Australia

Details

  • Service: Tax, Corporate Tax
  • Type: Regulatory update
  • Date: 21/03/2014

Tax Insights

KPMG's analysis of tax issues and developments.

Stephen Gottlieb

Stephen Gottlieb
Partner, Tax

+61 2 9335 7122

sagottlieb@kpmg.com.au

Out of time? Options for amending your tax assessment 

by Stephen Gottlieb, Corporate Tax Specialist

Section 170 of the Income Tax Assessment Act 1936 stipulates the time limits within which an assessment may be amended. There are different time limits applying to different taxes and taxpayers although generally the time limit applying to a company is within 4 years from the Notice of Assessment.

A taxpayer seeking an amendment must first decide whether to follow the more informal request for Amended Assessment under Section 170 or follow the more formal objection requirements under Section 175A of the same Act together with Part IVC of the Taxation Administration Act 1953. The latter will generally be preferable where a taxpayer seeks to preserve their rights of appeal and to ensure the Commissioner has considered the matter at hand.

 

Sometimes it is assumed that once the time period stipulated under Section 170 has passed, a taxpayer no longer has any avenue to have an objection considered by the Commissioner. However, Section 14ZW (2) of the Taxation Administration Act 1953 provides that where the time period has passed, a taxpayer may nevertheless lodge an objection with the Commissioner together with a written request asking the Commissioner to treat the objection as if it had been lodged within the requisite time period. If the Commissioner decides to refuse the request, the taxpayer may apply to the Administrative Appeals Tribunal to review the decision.

 

In Practice Statement Law Administration 2003/7 the Commissioner sets out the matters that he will direct his mind to in deciding such a request. These include not only the fact that a refund of tax may arise, but also the taxpayer’s explanation for the failure to lodge on time and and whether the taxpayer has an arguable case for the objection to be allowed.

 

The leading case on this is Brown v FC of T 99 ATC 4516 where Hill J noted that it is necessary to balance any prejudice to the Commissioner with any prejudice to the taxpayer but also importantly noted that these rules are ameliorating provisions designed to avoid injustice and that one needs to consider the explanation for the delay, along with any prejudice to the Commissioner and the taxpayer. Thus if you are a taxpayer out of time in lodging an objection, the merits of an extension request should always be considered.

 

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