ONLINE STORE 
 
    Welcome Guest     SIGN IN |REGISTER
Australia    
     Search options
 
 
 
News Archive
Click here to access the
  news archive keyword search.
Quick Links
 
This story first appeared in  Australian Tax Alert Tracker
 
Reasons for Commissioner’s decisions under ADJR Act
 

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.

Exclusions

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.

Print     Email     Feedback
IntelliConnect
CCH Webinars
CCH iFirm
CCH iKnow
CGT Reporter
CCH Software
2014 Books
CCH Parliament
IntelliConnect Help
Education
Latest News
   
Training web tile
 
   
box