ATO Debt Recovery Part 4 – Reviews & Objections

REVIEWS AND OBJECTIONS

Types of Reviews Available

  1. There are various review processes available should you be unsatisfied with the decision

Informal Review

  • You may lodge a formal complaint with the ATO:
    • To do this you will need to access the ‘complaints form’ on the ATO website and submit the form. If you are a tax or BAS agent, the form can be submitted for a client in the ‘online services for agents’ tab;
    • The form requires information such as the complaint details, prior correspondence with the ATO and the outcomes desired. It is best to speak to a tax professional to get advice on the review process;
  • You may lodge a complaint with the Taxation Ombudsman for an independent investigation:
    • It is best to first lodge a formal complaint with the ATO, and if you are unsatisfied with the outcome, you may lodge a complaint with the Ombudsman; and
    • The process is largely similar to lodging a complaint with the ATO. The easiest way is to go onto the ‘IGOT Complaint form’ on the IGOT website. Alliteratively you can call 1300 44 88 29 from within Australia to lodge your complaint over the phone;
  • You may consider in-house facilitation with the ATO, a free mediation process. The purpose of in-house facilitation is to attempt to reach a resolution or settlement between you and the ATO. To propose an in-house facilitation, you must lodge a ‘Request for an in-house facilitation’ form which is available on the ATO’s website;

When can I request an informal review?

  • Taxpayers can seek an informal type of review if they believe that the ATO:
    • Have made a mistake
    • Have not complied with the law
    • Interpreted or applied the law incorrectly

Objections

  1. You may object to some ATO decisions by lodging an objection:
    • If you are operating as a business, you can submit an ‘Objection Form – For Taxpayers’ found on the ATO website;
    • The objection must contain full details of why the decision is wrong. You must also provide a declaration that the information you give in the objection and supporting documents is true and correct. The objection must be signed and dated. It should also contain your full details including the TFN and ABN of the taxpayer and any supporting documents;
    • The time limit to lodge an objection depends on what the objection is for. Time limits can range from 60 days to 4 years. It is imperative to get advice from a tax professional on your specific objection to ensure compliance with time limits;

What Decisions Can I Object To?

  • You can object to most ATO decisions about:
    • ABNs;
    • Cash flow boost;
    • Excise;
    • FBT;
    • Fuel schemes;
    • Fuel tax credits;
    • GST;
    • Income Tax;
    • JobKeeper payment;
    • JobMaker Hiring Credit;
    • Luxury car tax;
    • Offshore petroleum levy;
    • Penalties and interest;
    • Resource rent taxes;
    • Single Touch Payroll;
    • Superannuation;
    • Wine equalisation tax;

What Decisions Can’t I Object To?

  • Decisions you cannot object to are decisions with respect to:
    • A general interest charge, however you can ask to remit, reduce or cancel it;
    • A decision not to remit a general interest charge;
    • A shortfall interest charge, however you can ask to remit it;
    • A decision not to remit a shortfall interest charge;
    • A late payment penalty;
    • A decision not to remit some penalties;
    • A private ruling where there is another reviewable decision;
    • An excise private ruling where there is another reviewable decision;
    • Administratively binding advice;
    • Advice about proposed tax law changes;
    • A super co-contribution determination;
    • The labels in your tax return;
    • Your PAYG instalment credits;
    • A tax debt that has been re-raised;
    • Your study and training support loans;
    • Requirement to lodge a SMSF annual return;
    • Decision not to allow late lodgement of JobKeeper enrolment form
    • A decision not to defer the due date for single touch payroll reporting
    • A decision not to accept a finalisation declaration for single touch payroll

External Review

AAT

  1. You may lodge an application with the Administrative Appeal Tribunal.

Process

  • Lodge an application. The time limit may be displayed on the decision letter:
    • For a small business taxation decision, the fee is $543; and
    • For a taxation and commercial decision, the fee is $1,011;
  • Both the AAT and the applicant may issue a summons which requires a person to:
    • Give the AAT documents relating to review and/or;
    • Attend and give evidence to the AAT;
  • AAT responds with Alternative Dispute Resolution (ADR) to try to resolve the dispute before a hearing. ADR is also used to prepare for a hearing. The ADR processes are conferences, conciliation, mediation, case appraisal and neural evaluation;
  • If the dispute is not resolved in ADR, the AAT sets a hearing date;
  • The respondent (the Commissioner) lodges a Statement of Facts Issues and Contentions with the AAT and to the applicant (the taxpayer). This includes:
    • The issues that the party considers fall for determination
    • The essential facts relied on, understood by that party;
    • The contentions that the party will seek at hearing;
    • The decision or decisions that the party will seek at hearing;
  • The applicant responds to the Respondent’s SFIC with their own SFIC where they state what they agree and disagree with;
  • The respondent lodges their Outline of Submissions and evidence;
  • The applicant responds with their Outline of Submissions and evidence;
  • After this, the Hearing takes place;
  • During the hearing there will be closing submissions, alternatively this can be written and submitted after the hearing if the Member agrees;

Outcome:

  • The parties must implement the decision or lodge an appeal with the Federal Court within 28 days after receiving the decision;
  • If there is another party to the review they may also lodge an appeal to the Federal Court;
  • Appeals to the Federal Court must only be on a question of law. Questions of law may include:
    • Whether the AAT denied procedural fairness to a party; or
    • Whether the AAT incorrectly interpreted a statute relevant to the proceeding.

Federal Court

  1. A decision can be appealed to the Federal Circuit Court of Australia for:
    • an independent review of the AAT’s decision; or
    • If you disagree with a decision of the AAT on the basis of a question of law

Process

  • Your appeal must be in writing and lodged 28 days of the date of an AAT decision;
  • The ATO will send you a statement that sets out the relevant facts, issues and their contentions as well as all documents relevant to the case;
  • Under the AD(JR) Act, the Federal Court have the power to review and set aside decisions. They can refer the base back to the ATO for further consideration;

Fees

  • There are no fixed fees however court proceedings are formal and costly, and your case may involve a variety of fees. If your appeal is unsuccessful, you may also have to pay the legal costs of the ATO;

Further appeals

  • If you are dissatisfied with the decision of a single judge of the Federal Court, you have the right to appeal to the Full Court of the Federal Court of Australia;
  • The last venue for appeal is the High Court of Australia, but only with the special leave of the High Court.
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