Excise guidelines for the fuel industry
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08 REVIEWS
&
OBJECTIONS
| OUR COMMITMENT TO YOU
The information in this publication is current at August 2012.
This publication is an expression of the Commissioner's opinion on the operation of fuel excise legislation. This publication is not legally or administratively binding on the Commissioner and is not a 'public ruling' for the purposes of
Division 358
of Schedule 1 to the
Taxation Administration Act 1953.
If you feel this publication does not fully cover your circumstances, please seek help from the Tax Office or a professional adviser. Since we regularly revise our publications to take account of any changes to the law, you should make sure this edition is the latest. The easiest way to do this is by checking for a more recent version on our website at
www.ato.gov.au
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8.1 PURPOSE
This chapter deals with:
- the types of review you can ask for
- what decisions you can object to
- when you can seek an external review
- how to request an informal review
- how to lodge an objection, and
- how to request an external review.
8.2 INTRODUCTION
We will provide you with a clear explanation of any decision we make about your excise affairs. If you need more information about our decisions, contact us using the details we provide when we advise you of our decision.
If you're not satisfied with a decision we've made, you can ask for it to be reviewed by:
- informal review
[168]
- objection,
[169]
or
- external review.
Where there is more than one review option, we will explain how these differ. For example, some reviews look at questions of law and others involve checking that we followed the correct process in reaching our decision. Which review option is best will depend on your situation.
8.3 POLICY AND PRACTICE
8.3.1 WHAT ARE INFORMAL REVIEWS?
Under the Taxpayers' Charter, you can seek an informal (internal) review where you believe that we have made a mistake, not complied with the law, or interpreted or applied the law incorrectly.
Your dissatisfaction with our decision may be treated as an informal review, both prior to or after receiving notification of the decision in writing.
An informal review does not waive or defer your rights to object to the decision.
However, if you choose to pursue an informal review, awaiting the outcome of the informal review may prejudice your right to object to the decision and, ultimately, your right for external review. For example, the time allowed to lodge an objection may have expired by the time an informal review is finalised.
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This is particularly crucial if the original decision attracts only a 60-day objection period. |
8.3.2 CAN I OBJECT AGAINST ANY DECISION?
No, you can only lodge an objection against
those decisions set out in sections 39Q and 162C of the Excise Act and regulation 247 of the Excise Regulations 1925
. These include decisions:
- made under the licensing provisions of the Excise Act
[171]
such as:
- refusal to grant a licence
- imposing and varying conditions on a licence, or
- suspension, cancellation or refusal to renew a licence
- to demand an amount in relation to goods not satisfactorily accounted for,
[172]
or
- relating to a drawback, refund or remission of duty.
[173]
However, if you informally ask us to review a decision we will try to resolve any problems as quickly as possible. If we have made a mistake, we want to fix it at the least cost to both of us.
8.3.3 WHEN CAN I SEEK AN EXTERNAL REVIEW?
For decisions in relation to an objection, or where there is no right of objection, you may be able to apply to the Federal Court or Federal Magistrates Court under the
Administrative Decisions (Judicial Review) Act 1977
(ADJR Act).
8.4 PROCEDURES
8.4.1 HOW DO I REQUEST AN INFORMAL REVIEW?
To request an informal review, use the contact details we provide to contact the person or area of the Tax Office handling your case. The review will be conducted by a tax officer who was not involved in making the original decision.
We will advise you of the outcome of our review within 28 days of receiving all the information we need. If we cannot finalise the review within 28 days or we need more information from you, we will contact you within 14 days to obtain the information we need or negotiate an extended reply date.
8.4.2 HOW DO I LODGE AN OBJECTION?
You can lodge an objection by completing an objection form or writing your own objection document. Your objection must:
- be in writing
- lodged within 60 days after you receive the notice of the decision, and
- set out a full and detailed account of the grounds for the objection.
If you are a registered user you can lodge your objection through the business portal at
www.bp.ato.gov.au
.
You can also lodge your objection:
- by faxing it to
1300 650 128
- by e-mailing it to
ExcAdvice@ato.gov.au
- in person, at your nearest Tax Office, or
- by posting it to
Australian Taxation Office
PO Box 3001
PENRITH NSW 2740
If you do not lodge your objection within 60 days we will not consider your objection, unless you provide the reasons for late lodgment. We will consider these reasons before continuing with the objection process.
If we refuse additional time to lodge an objection, you may have this decision reviewed by the Administrative Appeals Tribunal (AAT).
We will make a decision about your objection within 56 days of receiving all the necessary information. If we need more information or we cannot make a decision within 56 days, we will contact you within 14 days to obtain the information we need or to negotiate an extended reply date.
If you are dissatisfied with the objection decision, there are further review rights available to you. You can:
- apply to the AAT for a review of the decision, or
- appeal against the decision to the Federal Court.
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To obtain a copy of our objection forms and for more information about how to lodge an objection, refer to
How to lodge an objection
on our website at
www.ato.gov.au
|
For more information about what to do if you believe your legal rights or the standards outlined in the Taxpayers' Charter have not been met
,
refer to
If you're not satisfied
(NAT 2556).
8.4.3 HOW DO I REQUEST AN EXTERNAL REVIEW?
We suggest you obtain legal advice if you are considering using external review options provided by the AAT or Federal Court.
8.4.4 WHAT DO I DO IF I NEED MORE INFORMATION?
If you need more information on reviews and objections contact us as follows:
- phone
1300 137 292
- fax
(03) 9285 1168
, or
- write to us at
Australian Taxation Office
PO Box 3001
PENRITH NSW 2740
We will ordinarily respond to written information requests within 28 days. If we cannot respond within 28 days, we will contact you within 14 days to obtain more information or negotiate an extended response date.
8.5 PRIVATE RULINGS
A ruling is an expression of our opinion of the way a relevant provision applies or would apply to you in the administration or collection of excise duty.
We may, on application by you, make a written ruling on the way we consider a particular provision applies or would apply to you in relation to a stipulated set of facts and in a particular circumstance.
8.5.1 HOW DO I APPLY FOR A PRIVATE RULING?
You, your agent or legal personal representative may apply in the approved form for a private ruling. You, your agent or legal personal representative may also withdraw the application at any time before the private ruling is made.
We must confirm the withdrawal in writing.
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To obtain a copy of our Private ruling application form and for more information about how to lodge an application, refer to
How to apply for a private ruling
on our website at
www.ato.gov.au |
8.5.2 CAN I RELY ON A PRIVATE RULING?
A private ruling binds us if it applies to you and you act in accordance with it. If you act in accordance with the private ruling and the law turns out to be less favourable to you than the ruling provides, you are protected by the ruling from any adverse consequences.
8.5.3 FOR WHAT PERIOD CAN I RELY ON A PRIVATE RULING?
Unless we specify in the private ruling when it begins and ceases to apply, you may rely on the private ruling from the time it is made.
We may revise a private ruling we issue to you. The revised rules will apply to from the date it is issued or such later time that we specify in the ruling. The original ruling will cease to apply from that time.
[174E]
If we have issued a public ruling on a particular matter and we issue you with a private ruling which deals with the same matter but in a different way, you may rely on your private ruling. This is only if your private ruling was issued after the public ruling was issued and came into effect.
8.5.4 CAN I OBJECT TO A PRIVATE RULING?
You can object to a private ruling that applies to you if you are dissatisfied with it.
However you cannot object against a private ruling if:
- the ruling relates to excise duty, or another amount, payable in relation to the goods; and
- we have made a decision about the excise duty, or other amount, payable in relation to those goods; and
- the decision is reviewable.
| Example: 8A
A licensed manufacturer anticipates manufacturing a new type of excisable good. They seek a private ruling as to the amount of duty that would be payable on the good. They do not accept the amount advised by us in a private ruling and they lodge an objection.
Subsequently, they commenced manufacture of the excisable goods. They pay the amount of duty that we stated in the private ruling was payable, and wish to commence an action against us under section 154 of the Excise Act.
They are unable to commence an action under section 154 on the same matters as that currently under review through the objection to the private ruling.
If the decision on the private ruling is not yet made, the manufacturer may withdraw the objection to the private ruling and commence an action under section 154 of the Excise Act. |
8.6 LEGISLATION (quick reference guide)
In this chapter we have referred to the following legislation:
8.6.1
Excise Act 1901
Section 39Q - Review of decisions
Section 61A - Permission to remove goods that are subject to CEO's control
Section 154 - Deposit of duty
Section 155 - Limited dispute rights because of objection against private ruling
Section 162C - Review of decisions
8.6.2 Excise Regulations 1925
Regulation 247 - Review of decisions
8.6.3
Taxation Administration Act 1953
Section 14ZU - How taxation objections are to be made
Part IVC - Taxation objections, reviews and appeals
Section 357-60 - When rulings are binding on the Commissioner
Section 357-75(1B) - Inconsistent rulings
Section 359-5 - Private rulings
Section 359-10 - applying for a private ruling
Section 359-25 - Time of application of private rulings
Section 359-60 - Objections, reviews and appeals relating to private rulings
Excise guidelines for the fuel industry
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