Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (38 of 2024)

Schedule 1   Treasury

Part 1   Main amendments

Taxation Administration Act 1953

50   Sections 14ZZA to 14ZZM

Repeal the sections, substitute:

14ZZA ART Act applies subject to this Division

(1) The ART Act applies in relation to:

(a) the review of reviewable objection decisions; and

(b) the review of extension of time refusal decisions; and

(c) ART extension applications;

subject to this Division.

(2) Subsection (3) applies if the ART President refers to the guidance and appeals panel under section 128 of the ART Act a decision made by the ART to affirm, vary or set aside either of the following decisions (each of which is an original decision ):

(a) a reviewable objection decision;

(b) an extension of time refusal decision.

(3) The ART Act, as modified by this Division (other than by the provisions mentioned in subsection (4)), applies in relation to:

(a) the application for review that is taken to be made under subsection 130(2) of that Act; and

(b) the review of the decision made by the ART;

in the same way as it applies to the review of, and the application for review of, the original decision.

(4) The provisions are:

(a) subsections 14ZZB(1) to (4); and

(b) section 14ZZC; and

(c) subsections 14ZZF(1) and (2).

14ZZB Special rules for reviewable objection decisions and extension of time refusal decisions

(1) Section 268 (requesting reasons for reviewable decision from decision-maker) of the ART Act does not apply in relation to a reviewable objection decision that has been taken to have been made under subsection 14ZYA(3) or 14ZYB(2) of this Act.

(2) Sections 17 (who can apply) and 18 (when to apply - general rule) of the ART Act do not apply in relation to:

(a) a reviewable objection decision; or

(b) an extension of time refusal decision.

(3) The President of the ART may allow a longer period to make an application to refer a decision of the ART on the review of a reviewable objection decision or an extension of time refusal decision to the guidance and appeals panel under section 125 (when to apply to refer Tribunal decision) of the ART Act only if the period for making the application has not expired.

(4) If the President of the ART decides to allow a longer period under section 125 of the ART Act (as modified by subsection (4) of this section), the President of the ART must notify the Commissioner as soon as practicable after making the decision.

(5) Section 32 (reviewable decision continues to operate unless Tribunal orders otherwise) of the ART Act does not apply in relation to:

(a) a reviewable objection decision; or

(b) an extension of time refusal decision.

(6) However, despite subsection (5), section 32 (reviewable decision continues to operate unless Tribunal orders otherwise) of the ART Act applies in relation to a reviewable objection decision that relates to a small business taxation assessment decision, subject to the modifications set out in section 14ZZH of this Act.

(7) Section 127 (Tribunal decision continues to operate unless Tribunal orders otherwise) of the ART Act does not apply in relation to a reviewable objection decision or an extension of time refusal decision.

(8) Section 178 (operation and implementation of Tribunal's decision) of the ART Act does not apply in relation to a reviewable objection decision.

14ZZC When and how to apply to the ART

(1) Despite section 18 (when to apply - general rule) of the ART Act, an application to the ART for review of a reviewable objection decision must be made within 60 days after the person making the application is served with notice of the decision.

Note: A person may, under section 19 of the ART Act, apply to the ART to extend the period.

(2) Despite subsection 34(1) of the ART Act, an application to the ART for a review of a decision must be in writing.

(3) An application to the ART for a review of a decision must set out a statement of the reasons for the application.

(4) Subsection (3) of this section applies in addition to subsection 34(2) of the ART Act.

Note: Subsection 34(2) of the ART Act requires applications to include the information specified for the application in practice directions made by the President of the ART.

(5) A failure to comply with subsection (3) does not affect the validity of the application.

14ZZD Parties to proceedings for review

Despite paragraph 22(1)(c) of the ART Act:

(a) a person (the affected person ) whose interests are affected by a reviewable objection decision or an extension of time refusal decision may apply to become a party to a proceeding for review of the decision; and

(b) the ART may make the affected person a party to the proceeding only if the ART is satisfied that the applicant for review of the decision consents.

14ZZE Hearings before ART to be held in private if applicant so requests

Despite section 69 (hearings to be in public unless practice directions or Tribunal order requires otherwise) of the ART Act, the hearing of a proceeding before the ART for:

(a) a review of a reviewable objection decision; or

(b) a review of an extension of time refusal decision; or

(c) an ART extension application;

is to be in private if the party who made the application requests that it be in private.

14ZZF Giving documents to the ART

(1) Section 23 (decision-maker must give Tribunal reasons and documents - general rule) of the ART Act does not apply in relation to an application for review of a reviewable objection decision.

(2) Instead, the decision-maker of a reviewable objection decision must give the ART the following documents within 28 days after the ART notifies the decision-maker of the application for review of the decision:

(a) a statement giving the reasons for the decision;

(b) the notice of the taxation decision concerned;

(c) the taxation objection concerned;

(d) the notice of the objection decision;

(e) every other document that is:

(i) in the Commissioner's possession or under the Commissioner's control; and

(ii) considered by the Commissioner to be necessary to the review of the objection decision concerned;

(f) a list of the documents (if any) being given under paragraph (e).

(3) Section 25 (decision-maker must give Tribunal additional documents within 28 days - general rule) of the ART Act does not apply in relation to the ART's review of a reviewable objection decision.

(4) Instead, if:

(a) at any time during the ART's review of a reviewable objection decision a document that is necessary to the review comes into the possession or under the control of the decision-maker; and

(b) the document has not been given to the ART for the purposes of the review;

the decision-maker must give a copy of the document to the ART within 28 days after the day on which the document came into the possession or under the control of the decision-maker.

(5) In addition to subsection (4), if, at any time during the ART's review of a reviewable objection decision, the ART is satisfied that documents that may be relevant to the review are in the possession or under the control of the decision-maker of the reviewable objection decision, the Tribunal may require the decision-maker to give a list of those documents to the Tribunal within a specified period.

(6) To avoid doubt, the ART's power in subsection (5) of this section is in addition to the ART's power in section 26 (decision-maker must give Tribunal additional documents on request - general rule) of the ART Act.

(7) For the purposes of the ART Act:

(a) the requirement to give a statement giving the reasons for the decision under paragraph (2)(a) of this section is taken to be the requirement to give a statement of reasons for the decision under paragraph 23(a) of that Act; and

(b) the requirement to give other documents under subsection (2), (4) or (5) of this section is taken to be the requirement to give other documents under Subdivision B of Division 4 of Part 3 of that Act; and

(c) a statement giving the reasons for a decision, given under subsection (2) of this section, is taken to have been given under paragraph 23(a) of that Act; and

(d) any other document, given under subsection (2), (4) or (5) of this section, is taken to have been given under Subdivision B of Division 4 of Part 3 of that Act.

Note: As a result of this subsection, the decision-maker must, under section 27 of the ART Act, give a copy of the statement or documents to each other party to the proceedings within the relevant period. Also, exceptions under sections 28 and 29 of that Act in relation to giving documents might apply, and under section 24 of that Act the ART may order the decision-maker to give the ART further information.

14ZZH Limitation on orders staying or affecting reviewable objection decisions relating to small business taxation assessment decisions

(1) This section applies if:

(a) a party to a proceeding for review of a reviewable objection decision that relates to a small business taxation assessment decision applies for:

(i) an order staying or otherwise affecting the operation or implementation of the decision; or

(ii) an order varying or revoking such an order; and

(b) the party requesting the order is not the Commissioner of Taxation.

(2) Despite the ART Act, the ART must not make the order unless the party satisfies the ART that, when considered in the context of both the particular circumstances of the decision under review and the overall taxation system, the application for review and the request for making the order are not frivolous, vexatious, misconceived, lacking in substance or otherwise intended to unduly impede, prejudice or restrict the proper administration or operation of a taxation law.

Note 1: The kind of orders that the ART may make include the following:

(a) an order directing the Commissioner not to sue in a court to recover a specified amount relating to the reviewable objection decision (see subsection 255-5(2) of Schedule 1 to this Act);

(b) an order directing the Commissioner to offer or accept payment of a liability relating to the reviewable objection decision by instalments under a specified arrangement (see section 255-15 of Schedule 1 to this Act);

(c) an order directing the Commissioner not to issue one or more written notices to specified third parties who owe or may later owe money to the applicant as a means of recovering a liability relating to the reviewable objection decision (see section 260-5 of Schedule 1 to this Act).

Note 2: However, an order that would materially and permanently alter the decision under review would not be an order staying or otherwise affecting the operation or implementation of such a decision for the purpose of securing the effectiveness of the hearing and determination of the application for review. For example:

(a) an order directing the Commissioner to defer the time at which a tax liability becomes due and payable; or

(b) an order directing the Commissioner to remit the imposition of interest charges on unpaid liabilities that are due and payable.

14ZZJ Publishing ART decisions

(1) This section applies in relation to:

(a) a review of a reviewable objection decision; and

(b) a review of an extension of time refusal decision; and

(c) an ART extension application.

(2) If:

(a) a hearing of a proceeding for the review of the decision or the application is not conducted in public; and

(b) a notice of appeal has not been lodged with the Federal Court;

the ART must ensure, as far as practicable, that its decision and the reasons for it are framed so as not to be likely to enable the identification of the person who made the application.

14ZZK Grounds of objection and burden of proof

On an application for review of a reviewable objection decision:

(a) the applicant is, unless the ART orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and

(b) the applicant has the burden of proving:

(i) if the taxation decision concerned is an assessment - that the assessment is excessive or otherwise incorrect and what the assessment should have been; or

(ii) in any other case - that the taxation decision concerned should not have been made or should have been made differently.

14ZZL Implementation of ART decisions

(1) When the decision of the ART on the review of a reviewable objection decision or an extension of time refusal decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision.

(2) For the purposes of subsection (1), if:

(a) no appeal is lodged against the ART's decision within the period for lodging an appeal; and

(b) no application to refer a decision of the ART to the guidance and appeals panel is made within the period for making the application;

the decision becomes final at the end of the period.

14ZZM Pending review not to affect implementation of taxation decisions

(1) The fact that a review is pending in relation to a taxation decision does not in the meantime interfere with, or affect, the decision and any tax, additional tax or other amount may be recovered as if no review were pending.

(2) However, the application of subsection (1) in relation to a small business taxation assessment decision is subject to any order made under subsection 32(2) of the ART Act.

Note: An order made under subsection 32(2) of the ART Act is subject to section 14ZZH (limitation on orders staying or affecting reviewable objection decisions relating to small business taxation assessment decisions) of this Act.