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The ATO has published a Decision Impact Statement in relation to the decision of the AAT in Naidoo and FCT [2013] AATA 443; 2013 ATC 10-323.

The case concerned whether the taxpayer was carrying on an enterprise and entitled to input tax credits, and made comments about the Commissioner's approach in raising assessments. In particular, it concerned the operation of s105-65 of Schedule 1 to the Tax Administration Act 1953 where, as found by the AAT, the taxpayer was not carrying on an enterprise.

The Decision Impact Statement states:

"For those cases where a taxpayer is found to have not been carrying on an enterprise, the Commissioner will (subject to time limits) amend the assessment of their net amount for each tax period to zero. He will recover any refund of a negative net amount and, where appropriate, impose a shortfall penalty based on the amount of the refund. For those tax periods where the taxpayer returned a positive net amount, s 105-65 may apply to restrict a refund to the extent that the taxpayer has actually overpaid a positive net amount for a tax period...

The Commissioner will revise the views expressed in MT 2010/1 regarding whether s 105-65 is taken into account in determining the net amount and the circumstances under which s 105-65 applies to restrict a refund of an overpaid amount of GST."


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