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29 Jul 09 Commissioner has no power to extend time to consolidate - McIntosh

The Full Federal Court (Mansfield, Stone and Edmonds JJ) has dismissed the taxpayer's appeal from the decision of Graham J and held that the Commissioner has no power to extend the period for making a choice to consolidate a consolidatable group by giving the Commissioner an approved form as provided in s 703-50(1) of ITAA 1997. The Court held that that period is fixed by s 703-50(3).

In the hearing at first instance, Graham J had dismissed an application for various forms of relief, including a declaration that the Commissioner was empowered under s 388-55(1) of Sch 1 to the Taxation Administration Act 1953 (Cth) to defer (extend) the time within which a notification of choice, under s 703-50, to consolidate a consolidatable group was required to be given to the Commissioner by the taxpayer.

In the Full Federal Court, Edmonds J agreed with Graham J that s 388-55(1) had no application because it is confined in its application to a provision which requires the giving of an approved form in fulfilment of an obligation and does not extend to a provision which is permissive, at least where the failure or omission to act within the time limit does not adversely impact on existing rights or privileges. In dismissing the taxpayer's appeal, Edmonds J separately held that  the Commissioner has no power to extend the period for making a choice to consolidate a consolidatable group under s 703-50(1).

In separate judgments, Mansfield and Stone JJ agreed with Edmonds JJ that the Commissioner had no power to extend the period for making a choice to consolidate a consolidatable group under s 703-50(1). Mansfield J agreed with Stone J, for the reasons her Honour gave, that it was not necessary to decide whether s 388-55(1) applies only to a time specified for the mandatory giving of an approved form, or whether it also may extend to circumstances where giving an approved form is voluntary, for the purpose of obtaining, or being eligible for, a right or benefit, but linked with a period within which that is to be done: M W McIntosh Pty Limited v FCT [2009] FCAFC 88 (Full Federal Court; Mansfield, Stone and Edmonds JJ; 28 July 2009).

For a copy of the decision, go here

 


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