The Tax Office has released PS LA 2013/1 which provides guidelines to be followed by tax officers when preparing statements of reasons pursuant to s 13 of the Administrative Decision (Judicial Review) Act 1977 (ADJR Act).
Subsection 13(1) of the ADJR Act imposes an obligation on the Commissioner to provide a written statement of reasons in relation
to certain decisions. A person may request a statement under s 13(1) if he or she is entitled to make an application to the
Federal Court under s 5 of the ADJR Act in relation to the decision.
The obligation on the Commissioner to provide a written statement of reasons applies to a “decision to which this Act applies”.
A “decision to which this Act applies” is defined in s 3(1) to mean:
“a decision of an administrative character made, proposed to be made, or required to be made ... under an enactment ... other
than: ... a decision included in any of the classes of decisions set out in Schedule 1”.
The categories of decisions set out in Sch 1 are discussed at paragraphs 33 to 34 of this practice statement.
A “decision” for the purposes of review under the ADJR Act must be “final or operative and determinative”. A conclusion reached
along the way is not a reviewable decision.
The right to obtain reasons under s 13 only applies to decisions reviewable under s 5, not conduct leading to a decision or
failure to make a decision (reviewable under s 6 and 7 respectively).
Examples of reviewable and non-reviewable decisions
The following are examples of decisions held to be reviewable under the ADJR Act:
- • decision not to remit general interest charge under s 8AAG of the Taxation Administration Act 1953
- • decision to exercise access powers under s 263 of the ITAA 1936
- • decision to issue a notice to produce documents under s 264 of the ITAA 1936, and
- • decision under s 161 of the ITAA 1936 refusing to grant an extension of time for the lodgement of a tax return.
The following are examples of decisions that have been held not to be reviewable under the ADJR Act:
- • decision to commence recovery proceedings and refusing to defer such proceedings
- • decision not to accept a taxpayer’s offer to compromise a debt, and
- • decision not to refund a company tax instalment and to apply it against outstanding tax liabilities.
Request for written statement of reasons
A person may request a statement under s 13(1) if he or she is entitled to make an application to the Federal Court under
s 5 of the ADJR Act in relation to the decision. There is no prescribed form of request for a statement of reasons however
it must be in writing.
A request for a statement of reasons in relation to a decision may be declined on a number of bases, including that:
- (a) the person requesting the statement is not entitled to request a statement
- (b) the decision is not reviewable under s 5
- (c) the decision is within a class of decisions excluded under Sch 1
- (d) the decision is within a class of decisions excluded under Sch 2
- (e) an entitlement exists to a statement of reasons under s 28 of the Administrative Appeals Tribunal Act 1975
- (f) the decision is excluded by regulation
- (g) a statement of reasons has already been provided, or
- (h) the request is made out of time.
Source: Practice Statement Law Administration PS LA 2013/1.