Taxation Laws Amendment (Self Assessment) Act 1992 (101 of 1992)

PART 2 AMENDMENT OF THE TAXATION ADMINISTRATION ACT 1953

4 After Part IVA

After Part IVA of the Principal Act the following Parts are inserted:

"PART IVAAA - PUBLIC RULINGS

Interpretation

"14ZAAA. In this Part, unless the contrary intention appears:

'arrangement' includes:

(a) scheme, plan, action, proposal, course of action, course of conduct, transaction, agreement, understanding, promise or undertaking; or

(b) part of an arrangement;

'fringe benefits tax law' means a law under which the extent of liability for tax imposed by the Fringe Benefits Tax Act 1986 is worked out;

'income tax law' means a law under which is worked out the extent of liability for:

(a) income tax, withholding tax, mining withholding tax, or Medicare levy, within the meaning of the Income Tax Assessment Act 1936; or

(b) franking deficit tax within the meaning of Part IIIAA of that Act;

'law' means:

(a) a section or other provision of an Act; or

(b) a regulation under an Act;

'public ruling' means a ruling under section 14ZAAE, 14ZAAF or 14ZAAG;

'tax law' means:

(a) an income tax law; or

(b) a fringe benefits tax law;

'year of income' means:

(a) in relation to an income tax law about franking deficit tax, a franking year; or

(b) in relation to a fringe benefits tax law, a year of tax within the meaning of the Fringe Benefits Tax Assessment Act 1986.

Contracts for arrangements

"14ZAAB. For the purposes of this Part, if a contract requiring an arrangement is entered into, the arrangement is taken to begin to be carried out.

Discretion of Commissioner

"14ZAAC. For the purposes of this Part, the Commissioner exercises a discretion if the Commissioner:

(a) forms an opinion; or

(b) refuses or fails to form an opinion; or

(d) refuses or fails to attain a state of mind; or

(e) makes a determination; or

(f) refuses or fails to make a determination; or

(g) exercises a power; or

(h) refuses or fails to exercise a power.

Public ruling on discretions

"14ZAAD. A public ruling on the way in which a tax law applies may be a ruling on the way in which a discretion of the Commissioner under that law would be exercised.

Public rulings - class of arrangements

"14ZAAE. The Commissioner may make a public ruling on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to any person in relation to a class of arrangements.

Public rulings - class of persons

"14ZAAF. The Commissioner may make a public ruling on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to a class of persons in relation to an arrangement.

Public rulings - class of persons and class of arrangements

"14ZAAG. The Commissioner may make a public ruling on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to a class of persons in relation to a class of arrangements.

Arrangements to which public ruling applies

"14ZAAH.(1) Subject to subsection (2), a public ruling about a class of arrangements applies to all arrangements in the class, whether past, present or future.

"(2) If a public ruling states that it is to apply only to arrangements begun to be carried out after a specified date, the ruling only applies to those arrangements.

Making of public ruling

"14ZAAI.(1) The Commissioner makes a public ruling by publishing it.

"(2) A public ruling must state that it is a public ruling for the purposes of this Part.

When public ruling made

"14ZAAJ. A public ruling is made when it is published.

Withdrawal of public ruling

"14ZAAK.(1) The Commissioner may withdraw a public ruling, either wholly or to an extent, by publishing notice of the withdrawal.

"(2) If the Commissioner makes a public ruling that is inconsistent with an existing public ruling, the existing ruling is taken to have been withdrawn to the extent of the inconsistency.

Effect of withdrawal of public ruling

"14ZAAL.(1) A public ruling that is wholly withdrawn:

(a) continues to apply to arrangements begun to be carried out before the withdrawal; and

(b) does not apply to arrangements begun to be carried out after the withdrawal.

"(2) A public ruling that is withdrawn to an extent:

(a) continues to apply wholly to arrangements begun to be carried out before the withdrawal; and

(b) does not apply to that extent to arrangements begun to be carried out after the withdrawal.

"PART IVAA - PRIVATE RULINGS

Interpretation

"14ZAA.(1) In this Part, unless the contrary intention appears:

'applicant', in relation to a private ruling made under section 14ZAP because of another ruling, means the applicant for that other ruling;

'application' means an application for a private ruling;

'Commissioner assessment' means an assessment of tax other than a self assessment;

'information', in relation to a private ruling that has been applied for, includes particulars of the arrangement to which the ruling would relate that would enable the arrangement to be identified and distinguished from other arrangements;

'private ruling' means a ruling applied for under section 14ZAF or 14ZAG and includes a ruling made under section 14ZAP;

'rulee', in relation to a private ruling, means the person the application to whom of a tax law is the subject of the ruling;

'self assessment' means an assessment of tax:

(a) for the making of which the Commissioner wholly accepts statements of the taxpayer; or

(b) that, under section 166A of the Income Tax Assessment Act 1936 or another law, is taken to have been made by the Commissioner;

'tax audit' means an examination of a person's financial affairs by the Commissioner for the purposes of a tax law.

"(2) Expressions used in this Part have the same meanings as in Part IVAAA.

Related arrangements

"14ZAB. For the purposes of this Part, 2 arrangements are related if:

(a) they are both parts of the same arrangement; or

(b) one is a part of the other; or

(d) they are both related to the same arrangement.

Contracts for arrangements

"14ZAC. For the purposes of this Part, if a contract requiring an arrangement is entered into, the arrangement is taken to begin to be carried out.

Discretion of Commissioner

"14ZAD. For the purposes of this Part, the Commissioner exercises a discretion if the Commissioner:

(a) forms an opinion; or

(b) refuses or fails to form an opinion; or

(d) refuses or fails to attain a state of mind; or

(e) makes a determination; or

(f) refuses or fails to make a determination; or

(g) exercises a power; or

(h) refuses or fails to exercise a power.

Private ruling on discretions

"14ZAE. A private ruling on the way in which a tax law applies may be a ruling on the way in which a discretion of the Commissioner under that law would be exercised.

Application for private ruling about own tax

"14ZAF. A person may apply to the Commissioner for a ruling on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to the person in respect of a year of income in relation to an arrangement.

Application for private ruling about another's tax

"14ZAG. A person may, with the written consent of another person, apply to the Commissioner for a ruling on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to the other person in respect of a year of income in relation to an arrangement.

Years of income to which application may apply

"14ZAH. A year of income to which an application applies may be:

(a) a past year of income; or

(b) the current year of income; or

Arrangements to which application may apply

"14ZAI. An arrangement to which an application applies may be:

(a) an arrangement that has been carried out; or

(b) an arrangement that is being carried out; or

Form of application

"14ZAJ. An application for a private ruling must:

(a) be made in a form approved by the Commissioner; and

(b) give such information, and be accompanied by such documents, relating to the ruling as are required by the Commissioner.

Withdrawal of application

"14ZAK. An applicant for a private ruling may, by written notice to the Commissioner, withdraw the application at any time before it is made.

Dealing with application

"14ZAL.(1) Subject to section 14ZAQ, the Commissioner must comply with an application unless not required to do so because of section 14ZAN.

"(2) The Commissioner may comply with an application even though not required to do so because of section 14ZAN, not being an application to which paragraph 14ZAN(f) applies.

Further information may be sought

"14ZAM. If the Commissioner considers that:

(a) a private 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 the application for the ruling;

the Commissioner must request the applicant to give that information to the Commissioner.

Applications that do not have to be dealt with

"14ZAN. The Commissioner is not required to comply with an application for a private ruling if:

(a) there is already a private ruling on the matter sought to be ruled on; or

(b) 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 the rulee has 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) the application is made later than 4 years after the last day allowed to the rulee for lodging a return in relation to the rulee's income for the year of income to which the application relates; or

(g) the application is frivolous or vexatious; or

(h) the arrangement to which the application relates has neither been, nor is being, carried out and is not seriously contemplated by the rulee; or

(i) in the opinion of the Commissioner, the applicant has not given sufficient information, in spite of a request under section 14ZAM, to enable the ruling to be made; or

(j) in the opinion of the Commissioner, it would be unreasonable to comply, or continue to attempt to comply, having regard to:

(i) the extent of the Commissioner's resources that would be required to comply; or

(ii) any other matters that the Commissioner considers relevant.

Applicants to be given reasons for delays

"14ZAO.(1). If at the end of:

(a) if paragraph (b) does not apply - 3 months after an application is made; or

(b) if, within those 3 months, the applicant was requested under section 14ZAM to give information - 3 months after the information is given;

the Commissioner has neither:

(d) told the applicant that the application will not be complied with;

the applicant may ask the Commissioner, in writing, for a written statement of the reasons why the consideration of the application has been delayed.

"(2) The Commissioner is to give that statement as soon as practicable after it is requested unless he or she makes the ruling.

"(3) Until the Commissioner:

(a) makes the ruling; or

(b) tells the applicant that the application will not be complied with; the Commissioner must, at 3 monthly intervals after giving the statement, give the applicant written reasons for continued delay in the consideration of the application.

"(4) If, during a 3 monthly interval, the Commissioner asks for information under section 14ZAM, that interval does not end, and the next 3 monthly interval does not begin, until 3 months after that information is given.

Commissioner may make related rulings

"14ZAP. If the Commissioner is making a private ruling sought by an applicant on the way in which, in the Commissioner's opinion, a tax law or tax laws would apply to a person in respect of a year of income in relation to an arrangement, the Commissioner may also:

(a) make the private ruling a ruling on the way in which another tax law would so apply; or

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

(i) another tax law would so apply; or

(ii) a tax law would apply to the person in respect of another year of income in relation to the arrangement; or

(iii) a tax law would apply to the person in relation to a related arrangement.

Assumptions in making private ruling

"14ZAQ. If the Commissioner considers that the correctness of a private 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.

Making of private rulings

"14ZAR.(1) The Commissioner makes a private ruling by:

(a) preparing a written notice of it; and

(b) serving the notice on the applicant.

"(2) If 2 or more private rulings sought by an applicant relate to an arrangement or related arrangements, then one notice may be given of all or some of them.

"(3) For the purposes of subsection (2), a private ruling made under section 14ZAP is taken to have been sought by its applicant.

"(4) A private ruling must state that it is a private ruling for the purposes of this Part.

Particulars in private rulings

"14ZAS.(1) A notice of a private ruling must set out the matter ruled on and, in doing so, identify the person, tax law, year of income and arrangement to which the ruling relates.

"(2) If the correctness of a private ruling depends on an assumption, the assumption is, for the purposes of subsection (1), an aspect of the arrangement to which the ruling relates.

"(3) An arrangement may be identified in a private ruling by reference to matters set out in a document identified in the ruling and which, or a copy of which, is available to the rulee.

When private ruling made

"14ZAT. A private ruling is made when the notice of it is served on the applicant.

Withdrawal of private ruling

"14ZAU.(1) The Commissioner may withdraw a private ruling, either wholly or to an extent, with the consent of the rulee.

"(2) The Commissioner may withdraw a private ruling, either wholly or to an extent, even without the consent of the rulee, if:

(a) the arrangement to which it relates has not begun to be carried out; or

(b) the arrangement to which it relates has begun to be carried out and, in the opinion of the Commissioner:

(i) another person would be disadvantaged if the ruling is not withdrawn or withdrawn to that extent; and

(ii) the disadvantage would be much greater than any disadvantage for the rulee because of the withdrawal;

unless the Commissioner has made a decision about an objection against the ruling and:

(d) the period within which an application for the review of the decision may be made has not ended; or

(e) there has been an unwithdrawn appeal against, or an unwithdrawn application for the review of, the decision (whether or not the appeal or review has been finalised).

"(3) In working out the extent of any disadvantage for the rulee under subsection (2), the Commissioner must have regard to when the arrangement began to be carried out and when the ruling was made.

"(4) A private ruling may not be withdrawn under subsection (2) to any extent if it relates to a year of income that has commenced or ended.

Method of withdrawing private ruling

"14ZAV. Subject to section 14ZAW, the Commissioner withdraws a private ruling, whether wholly or to an extent, by serving on its applicant written notice of the withdrawal.

Private ruling withdrawn by inconsistent public ruling

"14ZAW. If the Commissioner makes a public ruling that is inconsistent with a private ruling, the Commissioner is taken to have withdrawn the private ruling so far as there is inconsistency and withdrawal is allowed by section 14ZAU.

Effect of withdrawal of private ruling

"14ZAX.(1) A private ruling that is wholly withdrawn is taken:

(a) never to have been made; and

(b) never to have been included in the notice of it.

"(2) If a private ruling is withdrawn to an extent, the ruling is taken:

(a) never to have been made to that extent; and

(b) to that extent never to have been included in the notice of the ruling.

Certain private rulings of no effect

"14ZAY.(1) Subject to subsection (2), a private ruling is taken never to have been made and never to have been in a notice of a private ruling if the applicant failed to tell the Commissioner, at the time of the application, that:

(a) if the applicant is not the rulee - the consent of the rulee to the application was not genuine or had been withdrawn before the application was made; or

(b) paragraph 14ZAN(a), (b), (c) or (e) or subparagraph 14ZAN(d)(i) applied to the application.

"(2) Subsection (1) does not apply to a private ruling that the Commissioner decides should be taken to have been made.

Effect of withdrawals on applications

"14ZAZ.(1) If a private ruling is withdrawn under section 14ZAU, whether wholly or to an extent, subsection 14ZAL(1) continues to apply to the application for a private ruling of the matter that was the subject of the withdrawn ruling.

"(2) If section 14ZAW or 14ZAY applies to a private ruling, subsection 14ZAL(1) does not continue to apply to the application for the ruling.

Objections, reviews and appeals relating to private rulings

"14ZAZA.(1) Subject to subsection (2), a rulee who is dissatisfied with a private ruling may object against it in the manner set out in Part IVC and such a ruling is a taxation decision for the purposes of that Part.

"(2) A rulee may not object against a private ruling if:

(a) an assessment has been made in relation to the rulee in respect of the year of income, and in relation to the arrangement, to which the ruling relates; or

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

Successful objection decision alters ruling

"14ZAZB.(1) In this section:

'objection decision' and 'taxation objection' have the same meanings as in Part IVC.

"(2) If:

(a) the Commissioner makes an objection decision allowing, wholly or in part, a taxation objection against a private ruling; and

(b) the period in which an appeal against, or an application for the review of, the decision may be made has ended; and

the ruling is taken to be the ruling as altered by the decision.

Applications and objections not to affect obligations and powers

"14ZAZC. The fact that there has been:

(a) an application for a private ruling; or

(b) an objection against the ruling;

does not in the meantime affect:

(d) the Commissioner's power to make or amend an assessment.".

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