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01 Apr 2021 Cases

Full Federal Court decision on JobKeeper and backdated ABNs: Apted case

On 24 March 2021, the Full Federal Court handed down its decision in Commissioner of Taxation v Apted [2021] FCAFC 45. The case concerned the requirement, for eligible business participant claims, that the entity had an ABN on 12 March 2020 or a later time allowed by the Commissioner.

The Court held that backdating an ABN to have an effective date on or before 12 March 2020 did not satisfy the requirement for the entity to have had an ABN on 12 March 2020. The Court also held that a decision in respect of the Commissioner’s discretion to allow a later time to have an ABN is reviewable in the manner prescribed by Part IVC of the Taxation Administration Act 1953 as part of a decision on an entity’s entitlement to JobKeeper and that the Commissioner’s discretion should be exercised in the respondent’s circumstances.

How it affects you

The ATO is currently considering the Court’s decision and its implications. The Court’s decision does not change the need to satisfy all of the other eligibility requirements.

If the Commissioner were to seek special leave to appeal to the High Court, this application would need to be made by 21 April 2021.

Where the ATO has postponed finalising a decision regarding your eligibility for JobKeeper payments pending the Court’s decision, they will contact you shortly to provide you with an update.

The ATO will provide further information on your next steps once they have considered the decision and its implications.

Note: The Tax Institute has prepared a comprehensive summary of the Apted case. You can read our summary in TaxVine 10 (26 March 2021).

AAT decision on cash flow boost and new businesses: Slatter case

On 10 March 2021, the Administrative Appeals Tribunal (AAT) handed down its decision in Slatter and Federal Commissioner of Taxation [2021] AATA 456 regarding the Boosting cash flow for employers stimulus measure.

The AAT held the applicant was not eligible for cash flow boost payments as they did not make a taxable supply in a tax period that applied to it that started on or after 1 July 2018 and ended before 12 March 2020. Since the applicant was incorporated in January 2020, and registered for GST on a quarterly reporting cycle, it did not have a tax period that applied to it that ended before 12 March 2020.

How the decision affects you

The decision supports the approach the ATO has taken to the administration of both the Boosting cash flow for employers stimulus measure and the JobKeeper measure for eligible business participants.

Since JobKeeper involves the same considerations in relation to claims for an eligible business participant, the same interpretation applies consistently across the measures.

Note: The Tax Institute has prepared a summary of the Slatter case. You can read our summary in TaxVine 8 (12 March 2021).

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