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25 Mar 2021 Advocacy Tracker

Our Tax Policy and Advocacy team is always working for our members. Our new Advocacy Tracker sets out some of the key issues that we are advocating for on your behalf, including additional resources via the hyperlinks. This list will continue to be updated with new key advocacy matters as they arise.

Should members have any queries or wish to discuss matters with the Tax Policy and Advocacy team, please contact us at Tax Policy.


Tax Policy and Advocacy activity





JobKeeper: Apted appeal

The Tax Institute has previously provided information to members on the time limits that apply for lodging objections and appealing ATO decisions while the appeal to the Full Federal Court from the Tribunal’s decision in Apted and Commissioner of Taxation (Taxation) [2020] AATA 5139.

The Full Federal Court handed down its decision in Commissioner of Taxation v Apted [2021] FCAFC 45 on 24 March 2021. While it is a win for the taxpayer, in finding that the taxpayer was entitled to JobKeeper, the FCAFC has overturned the Tribunal’s decision regarding whether the entity did in fact have an ABN on 12 March 2020.

The FCAFC found that the requirement to have an ABN on 12 March 2020 should be by reference to the state of affairs as revealed by the ABR on that day, not by reference to a date of effect (through backdating an ABN).

In this case, it was not in dispute that the ABR showed on that day that the taxpayer did not have an ABN on 12 March 2020. However, the FCAFC found that the Tribunal had the jurisdiction to exercise discretion to allow the taxpayer additional time to obtain an ABN after 12 March 2020, and it was appropriate for that discretion to be exercised.

We will provide further analysis if further information come to hand.


Apparent provision of tax agent services by unregistered agent

A member provided us with information about the apparent provision of what may constitute tax agent services by an unregistered agent.

We escalated the matter to the ATO and the TPB so it can be determined whether a business that self-identifies as not being a registered tax agent is purporting to provide tax return and tax refund advisory services directly to taxpayers.


FBT return lodgment list

A member contacted us regarding their FBT return lodgment list.

According to Online Services for Agents (OSfA), the agent has 4 FBT returns due for the 2020–21 FBT year, as well as 2 FBT returns outstanding for the 2019–20 FBT year.

The member was unable to determine how to request a listing of these unlodged FBT returns on OSfA. After the agent sought, but was not able to access, a listing of their unlodged FBT returns from the ATO, the member sought the assistance of The Tax Institute. We escalated the matter to the ATO.

According to a list of the member’s current FBT clients subsequently sent by the ATO via Practice Mail (the Practice inbox in OFSA), only one client is listed.

The ATO is investigating this issue and will provide updates in due course.





COVID-19 Consumer Travel Support Program

This program provides a one-off Federal Government grant to travel agents and tour arrangement service providers who have been adversely affected by the COVID-19 pandemic. While the program closes on 13 March 2021, there has been confusion and inconsistencies in the way that supplies are reported by travel agents on their business activity statement. This can affect an entity’s entitlement to the grant.

Following concerns raised by our members, The Tax Institute escalated this matter to the ATO seeking clarification on the correct treatment in the BAS. We will provide further information when it comes to hand.


Digital activity statements

Following a number of members raising the issue of the removal of paper activity statements with us, The Tax Institute escalated the matter to the ATO late last year.

This has resulted in a series of regular meetings to discuss the impact of the ATO’s decision to remove paper quarterly PAYG and GST instalment notices and the design of an interim solution which involves the reinstatement of paper activity statements from the March 2021 quarter.

We continue to work with the ATO in the design of a permanent solution.


JobKeeper and cash flow boost — matters escalated to ATO following IGTO report

Following the release of the Inspector-General of Taxation and Taxation Ombudsman’s A Report on aspects of the Australian Taxation Office’s administration of JobKeeper and Boosting Cash Flow Payments for new businesses on 21 December 2020 — which identified an alternative eligibility pathway for certain businesses (in very limited circumstances) for JobKeeper (business participants) and the cash flow boost — The Tax Institute continues to escalate cases on behalf of members for review by the ATO.

The recent Tribunal decision in Slatter Building Group Pty Ltd and Commissioner of Taxation (Taxation) [2021] AATA 456 confirms our understanding of the law.


PCG 2021/D2 — professional firm profits

Following the release of PCG 2021/D2 on the allocation of professional firm profits and the ATO’s compliance approach, The Tax Institute is working through the specifics of how we will engage with our members on this important issue.

The Tax Institute has published a member-only fact sheet on the PCG to provide you with some perspective and hopefully put your minds immediately at rest.


Review of Tax Practitioners Board

The Tax Institute has lodged a confidential submission with the TPB on the Final Report of the Review of the TPB, and is currently preparing a submission to Treasury which will be publicly available. We are working through each of the 28 recommendations and determining our position on each aspect of this important review.

Recent comments by The Tax Institute’s President, Peter Godber, were reported in TaxVine on 26 February 2021.


Social Security Act 1991 discriminates against small business operators

Following feedback from a practitioner on the discriminatory effect of provisions in the Social Security Act 1991 on small business entities, The Tax Institute escalated the matter to the Government.

The Social Security Act 1991 allows gross business income to be reduced by amounts claimed under Div 40 of the ITAA 1997 in determining social security entitlements, but not amounts claimed under Subdiv 328-D of the ITAA 1997.

The Tax Institute continues to evaluate our options to address the concerns raised with us.

Services Australia

Transfer balance cap indexation

There are concerns about the practical effect of the indexation of the transfer balance cap from $1.6 million to $1.7 million on 1 July 2021. The concerns relate to the practical issues associated with the proportionate indexation of the personal transfer balance cap for those who have commenced an income stream with a value of less than $1.6 million.

The Tax Institute has escalated this issue to the ATO and the Treasury.




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