Practice Statement Law Administration

PS LA 2007/24

Making default assessments: section 167 of the Income Tax Assessment Act 1936

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This Practice Statement provides guidelines on making default assessments using the powers under the Income Tax Assessment Act 1936.

1. When section 167 of the Income Tax Assessment Act 1936 may be used

All legislative references in this Practice Statement are to the Income Tax Assessment Act 1936 (ITAA 1936), unless otherwise indicated.

Section 167 allows the Commissioner of Taxation to make an assessment of the amount on which, in their judgment, income tax ought to be levied. That amount becomes the person's taxable income for the purpose of section 166.

It can be used where:

•

a person defaults in lodging a return

•

we are not satisfied with the return a person has lodged

•

we have reason to believe a person who has not lodged a return has derived taxable income.

Such an assessment is called a 'default assessment'.

Note: The principles in this Practice Statement relating to section 167 should also be applied to similar provisions, where appropriate, such as:

•

section 73 of the Fringe Benefits Tax Assessment Act 1986, and

•

section 63 of the Petroleum Resource Rent Tax Assessment Act 1987.

The principles also apply to goods and services tax (GST) and other assessments made under section 155-5 of Schedule 1 to the Taxation Administration Act 1953 (TAA), in circumstances equivalent to those made under section 167.

Refer also to Law Administration Practice Statement PS LA 2007/10 Making default assessments: section 36 of the Superannuation Guarantee (Administration) Act 1992.

You should also refer to the procedures on making default assessments listed in section 13 of this Practice Statement.

2. Making default assessments – general principles

In making a default assessment, you must ensure that:

•

you are authorised to do so

•

your decision is fair and made in good faith

•

your decision has been made independently, and not at the direction of a third party, such as another government agency (see also section 6 of this Practice Statement)

•

the assessment is valid (see section 3 of this Practice Statement)

•

your decision is based on reasonable grounds and is defensible (see section 5 of this Practice Statement)

•

there is sufficient information to support your decision

•

you have considered all the relevant individual circumstances in accordance with the law

•

you have considered the commitments made in Our Charter and the principles of the Compliance model.

3. Making a valid default assessment

A default assessment is subject to the same legal principles as any other assessment in order to be valid, that is:

•

the assessment must be the result of an 'act or operation of the Commissioner'^[1]

•

the assessment must lead to an ascertainment, on consideration of all relevant circumstances, of the taxpayer's taxable income and their tax payable^[2]

•

the assessment must be definitive in character, and not tentative or provisional^[3]

•

the notice of assessment must be served on the taxpayer.^[4]

Relevant legal cases with respect to default assessment are provided in section 13 of this Practice Statement.

The combined effect of section 175 and table item 2 of subsection 350-10(1) of Schedule 1 to the TAA^[5] (formerly subsection 177(1)) means that if we have made a genuine attempt to ascertain the taxpayer's taxable income, the taxpayer cannot challenge the assessment except by lodging a taxation objection under Part IVC of the TAA.

Errors in calculating a taxpayer's taxable income during the process of making the default assessment do not mean that the assessment is invalid. We are not limited to using a particular methodology to calculate an amount on which to tax the taxpayer. The assessment is valid provided that we have undertaken a logical process to arrive at that amount.

Circumstances that do not amount to a genuine attempt to assess include simply plucking a figure from the air or where the assessment is made upon no intelligible basis. A genuine attempt will arrive at a definitive taxable income for the taxpayer. The fact that an assessment may be amended later (for example, on the provision of further information) or that alternative assessments are issued does not mean that it is not definitive.

An assessment will be invalid if it is motivated by an improper or collateral purpose (for example, if it is issued to cause a taxpayer to talk to us or is based on facts that are known to be untrue).^[6]

4. Gathering the information to make the default assessment

The following sources should, depending on the circumstances, be used to obtain the information required to make the assessment.

The taxpayer

The taxpayer is the best starting point for information because they should possess information about their own taxation affairs.

Note: Different procedures may be adopted if an audit is being undertaken without informing the taxpayer (for example, due to safety concerns or the audit is being conducted covertly).

Taxpayers who have not kept records cannot use this as the basis of an objection.^[7] The High Court said^[8]:

In the absence of some record in the mind or in the books of the taxpayer, it would often be quite impossible to make a correct assessment. The assessment would necessarily be a guess to some extent, and almost certainly inaccurate in fact. There is every reason to assume that the legislature did not intend to confer upon a potential taxpayer the valuable privilege of disqualifying himself in that capacity by the simple and relatively unskilled method of losing either his memory or his books.

In cases where the taxpayer's records have been lost or destroyed, you should note the policy in Law Administration Practice Statement PS LA 2011/25 Reconstructing records and making reasonable estimates for taxpayers affected by a disaster.

Third parties

Where complete information may not be available from the taxpayer, you can seek to obtain information from third parties, including but not limited to:

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Australian government agencies, such as, other Commonwealth agencies, local council authorities, utilities providers and transport departments

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employers, commercial entities and financial institutions

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foreign governments (subject to applicable tax treaties)

•

information provided to us by the public.

Formal access powers

The Commissioner's formal access powers may be used in appropriate circumstances to obtain information from the taxpayer or third parties. You should follow the guidelines in Our approach to information gathering and Access and Information gathering (link available internally only) when seeking to use these powers.

5. Determining reasonable grounds on which to make the assessment

When making a default assessment, you should generally make allowance for usually incurred deductions. However, due to the nature of a default assessment, it is not necessary to calculate assessable income and then applicable deductions; depending on the circumstances, it may be entirely appropriate for you to make a direct judgment of taxable income.^[9]

Reasonable grounds on which a default assessment may be made include:

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information provided by third parties

•

information obtained from data matching

•

the application of industry benchmarks

•

relevant economic statistics – for example, Australian Bureau of Statistics (ABS) cost-of-living figures^[10]

•

extrapolation from previous year returns.

Indirect audit methodologies, including 'T' accounts^[11] and asset betterment calculations^[12], have been upheld by the courts as proper bases on which an assessment may be raised.

There is no requirement to allow deductions for expenses identified using an indirect audit methodology unless you are satisfied that the amount is deductible. Similarly, there is no requirement to allow GST credits when making a GST default assessment unless you are satisfied that the entitlement is correct.

6. Documenting your decision

You must accurately document the basis on which the default assessment is made. The importance for doing so underlies our ability to rebut claims the assessment was not validly made or is excessive.

You must also record all dealings with third parties, including other government agencies. Keeping accurate contemporary records should reflect the fact that the assessment is made solely for income tax law purposes. Failure to do so may give rise to the risk of an allegation that the assessment was made for an improper purpose.

7. Interaction with prosecution

Non-lodgment of tax returns is pursued through the reminder correspondence, final notice and prosecution actions.^[13]

However, it may be appropriate to issue default assessments instead of enforcing lodgment in the following circumstances:

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There is a risk that a taxpayer would remove themselves or their assets from Australia (that is, in conjunction with issuing a departure prohibition order or seeking a freezing order, also known as Mareva injunction).

•

There is a risk that money available to satisfy the tax debt would become irrecoverable unless garnishee action was taken.

•

It appears that a taxpayer will pay fines resulting from prosecution action, but continues not to lodge outstanding returns.

•

There may be significant administrative advantages in making default assessments as non-lodgment is rife in a particular industry or occupation, or as a result of a scheme or arrangement.

•

An independent decision based on whole-of-government initiatives indicates issuing a default assessment is more appropriate.

Once a default assessment has been made, we would not normally continue with prosecution action. However, a default assessment can be made after prosecution for non-lodgment if the taxpayer has subsequently failed to comply with the court order to lodge.

Note: You should consult the tax officer in charge of the prosecution before raising a default assessment.

8. Applying penalties

You need to consider the application of administrative penalties when making a default assessment. Refer to Divisions 284 and 286 of Schedule 1 to the TAA and the relevant policies on administrative penalties listed in section 13 of this Practice Statement.

9. Notifying the taxpayer

In accordance with usual audit practices, you should advise the taxpayer that you intend to raise a default assessment and provide them with the opportunity to comment on that proposed default assessment.^[14]

Note: Even if you make adjustments based on any information a taxpayer provides, it is still a default assessment.

It may not always be appropriate to give a taxpayer advance notice of your intention to issue a default assessment. Such instances include where:

•

the taxpayer poses a flight risk

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there is a risk of the dissipation of assets, such as the transfer or movement of liquid assets and funds, especially out of Australia

•

the default assessment is used in conjunction with another tax remedy, such as a departure prohibition order, or where there is a personal safety risk to a tax officer (for example, in audits of taxpayers linked to organised crime).

10. Debt collection issues

You should contact the Frontline Compliance business line to discuss collection and any associated risks as early as possible before issuing a default assessment. Frontline Compliance needs information on any identified assets in order to maximise the likelihood of collection and recovery.

11. Review and objection rights

A taxpayer has the usual internal and external review and objection rights, including objecting against a default assessment (under Part IVC of the TAA).

12. Examples

Example 1 – unexplained deposits

A taxpayer who has not lodged any tax returns uses funds sourced from a series of significant cash bank deposits over several years to pay for living expenses for himself and his family. The taxpayer provides several unsatisfactory explanations for these deposits. A default assessment under section 167 is made for the amounts of unexplained deposits in each year as taxable income. The assessment does not include any allowable deductions based on the insufficient evidence concerning the source of the funds.

Example 2 – asset betterment or 'T' account

A taxpayer lodges returns for a number of years, disclosing consistent losses from business activities. An audit of the taxpayer's affairs reveals a significant increase in the value of the taxpayer's assets and evidence of a lavish lifestyle inconsistent with the reported ongoing losses. The taxpayer is uncooperative. An indirect financial analysis is conducted ('T' account), which quantifies the shortfall of non-disclosed business income on which to raise a default assessment.

Example 3 – extrapolation from prior year returns and third-party information

A taxpayer fails to lodge returns for several years. The last 2 lodged returns contain stable income details for the taxpayer's business activity. Following a lack of response, the ATO uses third-party information to confirm the taxpayer is still conducting the same business. Section 167 default assessments, based on an extrapolation of the last 2 lodged returns (taking into account assessable income and allowable deductions) and increased by the ABS inflation rate for the relevant periods, are raised. The tax officer also advises the Frontline Compliance business line of the third parties that the taxpayer is apparently trading with in order to aid debt collection activity.

Example 4 – use of external economic statistics

Australian Transaction Reports and Analysis Centre (AUSTRAC) data shows a taxpayer sent large sums of money offshore. The income included in the taxpayer's tax returns does not indicate that the taxpayer had sufficient funds available to make the transfers. The taxpayer did not explain the source of the funds transferred offshore, the reason for transferring the funds or provide any details of returns on these funds. After considering the evidence, the taxpayer is assessed on the unexplained funds that were transferred offshore as taxable income. Additionally, ABS data on net return on foreign investments is used to calculate the taxpayer's taxable (not assessable) income and section 167 default assessments are raised.

Example 5 – lost records for individual

A self-employed individual taxpayer's taxation records are destroyed by a fire at the business premises. The taxpayer is unable to easily reconstruct the records as they largely related to cash receipts and payments. The taxpayer has a good compliance history and a reasonably stable taxable income over the prior 5 years. As a result, the tax officer responsible for the taxpayer's lodgment enforcement case decides to issue a section 167 default assessment for the relevant financial year. The ATO officer contacts the taxpayer and discusses an appropriate basis for calculating the taxpayer's taxable income, including the taxpayer's estimates of their assessable income and allowable deductions. The tax officer raises a default assessment on the basis agreed with the taxpayer (calculated as the average of the last 3 years' taxable incomes, which was consistent with the taxpayer's estimate).

13. More information

For judicial interpretation on valid assessments generally and default assessments under section 167, refer to:

•

Bailey v Commissioner of Taxation (Cth) [1977] HCA 11

•

Batagol v Commissioner of Taxation (Cth) [1963] HCA 51

•

Buzadzic v Commissioner of Taxation [2024] FCAFC 50

•

Case B18 (1951) 2 TBRD 88

•

Commissioner of Taxation v Bazzo [2024] FCA 452

•

Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation for the Commonwealth of Australia [1996] FCA 1129

•

Deputy Commissioner of Taxation of (WA) & Ors v. Briggs, P. [1987] FCA 163

•

Eldridge, K.S. v. Commissioner of Taxation [1990] FCA 523

•

Favaro, Gerald Antonio & Anor v Commissioner of Taxation [1996] FCA 877

•

Federal Commissioner of Taxation v S Hoffnung & Company Limited [1928] HCA 49

•

FJ Bloemen Pty Ltd v Commissioner of Taxation (Cth); Simons v Commissioner of Taxation (Cth) [1981] HCA 27

•

Gamini Bus Co Ltd v Commissioner of Income Tax, Colombo (1952) AC 571

•

Gashi v Commissioner of Taxation [2013] FCAFC 30

•

George v Commissioner of Taxation (Cth) [1952] HCA 21

•

Liang v Commissioner of Taxation [2024] FCA 535

•

Madden, Alexander William v Madden, Joan Lillian & Ors [1996] FCA 200

•

Martin, J.B. v. Commissioner of Taxation [1993] FCA 945

•

McAndrew v Commissioner of Taxation [1956] HCA 62

•

McCleary, Grant v Commissioner of Taxation of the Commonwealth of Australia [1997] FCA 182

•

R v Deputy Federal Commissioner of Taxation (SA) [1926] HCA 3

•

Rigoli v Commissioner of Taxation [2014] FCAFC 29

•

Rusanov v Commissioner of Taxation [2024] FCA 777

•

Stone v Federal Commissioner of Taxation [1918] HCA 67

•

Taxation, Commissioner of v Dalco [1990] HCA 3

•

Trautwein v Federal Commissioner of Taxation [1936] HCA 77

•

Wang v Commissioner of Taxation [2024] FCA 585.

For procedures on making default assessments, refer to:

•

Default assessment under s167 method (link available internally only)

•

Default assessment under s167 method support (link available internally only).

For relevant policies on administrative penalties, refer to:

•

Law Administration Practice Statement PS LA 2011/19 Administration of the penalty for failure to lodge on time

•

Law Administration Practice Statement PS LA 2012/4 Administration of the false or misleading statement penalty – where there is no shortfall amount

•

Law Administration Practice Statement PS LA 2012/5 Administration of the false or misleading statement penalty – where there is a shortfall amount

•

Law Administration Practice Statement PS LA 2014/4 Default assessment penalty

•

Taxation Ruling TR 94/3 Income tax: tax shortfall penalties: calculation of a tax shortfall and allocation of additional tax

•

Taxation Ruling TR 94/7 Income tax: tax shortfall penalties: guidelines for the exercise of the Commissioner's discretion to remit penalty otherwise attracted.

Amendment history

Date of Issue: 20 December 2007

Date of Effect: 20 December 2007

File 07/18030; 1-1441XFIA

Related Rulings/Determinations:
TR 94/3
TR 94/7

Related Practice Statements:
PS LA 2007/10
PS LA 2011/19
PS LA 2011/25
PS LA 2012/4
PS LA 2012/5
PS LA 2014/4

Other References:
Access and Information gathering (link available internally only)
Compliance model
Default assessments for overdue lodgments
Default assessment under s167 method (link available internally only)
Default assessment under s167 method support (link available internally only)
Non-lodgment prosecution guideline (link available internally only)
Our approach to information gathering
Our Charter

Legislative References:
ITAA 1936 166
ITAA 1936 167
ITAA 1936 175
ITAA 1936 177(1)
ITAA 1997 4-15(1)
ITAA 1997 4-15(2)
TAA 1953 Pt IVC
TAA 1953 Sch 1 155-5
TAA 1953 Sch 1 Div 284
TAA 1953 Sch 1 Div 286
TAA 1953 Sch 1 350-10
TAA 1953 Sch 1 350-10(1)
FBTAA 1986 73
PRRTAA 1987 63
SGAA 1992 36
Judiciary Act 1903 39B

Case References:

Bailey v Commissioner of Taxation (Cth)
[1977] HCA 11
136 CLR 214
77 ATC 4096
7 ATR 251
13 ALR 41

Batagol v Commissioner of Taxation (Cth)
[1963] HCA 51
109 CLR 243
[1964] ALR 480
13 ATD 202
37 ALJR 235

Buzadzic v Commissioner of Taxation
[2024] FCAFC 50
2024 ATC 20-903

Case B18
(1951) 2 TBRD 88

Commissioner of Taxation v Bazzo
[2024] FCA 452
2024 ATC 20-907

Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation for the Commonwealth of Australia
[1996] FCA 1129
72 FCR 175
97 ATC 4040
34 ATR 491
141 ALR 713

Deputy Commissioner of Taxation of (WA) & Ors v. Briggs, P.
[1987] FCA 163
14 FCR 249
87 ATC 4278
18 ATR 570
72 ALR 365

Eldridge, K.S. v. Commissioner of Taxation
[1990] FCA 523
21 FCR 897
90 ATC 4907
21 ATR 897

Favaro, Gerald Antonio & Anor v Commissioner of Taxation
[1996] FCA 877
96 ATC 4975
34 ATR 1

Federal Commissioner of Taxation v S Hoffnung & Company Limited
[1928] HCA 49
42 CLR 39
1 ATD 310
1 ALJR 354
34 ALR 329

FJ Bloemen Pty Ltd v Commissioner of Taxation (Cth); Simons v Commissioner of Taxation (Cth)
[1981] HCA 27
147 CLR 360
81 ATC 4280
11 ATR 914
35 ALR 104

Gamini Bus Co Ltd v Commissioner of Income Tax, Colombo
(1952) AC 571
(1952) TR 44

Gashi v Commissioner of Taxation
[2013] FCAFC 30
209 FCR 301
2013 ATC 20-377
91 ATR 1
296 ALR 497

George v Commissioner of Taxation (Cth)
[1952] HCA 21
86 CLR 183
10 ATD 65
[1952] ALR 961
26 ALJ 441

Liang v Commissioner of Taxation
[2024] FCA 535
2024 ATC 20-910

Madden, Alexander William v Madden, Joan Lillian & Ors
[1996] FCA 200
65 FCR 354
96 ATC 4268
32 ATR 223
136 ALR 98

Martin, J.B. v. Commissioner of Taxation
[1993] FCA 945
93 ATC 5200
27 ATR 282

McAndrew v Commissioner of Taxation
[1956] HCA 62
98 CLR 263
[1956] ALR 1008
11 ATD 131
30 ALJ 464

McCleary, Grant v Commissioner of Taxation of the Commonwealth of Australia
[1997] FCA 182
97 ATC 4266
35 ATR 318

R v Deputy Federal Commissioner of Taxation (SA)
[1926] HCA 3
37 CLR 368
32 ALR 101
(1926) R and McG 70

Rigoli v Commissioner of Taxation
[2014] FCAFC 29
2014 ATC 20-446
96 ATR 19
141 ALD 529
[2016] ALMD 4784

Rusanov v Commissioner of Taxation
[2024] FCA 777
2024 ATC 20-922

Stone v Federal Commissioner of Taxation
[1918] HCA 67
25 CLR 389
[1918] VLR 567
(1918) R and McG 13

Taxation, Commissioner of v Dalco
[1990] HCA 3
168 CLR 614
90 ATC 4088
20 ATR 1370
64 ALJR 166

Trautwein v Federal Commissioner of Taxation
[1936] HCA 77
56 CLR 63
10 ALJR 247
[1936] ALR 425
4 ATD 48

Wang v Commissioner of Taxation
[2024] FCA 585
2024 ATC 20-913

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ISSN: 2651-9526