Commonwealth Consolidated Acts Commonwealth Consolidated ActsLimit on amending assessments
(1) The Commissioner cannot amend an assessment of a taxpayer about a particular in a way that would produce a less favourable result for the taxpayer if:
(a) the taxpayer has anticipated amendments (see subsection (3)); and
(b) in making the assessment, the particular was ascertained on the basis of the taxpayer's anticipated amendments having been made; and
(c) that way of amending the assessment would instead ascertain the particular on the basis of the anticipated amendments not having been made.
Anticipation not to give rise to administrative overpayment
(2) If ascertaining that particular on the basis of the taxpayer's anticipated amendments not having been made:
(a) would not result in an amendment of the assessment; but
(b) would, apart from this subsection, result in an amount the Commissioner paid to the taxpayer on the basis of the assessment being an administrative overpayment (within the meaning of section 8AAZN of the Taxation Administration Act 1953 );
the amount of the administrative overpayment is taken, for the purposes of the taxation law, to be an amount to which the taxpayer is entitled.
Meaning of anticipated amendments
(3) One or more hypothetical amendments of the taxation law, taken together, are anticipated amendments a taxpayer has if:
(a) the amendments, if made, would reasonably reflect an announcement mentioned in the table in subsection (8); and
(b) a statement made by or on behalf of the taxpayer:
(i) is consistent with the amendments having been made; and
(ii) is made in good faith; and
(iii) meets the timing requirement in column 2 of an applicable item of the following table.
Timing requirements for statements | ||
Item | Column 1 | Column 2 |
1 | The statement is made in a return lodged on or before 14 December 2013 | The return: (a) is lodged in the period that the announcement is on foot (see subsection (8)); and (b) was not required to be lodged before the start of that period. |
2 | The statement is made otherwise than in a return | The statement is made in the period that the announcement is on foot. |
3 | All of the following apply: (a) the statement is made in a return of the taxpayer lodged after 14 December 2013; (b) the return was not required to be lodged on or before that date; (c) just before the statement is made, no return has been given, and no assessment has been made, in relation to the taxpayer in respect of the year of income to which the statement relates | The statement relates to the application of the taxation law (as hypothetically amended by the amendments) to events or circumstances: (a) that happened or existed on or before 14 December 2013; or (b) to the happening or existence of which the taxpayer had definitively committed on or before 14 December 2013. |
(4) In determining, for the purpose of paragraph (3)(a), whether amendments would reasonably reflect an announcement, have regard to the following:
(a) the terms of the announcement;
(b) any related document published after the announcement on behalf of the Commonwealth Government, the Department of the Treasury or the Commissioner;
(c) if the announcement proposes to apply to a particular kind of scheme or practice--that kind of scheme or practice;
(d) existing provisions of the taxation law, if:
(i) the announcement proposes to effect a particular result in relation to the operation of the taxation law; and
(ii) those existing provisions effect that result, or a substantially similar result, in relation to another matter;
(e) any other relevant matter.
Operation of section
(5) Subsections (1) and (2) apply despite any other provision of the taxation law, apart from subsections (6) and (7), (which are about exceptions).
Exceptions
(6) Subsection (1) does not prevent an amendment if:
(a) the taxpayer applies for the amendment; or
(b) the Commissioner may make the amendment in accordance with item 6 (objection, review or appeal) of the table in subsection 170(1).
(7) Subsections (1) and (2) do not apply in relation to a particular ascertained on the basis of a taxpayer's anticipated amendments, in any year of income, if:
(a) the taxpayer makes a statement (in a return of income or otherwise) for a later year of income that is not consistent with the taxpayer's anticipated amendments; and
(b) if the assessment for the later year of income was to be made on the basis of the taxpayer's anticipated amendments, instead of on the basis of the statement, the result would be less favourable to the taxpayer in that year of income.
Note: An amendment of an assessment can be made at any time to give effect to this subsection (see item 27A of the table in subsection 170(10)).
Table of discontinued announcements
(8) The following table lists the announcements to which this section applies. An announcement is on foot during the period:
(a) starting on the day mentioned in column 2 of the table for the announcement; and
(b) ending on 14 December 2013.
Discontinued announcements | ||
Item | Column 1 | Column 2 |
Budget Paper No. 2, Budget Measures 2012 - 13, Part 1, topic headed "Bad debts--ensuring consistent treatment in related party financing arrangements". | 8 May 2012 | |
2 | Budget Paper No. 2, Budget Measures 2012 - 13, Part 1, topic headed "Capital gains tax--refinements to the income tax law in relation to deceased estates", second dot point (which is about modifying application dates for 2 minor changes from the 2011 - 12 Budget). | 8 May 2012 |
3 | The following constitute the announcement: (a) Media Release No. 137, issued by the then Assistant Treasurer on 9 October 2011, titled "No Capital Gains Tax for Properties in Natural Disaster Land Swap Programs"; (b) Budget Paper No. 2, Budget Measures 2012 - 13, Part 1, topic headed "Capital gains tax--broadening relief for taxpayers affected by natural disasters". | 9 October 2011 |
4 | Budget Paper No. 2, Budget Measures 2011 - 12, Part 1, topic headed "Income tax relief for water reforms". | 10 May 2011 |
5 | Budget Paper No. 2, Budget Measures 2011 - 12, Part 1, topic headed "Capital gains tax and other roll - overs for amalgamations of indigenous corporations". | 10 May 2011 |
6 | Budget Paper No. 2, Budget Measures 2011 - 12, Part 1, topic headed "Securities lending arrangements tax rules--extending the scope to address insolvency issues". | 10 May 2011 |
7 | Budget Paper No. 2, Budget Measures 2011 - 12, Part 1, topic headed "Capital gains tax--exemption for incentives related to renewable resources or for preserving environmental benefits". | 10 May 2011 |
Budget Paper No. 2, Budget Measures 2011 - 12, Part 1, topic headed "Improvements to the company loss recoupment rules", but not the sentence stating "This measure will modify the continuity of ownership test so that ownership does not need to be traced through certain superannuation entities.". | 10 May 2011 | |
9 | Mid - Year Economic and Fiscal Outlook 2010 - 11, Appendix A, Part 2, topic headed "Consolidation--operation of the rules following a demerger". | 9 November 2010 |
10 | The following constitute the announcement: (a) Budget Paper No. 2, Budget Measures 2009 - 10, Part 1, topic headed "Uniform capital allowance regime--technical changes"; (b) Media Release No. 048, issued by the then Assistant Treasurer on 12 May 2009, Attachment D headed "Technical changes to uniform capital allowance regime". | 12 May 2009 |
11 | The following constitute the announcement: (a) Budget Paper No. 2, Budget Measures 2007 - 08, Part 1, topic headed "Consolidation--further improvements to the operation of the income tax law for consolidated groups"; (b) Media Release No. 050, issued by the then Minister for Revenue and Assistant Treasurer on 8 May 2007, topic headed "Extension of the single entity rule and entry history rule for certain CGT integrity provisions affecting third parties". | 8 May 2007 |
The following constitute the announcement: (a) Budget Paper No. 2, Budget Measures 2007 - 08, Part 1, topic headed "Consolidation--further improvements to the operation of the income tax law for consolidated groups"; (b) Media Release No. 050, issued by the then Minister for Revenue and Assistant Treasurer on 8 May 2007, topic headed "Trusts joining or leaving a consolidated group or MEC group part way through an income year". | 8 May 2007 | |
13 | The following constitute the announcement: (a) Budget Paper No. 2, Budget Measures 2006 - 07 , Part 1, topic headed "Simplified imputation system--franking credits available to life tenants"; (b) Media Release No. 010, issued by the then Minister for Revenue and Assistant Treasurer on 20 March 2006, titled "Franking credits available to life tenants". | 20 March 2006 |
(9) In this section:
"anticipated amendments" , in relation to a taxpayer, has the meaning given by subsection (3).
"on foot" , in relation to an announcement, has the meaning given by subsection (8).
"taxation law" has the meaning given by subsection 995 - 1(1) of the Income Tax Assessment Act 1997 .