Taxation Administration Act 1953
View history note
Hide history noteSch 1 inserted by No 178 of 1999 (as amended by No 179 of 1999 and No 44 of 2000).
Note: See section 3AA .
Chapter 5 - AdministrationCh 5 title inserted by No 73 of 2006 , s 3 and Sch 5 item 44, effective 1 July 2006.
Pt 5-5 inserted by No 179 of 1999.
Div 357 to Div 361 substituted for Div 360 by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006.
No 161 of 2005, s 3 and Sch 2 items 28 to 31, contains the following transitional provisions:
DEFINITION OF COMMENCEMENT DAY
28
In this Part:commencement day
means the later of:
(a) the day on which this Act receives the Royal Assent; and
(b) 1 January 2006.[ CCH Note: The Act received assent on 19 December 2005.]
29 STATUS OF EXISTING RULINGS
(1)
A public ruling in force immediately before the commencement day under Part IVAAA of the Taxation Administration Act 1953 has effect, on and after that day, as if it were a public ruling made under Division 358 in Schedule 1 to that Act as amended by this Act.
(2)
A private ruling in force immediately before the commencement day under Part IVAA of the Taxation Administration Act 1953 has effect, on and after that day, as if it were a private ruling made under Division 359 in Schedule 1 to that Act as amended by this Act.
(3)
An oral ruling in force immediately before the commencement day under Division 360 in Schedule 1 to the Taxation Administration Act 1953 has effect, on and after that day, as if it were an oral ruling made under Division 360 in Schedule 1 to that Act as amended by this Act.
(4)
A ruling to which this item applies is taken to have been made on the day on which it was originally made.
30 INCONSISTENT RULINGS
(1)
The rules in the table in subsection 357-75(1) in Schedule 1 to the Taxation Administration Act 1953 do not apply to work out the effect of 2 inconsistent rulings if both of them were originally made before the commencement day.
(2)
Instead, the inconsistency rules that existed immediately before the commencement day are to be applied.Note:
See former sections 170BC to 170BDC of the Income Tax Assessment Act 1936 for the old inconsistency rules.
31 PENDING APPLICATIONS
(1)
An application for a private ruling or an oral ruling under the Taxation Administration Act 1953 made before the commencement day and not decided before that day has effect on and after that day as if it were an application for a private ruling under Division 359 , or for an oral ruling under Division 360 , in Schedule 1 to that Act as amended by this Act.
(2)
The application is taken to have been made on the day on which it was originally made.
Div 360 formerly read:
Division 360 - Oral rulings for individuals
HistoryDiv 360 inserted by No 179 of 1999.
SECTION 360-1 WHAT THIS DIVISION IS ABOUT
360-1
An individual can apply to the Commissioner for an oral ruling about a limited range of matters under an income tax law.OUTLINE OF THIS DIVISIONHistoryS 360-1 inserted by No 179 of 1999.
360-5(1)
The procedure you need to follow in applying for an oral ruling is set out in Subdivision 360-A.
360-5(2)
Before making the ruling, the Commissioner must be satisfied that your tax affairs, and your inquiry, meet certain tests.See sections 360-65 and 360-100.
360-5(3)
There are further matters that may prevent the Commissioner from making the ruling. Important examples are:
(a) during the relevant period you were carrying on a business;
(b) during the relevant period you made payments from which you had to withhold amounts under Part 2-5 (PAYG withholding).See Subdivision 360-C.
360-5(4)
An oral ruling is binding on the Commissioner, but only you can rely on it.See sections 170BCA, 170BDA, 170BDB and 170BDC of the Income Tax Assessment Act 1936 .
360-5(5)
You are not bound by an oral ruling.HistoryS 360-5 inserted by No 179 of 1999.
Subdivision 360-A - Applying for an oral ruling
SECTION 360-20 APPLICATION FOR ORAL RULING ABOUT YOUR OWN TAX
360-20
If you are an individual, you may apply to the Commissioner for a ruling on the way in which, in the Commissioner ' s opinion, an *income tax law would apply to you in respect of an income year in relation to an *oral ruling arrangement.APPLICATION FOR ORAL RULING ABOUT SOMEONE ELSE ' S TAXHistoryS 360-20 inserted by No 179 of 1999.
360-25(1)
You may apply to the Commissioner, on another person ' s behalf, for a ruling on the way in which, in the Commissioner ' s opinion, an *income tax law would apply to the other person in respect of an income year in relation to an *oral ruling arrangement.
360-25(2)
However, you may do so only if the other person is an individual, and:
(a) the other person is under 18 and is your *child; or
(b) the other person is under 18 and you have in relation to him or her all the duties, powers, responsibilities and authority which, by law, a parent has in relation to his or her child; or
(c) the other person is under a legal disability because of a mental impairment, and you hold an enduring power of attorney in relation to him or her; or
(d) the other person:
(i) is under 18; or
(ii) has a physical or mental impairment;and an *Australian law authorises you to act on his or her behalf in matters including his or her *tax affairs.
360-25(3)
If you apply on another person ' s behalf, the rest of this Division has effect as if the other person had made the application himself or herself, but:
(a) you may communicate with the Commissioner, and otherwise deal with him or her, as if you were the other person; and
(b) the Commissioner may communicate with you, and otherwise deal with you, as if you were the other person.HistoryS 360-25 inserted by No 179 of 1999.
WHAT THE APPLICATION CAN COVER
360-30(1)
The application may relate to:
(a) a past income year; or
(b) the income year in which the application is made.It cannot relate to a future income year, or to more than one income year.
360-30(2)
An oral ruling arrangement is:
(a) an action; or
(b) a course of action; or
(c) a course of conduct; or
(d) a transaction;that has been, is being, or is proposed to be, engaged in, entered into or carried out, but only if none of the parties to it is an *associate of any of the others.
360-30(3)
The application may be for a ruling on the way in which the Commissioner would act under the *income tax law to which the application relates.
360-30(4)
Subsection (3) covers the following kinds of acts:
(a) forming an opinion; or
(b) refusing or failing to form an opinion; or
(c) attaining a state of mind; or
(d) refusing or failing to attain a state of mind; or
(e) making a determination; or
(f) refusing or failing to make a determination; or
(g) exercising a power; or
(h) refusing or failing to exercise a power.HistoryS 360-30 inserted by No 179 of 1999.
HOW THE APPLICATION IS TO BE MADE
360-35(1)
You must make the application orally, either in person or by live 2-way conversation using a method of communication approved by the Commissioner.
360-35(2)
When making the application, you must:
(a) identify yourself to the Commissioner ' s satisfaction; and
(b) if you make the application on behalf of another person, identify the other person to the Commissioner ' s satisfaction; and
(c) give whatever information, in whatever form, the Commissioner requires in order to make the ruling.
360-35(3)
You may withdraw the application before the ruling is made. You must do so orally, either in person or by live 2-way conversation using a method of communication approved by the Commissioner.HistoryS 360-35 inserted by No 179 of 1999.
SECTION 360-40 FURTHER INFORMATION MAY BE SOUGHT
360-40
If the Commissioner considers that:
(a) the ruling cannot be made without further information; and
(b) if that information were given, there would be no reason for the Commissioner not to comply with your application;the Commissioner must request you to give that information to him or her.
HistoryS 360-40 inserted by No 179 of 1999.
Subdivision 360-B - How the Commissioner is to deal with the application
Exercise of powers by authorised person
WHERE POWERS TO BE EXERCISED
360-60(1)
A person who is authorised to perform a function, or exercise a power, of the Commissioner under this Division must do so only at places approved by the Commissioner.HistoryS 360-60(1) substituted by No 44 of 2000.
360-60(2)
If the person is at such a place, he or she may, in order to perform the function or exercise the power, communicate with a person who is not at such a place by live 2-way conversation using a method approved by the Commissioner.HistoryS 360-60 amended by No 44 of 2000 and inserted by No 179 of 1999.
If the application relates only to basic categories
WHEN COMMISSIONER MUST MAKE ORAL RULING
360-65(1)
The Commissioner must comply with your application if he or she is satisfied that:
(a) your application complies with Subdivision 360-A; and
(b) your assessable income for the inquiry period consisted only of one or more items covered by section 360-70; and
(c) during the inquiry period no *CGT event happened from which you could have made a *capital gain or *capital loss (even if you did not make one from the event); andNote:
You are not disqualified by having an unapplied net capital loss for a previous income year.
(d) your *exempt income (if any) for the inquiry period consisted only of one or more items covered by section 360-75; and
(da) your *non-assessable non-exempt income (if any) for the inquiry period consisted only of one or more items covered by section 365-77; and
(e) your deductions for the inquiry period consisted only of one or more items covered by section 360-80; and
(f) your *tax offsets for the inquiry period consisted only of one or more items covered by section 360-85; and
(g) your application relates only to an item covered by section 360-70, 360-75, 360-80 or 360-85;unless Subdivision 360-C prevents the Commissioner from complying with the application.
Note:
For an alternative basis on which the Commissioner must comply with your application, see section 360-100.
HistoryS 360-65(1) amended by No 66 of 2003, s 3 and Sch 3 item 134, by inserting para (da), applicable to assessments for the 2003-04 income year and later income years.
360-65(2)
The inquiry period is:
(a) if your application relates to an earlier income year - that income year; or
(b) if your application relates to the income year during which the application is made - so much of the income year as elapses up to and including the day on which you make the application.HistoryS 360-65 inserted by No 179 of 1999.
BASIC CATEGORIES OF ASSESSABLE INCOME
360-70(1)
This section covers a payment from which an amount must be withheld (even if the amount is not withheld) under a provision listed in the table, to the extent that the payment is assessable income.
Payments covered Item Provision Subject matter 1 Section 12-35 Payment to employee 2 Section 12-40 Payment to company director 3 Section 12-45 Payment to office holder 4 Section 12-115 Commonwealth education or training payment
360-70(2)
This section also covers a payment specified in a provision of the Income Tax Assessment Act 1997 listed in the table, to the extent that the payment is assessable income.
Social security or other benefit payment Item Provision Subject matter 1 Section 52-10 Social security payments 2 Section 52-65 Veterans ' affairs payments 3 Section 52-105 Payments under the Repatriation Act 1920 4 Section 55-10 Education entry payments
360-70(3)
This section also covers interest payable by a *financial institution or a government body (as defined by section 202A of the Income Tax Assessment Act 1936 ), to the extent that the interest is assessable income.
360-70(4)
This section also covers a *dividend (to the extent that it is assessable income), if the company that pays it is an Australian resident, and a *listed public company whose shares are listed for quotation in the official list of the Australian Stock Exchange Limited, at the earliest of the following times:
(a) if the liability to pay the dividend arises when the dividend is declared - that time;
(b) when the dividend becomes due and payable;
(c) when the dividend is paid.HistoryS 360-70 inserted by No 179 of 1999.
SECTION 360-75 BASIC CATEGORIES OF EXEMPT INCOME
360-75
This section covers *ordinary income, or *statutory income, to the extent that it is *exempt income because of:
(a) subsection 23L(1A) of the Income Tax Assessment Act 1936 (about exempt fringe benefits); or
(b) a provision of the Income Tax Assessment Act 1997 listed in the table.
Exempt income Item Provision Subject matter 1 section 51-5 Payments to defence personnel 5 item 2.1, 2.1A or 2.1B of the table in section 51-10 Educational grants and payments 10 section 51-30 Welfare payments 15 section 52-10 Social security payments 20 section 52-65 Veterans ' affairs payments 25 section 52-105 Payments under the Repatriation Act 1920 30 section 52-110 Payments made because of subsection 4(6) of the Veterans ' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986 35 (Repealed by No 44 of 2000) 40 section 52-125 Private health insurance incentive payments 45 (Repealed by No 66 of 2003) 50 section 52-140 Commonwealth education and training payment 53 section 52-150 Family assistance payments 55 item 1 of the table in section 53-10 Disability services payment 60 item 2 of the table in section 53-10 Domiciliary nursing care benefit 65 item 5 of the table in section 53-10 Wounds and disability pension 70 section 53-20 Payments similar to certain veterans ' payments BASIC CATEGORIES OF NON-ASSESSABLE NON-EXEMPT INCOMEHistoryS 360-75 amended by No 66 of 2003, s 3 and Sch 3 items 135 and 136, by substituting para (a) and repealing table item 45, applicable to assessments for the 2003-04 income year and later income years. Para (a) formerly read:
(a) subsection 23L(1) of the Income Tax Assessment Act 1936 (about fringe benefits); or
Table item 45 formerly read:
" 45 section 52-130 Bonuses for older Australians "
S 360-75 amended by No 44 of 2000 and inserted by No 179 of 1999.
360-77
This section covers *ordinary income, or *statutory income, to the extent that it is *non-assessable non-exempt income because of:
(a) subsection 23L(1) of the Income Tax Assessment Act 1936 (about fringe benefits); or
(b) section 59-5 of the Income Tax Assessment Act 1997 (about bonus payments made to certain older Australians).BASIC CATEGORIES OF DEDUCTIONSHistoryS 360-77 inserted by No 66 of 2003, s 3 and Sch 3 item 137, applicable to assessments for the 2003-04 income year and later income years.
360-80
This section covers a deduction for:
(a) an amount of expenditure you incur for managing your *tax affairs as mentioned in paragraph 25-5(1)(a) of the Income Tax Assessment Act 1997 ; or
(ba) a fee or commission you incur as mentioned in section 25-7 (for advice about family tax benefit) of the Income Tax Assessment Act 1997 ; or
(b) an amount of an account-keeping fee charged by a *financial institution; or
(c) an amount of a tax imposed under an *Australian law on an account kept with a financial institution (for example, financial institutions duty, debits tax or a similar tax); or
(d) an amount of money that is a gift or contribution to which item 1, 2 or 3 of the table in section 30-15 of the Income Tax Assessment Act 1997 applies.BASIC CATEGORIES OF TAX OFFSETSHistoryS 360-80 amended by No 44 of 2000 and inserted by No 179 of 1999.
360-85
This section covers a *tax offset to which you are entitled because of:
(a) Subdivision 61-H of the Income Tax Assessment Act 1997 (about premiums under a private health insurance policy); or
(aa) subsection 207-20(2) of the Income Tax Assessment Act 1997 ; or
(b) a provision of the Income Tax Assessment Act 1936 listed in the table.
Tax offsets Item Provision Subject matter 1 Section 159J Child of taxpayer who is wholly engaged in keeping house for the taxpayer
Invalid relative
Parents/parents in law
Spouse5 Section 159L Housekeeper, caring for child, invalid relative or disabled spouse 10 (Repealed by No 44 of 2000) 15 (Repealed by No 23 of 2005) 20 Section 159SZ Personal superannuation contributions 25 Section 159T Superannuation contributions for a spouse 30 Section 159P Medical expenses 35 Section 160AAAA Low income aged person 40 Section 159N Low income individuals 45 Subsection 160AAA(2) Rebate for certain social security pensions, allowances or benefits, veterans ' pensions, allowances or benefits 50 Subsection 160AAA(3) Rebate for certain social security benefits or payments 55 Section 79A Residents of isolated area If the application involves additional categoriesHistoryS 360-85 amended by No 23 of 2005, No 44 of 2000 and inserted by No 179 of 1999.
WHEN COMMISSIONER MUST MAKE ORAL RULING IF SATISFIED THAT YOUR TAX AFFAIRS AND INQUIRY ARE SIMPLE
360-100(1)
The Commissioner must also comply with your application if:
(a) he or she is satisfied that your application complies with Subdivision 360-A; and
(b) in his or her opinion, your *tax affairs were simple throughout the inquiry period; and
(c) in his or her opinion, your inquiry is simple; and
(d) he or she is satisfied that your assessable income for the inquiry period consisted only of one or more items, each of which is covered by section 360-70 or 360-105; and
(e) he or she is satisfied that your *exempt income (if any) for the inquiry period consisted only of one or more items covered by section 360-75; and
(ea) he or she is satisfied that your *non-assessable non-exempt income (if any) for the inquiry period consisted only of one or more items covered by section 365-77; and
(f) he or she is satisfied that your deductions for the inquiry period consisted only of one or more items, each of which is covered by section 360-80 or 360-110; and
(g) he or she is satisfied that your *tax offsets for the inquiry period consisted only of one or more items, each of which is covered by section 360-85 or 360-115; and
(h) he or she is satisfied of the matters in subsections (2), (3) and (4) (about your capital gains tax situation);unless Subdivision 360-C prevents the Commissioner from complying with the application.
HistoryS 360-100(1) amended by No 66 of 2003, s 3 and Sch 3 item 138, by inserting para (ea), applicable to assessments for the 2003-04 income year and later income years.
CGT events
360-100(2)
The Commissioner must be satisfied that during the inquiry period no *CGT event happened from which you could have made a *capital gain or *capital loss (even if you did not make one from the event), except a CGT event from which you could have made a capital gain or capital loss covered by subsection (3).
Capital gains and losses
360-100(3)
The Commissioner must be satisfied that each *capital gain (if any), and each *capital loss (if any), that you made during the inquiry period:
(a) is to be disregarded because of section 118-5 of the Income Tax Assessment Act 1997 (about *cars, motor cycles and valour decorations); or
(b) resulted from *CGT event A1 happening in relation to shares in a company that was an Australian resident and a *listed public company, and whose shares were listed for quotation in the official list of the Australian Stock Exchange Limited, throughout the period when you owned the first-mentioned shares; or
(c) resulted from *CGT event A1 or E4 happening in relation to units in a unit trust that was a *resident trust for CGT purposes and a *listed widely held trust, and whose units were listed for quotation in the official list of the Australian Stock Exchange Limited, throughout the period when you owned the first-mentioned units.Note:
Similarly, you are not disqualified if CGT event E4 results in a reduction in the cost base of your units, rather than in a capital gain.
Net capital loss for an earlier income year
360-100(4)
If during the inquiry period you made one or more *capital gains each of which is covered by paragraph 360-100(3)(b) or (c), the Commissioner must be satisfied that you have no unapplied *net capital loss for an earlier income year.Note:
You are not otherwise disqualified by having an unapplied net capital loss for a previous income year.
HistoryS 360-100 inserted by No 179 of 1999.
ADDITIONAL CATEGORIES OF ASSESSABLE INCOME
360-105
This section covers the following, to the extent that they are assessable income:
(a) a payment from which an amount must be withheld (even if the amount is not withheld) under a provision listed in the table;
Payments covered Item Provision Subject matter 1 Section 12-80 Payment of pension or annuity 2 Section 12-120 Compensation, sickness or accident payment
(b) a payment of a pension specified in subsection 55-5(1) (about occupational superannuation schemes) of the Income Tax Assessment Act 1997 ;
(c) an amount in respect of a distribution made by a unit trust that is a *resident trust for CGT purposes and a *listed widely held trust, and whose units are listed for quotation in the official list of the Australian Stock Exchange Limited, at the earliest of the following times:
(ii) when the distribution becomes due and payable;
(iii) when the distribution is made;
(d) a *net capital gain resulting solely from one or more *capital gains covered by subsection 360-100(3).[ CCH Note: Act No 179 of 1999 did not insert a para (i) in 360-105(c).]
ADDITIONAL CATEGORIES OF DEDUCTIONSHistoryS 360-105 inserted by No 179 of 1999.
360-110
This section covers a deduction that you have and that relates to a payment to you from which an amount must be withheld (even if the amount is not withheld) under a provision listed in the table.
Payments covered Item Provision Subject matter 1 Section 12-35 Payment to employee 2 Section 12-40 Payment to company director 3 Section 12-45 Payment to office holder ADDITIONAL CATEGORIES OF TAX OFFSETSHistoryS 360-110 inserted by No 179 of 1999.
360-115
This section covers a *tax offset to which you are entitled because of:
(a) section 207-45 of the Income Tax Assessment Act 1997 , but only so far as it applies in relation to a person as a beneficiary of a trust; or
(b) a provision of the Income Tax Assessment Act 1936 listed in the table.
Tax offsets Item Provision Subject matter 1 Section 79B Member of the Defence Force serving overseas 5 (Repealed by No 23 of 2005) 10 Section 159SU Rebateable ETP annuity 15 Section 159SM Rebateable superannuation pension 20 Section 160AF Credit for foreign tax paid on foreign income 25 Section 159UQ Heritage conservation rebate 35 Section 160AB Loan interest received on securities issued before 1 November 1968 40 Sections 159ZRA and 159ZRB Lump sum payment in arrears 45 Subsection 23AB(7) Salary, wages and allowances for service as a member of United Nations forces If the application is successfulHistoryS 360-115 inserted by No 179 of 1999 and amended by No 23 of 2005.
MAKING THE ORAL RULING
360-120(1)
The Commissioner makes the ruling by communicating its contents to you orally, either in person or by live 2-way conversation using a method approved by the Commissioner. The ruling is made at the time of the communication.
360-120(2)
The communication must:
(a) set out the matter ruled on; and
(b) identify the person to whom, and the *income tax law, the income year and the *oral ruling arrangement to which, the ruling relates; and
(c) indicate that the ruling is an *oral ruling; and
(d) if the correctness of the ruling depends on an assumption - set out details of the assumption; and
(e) include a registration identifier for the ruling.
360-120(3)
You are not entitled to receive a written record of the communication.Note:
However, you may be able to apply for a private ruling on the matter under Part IVAA.
360-120(4)
Neither you nor anyone else is entitled to object against the ruling under Part IVC. The ruling is not a taxation decision for the purposes of that Part.Note:
However, you may be able to apply for a private ruling on the matter under Part IVAA. A rulee who is dissatisfied with a private ruling may object against it under Part IVC.
HistoryS 360-120 inserted by No 179 of 1999.
Subdivision 360-C - When Commissioner must or can refuse the application
ASPECTS OF YOUR TAX AFFAIRS THAT DISQUALIFY YOU
360-140(1)
The Commissioner must not comply with your application unless he or she is satisfied that:
(a) throughout the inquiry period you were an Australian resident; and
(b) at no time during the inquiry period did you carry on a *business; and
(c) at no time during the inquiry period were you a *withholder; and
(d) your assessable income for the inquiry period did not include an amount in respect of a *non-cash benefit.
360-140(2)
The Commissioner must not comply with your application if:
(a) your assessable income, *exempt income or *non-assessable non-exempt income for the inquiry period included an amount arising from a transaction with your *associate; or
(b) your deductions for the inquiry period included an amount you paid to your *associate; or
(c) an anti-avoidance provision applies to you in relation to the income year to which your application relates.HistoryS 360-140(2) amended by No 66 of 2003, s 3 and Sch 3 item 139, by substituting ' , *exempt income or *non-assessable non-exempt income ' for ' or *exempt income ' in para (a), applicable to assessments for the 2003-04 income year and later income years.
S 360-140 inserted by No 179 of 1999.
OTHER GROUNDS ON WHICH APPLICATION MUST OR CAN BE REFUSED
360-145(1)
The Commissioner must not comply with your application if:
(a) there is already an *oral ruling, in respect of the same income year, on the matter sought to be ruled on; or
(b) there is already a *private ruling on the matter sought to be ruled on; or
(c) the matter sought to be ruled on has been decided for the purposes of a *Commissioner assessment; or
(d) there is being carried out a *tax audit:
(i) of which you have been informed; and
(ii) that, in the opinion of the Commissioner, will require the Commissioner to decide the matter sought to be ruled on; or
(e) the matter sought to be ruled on is the subject of an objection against a *self assessment; or
(f) you are not a *SPOR taxpayer for the income year to which the application relates, and the application is made later than 4 years after the last day allowed to you for lodging an *income tax return for that income year; or
(g) you are a SPOR taxpayer for the income year to which the application relates, and the application is made later than 2 years after the last day allowed to you for lodging an income tax return for that income year.
360-145(2)
The Commissioner must not comply with your application if, in his or her opinion:
(a) the application is frivolous or vexatious; or
(b) the *oral ruling arrangement to which the application relates has not been, and is not being, carried out and is not seriously contemplated by you; or
(c) you have not given sufficient information, despite a request under section 360-40, to enable the ruling to be made; or
(d) it would be unreasonable to comply, or continue to attempt to comply, having regard to the extent of the Commissioner ' s resources that would be required to comply.
360-145(3)
The Commissioner must not comply with your application in so far as it involves calculating an amount.
360-145(4)
The Commissioner need not comply with your application if he or she is satisfied that, had your application been for a *private ruling, he or she would not have been required to comply with it.HistoryS 360-145 inserted by No 179 of 1999.
ASSUMPTIONS IN MAKING ORAL RULING
360-150
If the Commissioner considers that the correctness of an *oral ruling would depend on which assumptions were made about a future event or other matter, the Commissioner may:
(a) decline to make the ruling; or
(b) make such of the assumptions as the Commissioner considers to be most appropriate.EFFECT ON ORAL RULING IF PROVISIONS NOT COMPLIED WITHHistoryS 360-150 inserted by No 179 of 1999.
360-155(1)
An *oral ruling is taken never to have been made, and never to have been communicated, if any of these provisions applied to the application for the ruling:
(a) subsection 360-140(2); or
(b) subsection 360-145(1).
360-155(2)
The validity of an *oral ruling is not affected because any other provision of this Act has not been complied with.HistoryS 360-155 inserted by No 179 of 1999.
Subdivision 360-D - Miscellaneous
APPLICATION FOR ORAL RULING DOES NOT AFFECT OBLIGATIONS AND POWERS
360-175
The fact that there has been an application for an *oral ruling does not in the meantime affect:
(a) your obligation to lodge a return or do any other act; or
(b) the Commissioner ' s power to make or amend an assessment.EFFECT ON ORAL RULING IF TAX LAW RE-ENACTEDHistoryS 360-175 inserted by No 179 of 1999.
360-180
If:
(a) the Commissioner makes an *oral ruling about an *income tax law (the old law ); and
(b) that law is re-enacted or remade (with or without modifications, and whether or not the old law is repealed);the ruling is taken also to be an oral ruling about that law as re-enacted or remade (the new law ), but only so far as the new law expresses the same ideas as the old law.
Note:
Ideas in tax laws are not necessarily different just because different forms of words are used. See:
• section 15AC of the Acts Interpretation Act 1901 ; and • section 1-3 of the Income Tax Assessment Act 1997 . HistoryS 360-180 inserted by No 179 of 1999.
Subdiv 357-B inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
SECTION 357-60 WHEN RULINGS ARE BINDING ON THE COMMISSIONER 357-60(1)
Subject to subsection (5), a ruling binds the Commissioner in relation to you (whether or not you are aware of the ruling) if:
(a) the ruling applies to you; and
(b) you rely on the ruling by acting (or omitting to act) in accordance with the ruling. EXAMPLES
Example 1:
A public ruling is expressed to apply to a class of entities in relation to a particular scheme. Tim is a member of that class of entities and he is one of a number of taxpayers who enter into that scheme. The ruling applies to Tim.
Tim relies on the ruling by lodging an income tax return that is in accordance with the ruling.
Under the ruling, Tim ' s deductions in relation to the scheme are worked out to be a particular amount. Because Tim has relied on the ruling, the Commissioner must use that amount in making Tim ' s assessment (unless Tim stops relying on the ruling or the law is more favourable to him: see sections 357-65 and 357-70 ).
Example 2:
Cecelia applies for, and obtains, a private ruling that, when she makes a payment in specified circumstances, she would not have to withhold an amount under a relevant provision. Cecelia makes the payment in the circumstances specified in the ruling, so the ruling applies to her.
Cecelia relies on the ruling by not withholding an amount from the payment. The Commissioner must not apply the provision in relation to Cecelia in a way that is inconsistent with the ruling (unless Cecelia stops relying on the ruling or the law is more favourable to her: see sections 357-65 and 357-70 ).
Example 3:
Cathie obtains a private ruling that a type of supply she makes is GST-free. She relies on the ruling by:
(a) giving her customers invoices that show no GST payable on the supplies; and (b) lodging her GST return on the basis that the supplies are GST-free. The Commissioner must administer the GST law in relation to Cathie on the basis that the supplies to which the ruling relates are GST-free. This does not apply if Cathie stops relying on the ruling, such as by issuing tax invoices that show GST payable on the supplies: see paragraph (1)(b).
Note 1:
A ruling about the amount of tax payable that binds the Commissioner provides protection in relation to that amount. There is no shortfall interest charge or tax shortfall penalty payable in respect of that amount as there can be no shortfall in tax payable.
Note 2:
A ruling about the operation of a provision would stop applying to you if the provision is repealed, or is amended to have a different effect. However, if the provision is re-enacted and expresses the same ideas as the old provision, the ruling would still apply: see section 357-85 .
S 357-60(1) amended by No 74 of 2010 , s 3 and Sch 2 items 27 and 28, by substituting " Subject to subsection (5), a ruling binds " for " A ruling binds " and inserting example 3, effective 1 July 2010. For transitional provision, see note under definition of " private indirect tax ruling " in s 2(1) .
357-60(2)
You may rely on the ruling at any time unless prevented from doing so by a time limit imposed by a *taxation law. It is not necessary to do so at the first opportunity.
GST rulings
357-60(3)
The *GST payable on a *supply or importation is the amount worked out in accordance with a ruling (if any) that:
(a) relates to the GST payable on the supply or importation; and
(b) binds the Commissioner in relation to the supplier or importer.
Note:
The ruling will stop affecting the GST payable if the supplier or importer stops relying on the ruling: see paragraph (1)(b).
S 357-60(3) inserted by No 74 of 2010 , s 3 and Sch 2 item 29, effective 1 July 2010. For transitional provision, see note under definition of " private indirect tax ruling " in s 2(1) .
357-60(4)
Subsection (3) does not apply for the purposes of an objection to the ruling under section 359-60 .
S 357-60(4) inserted by No 74 of 2010 , s 3 and Sch 2 item 29, effective 1 July 2010. For transitional provision, see note under definition of " private indirect tax ruling " in s 2(1) .
Indirect tax rulings
357-60(5)
An *indirect tax or excise ruling (except to the extent that the ruling relates to an *excise law) binds the Commissioner in relation to:
(a) an entity (the representative entity ) that is:
(i) the *representative member of a *GST group; or
(ii) the *joint venture operator of a *GST joint venture; or
(iii) the *representative of an *incapacitated entity; and
(b) an entity (the member entity ) that is:
(i) a *member of the GST group; or
(ii) a *participant in the GST joint venture; or
(iii) the incapacitated entity;
if, and only if, both the representative entity and the member entity rely on the ruling by acting (or omitting to act) in accordance with the ruling.
S 357-60(5) inserted by No 74 of 2010 , s 3 and Sch 2 item 29, effective 1 July 2010. For transitional provision, see note under definition of " private indirect tax ruling " in s 2(1) .
357-60(6)
Subsection (5) applies if:
(a) the ruling applies to the member entity; and
(b) the ruling relates to what would be:
(i) a liability of the member entity to *indirect tax; or
(ii) an entitlement of the member entity to a credit (other than a *fuel tax credit) under an *indirect tax law; or
if the rules in the indirect tax law relating to *GST groups, *GST joint ventures or *incapacitated entities did not apply; and
(iii) an *increasing adjustment, a *decreasing adjustment, or a luxury car tax adjustment (within the meaning of the *Luxury Car Tax Act), that the member entity has;
(c) because of those rules:
(i) if that indirect tax were payable, it would be payable by the representative entity; or
(ii) if there was an entitlement to that credit, it would be an entitlement of the representative entity; or
(iii) if any entity had that adjustment, it would be an adjustment that the representative entity had.
S 357-60(6) inserted by No 74 of 2010 , s 3 and Sch 2 item 29, effective 1 July 2010. For transitional provision, see note under definition of " private indirect tax ruling " in s 2(1) .
S 357-60 inserted by No 161 of 2005, s 3 and Sch 2 item 1, applicable to things done on or after 1 January 2006. For transitional provisions see note under Div 357 heading.
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