On 17th March, the Full Federal Court gave its decision in Commissioner of Taxation v The Administrative Appeals Tribunal. [2011] FCAFC 37.
The Commissioner appealed against the decision of the AAT in which the Tribunal had held it did not have jurisdiction under Part IVC assessment proceedings to review a decision of the Commissioner NOT to determine (under section 292-465 of the 1997 Act) that the Commissioner disregard the excess non-concessional contributions to superannuation for the 2007 financial year.
The Court confirmed the AAT’s view that the decision of the Commissioner was the decision on the objection against the assessment of tax and was not the decision made under s292-465.
Of interest from a GST perspective is that the Commissioner has ruled (in MT2010/1) that the AAT has jurisdiction, in a Part IVC proceeding on an assessment of a net amount, to review the Commissioner’s discretion under section 105-65 of schedule 1 of the TAA to refund or not to refund an overpayment of a net amount of GST.
The discretion is not otherwise a reviewable indirect tax decision.
The AAT in the Luxottica case said it had jurisdiction.
In the Australian Leisure Marine case, the AAT considered that
- “There is force in the submission of the Commissioner that s 105-55 of Sch 1 to the Act should be read together with the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as part of a legislative scheme concerned with determining an entity’s legal obligation to pay GST or its entitlement to be paid a refund as reflected in the net amount”
The matter seems to have also been aired in Qantas’ case.
The decision of the Court seems to suggest that the provisions in Division 105 of Schedule 1 of the TAA may not be part of the process of assessment that is reviewed under Part IVC.
The uncertainty in this issue has been raised in consultations over the proposals for a GST self assessment regime in proposed Div 105-C of the Schedule 1 of the TAA. The proposals should, it seems, include a provision that states that the 105-65 decision (at least) is a reviewable indirect tax decision.