More Australian businesses to be eligible for JobKeeper under ATO review
The Australian Tax Office (ATO) Decision Impact Statement on the Apted decision indicates that more Australian businesses may be eligible for JobKeeper.
The Tax Institute’s Senior Advocate, Robyn Jacobson, stated that this “would expect this would affect thousands of taxpayers.”
“The ATO will be identifying those taxpayers who have previously been denied JobKeeper or cash flow boost following a review or lodging an objection. There will be some taxpayers who never enrolled in JobKeeper because they thought they were not eligible or had sought advice and were advised that they were not eligible. These taxpayers will be able to contact the ATO for a review of their case.”
One of key conditions to be eligible for JobKeeper (on the basis of business participation) and cash flow boost is the requirement to have held an ABN on 12 March 2020 and to have evidenced business activity prior to 12 March 2020. The JobKeeper Rules allow the Commissioner to grant a discretion to allow additional time for holding an ABN and providing notice of assessable income or supplies.
The Full Federal Court handed down its decision in Commissioner of Taxation v Apted [2021] FCAFC 45 on 24 March 2021, finding in favour of the taxpayer. On 29 April, the ATO issued its Decision Impact Statement on Apted and updated PS LA 2020/1, acknowledging that the Commissioner’s discretion is broader than has been applied by the ATO to date.
Jacobson said, “For taxpayers who received a previous decision in which the Commissioner declined to exercise his discretion and so missed out on stimulus assistance, the Commissioner will automatically review the circumstances and whether his discretion should be applied. The ATO will contact these taxpayers when they have completed their review or if further information is required.”
She added, “This is not a free for all — applicants are still required to meet existing conditions, and the decision doesn’t apply to other discretions within JobKeeper or cash flow boost, or in other parts of the tax law. So it doesn’t mean everyone who was previously denied JobKeeper or cash flow boost is now eligible.”
“The Full Federal Court’s decision shows that the Commissioner disregarded factors that were considered by the Tribunal to be relevant in exercising the discretion. The Full Federal Court decided that the Tribunal was correct to take those factors into account.”
“Remember that if you need assistance or have a complaint about how your stimulus application has been handled, the Inspector-General of Taxation and Taxation Ombudsman is an excellent avenue for receiving that assistance,” she concluded.