part IIIA of the Principal Act provides for rebates of duty in respect of certain estates of primary producers. Under section 9C of the Act, where the estate of a deceased person includes shares in a family company and at the date of death of the person more than 50% of the property of the company consisted of rural property, the administrator of the estate may elect to have the shares taken into account in determining the value of the rural property of the estate. Sub-section 9D(8) provides that, where an estate has been assessed to duty, the election may not be withdrawn if the administrator did not object against the assessment and the objection period of 30 days has expired. Where the administrator has objected against the assessment, but did not make a request for reference or appeal, then the election may not be withdrawn if the 30 day period for taking that action has expired. if the administrator has made a request for a reference or appeal, then the election may not be withdrawn after the expiration of 30 days from the finalisation of the reference by a Board of Review or court.
The amendments proposed by paragraphs (a) and (b) of clause 34 will, in effect, extend each of the 30 day periods referred to in paragraph 9D(8)(a) to 60 days and substitute a reference to the Administrative Appeals Tribunal for the present reference to a Board of Review. These changes are consequential upon the general extension of objection and request periods to 60 days by clauses 36 and 37 and on the transfer of the jurisdiction of the Taxation Boards of Review to the Tribunal.
Clause 35: Value of shares and stock
Under section 16A of the Principal Act, the Commissioner has a discretion to determine the value of shares or stock in a company for purposes of ascertaining the amount on which duty should be levied. By sub-section 16A(2), the exercise of this discretion is reviewable by a Board of Review or Supreme Court. Clause 35 will amend sub-section 16A(2) so that the exercise of the Commissioner's discretion will now be reviewable by the Tribunal or a court.
The amendment proposed by paragraph (a) of this clause will extend the period for lodging an objection against an assessment of estate duty from 30 days to 60 days. Similar amendments are being made to the other taxation laws which provide for a time limit of less than 60 days so that there will be a uniform time limit of 60 days for lodging objections under all the taxation laws administered by the Commissioner of Taxation.
Paragraph (b) of clause 36 will amend section 24 so that an objection against an assessment must be lodged with the Commissioner within the specified time limit and not merely posted within that time. Similar amendments are being made to the objection provisions in the other taxation laws.
The amendments proposed by paragraphs (c) and (d) are to the same effect as proposed sub-sections 185(2) and (3) of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 79.
Paragraph (e) is a drafting change consequential upon the substitution by paragraph (d) of new sub-section 24(1AA) for the proviso in sub-section 24(1). The reference in sub-section 24(1A) to the proviso will now be to sub-section (1AA).
Paragraph (f) will omit sub-sections (4), (4A) and (5) so that section 24 will in future deal solely with objections. New provisions relating to reviews and appeals will be substituted for the omitted provisions by clause 37.
Clause 37: Reviews and appeals
Clause 37 will repeal sections 26 and 27 of the Principal Act which deal with requests for reference to a Taxation Board of Review or appeal to a Supreme Court. New sections 25, 26, 27, 27A, 27B, 27C, 27D and 27E are to be inserted in the Principal Act by this clause in substitution for repealed sections.
Section 25 : Request for reference
Section 26 : Applications for extension of time
Section 27 : Consideration of applications for extension of time for lodging objections
Section 27A : Consideration of application for extension of time for lodging requests for reference
Section 27B : Reference to Tribunal or Court
New sub-section 25(1) corresponds to proposed section 187 of the Income Tax Assessment Act 1936. New sections 26 to 27C are to the same effect as proposed sections 188 to 189A of the Income Tax Assessment Act 1936. An explanation of the income tax provisions is given in the notes on clause 80. New sub-section 25(2) effectively re-enacts existing sub-section 24(5) which is being omitted by paragraph (f) of clause 36. Under that sub-section a request to have an assessment reviewed by a Board of Review or a Supreme Court may not be made where the assessment is based on an assessment made under the law of a State unless the administrator has also appealed against the State assessment.
Section 27D : Procedure on review or appeal
Under new section 27D an administrator seeking a review of an objection decision will generally be limited to the grounds stated in the objection and the onus of proving whether the relevant assessment is excessive will lie on the administrator. Paragraph 27D(a) will provide the Tribunal or a court with a discretion to allow the administrator to amend the grounds of objection. This change is comparable to that proposed by clause 81 - see notes on that clause.
Section 27E : Powers of Supreme Court on appeal
New section 27E will have substantially the same effect as proposed sub-section 199(1) of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 88.
Clause 38: Appeal from orders under section 27E
Clause 39: Case stated to Federal Court of Australia
Clauses 38 and 39 propose amendments of a minor drafting nature to sections 28 and 28A. The amendments by paragraph 38(b) and clause 39 and consequential upon those made by clause 37.
Clause 40: Implementation of decisions
Clause 41: Pending review or appeal not to affect assessment
Clause 42: Repeal of section 28C
Clause 43: Practice and procedure of Supreme Courts
Clause 44 : Release from liability for duty in cases of hardship
The amendments proposed by clauses 40 to 44 inserting or amending sections 28AC, 28B, 28C, 28D and 48A of the Principal Act will have substantially the same effect as amendments of the Income Tax Assessment Act 1936 in relation to sub-section 196A(2) and sections 200B, 201, 202 and 265. An explanation of these amendments is given in the notes on clauses 85, 89, 90, 91 and 98.
PART VII - AMENDMENTS OF THE FRINGE BENEFITS TAX ASSESSMENT ACT 1986
This clause facilitates references to the Fringe Benefits Tax Assessment Act 1986 which, in this Part, is referred to as "the Principal Act". That Act, in the form of a Bill, is currently before the Parliament. In these notes clauses of that Bill will be referred to as "sections" of the Act proposed by the Bill.
Section 5 of the Principal Act will generally prohibit disclosure by officers of information acquired in the course of official duties. The amendment proposed by clause 46 will permit disclosure of such information to the Administrative Appeals Tribunal in connection with proceedings under any Act which the Commissioner has responsibility for administering.
Clause 47: Arrangements to avoid or reduce fringe benefits tax
The amendment of sub-section 67(6) by clause 47 is designed to ensure that an objection must lodged with the Commissioner and not merely posted within the 60 day time limit. The amendment is to the same effect as similar amendments being made to the other taxation laws affected by this Bill.
Clause 48: Repeal of Part VI and substitution of new Part
Clause 48 will repeal Part VI of the Principal Act which will contain provisions relating to objections, reviews and appeals. A new Part VI is to be inserted in the Principal Act by this clause in substitution for the repealed Part and is consequential upon the transfer of the jurisdiction of the Taxation Boards of Review to the Administrative Appeals Tribunal.
This section defines the meaning of "Supreme Court" as used in new Part VI as :
- •
- the Supreme Court of a State; or
- •
- the Supreme Courts of the Australian Capital Territory and of the Northern Territory.
Section 79A : Transfer of proceedings
New section 79A is a provision enabling the transfer of proceedings from one Supreme Court to another at the request of a party to the proceedings and is similar to section 184C of the Income Tax Assessment Act 1936.
The section is designed to assist taxpayers who might move their residence from one State or Territory to another after an appeal is instituted, but before it is heard. Rather than suffer the inconvenience of having to return to their former place of residence to have the appeal decided, the Supreme Court in which the appeal was commenced may transfer the case to the Supreme Court in the taxpayer's new State or Territory of residence for determination.
Sub-sections 80(1) of the Principal Act will provide that a person may object against an assessment within 60 days after service of notice of the assessment. The objection, which must be in writing, must be posted or lodged with the Commissioner of Taxation within the 60 day time limit.
New sub-section 80(1) will provide that an objection against an assessment must be lodged with the Commissioner of Taxation and not merely posted within the specified time limit. Similar amendments are being made to objection provisions of other taxation laws - refer notes on clause 79.
Sub-sections (2) and (3) of the Principal Act will maintain the requirement that the Commissioner is to consider the objection and either disallow it or allow it wholly or in part. The Commissioner is to serve on the employer concerned notice in writing of his decision.
New sub-sections (4) and (5) will have the same effect as proposed sub-sections 185(2) and (3) of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 79.
Section 81 : Request for reference
Under sub-section 81(1) of the Principal Act an employer who is dissatisfied with the decision by the Commissioner on the employer's objection against an assessment may request the Commissioner to either refer the decision to a Taxation Board of Review for review or treat the objection as an appeal and refer it to a nominated Supreme Court.
New section 81 in effect substitutes a reference to the Administrative Appeals Tribunal for the reference to a Taxation Board of Review.
Sub-sections 81(2) and (3) of the Principal Act, which deal with the requirements to pay and refund a fee of $2.00 in connection with requests by employers for reference to a Taxation Board of Review or appeal to a Supreme Court, are omitted, thus abolishing the requirement to pay a fee for such purposes.
Sub-section 81(4) of the Principal Act will be re-enancted as new section 86A.
Section 82 : Applications for extension of time
New section 82, together with new sections 83 and 84, will enable an extension of time to be granted for lodgment of objections and requests for reference or appeals.
New section 82 is in the same form as proposed section 188 of the Income Tax Assessment Act 1936, which is being inserted in that Act by clause 80. An explanation of its effect may be found in the notes on that clause.
Section 83 : Consideration of applications for extension of time for lodging objections
New section 83 will have the same effect as proposed section 188A of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 80.
Section 84 : Consideration of applications for extension of time for lodging requests for reference
Likewise, new section 84 will have the same effect as proposed section 188B of the Income Tax Assessment Act 1936, an explanation of which is also given in the notes on clause 80.
Section 85 : Reference to Tribunal or court
An explanation of the purpose and effect of proposed section 85, which is in similar terms to proposed section 189 of the Income Tax Assessment Act 1936, is given in the notes on that section in clause 80.
This section mirrors proposed section 189A of the Income Tax Assessment Act 1936. An explanation of its effect may be found in the notes on clause 80.
Section 86A : Procedure on review or appeal
Paragraph (a) of section 86A maintains the principle reflected in paragraph 81(4)(a) - see earlier notes on section 81 - that the employer requesting a review of a decision on an objection is limited to the grounds stated in the objection. New paragraph 86A(a) will also give the Tribunal or court a discretion to allow an employer to amend the grounds of objection. This amendment is comparable to that proposed by clause 81 to paragraph 190(a) of the Income Tax Assessment Act 1936.
Paragraph 86A(b) re-enacts paragraph 81(4)(b) so that in a review of a decision on an objection before the Tribunal or a Supreme Court, the onus of proving that an assessment is excessive, lies on the employer who sought the review.
Section 86B : Case stated to Federal Court
New sub-sections 86B(1) and (2) substantially re-enact sub- sections 84(4) and (5) and mirror section 198 of the Income Tax Assessment Act 1936 as it is being amended by clause 87. Where a question of law arises on an appeal to a Supreme Court, the Court may state a case in writing for the opinion of the Federal Court. The question will be determined by a Full Federal Court and remitted back to the Supreme Court. The Federal Court may award such costs as it sees fit.
Section 86C : Powers of Supreme Court on appeal
Sub-section 86C(1) will provide that a Supreme Court is empowered to confirm or vary an objection decision or make any other order in relation to the decision - see notes on clause 88. The commissioner will be required to give effect to the decision under proposed section 86E.
Sub-section (2) limits an appeal against such an order to these avenues specified in section 86D, broadly to the Federal Court or High Court.
Section 86D : Appeals from Supreme Court and Federal Court
New sub-section 86D(1) provides that the Commissioner or an employer may appeal against an order of a Supreme Court made under section 86C either as of right to the Federal Court or by special leave of the High Court to that Court. Where an appeal is brought to the Federal Court, sub-section 33(3) of the Federal Court of Australia Act 1976, provides that any further appeal to the High Court is subject to special leave being granted by the High Court.
Section 86E : Implementation of decisions
New section 86E is comparable to proposed section 200B of the Income Tax Assessment Act 1936. Its effect is explained in the notes on clause 89.
Section 87 : Practice and procedure of Supreme Courts
Section 87 provides that, until regulations are in place, the High Court Rules in force under the Judiciary Act 1903 immediately before the date of commencement of the Principal Act apply to proceedings before the Supreme Court.
Section 88 : Pending review or appeal not to affect assessment
Section 88 stipulates that liability to pay tax or additional tax under a fringe benefits tax assessment is not suspended pending the outcome of a review of, or appeal against, an objection decision relating to the assessment.
Clause 49: Where no administration of deceased employer's estate
The amendment of sub-section 98(4) of the Principal Act flows from the amendments, by clause 48, whereby the Tribunal or a court will no longer be empowered to directly amend assessments. As only the Commissioner will be able to amend assessments, the reference in sub-section (4) to amendments of assessments "by the Commissioner, or by a Board of Review or by a Court" is to be omitted.
Clause 50: Unregistered tax agents not to charge fees
Section 119 stipulates that a person who is not a registered tax agent must not charge a fee to prepare a fringe benefits tax return or an objection for a person or transact other fringe benefits tax business on behalf of others. By sub-section 119(2), however, a solicitor or counsel is not prohibited from acting in the course of his or her profession in any proceedings before a board. The amendment of sub-section 119(2) by this clause will ensure that a solicitor or counsel may also appear on behalf of an employer before the Tribunal or a court without the need to become registered as a tax agent.
Clause 51: Preparation of returns, etc., on behalf of registered tax agents
Section 121 prohibits a registered tax agent from allowing a person to prepare, on the registered tax agent's behalf, a fringe benefits tax return or objection, or to conduct any business related to a fringe benefits tax matter unless the person is an employee of the registered tax agent, a registered tax agent or, in the case of a partnership which is registered as a tax agent, a member of that partnership. A tax agent is not prevented by section 121 of the Principal Act from obtaining the professional services of a solicitor or counsel.
The amendment of sub-section 121(2) by this clause is similar in effect to the amendment proposed by clause 50 and will ensure that a solicitor or counsel who is not a registered tax agent may also appear before the Tribunal or a court.
Clause 52 omits from sub-section 126(1) of the Principal Act the word "reference" which is a consequential amendment resulting from the repeal of existing Part VI of the Principal Act. With the abolition of the Boards of Review questions of a law arising on a review will no longer be referred to a Supreme Court. As explained earlier in these notes, questions of law arising before the Administrative Tribunal may be referred to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975. Accordingly, there is no need for the word "reference" in existing sub-section 126(1).
Clause 53: Release of employers in cases of hardship
Paragraph (a) of clause 53 proposes an amendment of section 133 of the Principal Act by omitting "Board of Review" and substituting "the Tribunal". Paragraph (b) will substitute new sub-section 133(4) for sub-sections 133(4) and (5). Under new sub-section 133(4) the reporting function in relation to applications for relief from fringe benefits tax will be carried out by the Register or a Deputy Registrar of the Administrative Appeals Tribunal designated by the President of the Tribunal. Section 133 is substantially the same as section 265 of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 98.
Sub-section 136(1) of the Principal Act contains a series of definitions to assist in the interpretation of the Act.
Clause 54 proposes to omit the definition of "Board of Review" from sub-section 136(1) and insert a definition of "Tribunal" which, for the purposes of the Principal Act, is to mean the Administrative Appeals Tribunal. This definition is a drafting device to facilitate subsequent references in the Principal Act to the Administrative Appeals Tribunal.
PART VIII - AMENDMENTS OF THE FRINGE BENEFITS TAX (APPLICATION TO THE COMMONWEALTH) ACT 1986
This clause facilitates references to the Fringe Benefits Tax (Application to the Commonwealth) Act 1986 which, in this Part, is referred to as "the Principal Act". As with the Fringe Benefits Tax Assessment Act 1986, this act is, at the time for writing, still in the form of a Bill.
Clause 56: Application of Assessment Act in relation to Commonwealth employment.
Paragraph 4(1)(d) of the Principal Act provides that Commonwealth Departments and authorities will have the same rights of objection as other employers against an assessment of fringe benefits tax in respect of an employee of that Department or authority, but will not have review or appeal rights. The amendment of paragraph (4)(1)(d) by this clause is consequential upon proposed sections 82 and 83 of the Fringe Benefits Tax Assessment Act 1986 under which an extension of time may be granted for lodgment of an objection against an assessment.
The effect of this amendment is that provisions concerning extensions of time for lodging objections will apply to objections lodged by relevant Commonwealth Departments and authorities.
PART IX - AMENDMENTS OF THE GIFT DUTY ASSESSMENT ACT 1941
This clause facilitates references to the Gift Duty Assessment Act 1941 which, in Part IX, is referred to as "the Principal Act".
Although gift duty is levied in respect of gifts made before 1 July 1979, assessments and amendments of assessments are still being made and these may be subject to objection, review or appeal. Accordingly, amendments of the Principal Act to transfer jurisdiction to review objection decisions to the Administrative Appeals Tribunal are necessary.
Sub-section 4(1) of the Principal Act contains a number of definitions to assist in the interpretation of the Act. The amendments proposed by paragraphs (a) and (c) of clause 58 omit the definition of "Board of Review" and insert a definition of "Tribunal" which, for the purposes of the Act, means the Administrative Appeals Tribunal. This definition is a drafting device to facilitate subsequent references in the Principal Act to the Administrative Appeals Tribunal.
Paragraph (b) is a drafting measure to insert in sub-section 4(1) of the Principal Act a definition of "objector" which for the purposes of the Act will mean a person who has duly lodged an objection or is to be treated as having duly lodged an objection as a result of an extension of time being granted under proposed section 34 (see notes on clause 62).
Clause 59: Officers to observe secrecy
The amendments of the secrecy provisions by this clause are comparable to those being made to other tax laws (see notes on clause 7) so that officers will be permitted to disclose information to the Administrative Appeals Tribunal in connection with proceedings under an Act of which the Commissioner of Taxation has the general administration. The present provision to authorise disclosure to a Taxation Board of Review will be omitted as a consequence of the abolition of Boards of Review.
Sub-section 18(2) of the Principal Act provides the Commissioner with a discretion to compute the value of a gift of shares or stock in a company for the purposes of ascertaining the amount on which duty should be levied. By sub-section 18(3), the exercise of this discretion is reviewable by a Board of Review or a Supreme Court. Clause 60 will amend sub-section 18(3) so that the discretion will now be reviewable by the Tribunal or a Supreme Court.
The amendments proposed by this clause effectively mirror the amendments of the Estate Duty Assessment Act 1914 proposed by paragraph (a) to (d) of clause 36, an explanation of which is given in the notes on that clause or the corresponding income tax provisions referred to in those notes. Paragraph (d) of clause 61 also omits sub-sections (4) and (4A) so that the section will deal solely with objections. New provisions relating to reviews and appeals will be substituted for the existing provisions by clause 62.
Clause 62: Reviews and appeals
Clause 62 will repeal sections 33 and 34 of the Principal Act which deal with requests for reference to a Taxation Board of Review or appeals to a Supreme Court. The clause will substitute new sections 32, 33, 34, 34A, 34B, 34C, 34D and 34E for the repealed sections.
Section 32 : Request for references
Section 33 : Applications for extension of time
Section 34 : Consideration of applications for extension of time for lodging objections
Section 34A : Consideration of applications for extension of time for lodging requests for reference
Section 34B : Reference to Tribunal or Court
New sections 32 to 34C will have the same effect as proposed sections 187 to 189A of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 80.
Section 34D : Procedure on review or appeal
Under new section 34D a person seeking a review of an objection decision will generally be limited to the grounds stated in the objection and the onus of proving whether the relevant assessment is excessive will lie on the person. Paragraph 34D(a) will provide the Tribunal or a court with a discretion to allow the person to amend the grounds of objection. This change is comparable to that proposed by clause 81 - see notes on that clause.
Section 34E : Powers of Supreme Court on appeal
New sub-section 34E(1) will have substantially the same effect as proposed sub-section 199(1) of the Income Tax Assessment Act 1936, and explanation of which is given in the notes on clause 88. New sub-section 34E(2), which re-enacts existing sub-section 34(6), provides for the right of appeal from an order made by a Supreme Court under sub-section (1).
Clause 64: Case stated to Federal Court of Australia
The amendments proposed by these clauses to sections 35 and 36 are of a drafting nature consequential upon those made by clause 62.
Clause 65: Implementation of decisions
Clause 66: Pending review or appeal not to affect assessment
Clause 67: Repeal of section 38
Clause 68: Practice and procedure of Supreme Courts
The amendments proposed by clauses 65 to 68 inserting or amending sections 36C, 37, 38 and 38A of the Principal Act will have substantially the same effect as amendments of the Income Tax Assessment Act 1936 in relation to sub-section 196A(2) and sections 200B, 201 and 202. An explanation of these amendments is given in the notes on clauses 85, 89, 90 and 91.
PART XI - AMENDMENTS OF THE LOAN (DROUGHT BONDS) ACT 1969
This clause facilitates references to the Loan (Drought Bonds) Act 1969 which, in this Part, is referred to as "the Principal Act".
Section 4 of the Principal Act contains definitions of terms used in the Act and other interpretative provisions. As a consequence of the transfer of jurisdiction of the Taxation Boards of Review to the Administrative Appeals Tribunal paragraph (a) of clause 100 proposes to amend sub-section 4(1) to omit the definition of "Board of Review". Paragraph (b) of clause 100 proposes to insert in sub- section 4(1) a definition of "Tribunal", which, for the purposes of the Act, means the Administrative Appeals Tribunal. This definition is a drafting device to facilitate subsequent references in the Principal Act to the Administrative Appeals Tribunal.
Clause 101: Repeal of sections 15A, 25A and 25B
Under sections 19, 20, 21, 23 and 24 of the Principal Act a person may request the Commissioner to declare that stock has become redeemable prior to maturity where, broadly, the stockholder has a grazing property in a drought declared area, the stockholder has suffered substantial damage or loss by reason of fire or flood, the stockholder is suffering serious financial hardship, the stockholder has sold a grazing business and by agreement stock is to be redeemed and reissued to the purchaser, the stockholder has ceased to carry on a grazing business, no unrecouped income tax deduction exists in respect of a parcel of stock or where the amount of stocks held by a person exceeds $50,000 and no unrecouped income tax deduction exists in respect of that excess stock. Section 26 requires the Commissioner to give notice in writing with reasons where the declaration requested is not made within one month after receipt of the request and after a further month the person who made the request may direct the Commissioner to refer the request to a Taxation Board of review.
The repeal of sections 15A, 25A and 25B by this clause is consequential upon the transfer of jurisdiction from the Boards of Review to the Administrative Appeals Tribunal. As with other jurisdictions of the Tribunal, appeals from a decision of the Tribunal will be to the Federal Court and the Supreme Courts will no longer have jurisdiction in relation to proceedings under section 26 of the Principal Act. Sections 15A, 25A and 25B, which deal with the jurisdiction of Supreme Courts, are therefore to be repealed.
Clause 102: Review by Tribunal
Clause 102 will omit existing sub-sections 26(3) to (10) of the Principal Act which deal with references to a Taxation Board of Review and subsequent appeals from a decision of a Board. This clause will insert new sub-section 26(3), which will allow a person to apply direct to the Administrative Appeals Tribunal for a review of a decision of the Commissioner under sub- section 26(1) not to make a declaration that stock has become redeemable. The provisions of amended section 26 will be similar to section 22 of the Loan (Income Equalization Deposits) Act 1976.
Clause 103: Notice of declarations
This clause will repeal existing section 27 of the Principal Act which requires the Commissioner or a Board of Review to give notice of any declaration made under Part III of the Principal Act that stock has become redeemable. New section 27 basically re- enacts existing section 27 apart from omitting reference to a Board of Review. The effect of the amendment is that the Commissioner will be required to give notice of any declaration made as a result of a decision of the Tribunal.
Clause 104: Requests, etc., to be in writing
Section 30 of the Principal Act requires any request, declaration, notice or direction made under Part III of the Principal Act to be in writing and signed by the person or the Board of Review making or giving it. Clause 104 will omit existing section 30 and substitute new section 30. The new section restates the requirement of existing section 30, but does not require any declaration made by the Tribunal to be signed by it.
Clause 104 will also repeal existing section 30A which deals with the practice and procedure of Supreme Courts in respect of proceedings under Part III of the Principal Act. As mentioned in the notes on clause 101, the Supreme Courts will no longer have jurisdiction in relation to proceedings under Part III.
This clause will omit paragraph 31(1)(aa) of the Principal Act which provides for the making of regulations in relation to the practice and procedure of Supreme Courts in respect of proceedings under Part III. As explained in the notes on clause 101, the Supreme Courts will no longer have any jurisdiction under the Principal Act.
PART XII - AMENDMENTS OF THE MANAGEMENT AND INVESTMENT COMPANIES ACT 1983
This clause facilitates references to the Management and Investment Companies Act 1983 which, in this Part, is referred to as "the Principal Act".
Clause 107: Disclosure of information
Clause 107 proposes an amendment of section 19 of the Principal Act which prohibits, subject to certain exceptions, the disclosure, by any person who is or was a member, acting member or staff member of the Management and Investment Companies Licensing Board, of information acquired in the course of his or her duties. By sub-section 19(2) of the Act, a person is permitted to disclose information to the Commissioner of Taxation or a Taxation Board of Review. The amendment proposed by paragraph (a) of clause 107 will omit the reference to a Board of Review as a consequence of the abolition of the Boards, but permit disclosure of information to the Administrative Appeals Tribunal in connection with proceedings under an Act of which the Commissioner of Taxation has the general administration. This amendment is in line with that proposed to the secrecy provisions contained in the Income Tax Assessment Act 1936 - see notes on clause 71.
Sub-section 19(4) of the Principal Act contains definitions to assist in the interpretation of the Act. Paragraph (b) of clause 107 will amend sub-section 19(4) to omit the definition of "Board of Review" consequent upon the abolition of the Boards.
PART XIII - AMENDMENTS OF THE PAY-ROLL TAX ASSESSMENT ACT 1941
This clause facilitates references to the Pay-roll Tax Assessment Act 1941 which, in this Part, is referred to as "the Principal Act".
Although Commonwealth pay-roll tax was terminated in 1971, some collections of that tax still occur. Accordingly, it is proposed to amend the Principal Act to cater for the possibility that such a liability may be disputed.
Sub-section 3(1) of the Principal Act contains a definitions to assist in the interpretation of the Act. Paragraph (a) of clause 109 will amend sub-section 3(1) to omit the definition of "Boards of Review". Paragraph (b) proposes to insert in sub-section 3(1) a definition of "Tribunal" which for purposes of the Act, means the Administrative Appeals Tribunal. This definition is a drafting device to facilitate subsequent references in the Principal Act to the Administrative Appeals Tribunal.
Clause 110: Officers to observe secrecy
Clause 110 proposes an amendment of section 11 of the Principal Act which prohibits, subject to certain exceptions, disclosure of information concerning the affairs of persons acquired in the course of official duties. By sub-section 11(4) of the Act, an officer is permitted to disclose information to a Taxation Board of Review, and by sub-section 11(5) of the Act, members of the Board are subject to the secrecy obligations imposed by sub-section 11(3). The amendments proposed by this clause will omit references in sub-sections 11(4) and 11(5) to a Board of Review consequent upon the Boards' abolition. Instead, disclosure will be permitted to the Administrative Appeals Tribunal in connection with proceedings under any Act which the Commissioner has responsibility for administering. This amendment is in line with that proposed to the secrecy provisions contained in the Income Tax Assessment Act 1936 - see notes on clause 71.
Clause 111: Alternative basis for rebate for 1968-1969 because of currency devaluation
Clause 112: Review of base period export sales
Clause 113: Review of amounts added to value of export sales for base period under section 16D
Under Division 2 of Part III of the Principal Act, an employer may be entitled to a rebate of tax which is determined by reference to the value of the employer's export sales.
Under certain sections of Division 2, an employer may make an application to a Taxation Board of Review for a review of the value of the employer's export sales in a particular year.
The amendments proposed by clauses 111, 112 and 113 merely substitute references to the Administrative Appeals Tribunal for references to a Board of Review in sections 16H, 16Q and 16R of the Act. Given the termination of Commonwealth pay-roll tax, it is unlikely that any further applications will be made by an employer under those sections but, in the event that such an application is made, it will in future be dealt with by the Tribunal.
Clause 114: Provision for payment of tax by executors and administrators
Section 33 of the Principal Act extends to the Commissioner the same powers of recovery and assessment of tax from the personal representatives of a deceased employer as the Commissioner would have against that employer if still living. The section also provides rights of objection against an assessment.
The amendments proposed by this clause are consequential on amendments of Part VI of the Principal Act. The amendments by paragraphs (a) and (e) of clause 114 will extend the objection periods in sub- sections 33(6) and 33(10) to 60 days. Similar amendments are being made to other taxation laws which provide for a time limit of less than 60 days so that a uniform time limit of 60 days will apply under all taxation laws. Paragraph (b) will amend sub-section 33(6) so that, consistent with sub-section 33(10), an objection must be lodged with the Commissioner and not merely posted within the 60 day time limit. Similar amendments are being made to the objection provisions of other taxation laws. The amendments proposed by paragraphs (c) and (f) of sub-sections (6) and (10) are essentially of a drafting nature. Paragraph (d) of clause 114 will omit references in sub-section (7) to amendments made by the Commissioner, a Board of Review or a court. This amendment is consequential upon proposed amendments of various taxation laws which will ensure that only the Commissioner will be empowered to amend assessments - see notes on clause 89.
Clause 115: Repeal of section 38
The repeal, by clause 115, of existing section 38, which deals with the powers of a Taxation Board of Review, is consequential upon the transfer of the jurisdiction of the Boards of Review to the Administrative Appeals Tribunal.
Section 39 of the Principal Act provides that an employer may object against an assessment, determination or certain decisions by the Commissioner which affect the employer's liability to pay tax under the Principal Act. The objection, which must be in writing, must be posted to or lodged with the commissioner within 42 days after service of the notice of assessment or decision.
The amendments proposed by paragraphs (a) and (b) of clause 116 will, in effect, extend the period for lodging an objection under section 39 of the Act from 42 days to 60 days and ensure that an objection must be lodged with the Commissioner and not merely posted within the new 60 day time limit. Similar amendments are being made to the objection provisions of other taxation laws.
Paragraph (c) of clause 116 will repeal sub-section 39(4) so that section 39 in future will deal solely with objections. New provisions relating to reviews and appeals will be substituted for the omitted provision by clause 117.
Clause 117: Repeal of sections 40 and 40A and substitution of new sections
Clause 117 will repeal sections 40 and 40A of the Principal Act which contain provisions relating to reviews by a Taxation Board of Review and appeals from a decision of a Board of Review. New sections 40, 40A, 40B, 40C, 40D, 40E, 40F and 40G are to be inserted in the Principal Act by this clause in substitution for the repealed sections.
Section 40 : Request for reference
Section 40A : Applications for extension of time
Section 40B : Consideration of applications for extension of time for lodging objections
Section 40C : Consideration of applications for extension of time for lodging requests for reference
Section 40D : Reference to Tribunal
New sections 40 to 40E will have substantially the same effect as proposed sections 187 to 189A of the Income Tax Assessment Act 1936. An explanation of the income tax provisions is given in the notes on clause 80.
Section 40F : Procedure on review
Paragraph (a) of section 40F re-enacts the general rule contained in present sub-section 40(2) that an employer requesting a review of a decision on an objection is limited to the grounds stated in the objection. New paragraph 40F(a) will, however, provide the Tribunal with a discretion to allow an employer to amend the grounds of objection. This amendment is in line with that proposed by clause 81 to section 190 of the Income Tax Assessment Act 1936 - see notes on that clause.
New paragraph 40F(b) ensures that, in a review before the Tribunal, the onus of proving that the decision, determination or assessment to which the review relates is incorrect, lies on the employer who made the request for review. This too is in line with similar provisions in the other taxation laws.
Section 40G : Implementation of decisions
New sub-section 40G(1) of the Principal Act is comparable to proposed sub-section 200B(1) of the Income Tax Assessment Act 1936 - see notes on clause 89.
New sub-section 40G(2) is consistent with similar provisions being inserted in other taxation laws - see notes on clause 10.
Clause 118: Pending review or appeal not to affect assessment, etc.
Sub-section 41(1) of the Principal Act stipulates that liability to pay tax is not suspended pending the outcome of any review of the liability of assessment. The amendment by paragraph (a) of this clause is a drafting measure consequential upon the substitution of the Administrative Appeals Tribunal as the body to review taxation decisions, and will not alter the underlying operational effect of sub-section 41(1). The repeal of sub-section 41(2) by paragraph (b) is comparable to the proposed repeal of section 202 of the Income Tax Assessment Act 1936 - see notes on clause 91.
Clause 119: Release of employers in cases of hardship
This amendment will have substantially the same effect as proposed amendments of section 265 of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 98.
PART XIV - AMENDMENTS OF THE PAY-ROLL TAX (TERRITORIES) ASSESSMENT ACT 1971
This clause facilitates references to the Pay-roll Tax (Territories) Assessment Act 1971 which, in this Part is referred to as "the Principal Act".
Sub-section 4(1) of the Principal Act contains a number of definitions to assist in the interpretation of the Act. Paragraph (a) of clause 121 will amend sub-section 4(1) to omit the definition of "Board of Review". Paragraph (b) proposes to insert in sub-section 4(1) the definition of "Tribunal" which, for the purposes of the Act, means the Administrative Appeals Tribunal. This definition is a drafting device to facilitate subsequent references in the Principal Act to the Administrative Appeals Tribunal.
Clause 122 proposes an amendment of section 8 of the Principal Act which prohibits, subject to certain exceptions, disclosure of information concerning the affairs of persons acquired in the course of official duties. By paragraph 8(4)(a) of the Act, an officer is permitted to disclose information to a Taxation Board of Review. The amendment proposed by this clause will omit the reference to Board of Review consequent upon the Boards' abolition. Instead, disclosure will be permitted to the Administrative Appeals Tribunal in connection with proceedings under an Act of which the Commissioner of Taxation has the general administration. This amendment is in line with that proposed to the secrecy provisions contained in the Income Tax Assessment Act 1936 - see notes on clause 71.
Clause 123: Where no administration of estate of decreased employer
Section 34 of the Principal Act extends the same powers of recovery and assessment of tax from the personal representatives of a deceased employer as the Commissioner would have against that employer if still living. The section also provides rights of objection against an assessment.
Paragraph (a) of clause 123 amends section 34 of the Principal Act to provide that an objection must be lodged with the commissioner and not merely posted within the 60 day time limit. Similar amendments are being made to the objection provisions in part VI of this Act and in other taxation laws. The amendment proposed by paragraph (b) of this clause to sub-section 34(3) is a drafting change so that the provisions of the Act relating to objections and appeals are referred to in sub-section (3) by their correct description.
The amendment proposed by paragraph (c) will bring sub-section (7) into line with sub-section (3) and make clear that the provisions of the Act relating to objections, reviews and appeals apply to objections lodged under sub-section (7).
Clause 124: Repeal of sections 37A and 38
The repeal of sections 37A and 38 of the Principal Act by clause 124 are consequential upon the transfer of the jurisdiction of the Taxation Boards of Review to the Administrative Appeals Tribunal.
Section 37A contains a definition of Supreme Court. As appeals from a decision of the Tribunal will be to the Federal Court, the Supreme Court will no longer have any jurisdiction in proceedings under Part VI of the Act. Accordingly, section 37A is to be repealed.
Section 38 of the Act, which deals with the powers of a Board of Review, will be repealed as a consequence of the abolition of the Boards.
Sub-section 39(1) of the Principal Act provides that an employer may object against an assessment, determination or certain decisions of the Commissioner which affect the employer's liability to pay tax under the Act. The objection, which must be in writing, must be posted to or lodged with the Commission within 60 days after service of the notice of the decision, assessment or determination. By paragraph (a) of clause 125 existing sub-section 39(1) will be omitted and new sub-sections 39(1) and (1A) substituted.
New sub-section 39(1) is designed to make it clear that an objection under section 39 of the Principal Act must be lodged with the Commissioner and not merely posted within the 60 day time limit. Similar amendments are being made to the objection provisions of the other taxation laws - see, for example, the explanation in respect of the proposed amendment of section 185 of the Income Tax Assessment Act 1936 to be made by paragraph (a) of clause 79.
New sub-section 39(1A) will have substantially the same effect as proposed sub-section 185(3) of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 79.
Paragraph (b) of clause 125 will omit existing sub-section 39(4) so that section 39 will deal solely with objections. New provisions relating to reviews and appeals will be inserted by clause 126.
Clause 126 will repeal sections 40 and 40A of the Principal Act which contain provisions relating to reviews by a Taxation Board of Review and appeals from a decision of a Board to a Supreme Court. New sections 40, 40A, 40B, 40C, 40D, 40E, 40F and 40G are to be inserted in the Principal Act by this clause in substitution for the repealed sections.
Section 40 : Request for reference
Section 40A : Applications for extension of time
Section 40B : Consideration of applications for extension of time for lodging objections
Section 40C : Consideration of applications for extension of time for lodging requests for reference
Section 40D : Reference to Tribunal
New sections 40 to 40E will have substantially the same effect as proposed sections 187 to 189A of the Income Tax Assessment Act 1936. An explanation of the Income Tax provisions is given in the notes on clause 80.
Section 40F : Procedure on review
Paragraph (a) of section 40 re-enacts the general rule contained in present sub-section 40(2) that an employer requesting a review of a decision on an objection is limited to the grounds stated in the objection. New paragraph 40F(a) will also provide the tribunal with a discretion to allow an employer to amend the grounds of objection. This amendment is in line with that proposed by clause 81 to section 190 of the Income Tax Assessment Act 1936 - see notes on that clause.
New paragraph 40F(b) ensures, in line with similar provisions in the other taxation laws, that, in a review before the Tribunal, the onus of proving that the decision, determination or assessment to which the review relates is incorrect lies on the employer who requested the review.
Section 40G : Implementation of decisions
New sub-section 40G(1) of the Principal Act is comparable to proposed sub-section 200B(1) of the Income Tax Assessment Act 1936 - see notes on clause 89.
New sub-section 40G(2) will have substantially the same effect as similar provisions in other taxation laws - see notes on clause 10.
Clause 127: Pending review or appeal not to affect assessment, etc.
Sub-section 41(1) of the Principal Act stipulates that liability to pay tax is not suspended pending the outcome of any review of any lability or assessment. The amendment by paragraph (a) of this clause is a drafting measure consequential upon the substitution of the Administrative Appeals Tribunal as the body to review taxation decisions and will not alter the underlying operational effect of sub-section 41(1).
The repeal of sub-sections 41(2) and (3) by paragraph (b) is comparable to the proposed repeal of section 202 of the Income Tax Assessment Act 1936 - see notes on clause 91.
Clause 128: Repeal of section 41A
Section 41A of the Principal Act, which deals with the practice and procedure of Supreme Courts, is being repealed by this clause. The Supreme Court will not longer have jurisdiction in relation to proceedings under Part VI of the Act, as the right of appeal from a decision of the Tribunal will lie to the Federal Court.
Clause 129: Release of employers in cases of hardship
This amendment will have substantially the same effect as proposed amendments of section 265 of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 98.
This clause will omit paragraph 70(1)(a) which has become redundant because of the repeal of section 41A.
PART XV - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 1) 1930
This clause facilitates references to the Sales Tax Assessment Act (No. 1) 1930 which, in this Part, is referred to as the Principal Act.
Section 3 of the Principal Act is a provision which defines particular interpretative words and expressions used in the Principal Act and contains a number of other measures to assist in its interpretation.
Clause 132 proposes the insertion of definitions of "assessment" and "Tribunal" and the omission of the definition of "Board of Review". "Assessment" will be defined to mean the ascertainment of the sale value of goods and the amount of tax payable on that sale value or the ascertainment of penalty tax under Part VIII of the Principal Act. This definition is along the lines of the definition of "assessment" in the Income Tax Assessment Act 1936.
By defining assessment to mean both the ascertainment of the sale value of goods and the tax payable on the goods, the right to object against an assessment (see notes on proposed section 40 to be inserted by clause 139) will entitle a taxpayer to object against the classification of particular goods under the Sales Tax (Exemption and Classifications) Act 1935.
"Tribunal", for the purposes of the Principal act, is to mean the Administrative Appeals Tribunal. The omission of the definition of "Board of Review" and the insertion of a definition of "Tribunal", which will be widely used in Part VII, are consequential to amendments of Part VII that will, inter alia transfer the jurisdiction for reviewing the Commissioner's decisions on objections from the Taxation Boards of Review to the Tribunal.
Clause 133: Officers to observe secrecy
Clause 133 proposes an amendment of section 10 (the secrecy provisions) of the Principal Act, under which the disclosure of information acquired in the performance of official duties is prohibited except in certain specified circumstances.
Sub-section 10(4) provides that the secrecy provisions do not prohibit the disclosure of information to a Board of Review or the Comptroller-General of Customs. The amendments proposed by this clause will omit existing sub-section 10(4) and insert a new sub- section 10(4) so as to authorise the disclosure of taxation information to the Administrative Appeals Tribunal in connection with taxation review proceedings under an Act of which the Commissioner of Taxation has the general administration (paragraph (4)(a)). The new sub- section will also continue to allow disclosure of information to the Comptroller-General of Customs (paragraph (4)(b)).
The existing proviso to sub-section 10(4) imposes the same obligation regarding secrecy upon members of a Board of Review as are imposed upon an officer. The definition of officer now contained in sub-sections 10(6) and (7), inserted by the Taxation Laws Amendment Act (No. 2) 1985, covers members of both the Boards of Review and the Tribunal, making them persons constrained by the general secrecy prohibition of sub-section 10(3) and making it unnecessary to include any specific secrecy requirement for such persons. Clause 133 therefore omits the proviso to sub-section 10(4).
Clause 134 provides for a number of amendments of section 25 of the Principal Act, which are essentially of a drafting nature, consequential upon the insertion in section 3 of the Principal Act of the definition of "assessment". Refer to notes on clause 132.
Section 25 of the Principal Act presently enables the assessment of the sale value of goods where tax is outstanding, or a person has defaulted in furnishing a return or has not furnished an accurate return. The section also provides for the calculation of tax where a sale value has been altered under certain provisions of the Principal Act. Notice of the assessment or alternation of sale value is required to be given to the person concerned.
Sub-sections 25(1), (2), (2A), (3) and (4) are to be omitted by paragraph (a), and new sub-sections 25(1), (2), (2A) and (3) are to be inserted. The new sub-sections will largely restate those parts of the existing sub-sections that specify the circumstances in which the Commissioner may assess a sale value or calculate tax. As a consequence of the insertion of the definition of "assessment" in section 3, references to assessing the sale value of goods or to the calculation of an amount of tax have been replaced by references to the making of "assessments". These amendments will leave unaffected the existing power of the Commissioner to determine the sale value of goods or to calculate the amount of tax payable on that sale value.
Paragraph (b) will make a consequential amendment of sub- section 25(5) by omitting a reference to the calculation of tax in the expression "assessment and calculation". The reference to calculation is unnecessary following the wider meaning of "assessment" which will now include the ascertainment of the amount of tax payable (see notes on clause 132).
Clause 135: Special and amended assessments
Clause 135 proposes the insertion of two new sections - sections 25AA and 25AB - in the Principal Act.
Section 25AA : Special assessments
Under existing law, a taxpayer has objection and appeal rights only against the sale value (i.e., the taxable value) of goods. Where a taxpayer is in disagreement with the Commissioner over the rate of tax payable on goods, the only recourse available to resolve the dispute is for the taxpayer to refuse to pay the tax and either defend a recovery action or institute proceedings for declaratory relief.
Under amendments proposed by this Bill, a taxpayer will be able to object against an assessment, which is to be defined in section 3 as including not only the ascertainment of the sale value of goods but also the tax payable on that sale value (see notes on clause 132). Accordingly, where there is a dispute over the rate of tax payable on goods, a taxpayer will be able to object against an assessment made in relation to the particular goods.
Proposed section 25AA is being inserted in the Principal Act to enable a taxpayer to request the Commissioner to make an assessment in respect of specified dealing in goods - sub-sections (1) - thereby paving the way for the taxpayer to dispute the liability for tax in respect of those goods by lodging an objection against the assessment. As indicated earlier, the taxpayer may object not only against the sale value of the goods, but also against the amount of tax payable on the goods.
New sub-section 25AA(2) requires that a request for an assessment under sub-section (1) must be in writing and lodged with the Commissioner within 21 days after the end of the month in which the particular dealing in goods took place. Sub-section 25AA(2) also allows the Commissioner to extend the period for lodgment of the request where the circumstances justify such an extension.
By sub-section 25AA(3) the Commissioner will be required to comply with a request to make an assessment and, in accordance with sub-section 25AA(4), to serve notice of the assessment on the taxpayer concerned.
Section 25AB : Amended assessments
Proposed section 25AB is a complementary amendment to the insertion in section 3 of the Principal Act, by clause 132, of a definition of "assessment". The new section will provide for an amended assessment to be, except as otherwise provided, an assessment for all the purposes of the Principal Act. This provision is in line with section 173 of the Income Tax Assessment Act 1936. An effect of this section will be to permit a taxpayer, subject to proposed sub-section 40(8), to object against an amended assessment.
Clause 136: Provision for payment of tax by executors, etc.
Section 35 of the Principal Act extends to the Commissioner the same powers of recovery and assessment of tax from the personal representatives of a deceased person as the Commissioner would have against that person if he or she were still living. The section also provides certain rights of objection against an assessment made in relation to the estate of a deceased taxpayer.
Sub-sections 35(6) and (10) provide a right for any person :
- •
- claiming an interest in the estate of the deceased taxpayer (sub-section 35(6));
- •
- to whom probate of the will of the deceased is granted (sub- section 35(10)); or
- •
- by whom letters of administration of the estate are taken out (sub-section 35(10)),
to object against such an assessment within 42 days after :
- •
- the first publication of the notice of assessment (sub-section 35(6));
- •
- the date on which probate was granted (sub-section 35(10)); or
- •
- the date on which letters of administration were taken out (sub-section 35(10)).
The amendments proposed by paragraphs (a) to (d), (g) and (h) of this clause are consequential on amendments of Part VII of the Principal Act. The amendments of that Part will, inter alia, give taxpayers the right to object against assessments (of sale value and tax); require an objection to be lodged with the Commissioner within 60 days after the date of service of notice of an assessment and provide for review of the decision on an objection by the Administrative Appeals Tribunal or a Supreme Court. To bring the objection rights provided for in sub-sections 35(6) and (10) into line with the proposed objection rights under Part VII, paragraph (a) of clause 136 will omit sub-sections 35(3) and (4) and substitute a new sub-section (3) which will largely restate the sub-sections being omitted, but will provide that the Commissioner may make an assessment in relation to a deceased taxpayer. Paragraphs (b) and (g) will amend sub-sections 35(6) and (10) to extend the time limit within which an objection must be lodged from 42 days to 60 days, and paragraph (c) will also amend sub-section (6) to ensure that an objection should be lodged with the Commissioner and not merely posted within the specified time limit.
The amendments proposed by paragraphs (d) and (h) are drafting changes so that the provisions of the Act relating to objections and appeals are referred to in sub-section (6) and (10) by their correct description of "provisions ... relating to objections, reviews and appeals".
Sub-section 35(7) of the Principal Act provides for an assessment to be conclusive evidence of the indebtedness of the deceased to the Commissioner. The amendments proposed by paragraphs (e) and (f) to omit, respectively, sub-section (7) and the reference in sub-section (10) to that sub-section, are consequential upon the insertion, by clauses 145 and 188, of new evidentiary provisions (section 67 of the Principal Act and section 10 of the Sales Tax Procedure Act 1934) which will make existing sub- section 35(7) redundant (see notes on those clauses).
Clause 137: Repeal of section 39
Section 39 of the Principal Act is a provision which specifies the evidentiary value of a document or a copy of a document issued under the hand of the Commissioner, a Second Commissioner or a Deputy Commissioner that purports to be a notice, or a copy of a notice, specifying the liability of a taxpayer under the Principal Act. The section provides that the production of such a document is:
- •
- conclusive evidence of the exercise of any act required to be done for the purpose of ascertaining the liability; and
- •
- conclusive evidence, except in proceedings on appeal (where the document shall be prime facie evidence only), of the correctness of any calculations upon which the liability is ascertained.
The repeal of section 39 is consequential on the insertion, by clause 145, of new section 67, a more comprehensive evidentiary provision, which will make existing section 39 redundant (see notes on clause 145).
The present section 39A of the Principal Act is an interpretative provision providing a meaning for the term "Supreme Court" when used in Part VII - Objections, Appeals and Reviews. Clause 138 will repeal section 39A and insert a new section 39A which will define certain terms to facilitate references to those terms in Part VII.
- "objector"
- when used in relation to an assessment, refund decision or reviewable decision, will mean a person who has lodged an objection to that assessment or decision or, because of the granting under proposed section 42A of an extension of time within which an objection may be lodged, a person who is taken to have duly lodged such an objection. The term is used throughout the provisions of Part VII dealing with requests for reference or appeal.
- "refund decision"
- will mean a decision made on an application for a refund of tax, or a payment of an amount equal to an amount of tax, under section 26 - the general refund provision - of the Principal Act, or under the sales Tax Regulations. The reference to section 26 in the definition will, by reason of proposed amendments of section 12 of Sales Tax Assessment Acts (Nos. 2-9) 1930 and Sales Tax Assessment Act (No.10) 1985 and section 16 of Sales Tax Assessment Act (No.11) 1985, be read as section 11 when applying Part VII to Sales Tax Assessment Acts (Nos.2-4 and 6-10), sections 11 and 11B when applying Part VII to Sales Tax Assessment Act (No.5) 1930 and section 15 when applying Part VII to Sales Tax Assessment Act (No.11) 1985. The term is used in Part VII to describe a kind of decision against which an objection may be lodged.
- "reviewable decision"
- will describe certain decisions of
the Commissioner, other than assessments and refund decisions, against
which a person may object. These are decisions :
- •
- to refuse to register a person (sub-section 11(3B));
- •
- to require a registered person, or a person required to be registered, to give security (sub-sections 11(8a) and (11));
- •
- to prohibit a registered person from quoting a certificate (sub- section 15A(1));
- •
- to refuse to issue a fresh certificate to a person who has been prohibited from quoting a certificate (sub-section 15A(5)); and
- •
- to revoke a registered person's registration under sub-section 16(3).
- This term is is also used in Part VII to describe a kind of decision against which an objection may be lodged.
- "Supreme Court"
- will be defined to mean :
- •
- a Supreme Court of a State;
- •
- the Supreme Court of the Australian Capital Territory; or
- •
- the Supreme Court of the Northern Territory.
- This definition re-enacts the existing definition in section 39A.
Clause 139: Objections, reviews and appeals
This clause will repeal sections 40, 41 and 42 of the Principal Act which deal with objections and requests for reference to a Taxation Board of Review. Several new sections are to be inserted in the Principal Act by this clause in substitution for the repealed sections. These sections will extend a person's right to object to assessments and certain decisions of the Commissioner of Taxation and will also provide for a right of review by the Administrative Appeals Tribunal or an appeal to a specified Supreme Court against a decision of the Commissioner on an objection.
Section 40 : Objections against assessments, etc.
Existing section 41 of the Principal Act provides a taxpayer with objection rights against, broadly, the sale value of goods, or decisions relating to the nature of a transaction that gives rise to a sales tax liability, e.g., that goods were not manufactured. An objection is required to be posted to or lodged with the Commissioner within 42 days after due date for payment of the tax payable on the relevant sale value.
New section 40 will extend the rights of persons under the sales tax law to object to an assessment (a defined term) and to certain decisions of the commissioner.
In addition to extending objection rights, new section 40 is comparable to the amendments proposed by paragraph (a) of clause 79 and, similarly, will require that an objection must be lodged with the Commissioner and not merely posted within the specified time limit which is to be extended from 42 days to 60 days.
Under proposed sub-section 40(1) a taxpayer who is dissatisfied with an assessment may, within 60 days after service of notice of the assessment, lodge with the Commissioner an objection against the assessment. An "assessment", which is to be defined in section 3 of the Principal Act (see notes on clause 132), will enable a taxpayer to object against not only the sale value of goods, but also the tax payable on those goods. As explained earlier, this will extend objection rights to decisions that involve the classification of goods under the various schedules to the Sales Tax (Exemptions and Classifications) Act 1935. An objection may also be lodged against an assessment of penalty tax payable under Part VIII of the Principal Act. This will bring the objection rights of a taxpayer into line with the rights of a taxpayer under the income tax law.
New sub-section 40(2) will allow an applicant for a refund decision (refer to notes on clause 138 concerning the definition of "refund decision"), who is dissatisfied with the Commissioner's decisions on the application, to lodge an objection in writing with the Commissioner within 60 days after service on the applicant of notice of the decision.
Sub-section 40(3) will impose limits on the type of refund decision to which a person may object. To prevent applicants obtaining fresh objection rights by applying for the "same" refund after the statutory time limit for objections against rejection of an application has elapsed, proposed sub-section 40(3) will limit the type of refund decisions against which an applicant may object to those lodged within 60 days after the last transaction, act or operation that the applicant claims gives rise to the entitlement to the refund or payment. The payment of tax by a person will not constitute a transaction, act or operation to which the sub-section applies because this would duplicate rights of objection provided against assessments.
New sub-section 40(4) will give rights to object against reviewable decisions (see notes on clause 138 concerning the definition of "reviewable decision"). At present, sub-section 44B(2) of the Principal Act permits a person affected by a reviewable decision to lodge with the Commissioner an objection against that decision within 42 days after notice of the decision is served on the person. In order that such objections may be incorporated within the general objection and appeal provisions, existing section 44B is to be repealed by clause 143 - see notes on that clause. The proposed sub-section 40(4) will enable a person affected by a reviewable decision, who is dissatisified with the decision, to lodge an objection with the Commissioner within 60 days after service on the person of notice of the decision.
Proposed sub-section 40(5) will retain the present requirement that an objection against an assessment, refund decision or reviewable decision state fully and in detail the grounds on which the objection is made.
New sub-section 40(6) will require the Commissioner to consider each objection and to either disallow it, or allow it either wholly or in part, and under new sub-section 40(7) the Commissioner will be required to serve notice in writing of his decision on the objector.
Where the Commissioner amends a taxpayer's assessment, proposed sub-section 40(8) will limit the taxpayer's further right of objection against the amended assessment. This amendment is similar to that proposed by clause 79 in relation to section 185 of the Income Tax Assessment Act 1936 (see notes on that clause).
New sub-section 40(9) will provide that, where notice of more than one assessment made under the same Act in respect of tax or additional penalty tax payable by a taxpayer is incorporated on a single notice of assessment, there is deemed to be only one assessment for the purposes of objections, reviews and appeals under Part VII of the Principal Act. Notice of more than one assessment may be incorporated on a single notice where, for example, assessments are made under proposed section 25AA in relation to several particular transactions in goods. Each transaction (e.g., each sale) technically would give rise to a separate assessment. Also, an assessment of additional tax under sub- section 47(1) may be,in accordance with sub-section 47(2), incorporated in the notice of assessment of primary tax payable. In respect of the latter example, proposed sub-section 40(9) is comparable to proposed sub-section 185(3) of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 79.
Section 41 : Request for reference
Existing sub-section 41(4) of the Principal Act provides for a taxpayer who is dissatisfied with the Commissioner's decision on an objection to request the Commissioner to refer the decision to a Taxation Board of Review for review. At present there is no direct right of appeal to a Supreme Court under the sales tax law. As mentioned earlier, this Bill will give, at the option of the taxpayer, the right of a review of the decision on an objection by either the Administrative Appeals Tribunal or a specified Supreme Court.
Where an objector is dissatisfied with the decision on an objection, proposed section 41 will provide for the objector to request the Commissioner either to refer the decision to the Tribunal or to a specified Supreme Court. The request must be in writing and be lodged with the Commissioner within 60 days after service on the objector of notice of the decision. The section will be comparable to proposed section 187 of the Income Tax Assessment Act 1936 - see notes on clause 80.
Section 42 : Applications for extension of time
Section 42A : Consideration of applications for extension of time for lodging objections
Section 42B : Consideration of applications for extension of time for lodging requests for reference
Section 42C : Reference to Tribunal or court
New sections 42 to 42D will have substantially the same effect as similar changes proposed to the Income Tax Assessment Act 1936. An explanation of these may be found in the notes on clause 80.
Section 42E : Procedure on review or appeal
Proposed section 42E will have a twofold effect on reviews before the Tribunal or appeals to a Supreme Court. Paragraph 42E(a) will provide that a person requesting a review of the Commissioner's decision on an objection is limited to the grounds stated in the objection unless the Tribunal or Supreme Court, in its discretion, allows the person to amend the grounds of objection. This provision is similar to amendments proposed by clause 81 to section 190 of the Income Tax Assessment Act 1936 - see notes on that clause.
Paragraph 42E(b) provides that, on a review or appeal, the onus of proving that the assessment or decision to which the review or appeal relates is incorrect, lies on the person who sought the review or appealed. This provision is comparable to paragraph 190(b) of the Income Tax Assessment Act 1936 and similar provisions in other taxation laws.
Section 42F : Powers of Tribunal in relation to remission decisions
Under sub-section 25(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal has the power to review any decision which has been referred to it under an enactment. The powers of the Tribunal in reviewing such a decision are specified in section 43 of that Act. Broadly, the Tribunal has all the powers and discretions of the decision-maker and it may confirm, vary or set aside the decision. New section 42F will restrict the Tribunal's power to review decisions of the Commissioner of Taxation concerning remission of additional tax imposed under sub- section 45(1) (failure to furnish a return), sub-section 45(2) (false or misleading statements) or section 46 (tax avoidance). The Tribunal will only have the power to review additional tax if the additional tax exceeds the greater of $20 or 20% per annum of the relevant primary tax. In the case of additional tax payable under sub-section 45(1) for the failure to furnish a return or information, the 20% per annum review limit will, under paragraph 42F(a), be calculated for the period commencing on the last day allowed for the furnishing of the return or information and ending on the earlier of the day that the return or information is furnished or the day the additional tax is assessed.
Where the additional tax is payable under, sub-section 45(2) in respect of the making of a false or misleading statement, the 20% per annum review limit will, under paragraph 42F(b), be calculated for the period commencing when the amount of tax avoided as a result of the false or misleading statement was first due and payable under section 24 of the Principal Act and ending on the day the additional tax is assessed.
Additional tax can also be imposed in respect of an alteration of sale value of goods under sub-section 25(2) of the Principal Act. In such circumstances, the 20% per annum review limit will, under paragraph 42F(c), be calculated in a similar manner to additional tax imposed under sub-section 45(2).
By proposed paragraph 42F(d), the Tribunal will not be empowered to review a decision of the Commissioner relating to the remission of additional tax unless the additional tax is at least $20. This is because, under sub-section 45(3) of the Principal Act, the minimum amount of additional tax that is imposed is $20.
Section 42G : Proceedings on appeal to Court
As explained earlier in the notes on this clause, proposed section 41 of the Principal Act will allow a person to seek a review of the Commissioner's decision on an objection, either by the Tribunal or a supreme Court of a State of Territory. Where a person requests that the decision be referred to a Supreme Court, the referral of such a request will constitute an appeal by the person to the Court against the Commissioner's decision on the objection (proposed sub-section 42G(3)).
New section 42G deals with the manner in which a Supreme Court will hear an appeal against a decision on an objection.
Sub-section 42G(1) will allow a Supreme Court to state a case for the opinion of the Federal Court on a question of law arising on the appeal. By sub-section 42G(2), a Full Court of the Federal Court will be required to determine the question of law before remitting the case with its opinion to the Supreme Court.
Sub-section 42G(3) is comparable to proposed sub-section 199(1) of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 88.
Sub-sections 42G(4) and (5) deal with the rights of appeal from an order made by a Supreme Court under sub-section (3). By sub- section (4), an appeal from the Supreme Court will exist, as of right to the Federal Court or, by special leave to the High Court. Sub- section (5) provides that an appeal does not lie from a decision of the Federal Court unless special leave is granted by the High Court and mirrors sub-section 33(3) of the Federal Court of Australia Act 1976.
The section mirrors existing section 198, proposed section 199 and existing sections 200 and 200A of the Income Tax Assessment Act 1936.
Section 42H : Implementation of decision
New section 42H will require the Commissioner to give effect to a decision of the Tribunal or a court within 60 days of the decision becoming final. This section is similar to proposed section 200B of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 89.
Clause 140: Pending review or appeal not to delay payment of tax
Existing section 43 of the Principal Act provides that :
- •
- the requirement to pay sales tax on the sale value of goods is not suspended pending the outcome of a reference or appeal against the amount of that sale value (sub-section (1));
- •
- where an amount of sales tax payable is reduced as a result of a reference or appeal, additional tax for late payment under section 29 is to be recalculated as though the amount by which the tax reduced was never payable (sub-section (2)); and
- •
- where the amount of tax payable is increased as a result of a reference or appeal, the commissioner is able to recover the tax (sub-section (3)).
Clause 140 will omit existing sub-sections 43(1), (2) and (3) and substitute a new sub-section (1). The effect of new sub-section 43(1) is that sales tax will remain payable by a person, notwithstanding a pending review or appeal in relation to an assessment or refund decision.
Where tax payable is reduced as a result of a decision on a review or appeal existing section 25A of the Principal Act authorises the recalculation of additional tax for late payment. It is no longer necessary to provide for the recovery of any increase in tax because the Tribunal or a court will not be able to directly order an increased assessment - see notes on clause 91.
Clause 141: Repeal of section 44
Existing section 44 of the Principal Act provides that, where the sale value of goods is either increased or decreased as the result of the consideration of an objection or as a result of a decision by a Taxation Board of Review or a court, sales tax is payable on the adjusted sale value.
Proposed section 42H (being inserted by clause 139) will require the Commissioner, where appropriate, to amend an assessment to give effect to a decision of the Tribunal or a court. If the amended assessment results in tax having been overpaid, the Commissioner is already authorised by, and subject to, section 26 to refund or credit the overpaid amount. Moreover, as already explained in the notes on clause 140, the Tribunal or a court cannot directly order a sales tax liability to be increased. Accordingly, section 44 is superfluous and is to be repealed by clause 141.
Clause 142: Practice and procedures of Supreme Courts
Section 44A of the Principal Act provides that, until regulations are in place, the High Court Rules in force under the Judiciary Act 1903 immediately before 15 May 1979 (the date of commencement of section 44A) apply to proceedings before a Supreme Court on an appeal or a on reference of a question of law from a Taxation Board of Review. As a consequence of the transfer of jurisdiction from the Boards of Review to the Administrative Appeals Tribunal (with appeal rights to the Federal Court) and the introduction of a right of an appeal to a specified Supreme Court, clause 142 will amend section 44A so that the section will only apply to appeals to a Supreme Court from a decision on an objection.
Clause 143: Repeal of section 44B
Section 44B of the Principal Act presently provides for a person affected by a reviewable decision to object to that decision. A person dissatisfied with the outcome of such an objection may make an application direct to the Tribunal for review of the reviewable decision. The decisions to which section 44B applies are decisions :
- •
- to refuse to register a person (sub-section 11(3B));
- •
- to require a registered person, or a person required to be registered, to give security (sub-sections 11(8A) and (11));
- •
- to prohibit a registered person from quoting a certificate (sub- section 15A(1));
- •
- to refuse to issue a fresh certificate to a person who has been prohibited from quoting a certificate (sub-section 15A(5)); and
- •
- to revoke a registered person's registration (sub-section 16(3)).
Clause 143 proposes the repeal of section 44B and is consequential upon the insertion by clause 139 of new sections 40 to 42H. As indicated in the notes on clause 139 relating to proposed sub-section 40(4), objections against reviewable decisions will be incorporated within the general objection and appeal provisions. The effect of this change will be to allow a person dissatisfied with a decision on an objection against a reviewable decision to have the objection decision reviewed by either the Tribunal or a Supreme Court.
Clause 144: Penalty tax where certain anti-avoidance provisions apply
Section 46 of the Principal Act imposes on participants in tax avoidance schemes additional tax equal to double the amount of further tax payable as a result of any alteration of the sale value of any goods. The section applies where, under sub-section 25(2) of the Act, the Commissioner has calculated the further tax that is payable in consequence of an alteration to the sale value of goods pursuant to sub-sections 18(4), 18A(5) or 18A(6) of the Act.
The amendment of section 46 by clause 144 is consequential upon the substitution by clause 134 of new sub-section 25(2) for existing sub-section 25(2). Under new sub-section 25(2), the Commissioner will make an assessment (a defined term) where the sale value of goods has been altered. By paragraph (a) of clause 144, section 46 of the Act will apply where the Commissioner has made an assessment under sub-section 25(2). The amendment proposed by paragraph (b) of clause 144 is essentially a drafting measure and is consequential upon the omission of the term "further tax" in substituted sub-section 25(2).
Clause 145: Judicial notice and evidence
By this clause it is proposed to insert two new evidentiary sections in the Principal Act.
Section 66 will provide for all persons acting a judicial or quasi-judical capacity to accept the signature of the Commissioner, a Second Commissioner or a Deputy Commissioner on an official document as in fact being the signature of that person. It will not be necessary for any party to prove that the signature appearing on the document is actually the signature of the Commissioner, etc. The section is comparable to section 176 of the Income Tax Assessment Act 1936.
Section 67 is intended to give evidentiary value to certain documents and copies of documents produced in connection with proceedings before the Tribunal or a court.
Sub-section 67(1) will make the mere production of the original or a copy of a notice of an assessment or a refund decision signed by the Commissioner, a Second Commissioner or a Deputy Commissioner conclusive evidence of the making of the assessment or decision and, except on objection, review or appeal under Part VII of the Principal Act, conclusive evidence that the assessment or decision is correct. This will ensure that all disputes concerning assessments or refund decisions are chanelled through the Tribunal or a Supreme court and are not used as a defence to a recovery action.
There are several provisions of the sales tax law that require documents to be served on a person. Proposed sub-section 67(2) will provide for the mere production of a copy of the document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner, to be prima facie evidence that the document was served. It will not, however, be evidence as to the time of serving of the document.
Where a copy of, or an extract from, a return, a notice of assessment or of a notice of the making of a refund decision, signed by the Commissioner, a Second Commissioner or a Deputy Commissioner is produced in any proceedings before the Tribunal or a court, the copy will, by reason of proposed sub-section 67(3), have the same evidentiary value as if the original were produced.
In any proceedings the mere production of a certificate certifying that an amount of tax is due and payable by a person will, by reason of proposed sub-section 67(4), be prima facie evidence that the amount is due and payable by that person.
Where a provision in the sales tax law provides for the publication of a notice in a Gazette, the mere production of a Gazette containing such a notice will be, by virtue of sub-section 67(5), prima facie evidence that the notice was issued.
Proposed sub-section 67(6) is an interpretative provision providing a defined meaning for "refund decision". The expression will, when used in section 67, have the same meaning as the term has in proposed section 39A, an explanation of which is given in the notes on clause 138.
Section 73 of the Principal Act provides the general regulation making powers and power to make regulations for specific purposes. Paragraph 73(ab) provides the power to make regulations for, or in relation to, the practice and procedure of a Supreme Court in proceedings to which section 44A applies. The amendment proposed by clause 146 is consequential upon amendments proposed by clause 142 which will amend section 44A to substitute references to "proceedings to which this section applies" with references to proceedings under Part VII. The amendment by clause 146 is a drafting measure to clarify that the regulation making power applies to proceedings to which Part VII applies.
PART XVI - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 2) 1930
PART XVII - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 3) 1930
PART XVIII - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 4) 1930
PART XIX - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 5) 1930
PART XX - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 6) 1930
PART XXI - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 7) 1930
PART XXII - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 8) 1930
PART XXIII - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 9) 1930
PART XXIV - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 10) 1985
PART XXV - AMENDMENTS OF THE SALES TAX ASSESSMENT ACT (NO. 11) 1985
As the amendments proposed in each of Parts XVI-XXV of the Bill are expressed in similar terms and are intended to achieve the same end, the corresponding clauses of each Part are dealt with collectively in the following notes.
Clauses 147, 151, 155, 159, 163, 167, 171, 175, 179 and 183 : Principal Act
These clauses facilitate reference to the relevant Sales Tax Assessment Act which, in each Part, is referred to as "the Principal Act".
Clauses 148, 152, 156, 160, 164, 168, 172, 176, 180 and 184 : Further tax
The amendments of section 10 of each Act (section 14 of the Sales Tax Assessment Act (No. 11) 1985 will have the same effect as amendments of section 25 of the Sales Tax Assessment Act (No. 1) 1930 as explained in the notes on clause 134.
Clauses 149, 153, 157, 161, 165, 169, 173, 177, 181 and 185 : Special and amended assessments
The insertion of new section 10A in Assessment Acts (Nos. 2 to 4 and 6 to 10), section 10AA in Assessment Act (No. 5) and section 14A in Assessment Act (No. 11) will have substantially the same effect as the insertion of proposed section 25AA in the Sales Tax Assessment Act (No. 1) 1930, an explanation of which is given in the notes on clause 135.
The insertion of new section 10B in Assessment Acts (Nos. 2 to 4 and 6 to 10), section 10AB in Assessment Act (No. 5) and section 14B in Assessment Act (No. 11) will have the same effect as new section 25AB in the Sales Tax Assessment Act (No. 1) 1930 - see notes on clause 135.
Clauses 150, 154, 158, 162, 166, 170, 174, 178, 182 and 186 : Application of provisions of Sales Tax Assessment Act (No. 1)
Section 12 of Assessment Acts (Nos. 2 to 10) and section 16 of Assessment Act (No. 11) applies by reference a number of provisions of the Sales Tax Assessment Act (No. 1) 1930, including sections 27 to 39 inclusive, that relate to the imposition, assessment and collection of the tax chargeable under the Principal Act.
The amendment proposed by paragraph (a) of each of these clauses, which substitutes "38" for "39", is consequential upon the repeal of section 39 of Assessment Act (No. 1) by clause 137.
Proposed section 39A of the Sales Tax Assessment Act (No. 1) 1930 (see notes on clause 138) will provide a definition of the term "refund decision" as used in part VII of that Act. The term will include a decision on an application for action to be taken under section 26. Section 26 is the general refund provision of Assessment Act (No. 1). The insertion of a new paragraph in section 12 of Assessment Acts (Nos. 2 to 10) and section 16 of Assessment Act (No. 11) by the amendment proposed by paragraph (b) or paragraphs (b) and (c) of these clauses is designed to ensure that the reference to section 26 in section 39A of Assessment Act (No. 1) correctly refers to :
- •
- in the case of Assessment Acts (Nos. 2, 3, 4, 6, 7 and 8) - section 11 of the relevant Principal act and to sub-section 26(3A) of Assessment Act (No. 1);
- •
- in the case of Assessment Act (No. 5) - sections 11 and 11B of the Principal Act;
- •
- in the case of Assessment Acts (Nos. 9 and 10) - section 11 of the Principal Act; and
- •
- in the case of Assessment act (No. 11) - section 15 of the Principal Act.
Each of those sections and sub-sections provides for refunds of tax in certain circumstances.
PART XXVI - AMENDMENTS OF THE SALES TAX PROCEDURE ACT 1934
By this clause the Sales Tax Procedure Act 1934 is to be referred to in this Part as "the Principal Act".
Clause 188 proposes the repeal of section 10 of the Principal Act and the substitution of a new section 10.
Existing section 10 provides that where, in proceedings for the recovery of tax, the Commissioner of Taxation produces a certificate stating that an amount of tax is payable by a person, the onus is placed on that person to prove that the amount of tax stated in the certificate is not properly payable. Section 10 also provides that the Commissioner is not required to prove under which of the Assessment Acts the amount of tax is payable.
New sub-section 10(1), which is comparable to sub-section 209(1) of the Income Tax Assessment Act 1936, allow the Commissioner or a Deputy Commissioner of Taxation to sue for the recovery of unpaid sales tax in his or her official name.
New sub-section 10(2) basically re-enancts that part of existing sub-section 10(1) which provides that, in proceedings for the recovery of sales tax, it is not necessary for the Commissioner to prove under which Assessment Act the sales tax became payable.
New sub-section 10(3) is complementary to amendments of Part VII of Sales Tax Assessment Act (No.1) 1930 proposed by clauses 138 and 139. These will, inter alia, broaden the objection rights of taxpayers and provide clearly defined avenues of review and appeal. In order to avoid duplication of appeal rights it is appropriate that, where there are clearly defined avenues of review and appeal, recovery proceedings are not also able to be used to contest decisions of the Commissioner. To ensure that this is so under the sales tax law - as it is under the income tax and other taxation laws - new sub- sections 10(3) and (4) provide evidentiary value for certain documents. Sub-section 10(3) will make the mere production of the original or a copy of a notice of an assessment or a notice of the making of a refund decision conclusive evidence in proceedings for the recovery of tax :
- •
- of the making of the assessment or the decision (sub-paragraph 10(3)(a)(iii));
- •
- that the amounts and all of the particulars of the assessment are correct (sub-paragraph 10(3)(a)(iv)); and
- •
- that the refund decision is correct (sub-paragraph 10(3)(a) (v)).
The mere production of a certificate specifying that an amount of tax is due and payable will, under paragraph 10(3)(b), be prima facie evidence that the amount is due and payable as at the date of the certificate. This will ensure that, consistent with the existing law, the onus will be on the taxpayer to prove that the amount concerned is not due and payable.
Under sub-section 10(4) the production of a copy of a document that the Commissioner claims was served will be prima facie evidence that the document was so served, but it will not evidence the time of service.
New sub-section 10(5) contains definitions to assist in the interpretation of section 10. "Assessment" and "Refund decision" will, in practical terms, have the same meanings as those terms have in sub-section (3)(1) of the Sales Tax Assessment act (No. 1) 1930 (see notes on clauses 132 and 138). Sub-section (5) also will make it clear that a reference to sales tax in section 10 also includes further tax and additional tax payable under an Assessment Act.
Section 12C of the Principal Act deals with the refund of overpaid tax. Clause 189 proposes to amend section 12C by inserting a new sub-section 12C(3) which will require the Commissioner to serve written notice of any decision not to wholly grant an application made under a Sales Tax Assessment Act for a refund of tax. The effect of this amendment will be to allow a person to lodge an objection against the decision under proposed sub-section 40(2) of the Sales Tax Assessment Act (No. 1) 1930, or that section as it is applied to the other Assessment Acts - see notes on clause 139.
PART XXVIII - AMENDMENTS OF THE TAXATION (INTEREST ON OVERPAYMENTS) ACT 1983
This clause facilitates references to the Taxation (Interest on Overpayments) Act 1983 which, for purposes of this Part, is referred to as "the Principal Act".
Sub-section 3(1) of the Principal Act contains a number of definitions to assist in the interpretation of the Act. The amendments of sub-section 3(1) by clause 200 are consequential upon the transfer of the jurisdiction of the Taxation Boards of Review to the Administrative Appeals Tribunal.
Paragraph (a) of clause 200 will amend sub-section 3(1) to omit the definition of "Board of Review". Paragraph (b) proposes to omit from the definition "decision to which this Act applies", paragraphs (b), (c) and (d) the first two of which refer to a decision of a Board of Review or a decision of a court in relation to an objection or a Board decision, and substitute new paragraphs (b) and (c). The substituted paragraphs refer to a decision of the Tribunal in proceedings under the various taxation laws or a decision of a court in relation to an objection or such a decision of the Tribunal. This will permit interest to be paid to a person where, as a result of the decision of the Tribunal or a court, an amount of tax is refunded. The amendment made by paragraph (b) of clause 200 will ensure that the Principal Act operates in relation to the Tribunal decisions in the same way as it presently operates in relation to Board of Review decisions.
Existing paragraph (d) of the definition permits interest to be paid to a person where, as a result of decision of the Commissioner or a court, an amount of penalty tax imposed under part VIII of the Sales Tax Assessment Act (No. 1) 1930 is refunded.
The omission of paragraph (d) by paragraph (b) of this clause is consequential upon amendments being made to the sales tax law which will allow a taxpayer to object against an assessment of additional tax under Part VIII and will ensure that all disputes concerning such assessments are determined under the objection and appeal provisions of the law and not litigated, for example, as a defence to a recovery action. As a consequence, interest will only be paid on refunds of overpaid penalty tax as a result of a decision on an objection or a decision of the Tribunal or a court in relation to an objection. Such decisions will be covered by paragraphs (a), (b) and (c) of the definition "decision to which this Act applies". Accordingly, paragraph (d) of the definition will become redundant and is, therefore, to be repealed.
The amendment proposed by paragraph (c) of clause 200 is also consequential upon the amendments of the sales tax law being made by this Bill. Paragraph (c) proposes to omit from the definition of "decision to which this Act applies" a decision made by the Commissioner or a court, in accordance with the Sales Tax (Exemptions and Classifications) Act 1935, relating to the rate of tax payable in respect of goods. As the amount of tax payable will form part of an assessment, as that term is defined (see notes on clause 132), and, as such, be subject to objection, review and appeal, any separate reference to a decision relating to the rate of tax payable will, for the same reasons as explained in the notes on paragraph (b) of this clause, become redundant. Accordingly, reference to such a decision is likewise to be omitted from the definition of "decision to which this Act applies".
Paragraph (d) substitutes a reference to sub-section 40(1) of the Sales Tax Assessment Act (No.1) 1930 for the reference to sub- section 41(1) of that Act in paragraph (h) of the definition of "objection". This amendment is consequential upon the repeal of sub-section 41(1) and its effective re-enactment in new sub- section 40(1) - see notes on clause 139.
Paragraph (e) of clause 200 proposes to insert in sub-section 3(1) a definition of "Tribunal" which, for the purposes of the Act, means the Administrative Appeals Tribunal.
PART XXIX - AMENDMENTS OF THE TAXATION (UNPAID COMPANY TAX) ASSESSMENT ACT 1982
This clause facilitates references to the Taxation (Unpaid Company Tax) Assessment Act 1982 which, in this Part, is referred to as "the Principal Act".
Sub-section 3(1) of the Principal Act contains definitions to assist in the interpretation of the Act.
"Object", as a verb, is defined as meaning the posting or lodging of an objection under section 185 of the Income Tax Assessment Act 1936 as that section applies for the purposes of the Principal Act. As mentioned in the notes on clause 79, section 185 is to be amended so that an objection must be lodged with the Commissioner and not merely posted within the specified time limit. As a consequence of that amendment, clause 202 will amend the definition of "object" to omit the reference to the posting of an objection.
Clause 203: Application of Assessment Act
By sub-section 4(1) of the Principal Act, the objection and appeal provisions of the Income Tax Assessment Act 1936 apply in respect of recoupment tax assessments. The existing income tax provisions confer on a taxpayer dissatisfied with an assessment, rights of objection, review by a Taxation Board of Review, appeal to a Supreme Court and, subject to appropriate leave being granted, further appeals to the Federal Court of Australia and the High Court. This system of court appeals also applies in relation to appeals by the Commissioner of Taxation. Sub-section 4(7) of the Principal Act modifies the application of the relevant income tax provisions so that this hierarchy of court appeals in relation to promoters recoupment tax assessments is replaced by one under which a right of appeal lies in the first instance to the Federal Court constituted by a single judge, and subject to leave being granted, further appeals lie to the Full Federal Court and to the High Court.
The amendments of sub-section 4(7) by clause 203 are consequential upon proposed changes by this Bill to the objection and appeal provisions of the income tax law (see notes on clause 80) and will maintain the existing hierarchy of direct court appeals in respect of promoter recoupment tax assessments.
PART XXX - AMENDMENTS OF THE WOOL TAX (ADMINISTRATION) ACT 1964
This clause facilitates reference to the Wool Tax (Administration) Act 1964 which, in this Part, is referred to as "the Principal Act".
Sub-section 4(1) of the principal Act contains a number of definitions to assist in the interpretation of the Act. As a consequence of the transfer of the jurisdiction of Taxation Boards of Review to the Administrative Appeals Tribunal, clause 205 will amend sub-section 4(1) to omit the definition of "Board of Review" and to insert a definition of "Tribunal" which, for purpose of the Act, means the Administrative Appeals Tribunal.
The amendment of the secrecy provision (section 8 of the Principal Act) by this clause is comparable to that being made to section 16 of the Income Tax Assessment Act 1936 by clause 71. The effect of the amendment is that officers will be permitted to disclose information to the Tribunal in connection with proceeding sunder the various taxation laws administered by the Commissioner of Taxation.
Clause 207: Where no administration of a deceased person's estate
Under section 51 of the Principal Act, the Commissioner may make an assessment of the amount of tax due by a deceased person, where probate has not been granted or letters of administration taken out within 6 months after the person's death. Sub-sections 51(3) and (7) provide for objection rights against an assessment.
Paragraphs (a) and (c) of clause 207 will amend sub-sections 51(3) and (7) so that an objection against an assessment must be lodged with the Commissioner within the specified time limit and not merely posted. Paragraph (b) of clause 207 is a drafting measure to omit the reference in sub-section 51(4) to amendments being made by the Commissioner, a Board of Review or a court. This amendment is consequential upon proposed changes that will make it clear that only the Commissioner of Taxation will be empowered to amend assessments - see notes on clause 89.
Clause 208: Repeal of sections 55A and 55C
Under existing review provisions of the Principal Act, a taxpayer dissatisfied with a decision of the Commissioner on an objection may request that the decision be referred to a Board of Review. An appeal lies from a decision of a Board of Review to a Supreme Court. As the jurisdiction of the Boards is being transferred to the Tribunal, an appeal from a decision of the Tribunal will lie, as in other jurisdictions of the Tribunal, to the Federal Court. As a supreme Court will no longer have any jurisdiction in relation to reviews under the Principal Act, clause 208 will repeal sections 55A and 55C of the Act which relate to Supreme Court proceedings on appeal from a Board of Review.
The amendments of sub-section 56(1) of the Principal Act proposed by paragraph (a) of clause 209 are comparable to the amendments proposed by paragraphs (a) and (c) of clause 79 and, similarly, will require that an objection against an assessment must be lodged with the Commissioner and not merely posted within the specified time limit. Existing sub-section 56(4) will be omitted by paragraph (b) as a drafting improvement so that section 56 will in future deal solely with objections. New provisions relating to reviews of objection decisions will be inserted by clause 210. Paragraph (b) also substitutes new sub-section 56(4) which will have substantially the same effect as proposed sub- section 185(3) of the Income Tax Assessment Act 1936, an explanation of which is given in the notes on clause 79.
Clause 210 will repeal sections 57, 58 and 59 of the Principal Act which deal with reviews by a Board of Review, powers of a Board and appeals from decisions of a Board. New sections 56A, 56B, 56C, 56D, 57, 57A, 58 and 59 are to be inserted in the Principal Act by this clause in substitution for the repealed sections.
Section 56A : Request for reference
Section 56B : Applications for extension of time
Section 56C : Consideration of applications for extension of time for lodging objections
Section 56D : Consideration of applications for extension of time for lodging requests for reference
Section 57 : Reference to Tribunal
Section 58 : Procedure on review
Section 59 : Implementation of decisions
New sections 56A to 59 will have substantially the same effect as similar changes proposed to the Income Tax Assessment Act 1936. An explanation of these may be found in the notes on clauses 80, 81 and 89.
Clause 211: Pending appeal or reference not to delay payment of duty, etc.
Section 60 of the Principal Act stipulates that liability to pay wool tax is not suspended pending the outcome of a review of the liability. The amendment by paragraph (a) to substitute new sub-section 60(1) is of a drafting nature and will not affect the operation of the section. The repeal of sub-sections 60(2) and (3) by paragraph (b) is comparable to the proposed repeal of section 202 of the Income Tax Assessment Act 1936 - refer to notes on clause 91.
Clause 212: Repeal of section 60A
Section 60A of the Principal Act provides statutory authority for the adoption, so far as is practicable, in a Supreme Court of a State or Territory dealing with proceedings pursuant to the Principal Act, of the High Court Rules. The section also specified those proceedings in which such Rules and procedures are to apply.
With the transfer of the jurisdiction of the Taxation Boards of Review to the Administrative Appeals Tribunal, a person who is dissatisfied with a decision of the Commissioner of Taxation on an objection under the Principal Act may in future lodge with the Commissioner a request to refer that decision to the Tribunal. As a right of appeal from a decision of the Tribunal will be to the Federal Court, clause 212 proposes to repeal section 60A of the Principal Act, which becomes unnecessary.
PART XXXI - TRANSITIONAL AND REPEALS
Clause 213 contains definitions to assist in the interpretation of provisions included in this Part.
- "Board of Review"
- is defined to mean a Board of Review constituted under Division 1 of Part V of the Income Tax Assessment Act 1936 as in force before 1 July 1986. That Division is to be repealed by clause 78 of the Bill with effect from 1 July 1986, thus abolishing the three Boards of Review established under it.
- "relevant tax law"
- is defined to mean the various taxation laws (as listed in paragraphs (a) to (p)) under which requests for reference or appeal may be lodged. The definition facilitates reference to those laws in clauses 222, 223 and 226 of this Bill.
- "Tribunal"
- is to mean the Administrative Appeals Tribunal. This definition will facilitate references to the Administrative Appeals Tribunal throughout this Part of the Bill.
Clause 214: Transfer of members of Boards
This clause will provide for the transfer of the existing Chairmen and members of the Taxation Boards of Review to the Administrative Appeals Tribunal as from 1 July 1986, that being the date of transfer of the Boards' jurisdiction to the Tribunal.
By virtue of sub-clause 214(1) a person who, immediately before 1 July 1986, is a Chairman or member of a Board of Review is to be taken as having been appointed as a full-time senior member of the Administrative Appeals Tribunal as from that day. Paragraph 7(1B)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act) stipulates that a person appointed as a senior member must have special knowledge or skill relevant to the duties of such a member. All existing members (including Chairmen) of the Boards of Review satisfy this requirement and are therefore, subject to sub-clause 214(3), to be appointed as senior members.
Sub-clause 214(2) provides for the Board of Review Chairmen and members who are appointed to the Tribunal by the operation of sub-clause 214(1) to be assigned to the Taxation Appeals Divison of the Tribunal. That Divison will, by proposed regulation , handle all reviews under the taxation laws.
Under sub-clause (3) a Chairman or member of a Board of Review will not be automatically appointed to the Tribunal if, before 1 July 1986, he gives written notice to the Governor-General that he does not wish to be so appointed.
Sub-clause (4) will allow a Chairman or member of a Board of Review to be appointed to an office of the Administrative Appeals Tribunal other than that of senior member of the Tribunal (paragraph (a)) or assigned to a Division or Divisions of the Tribunal (other than the Taxation Appeals Division (paragraph (b)).
Clause 215: Remuneration and allowances
This clause will enable regulations to be made to ensure that the Chairmen of the Boards of Review who are appointed as senior members of the Tribunal in accordance with clause 214 do not suffer any diminution in salary and allowances as a result of their transfer. At present, the remuneration and allowances paid to Chairmen of the Boards of Review are higher in amount than those paid to senior members of the Tribunal.
The effect of sub-clause 215(1) is that, in relation to a senior member of the Tribunal who was a Chairman of a Board of Review appointed to the Tribunal by force of sub-clause 214(1), the rate of remuneration and expenses of office allowance paid to such a senior member may be prescribed by regulations.
Sub-clause 215(2) will ensure that, where regulations made for the purposes of sub-clause 215(1) provide for the payment of remuneration (paragraph (a)), those regulations will only apply where the prescribed rate of remuneration exceeds:
- (a)
- in the case where, apart from the operation of clause 215, remuneration but no expenses of office allowance would be payable to a senior member, the amount of remuneration so payable (sub- paragraph (c)(i)); or
- (b)
- in the case where, apart from the operation of this clause, both remuneration and expenses of office allowance would be payable to a senior member, the total amount of that remuneration and expenses of office allowance so payable (sub-paragraph (c)(ii)).
Where regulations made for the purposes of sub-clause 215(1) provide for the payment of remuneration and expenses of office allowance (paragraph (b)), sub-clause 215(2) will also ensure that those regulations will only apply where the prescribed rate of remuneration and rate of expenses of office allowance exceed:
- (a)
- in the case where, apart from the operation of this clause, remuneration but no expenses of office allowance would be payable to a senior member, the amount of remuneration so payable (sub- paragraph (d)(i)); or
- (b)
- in the case where, apart from the operation of this clause, remuneration and expenses of office allowance would be payable to a senior member, the total amount of that remuneration and expenses of office allowance so payable (sub-paragraph (d)(ii)).
The effect of sub-clause 215(3) is that, where travelling allowance is payable to a senior member of the Tribunal who was a Chairman of a Board of Review appointed to the Tribunal in accordance with sub-clause 214(1), the rate of travelling allowance payable to such a senior member will be the rate prescribed by regulations. At present, Chairmen of the Boards of Review receive travelling allowance equal to that of a Secretary of a Department. It is proposed that regulations will be made maintaining this rate of travelling allowance.
Clause 216: Amendments concerning additional tax assessments
Clause 216 deals with the amendments being made to the various taxation laws which, for the purposes of lodging an objection, provide that assessments of tax and additional tax are to be treated as one assessment where notice of those assessments are incorporated on the same document. The effect of clause 216 is that the amendments will only apply to notices of assessment served on or after 1 July 1986.
Clause 217: Sales tax objections and requests for reference
This clause relates to amendments being made by this Bill to the sales tax law which will allow a person to object against an assessment of the sale value of goods and of the tax payable on the sale value of goods. The amendments also give a person a right to object against a refusal by the Commissioner to refund an amount of tax on application. In addition, objections against reviewable decisions will be incorporated into the general objection provisions by this Bill.
Sub-clause 217(1) provides that the rights of objection against an assessment or decision, notice of which was served or published before 1 July 1986, are limited to the same objection rights which exist under the present sales tax law. Broadly, these rights are limited to matters concerning the sale value of goods. Amendments being made by this Bill to widen the objection rights of a person under the sales tax law will, therefore, only apply in respect of an assessment where notice of such an assessment is served or published on or after 1 July 1986.
Sub-clause 217(2) provides that new sub-section 40(2) of the Sales Tax Assessment Act (No. 1) 1930, which will allow an objection against a refund decision (see notes on clause 138), does not apply in respect of a refund decision, notice of which was served before 1 July 1986.
Sub-clauses 217(3) and (4) relate to objections against reviewable decisions (broadly, decisions relating to registration and quoting of certificates of registration) made under the various sales tax laws. As explained in the notes on clause 139, objections against reviewable decisions will be incorporated into the general objection provisions by this Bill and, as a consequence, there will no longer be direct applications to the Tribunal for review of reviewable decisions. Rather, a request may be lodged with the Commissioner to refer the decision on an objection against a reviewable decision to the Tribunal for review. Sub-clause 217(3) provides that such requests may be lodged only in relation to decisions on objections where such decisions are made on or after 1 July 1986.
Sub-clause 217(4) complements sub-clause (3) and provides for the continuing application of existing section 44B of the Sales Tax Assessment Act (No. 1) 1930 (and that section as it applies to other sales tax laws) in relation to decisions on objections against reviewable decisions where the objection decision was made before 1 July 1986. This will mean that, in respect of such decisions, a person affected may apply direct to the Tribunal for review of a reviewable decision.
Each provision of the Sales Tax Assessment Act (No.1) 1930 mentioned in this clause applies in a similar manner to each of the other ten Sales Tax Assessment Acts.
Clause 218: Extended periods for lodging objections
Amendments being made to certain taxation laws will extend the period for lodging an objection to 60 days. Sub-clause 218(1) specifies that those amendments do not apply where the existing time limit for lodging the objection had expired before 1 July 1986.
Sub-clause 218(2) makes it clear that sub-clause 218(1) does not authorise a widening of objection rights in respect of assessments before 1 July 1986, apart from an extension of the period for lodging an objection (see notes on clause 217).
Clause 219: Amended assessments
Clause 219 relates to amendments being made to the various taxation laws to make it clear that the right of objection against an amended assessment is subject to a subject-matter limitation.
Sub-clause 219(1) provides that those particular amendments do not apply in relation to an amended assessment, notice of which was served before 1 July 1986. Sub-clause 219(2) is the counterpart of sub-clause (1) and continues in force the existing provisions in relation to those amended assessments.
Clause 220: Period for requesting reference
Amendments being made to certain taxation laws will extend the period within which a request for reference or appeal may be lodged with the Commissioner. Clause 220 specifies that those amendments do not apply where the existing time limit for lodging the request had expired before 1 July 1986.
Clause 221: Extensions of time for lodging objections or requests for reference
Amendments being made to the various taxation laws by this Bill will enable extensions of time to be granted for lodgment of objections and requests for reference. Clause 221 specifies that those amendments only apply where the existing time limit for lodgment of an objection or request for reference or appeal had not expired before 1 July 1986. This will mean that where, for example, the 60 day time limit for lodging an objection against an income tax assessment is due to expire on or after 1 July 1986, an application for an extension of time to lodge the objection may be made by the taxpayer if such objection is not lodged within the 60 days.
Clause 222: Requests made but not referred before 1 July 1986
Clause 222 will ensure that all outstanding requests for reference to a Board of Review which have not been referred by the Commissioner to a Board by 1 July 1986 are treated as requests for reference to the Tribunal. The Commissioner will, therefore, without the need for any action on the part of the taxpayer concerned refer all such requests to the Tribunal for review.
Clause 223 deals with requests for reference to a Board of Review which, before 1 July 1986, have been referred by the Commissioner of Taxation to a Board but, by that day, no decision has been given by the Board.
Sub-clause 223(1) provides that:
- •
- from 1 July 1986, all references with a Board of Review are to be treated as if the relevant objection decision had been referred to the Administrative Appeals Tribunal (paragraph (a)) ):
- •
- all proceedings in respect of such references will from 1 July 1986 be continued before the Administrative Appeals Tribunal (paragraph (b));
- •
- cases part-heard or heard and undecided at 1 July 1986 will, where possible, continue as proceedings before the Administrative Appeals Tribunal. For this purpose, the President of the Tribunal is to arrange for the Tribunal to be constituted by one or more of the persons (and no other person) who, immediately before 1 July 1986, constituted the Board of Review hearing the particular reference (paragraph (c)); and
- •
- all records of evidence given and documents produced in connection with the reference to a Board of Review before 1 July 1986 will be made available to the Administrative Appeals Tribunal and will be deemed to have been given or produced to the Tribunal (paragraph (d)).
Sub-clause 223(2) will cover the situation where the President of the Administrative Appeals Tribunal is unable, in accordance with paragraph (1)(c) to constitute the Tribunal by one or more of the persons who, immediately before 1 July 1986, constituted the Board of Review dealing with a particular case. This could happen if all the members of a particular Board were to give notice under sub-clause 214(3) that they did not wish to be appointed as senior members of the Tribunal. If that occurs, the reference will be re- heard by the Tribunal as a completely new reference.
Sub-clause 223(3) will allow the president of the Administrative Appeals Tribunal to resolve any difficulties which may arise in applying the transitional provisions of Part XXXI of the Bill, provided any directions given to resolve the difficulty are not inconsistent with this Part or the AAT Act.
Clause 224 specifies the appeal rights available to a person whose request for reference to a Board of Review has commenced to be heard by the Board and is continued before the Tribunal as constituted by one or more of the same members of the Board in accordance with paragraph 223(1)(c) - see notes on clause 223.
Under existing taxation laws, a person may appeal to a Supreme Court of a State or Territory from a decision of a Board of Review where that decision involves a question of law. This gives the person a right to have a fresh hearing before the Supreme Court. The appeal rights available under the AAT Act allow an appeal to the Federal Court from a decision of the Tribunal on a question of law and the Federal Court merely looks at the question or questions of law appealed to it.
Sub-clause 224(1) provides that, in respect of those references continued before the Tribunal in accordance with paragraph 223(1)(c), the right of appeal from the decision of the Tribunal will be the same as that provided for under existing taxation laws. This will preserve the right of a fresh hearing before a court. The same appeal rights will not be available, however, if the constitution of the Tribunal includes a presidential member (paragraph (1)(c)). This is because an appeal from the Tribunal when constituted by or including a presidential member is heard by a Full Federal Court and it would not be appropriate for the Full Court to re-hear a case afresh.
Sub-clause 224(2) specifies that, where existing appeal rights are preserved in accordance with sub-clause 224(1), an appeal from a decision of the Tribunal will lie to the Federal Court instead of a Supreme Court. This ensures that all appeals from decisions of the Tribunal are to the Federal Court.
Sub-clause 224(3) makes it clear that, where sub-clause 224(1) does not apply, the right of appeal from a decision of the Tribunal is that provided for under the AAT Act. As explained earlier, that right of appeal is to the Federal Court on a question of law.
Clause 225: Other references to Boards of Review
This clause is a safeguarding measure to ensure that any references to a review of a decision of the Commissioner of Taxation by a Taxation Board of Review in a repealed or omitted provision of a law should be read as a reference to the administrative Appeals Tribunal for the purposes of any continuing application of that repealed or omitted provision.
Clause 226: Supreme Court appeals
Sub-clause 226(1) provides that all outstanding requests to treat an objection as an appeal to a Supreme Court which have not been forwarded by the Commissioner to the Court by 1 July 1986 are to be treated from that day as requests to refer the decision on the objection to the Court. This provision complements amendments of various taxation laws which provide that, from 1 July 1986, the Commissioner's decision on an objection will be referred to a Supreme Court for review rather than, as under existing law, the objection being treated as an appeal and forwarded to the Court - see notes on clause 80.
Sub-clauses 226(2) and (3) set out transitional arrangements that are to apply to amendments being made to specified taxation laws concerning the making of orders by a Supreme Court on an appeal to that Court. The amendments proposed will ensure that, where an objection has been forwarded to a Supreme Court before 1 July 1986, the Court may make an order under the power contained in the existing law. However, where the appeal has been forwarded to a Supreme Court on or after that date, the Court will derive its power to make an appropriate order from the provisions being inserted by this Bill.
Sub-clause (2) specifies that the proposed amendments will only apply to appeals which have not been forwarded to a Supreme Court before 1 July 1986. This is in line with sub-clause 226(1) which provides for the treatment of such appeals as appeals against a decision on an objection.
Sub-clause 226(3) provides for the continuing application of the existing law in relation to appeals that have been forwarded to a Supreme Court before 1 July 1986.
Clause 227: Evidentiary provisions in respect of sales tax assessments
Clause 227 relates to amendments being made by clause 136, 137, 145 and 188 to the evidentiary provisions of the sales tax laws. Consistent with the income tax laws, the proposed amendments will provide, inter alia, that the production of a notice of assessment will be conclusive evidence of the correctness of an assessment except in proceedings on review or appeal.
Paragraph (a) of clause 227 provides that the existing evidentiary provisions in sub-section 35(7) and section 39 of the Sales Tax Assessment Act (No. 1) 1930 and section 10 of the Sales Tax Procedure Act 1934 will continue to apply in relation to an assessment, notice of which was served before 1 July 1986. Paragraph (b) provides that the new evidentiary provisions in section 67 of the sales Tax Assessment Act (No. 1) 1930 and sub-section 10(3) of the Sales Tax Procedure Act 1934 apply in relation to assessments, notice of which was served on or after 1 July 1986. This will mean that, where an assessment of sales tax or a refund decision is subject to objection and review by the Tribunal or a court, it will not be possible, if the Commissioner produces a certified copy of the assessment or refund decision, to challenge the assessment or decision in court proceedings (e.g., in a recovery action) outside the objection and appeal processes. On the other hand, pre-1 July 1986 assessments or decisions will remain capable of being challenged in such manner.
Clause 228 deals with amendments being made by this Bill to certain taxation laws by which Relief Board applications will be referred to the Administrative Appeals Tribunal instead of to a Taxation Board of Review for the purposes of obtaining a report on the financial circumstances of the applicant. Clause 228 provides that, where a Board of Review member or officer designated by the Chairman of the Board to make a report has commenced to examine the applicant but has not completed the report before 1 July 1986, the member or officer will be authorised to continue the examination and make the required report after that date.
Under most of the taxation laws a person wishing to have a decision on an objection referred to a Board of Review or an objection forwarded to a Supreme Court is required to lodge a fee of $2.00. The fee is refunded if the decision of the Board or Court is ultimately in favour of the person.
As no fee is required before a decision may be reviewed by the Administrative appeals Tribunal, sub-clause 229(1) will authorise the Commissioner to refund the statutory fee of $2.00 paid by a person in connection with a request for reference in all cases where the reference has not been finalised before 1 July 1986. A Refund will not be made under this clause if the person is otherwise entitled to a refund of the $2.00 fee. To maintain uniformity between references to the Tribunal and appeals to the Supreme Courts, the requirement to pay a fee in connection with an appeal to a Supreme Court is also being abolished by this Bill. Fees already paid in connection with Supreme Court appeals will, therefore, also be refunded under sub-clause 229(1).
Sub-section 16(1) of the Taxation Administration act 1953 provides for a single general appropriation out of the Consolidated Revenue Fund for refunds of taxes and related payments permitted or required by the Commissioner of Taxation under certain provisions of the taxation laws (as defined in section 2 of the Taxation Administration Act 1953).
Sub-clauses 229(2) will ensure that payments to which sub- clause 229(1) refers are, in accordance with sub-section 16(1) of Taxation Administration Act 1953, appropriated out of the Consolidated Revenue Fund.
Clause 230: Repeal of certain laws
Clause 230 provides for the repeal of certain taxation related laws which are no longer operative. The Acts to be repealed, as listed in the Schedule to the Bill, are the:
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- Export Incentive Grants Act 1971;
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- Export Incentive Grants Act 1973;
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- States Grants (Receipts Duty) Act 1970;
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- States Receipts Duty Act (No.1) 1970;
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- States Receipts Duty Act (No.2) 1970;
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- States Receipts Duty Act (No.3) 1970;
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- States Receipts Duties (Administration) Act 1970; and
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- States Receipts Duties (Exemption) Act 1970.
Clause 231: Continued application of certain secrecy provisions
Clause 231 will ensure that the obligations of an officer under the secrecy provisions of the Export Incentive Grants Act 1971 and of the States Receipts Duties (Administration) Act 1970 continue to apply after those Acts have been repealed.
Clause 232 gives the Governor-General authority to make regulations under the Act proposed by this Bill. Regulations required will include the provision of the rate of remuneration and allowances payable to existing Chairmen of the Boards of Review who accept appointments to the Administrative Appeals Tribunal - see notes on clause 215.
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