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The ATO has issued a Decision Impact Statement in relation to the Full Federal Court's decision in M W McIntosh Pty Ltd v FCT [2009] FCAFC 88; 2009 ATC 20-119; 76 ATR 231. The case concerned the taxpayers' application for judicial review of the Commissioner's decision refusing the head company taxpayer's application in 2006  to extend the period for making a choice to form a consolidated group under s 703-50 ITAA 1997.

The Full Federal Court found that the Commissioner was not empowered to exercise his discretion under s 388-55 in respect of s 703-50. The High Court refused the taxpayers' application for special leave to appeal.

The ATO says that the decision should have little impact because s 703-50 was amended by the Tax Laws Amendment (2010 Measures No 1) Act 2010, with effect from 1 July 2002, such that a taxpayer is no longer required to make a choice to form a consolidated group in an "approved form"; rather the choice needs simply be made in writing. Accordingly, s 703-50 is clearly outside the ambit of the Commissioner's discretion in s 388-55, which can only be exercised where a taxpayer is required to give the Commissioner a choice to form a consolidated group in an approved form.


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