On 24 December 2021, an individual who was both a casual employee and a sole trader could not qualify for JobKeeper as a business participant because she had previously given a nomination notice to her employer and couldn’t withdraw it, to claim as self-employed).
The applicant was both a long-term casual employee of her employer and a sole trader conducting her own, separate business. She gave her employer a JobKeeper nomination notice and the employer received JobKeeper payments for the first 2 fortnights of the scheme. The applicant then purported to withdraw the nomination notice she had given to her employer – who stopped claiming JobKeeper in relation to her – and instead gave a nomination notice to the ATO as a business participant.
One of the requirements to be satisfied for a business participant to qualify for JobKeeper payments (in s 12(4) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (the JobKeeper Rules)[Federal Register of Legislation – F2020L00419]) is that they have not previously given any other entity (such as an employer) or the ATO a nomination notice. The ATO relied on this to deny the applicant’s claim for JobKeeper payments in respect of the third to sixth JobKeeper fortnights.
The AAT agreed with the ATO that the applicant was not entitled to JobKeeper payments as a business participant, concluding that:
- the JobKeeper Rules did not expressly or impliedly allow a nomination notice to be withdrawn. Accordingly, the applicant could not withdraw the nomination notice given to her employer;
- the AAT had no power to set aside or disregard the applicant’s notification notice to her employer; and
- s 14(2) of the JobKeeper Rules did not provide a basis for the AAT to treat a notification notice which appeared on its face to be a valid notice as if it were not a valid notice.
(DGSC v CofT [2021] AATA 4816, AAT, Olding SM, 24 December 2021.) [LTN 2, 6/1/22]
[Tax Month – January 2022 – Previous 2021] 8.1.22