Practice Statement Law Administration

PS LA 2009/4

When a proposal requires an exercise of the Commissioner's powers of general administration

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This Law Administration Practice Statement explains when, and how, the Commissioner's powers of general administration can be exercised.

1. What is this practice statement about?

This practice statement outlines:

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the Commissioner's powers of general administration (GPA)

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a purposive interpretation of the law

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circumstances in which the Commissioner's GPA may be properly exercised

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the appropriate authority for the exercise of the Commissioner's GPA, and

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when and how you seek guidance and advice on whether it is appropriate for the Commissioner's powers to be exercised.

2. The Commissioner's GPA

Provisions located within various taxation laws place the power to conduct the day to day administration of those laws in the hands of the Commissioner.^[1] These powers exist in order to assist the Commissioner to administer the taxation laws in accordance with Parliament's legislative intent.^[2]

3. A purposive interpretation of law

In the course of administering tax laws on behalf of the Commissioner, our primary focus should be on interpreting the law in a manner which supports that law's purpose.^[3] This means that where the law is open to more than one interpretation the alternative interpretations of the law should be explored before considering reliance on the GPA.

In the rare circumstance where the operation of the law is unclear or leads to unforseen or unexpected consequences, it may be appropriate to consider whether the issue can be resolved using the Commissioner's GPA.

4. Circumstances in which the Commissioner's GPA may be properly exercised

The courts have recognised that the general administration provisions reinforce the principle that the Commissioner is authorised to do whatever may be fairly regarded as incidental to, or consequential upon, the things that the Commissioner is authorised to do by the taxation laws.^[4]

The GPA are narrow in scope and governed by the operation of administrative law principles. A proper exercise of the powers is confined to dealing with management and administrative decisions, such as the allocation of compliance resources more broadly recognised as practical compliance approaches.

The Commissioner's GPA cannot be used to remedy defects or omissions in the law. It is the Commissioner's remedial power which provides discretion to modify the operation of a tax law to ensure it can be administered to achieve its intended purpose or object.^[5]

The scope and extent of these powers is outlined in greater detail in Appendix B of this practice statement.

5. The appropriate authority to exercise the Commissioner's GPA

The Carltona^[6] principle allows employees to exercise the GPA on the Commissioner's behalf, but only when there is an implied authority for them to do so.^[7]

An implied authority to exercise the GPA on the Commissioner's behalf exists if it is within the scope of your usual duties to make a judgment call or decision that affects the allocation of resources, including your own time. Generally speaking such every day decisions are made by officers at all levels in the course of their usual duties.

The Commissioner has expressly delegated the following GPA (neither of which is within the scope of this practice statement):

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the settlement of cases^[8], and

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the compromise of tax debts.^[9]

If a judgment call or decision needs to be made that is not necessarily within the course of your usual duties, you may need to consider preparing a proposal as to whether it is appropriate for the Commissioner to exercise his or her GPA in the circumstances.^[10]

6. What is a practical compliance approach?

Consistent with the ATO's intent to concentrate our efforts on matters that pose the highest risk to efficient and effective administration of the tax and superannuation systems, we also understand that most people want to do the right thing. Given this, we may choose to not allocate compliance resources or take other compliance action to examine certain interactions with the tax and superannuation systems so we can better utilise our limited resources for an optimal outcome.

Refer to publications such as the Practical Compliance Guideline PCG 2017/2 Simplified transfer pricing record keeping options, the various examples of administrative safe harbours and the LAPS (GA) series, published on the ATO Legal database, for examples of practical compliance solutions.

7. Seeking guidance on whether it is appropriate for the Commissioner to exercise his or her GPA

The GPA are legislatively vested in the hands of a single statutory office holder - the Commissioner. Consequently the Commissioner personally holds the direct authority to exercise the GPA.

Guidance can be sought from the relevant business line's GPA Community of Practice (GPA CoP) representative^[11] or from Tax Counsel Network (TCN).^[12]

8. How do I identify circumstances that necessitate a decision that is outside the scope of my usual duties?

This is a matter for your judgment. As a guide, a proposal that requires the Commissioner's attention is likely to exhibit one or more of the following attributes:

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no clear guidelines/criteria exist

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ATO or legislative policy is unclear

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proposed resolution may be contentious or may be perceived as unjust, anomalous or to have an improper motivation or outcome, and/or

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taxpayers, or a class of taxpayers, are adversely affected.

When deciding if a matter is contentious, you should consider the following:

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degree of sensitivity

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significance

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complexity

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whether taxpayers are significantly disadvantaged

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risks to reputation or revenue, and

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implications for the integrity of the tax and/or superannuation system.

Example 1: selection of taxpayers for audit for an active compliance project

Guideline 1.4.1 in the Taxation Authorisations Guidelines provides that officers at certain levels can list or select particular taxpayers for audit in the name of the Deputy Commissioner. This is an exercise of the Commissioner's GPA done on the basis of implied authority. No further guidance would be required in this or other similar circumstances.

Example 2: deciding not to undertake active compliance action regarding a particular class of taxpayers or industry group in respect of prior years or periods, where the ATO identified that those taxpayers or industry group have not complied with the law

For example, a business line may identify that taxpayers in a particular industry group have incorrectly claimed tax deductions for certain expenses. A decision not to pursue compliance action in relation to prior income years for that particular industry group may not be a decision necessarily made in the course of usual duties. The decision may be contentious. It could result in risks to reputation and/or revenue, as well as impact the integrity of the tax system. In this or similar circumstances further guidance should be sought.

Exceptions

A decision not to undertake compliance action in respect of prior years or periods does not require further guidance if:

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the decision is agreed to, or made by, the Policy Implementation Forum, see Law Administration Practice Statement PS LA 2007/11 Administrative treatment of taxpayers affected by announced but unenacted legislative measures which will apply retrospectively when enacted, or

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the decision is made in accordance with Law Administration Practice Statement PS LA 2011/27 Determining whether the ATO's views of the law should be applied prospectively only.

Example 3: deciding not to pursue compliance action for prior years against a specific taxpayer

Generally, this is an exercise of the Commissioner's GPA undertaken on the basis of implied authority. The decision would normally be based on a risk assessment, existing business line guidelines or criteria and made in the ordinary course of the relevant tax officer's duties. There may however be examples where, due to the nature or profile of a specific taxpayer, a matter should be put to the Commissioner for consideration.

9. How do I put a GPA proposal to the Commissioner?

Appendix A of this practice statement provides a summary of the process for putting a proposal to the Commissioner for his or her consideration.

In accordance with business line work practices, you should prepare a proposal within, and for consideration by, the business line responsible for the proposed exercise.

Your proposal requires approval by an appropriate SES officer in that business line prior to engaging TCN. Law Administration Practice Statement PS LA 2012/1 outlines the process for referring a proposal to TCN to provide advice on whether the proposal is considered to be within the Commissioner's GPA.

10. What information must I include in the GPA proposal?

Your proposal to your business line SES, and to TCN, must:

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include background information on the issue

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explain the current interpretation of relevant legislative provisions and its impact on affected taxpayers, as well as any alternative interpretations and relevant ATO views

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detail the number and class(es) of taxpayers affected and the amount of revenue involved, and

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detail all discussions held, or sought, with relevant stakeholders (for example, affected taxpayers, industry groups, other government agencies, tax counsel and/or other business lines).

Your proposal should also include:

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the intended administrative solution

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how the solution will address the issue

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how the ATO will administer the arrangements and similar arrangements into the future

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how you determined any de minimis^[13] threshold

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confirmation from the relevant SES officer that the business line supports the proposal

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the impacts of adopting (or not) the proposal, including, but not limited to, a discussion of:

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whether the integrity of the tax and/or superannuation system is at risk (for example, the effect on taxpayer perceptions, the ATO's responsibilities to administer the law fairly and impartially and to apply the rule of law)

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details of any other risks that could result if the proposal is adopted or not adopted (for example, reputation or revenue risks), and

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the effect, if any, on other areas within the ATO and/or externally (such as other government agencies).

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how taxpayers take advantage of the proposal, and

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how the proposed administrative action will be communicated to affected taxpayers.^[14]

11. Criteria to be addressed in any GPA proposal

Ideally you should address all of the criteria listed in this section. If any criterion is irrelevant reasons should be given.

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The compliance approach is consistent with the achievement of the policy intent of the legislation.

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The approach achieves substantive compliance at a reduced cost to taxpayers.

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The approach reflects industry practice (as far as possible).

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Any resulting risks to the revenue are appropriately managed.

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The approach does not lead to material adverse impacts on third parties.

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Taxpayers can choose whether or not to adopt the approach.

12. If my business line SES supports my GPA proposal, what's next?

If your business line SES supports the proposal, you must:

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prepare a submission for the Commissioner

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obtain the support of the relevant business line Deputy Commissioner and support of the relevant Second Commissioner^[15], and

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submit your proposal to the Commissioner via the Second Commissioner Law Design and Practice Group for a decision on whether the GPA is to be exercised.

13. Information to be provided to the Commissioner

You must provide the Commissioner with:

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the key points included in your proposal, including the issue and proposed solution

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an assurance that the proposal maintains the legislative intent

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TCN's advice on whether the GPA proposal is within scope

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a copy of the GPA proposal sent to TCN, and

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a statement also seeking the Second Commissioner Law Design and Practice's support for the proposal.

14. More information

For more general information on:

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The GPA - refer to:

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the GPA Community of Practice (CoP) eLibrary Wiki

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the GPA Register

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the Commissioner's GPA - frequently asked questions document, and

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Appendix B of this practice statement.

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Practical compliance guidelines and public advice and guidance generally - refer to:

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PCG 2016/1 Practical Compliance Guidelines: purpose, nature and role in ATO's public advice and guidance

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the Public advice and guidance manual, and

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contact your business line PAG Unit or the PAG Centre in TCN.

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Commissioner's remedial power - refer to the Policy, Analysis & Legislation business line SharePoint site.

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Delegations and authorisations - contact General Counsel.

APPENDIX A - PROPOSAL FLOWCHART

APPENDIX B - THE COMMISSIONER'S GPA EXPLAINED

What the general administration provisions are designed to do

1. The general administration provisions place the day to day administration of various tax laws in the hands of a statutory office holder, the Commissioner of Taxation.

2. Judicial discussion of the general administration provisions shows that the courts accept that these provisions reinforce the principle that the Commissioner is authorised to do whatever may be fairly regarded as incidental to, or consequential upon, the things that the Commissioner is authorised to do by the tax laws.^[16] For example:

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The Commissioner's decision to audit taxpayers, even at random, is supported by the GPA (Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 and Knuckey, Ross Randall v Commissioner of Taxation of the Commonwealth of Australia [1998] FCA 1143.

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The Commissioner's power to settle or compromise proceedings to which he is a party is derived from the GPA (Grofam Pty Ltd & Ors v The Commissioner of Taxation of the Commonwealth of Australia [1997] FCA 660).

3. The provisions do not authorise the Commissioner to administer the taxation laws inconsistently with their purpose or object, whether express or implied, or their plain meaning. They support the principle that the Commissioner must interpret and administer each Act to give effect to its intention as discerned from it as a whole, not, for example, by interpreting a particular section in isolation from the rest of the Act. The provisions must be interpreted having regard to the context in which they appear. The GPA include and augment the specific powers given to the Commissioner by the Act: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; Hutchins, Peter Graeme v Deputy Commissioner of Taxation [1996] FCA 201.

Scope and use of the GPA

Conflicting priorities: revenue collection versus duty of good management

4. In exercising the powers conferred on him or her, the Commissioner must reconcile various duties and powers. For example, one duty is to collect the revenue properly payable under the law. The courts have described the Commissioner's duty as:

...to ensure that the correct amount of tax is paid, 'not a penny more, not a penny less'^[19]

And:

...to collect tax in accordance with a correct assessment, that is to say, to collect the correct amount of tax, no more and no less. If an assessment is excessive it would be improper for the Commissioner to seek to collect tax payable under it.^[20]

5. That duty must be reconciled with the Commissioner's duty of good management. Having regard to the competing duties and powers that arise under the taxation laws, the courts have acknowledged that the Commissioner must make administrative decisions as to the allocation of scarce resources to achieve an optimal, though not necessarily the maximum, revenue collection. This ensures that the Commissioner is not obliged, for example, to pursue every last cent of revenue where the cost of doing so is prohibitive.

6. This 'conflict' of duties was described in the English case Inland Revenue Commissioners v National Federation of Self-employed & Small Businesses Ltd [1982] AC 617. At page 651, Lord Scarman of the House of Lords considered the equivalent administration power of the Inland Revenue Commissioners. He said that:

... in the daily discharge of their duties inspectors are constantly required to balance the duty to collect 'every part' of due tax against the duty of good management. This conflict of duties can be resolved only by good managerial decisions, some of which will inevitably mean that not all the tax known to be due will be collected.

He observed that the relevant statutory provisions:

... establish a complex of duties and discretionary powers imposed and conferred in the interest of good management upon those whose duty it is to collect the income tax ... I am persuaded that the modern case law recognises a legal duty owed by the Revenue to the general body of taxpayers to treat taxpayers fairly, to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise, to ensure that there are no favourites and no sacrificial victims. The duty has to be considered as one of several arising within the complex comprised in the care and management of a tax, every part of which it is their duty, if they can, to collect.

7. The Public Governance, Performance and Accountability Act 2013 (PGPA Act) supports the duty of good management. Section 15 of the PGPA Act imposes a general obligation on the Commissioner to manage the affairs of the ATO in a way that promotes proper use of the public resources for which the Commissioner is responsible. 'Proper use' in this context means that the Commissioner needs to make decisions about the allocation of ATO resources to compliance and other activities which promote the efficient, effective, economical and ethical use of those resources. However in doing so he must still comply with the law (section 14 and subsection 13(4) of the Public Service Act 1999) and government policy (section 21 of the PGPA Act).

8. When the Commissioner, or a tax officer acting in the course of his or her duties, considers that a course of action is justified by the duty of good management, but requires the Commissioner to assume a power that can only be implied by reference to a general administration provision, the tax officer should bear in mind that the exercise of any power is constrained by the principles of administrative law.^[21]

9. Section 16 of the Taxation Administration Act 1953 restricts the operation of the GPA. In an exception to the general rule, any payments made under the general administration provisions are not able to be paid out of the Consolidated Revenue Fund.

Framework within which the Commissioner's GPA must operate

10. The GPA are constrained by the principles of administrative law. These principles govern whether:

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the administrative authority has the power to deal with the subject matter, or

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the mode in which the authority deals with the matters entrusted to it, satisfies certain standards that have been developed by the courts in interpreting the common law.^[22]

11. How administrative law principles govern the operation of the general administration provisions is summarised below.

How the GPA are exercised

12. As with many other powers and duties conferred on a Minister or statutory office holder, no one person could ever personally attend to all aspects of the general administration powers.^[24] Consequently, the courts recognise that the Commissioner is able to delegate the powers or authorise others to exercise the powers and duties on his behalf. In this regard, the general principles of administrative law apply. In practice, the exercise of these powers will sometimes, but not always, happen under a general or specific delegation or authorisation from the Commissioner. Generally, whether oral or written, they will happen according to an authorisation that is implied from the structure and practices of the ATO.

13. In practice, the Commissioner has made two specific delegations in relation to the general administration powers. One is concerned with settlements of tax issues. The Code of settlement explains how this delegation is to be used. The other delegation is concerned with the compromise of tax debts. The latter delegation is to named individuals, who generally work in Debt. Other exercises of power reliant on the general administration provisions would be covered by an oral or implied authorisation.

14. If a decision or action taken pursuant to a general administration provision has financial (in a non-tax sense) implications or consequences, that decision or action is covered by the PGPA Act, the delegations for which are administered by ATO Finance.

15. The decision making process to provide practical compliance solutions involves balancing different perspectives, and needs to be transparent.

Criteria to be met when exercising the GPA

16. Apply the following criteria when determining how the GPA might be exercised such that they help taxpayers meet their compliance obligations.

Exercising the GPA: two common examples

Example 1: decisions not to undertake compliance action affecting a class of taxpayers or industry group for prior years or periods

17. The Commissioner cannot use his GPA to accept non-compliance with the law. However, as part of his duty of good management, the Commissioner can decide not to undertake compliance action on a particular issue for prior years or periods on a particular issue that affects a class of taxpayers or industry group.

18. In making his decision, the Commissioner will consider all of the circumstances, including:

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estimated amount of revenue at risk

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potential number of taxpayers affected

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cost of identifying and pursuing non-compliance

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extent to which some taxpayers have complied with the ATO view in respect of the issue, where known

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whether the ATO has contributed to non-compliance^[26]

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likely impact on future voluntary compliance by taxpayers if compliance action is not taken

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relative priority of the compliance risk compared to other identified risks

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strength of the ATO view on the issue, and

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any proposed change of law affecting the issue including the proposed date of effect of any such change.

Example 2: third party errors affecting income tax assessments

19. In many cases, a third party provides information to a taxpayer enabling them to complete their income tax return or calculate amounts that will have an effect on the taxpayer's income tax liability.

20. Sometimes the third party makes a mistake in their calculations or in their reporting of this information. This may result in large numbers of taxpayers inadvertently making errors in their income tax returns and therefore either overpaying or underpaying their income tax for that year.

21. In order to maintain their reputation in the market, while correcting the error, the third party sometimes approaches the ATO seeking an administrative arrangement to resolve the tax issues in a way that will minimise the impact on the affected taxpayers. The decision whether or not to accept such a proposal involves the exercise of the Commissioner's GPA.

22. When considering whether to exercise the Commissioner's GPA, each case must be considered on its own merits, having regard to the facts and circumstances of that case. However, specific attention should be paid to, the number of taxpayers involved and the size of the adjustments and whether:

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there is any lost revenue

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the error is likely to significantly affect items other than the basic income tax rate (for example entitlement to offsets, family tax benefit, liability for Medicare levy surcharge, etcetera) which cannot be easily quantified

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any proposed compensation to the ATO provides for the time value of money of any estimated revenue loss

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the period in which the Commissioner can amend the relevant income tax assessment has expired

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the third party intends to disclose its mistake to the affected taxpayers and, where appropriate, to any relevant regulatory authority, and

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the third party has taken steps to ensure that the particular error does not occur on an ongoing basis.

23. It is important to remember that no agreement between the third party and the Commissioner is binding on the affected taxpayers. An affected taxpayer retains their rights under the taxation laws.

Amendment history

Date of Issue: 21 May 2009

Date of Effect: 21 May 2009

File 2008/9202

Related Practice Statements:
PS LA 1998/1
PS LA 2007/6
PS LA 2007/11
PS LA 2011/3
PS LA 2011/27
PS LA 2012/1
PS LA 2015/1
Risk Management CEI (link available internally only)

Other References:
ATO Code of Settlement
Correcting GST mistakes before 10 May 2013
GPA CoP eLibrary wiki (link available internally only)
Practical Compliance Guideline PCG 2017/2 Simplified Transfer Pricing Record Keeping Options
Public advice and guidance manual (link available internally only)
TCN Engagement template (link available internally only)Hotop, S D 1985, Principles of Australian Administrative Law, 6th edn., Law Book Company, Sydney
TCN intranet site (link available internally only)Sykes, E et al 1997, General Principles of Administrative Law, 4th edn., Butterworths, Sydney
Taxation Authorisations Guidelines (link available internally only)

Legislative References:
Acts Interpretation Act 1901
Acts Interpretation Act 1901 15AA
Excise Act 1901
Excise Act 1901 7
Public Governance, Performance and Accountability Act 2013
Public Governance, Performance and Accountability Act 2013 15
Public Governance, Performance and Accountability Act 2013 21
Public Service Act 1999
Public Service Act 1999 13(4)
Public Service Act 1999 14
FBTAA 1986
FBTAA 1986 3
ITAA 1936 8
SGAA 1992 43
TAA 1953
TAA 1953 Sch 1 356-5
TAA 1953 16

Case References:

Brown v Federal Commissioner of Taxation
[1999] FCA 563
(1999) 42 ATR 118
(1999) 99 ATC 4516

Carltona Ltd v Commissioner of Works
[1943] 2 All ER 560

Grofam Pty Ltd & Ors v The Commissioner of Taxation of the Commonwealth of Australia
[1997] FCA 660
(1997) 97 ATC 4656
(1997) 36 ATR 493

Hutchins, Peter Graeme v Deputy Commissioner of Taxation
[1996] FCA 201
(1996) 65 FCR 269
(1996) 32 ATR 620
(1996) 96 ATC 4372

Industrial Equity Ltd v Deputy Commissioner of Taxation
[1990] HCA 46
(1990) 170 CLR 649
(1990) 90 ATC 5008
(1990) 21 ATR 934

Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd
[1982] AC 617
[1981] STC 260

Knuckey Ross Randall v Commissioner of Taxation of the Commonwealth of Australia
[1998] FCA 1143
(1998) 87 FCR 187
(1998) 40 ATR 117
(1998) 98 ATC 4903

Lighthouse Philatelics Pty Ltd v Commissioner of Taxation
[1991] FCA 667
(1991) 32 FCR 148
(1991) 91 ATC 4942
(1991) 22 ATR 707

O'Reilly v Commissioners of State Bank of Victoria
[1983] HCA 47
(1982) 153 CLR 1
(1982) 82 ATC 4671
(1982) 13 ATR 706

Vestey v Inland Revenue Commissioners (Nos 1 and 2)
[1980] AC 1148

Business Line:  TCN