The Taxation Administration Act 1997 (TAA) allows a taxpayer who is dissatisfied with an assessment (other than a compromise assessment) or certain decisions of the Commissioner of State Revenue (the Commissioner) to lodge a written objection with the Commissioner (see section 96 of the TAA). This includes an objection to an assessment of a tax liability arising under the Duties Act 2000, Land Tax Act 2005, Payroll Tax Act 2007, Congestion Levy Act 2005 or Part 9B of the Planning and Environment Act 1987.
The TAA states that an objection must be lodged with the Commissioner within 60 days after the date of service of the notice of assessment, or decision, on the taxpayer (see section 99 of the TAA).
Section 100 allows the Commissioner to permit a person to lodge an objection after the 60-day period. This section thereby confers a discretion upon the Commissioner to permit the lodgement of an objection out of time.
The purpose of this Revenue Ruling is to explain how the Commissioner applies section 100.
This includes the process by which a taxpayer may make an application under section 100 and the factors, which the Commissioner will generally consider to be relevant in deciding whether or not to grant permission under that section.
How is an application for late lodgement made?
An application under section 100 of the TAA must be made by the taxpayer in writing (see section 100(2)). Oral applications will not be accepted.
The application must state, fully and in detail, the circumstances concerning, and the reasons for, the failure to lodge the objection within the 60-day period (see section 100(2)).
It is preferable for the application to be accompanied by the proposed objection itself (if not already lodged).
The onus is on the taxpayer to establish why the Commissioner should permit an objection to be lodged after the expiration of the 60-day period. Accordingly, the taxpayer should provide any evidence that is considered to be relevant to the application. The Commissioner expects the taxpayer to be able to substantiate all the reasons provided in an application under section 100.
Relevant factors to the exercise of the power
The Commissioner will consider each application in its merits and will consider the following non-exhaustive list of factors.
- Does the taxpayer have an arguable case on the substantive matter the subject of the objection?
- The reasons for the lateness.
- Extent of lateness.
- Lack of awareness of the 60 day time limit.
- Prejudice to the Commissioner in granting the objection late.
- Any other circumstance.
[SRO website – Draft Ruling] [LTN 179, 15/9/16]