Birchstone Brief for the week ended 4 August 2023

ATO Update

Class ruling and addendum released

The ATO has issued:

• CR 2023/43 – Australian Unity Limited – Employee share scheme – Employee Mutual Capital Instrument Program; and
• PR 2022/6A1 – Addendum to PR 2022/6 – Tax consequences for a customer participating in Commbank Yello with the Commonwealth Bank of Australia.

Cases

Appeals

• The taxpayer has appealed to the Federal Court against the AAT’s decision in Stern v FCT [2023] AATA 2010 (covered in the Birchstone Brief for the week ended 21 July 2023). In that case, the AAT rejected the taxpayer’s constitutional argument that the Commissioner’s decision to issue a superannuation transfer balance determination and commutation notice had constituted the acquisition of property by the Commonwealth otherwise than on just terms in contravention of section 51(xxxi) of the Australian Constitution.
• The applicant has appealed to the Federal Court against the AAT’s decision in Equality Australia Ltd v Commissioner of Australian Charities and Not-for-profits Commission [2023] AATA 2161 (covered in the Birchstone Brief for the week ended 28 July 2023). In that case, a majority of the Tribunal held the applicant was not entitled to be registered as a PBI because it did not directly provide benevolent relief to LGBTQI+ people in Australia.
• The High Court has refused the taxpayers’ application for special leave to appeal against the Full Federal Court’s decision in Hyder v FCT [2023] FCAFC 29 (covered in the Birchstone Brief for the week ended 10 March 2023). In that case, the Full Federal Court confirmed the Commissioner’s power to lawfully issue assessments to more than one taxpayer in respect of income from the same source.

Legislation

Draft legislation to clarify input tax credit rules

Treasury has released exposure draft legislation and explanatory materials regarding miscellaneous amendments to Treasury portfolio laws which seek to ensure the law operates as intended by correcting technical or drafting defects, removing anomalies and addressing unintended outcomes. One of the matters intended to be addressed by the draft legislation is ensuring that input tax credits are attributed to the appropriate GST tax periods.

Statute Law Amendment (NTCAT Conferral of Jurisdiction) Bill 2023 (NT) introduced

A Bill has been introduced into the Northern Territory Legislative Assembly which, if enacted into law, will amend various Acts to provide for:

• the dissolution of the Taxation and Royalty Appeals Tribunal; and
• the transfer of jurisdiction to hear tax review applications to the Northern Territory Civil and Administrative Tribunal (NTCAT).