Retrospective legislation removed right to deduction in absence of ruling - IOOF
19 Nov 2013
The Federal Court (Middleton J) has dismissed the taxpayer's appeal from the decision of the AAT in IOOF Holdings Limited and FCT  AATA 239.
The AAT held that the taxpayer's right to a deduction in respect of rights to future income under the consolidation regime was removed by retrospective legislation enacted in 2012, specifically, because it did not have a favourable private ruling issued to it before 31 March 2011, being the operative date specified in the retrospective legislation.
The taxpayer applied for a private ruling on 30 December 2010 (a request that the Commissioner said was received by the ATO on 10 January 2011). The ruling was never issued and the taxpayer activated the procedures allowing an objection, a deemed objection decision and a review application to the AAT. The taxpayer contended that it was entitled to the private ruling it sought and an order from the AAT pursuant to s 43(6) of the AAT Act that that private ruling take effect from a date prior to 31 March 2011.
That the amending legislation would be retrospective and that only taxpayers with rulings issued before 31 March 2011 would not be affected by it was announced by the Assistant Treasurer and Minister for Financial Services and Superannuation on 25 November 2011.
On the basis that the taxpayer's rights were exhausted by the retrospective legislation, the AAT answered No to the following question:
"For the purposes of undertaking its review of the Respondent’s deemed disallowance of the Applicant’s objection against the Respondent’s failure to make a private ruling concerning its claim for a deduction under section 716-405 in Part 3-90 of the Income Tax Assessment Act 1997 (Cth) (1997 Act), is it open to the Tribunal to apply the provisions of Part 3-90 of the 1997 Act before the amendments contained in the Tax Laws Amendment (2012 Measures No 2) Act 2012 (Cth) (2012 Amending Act)?"
For the purposes of his judgment, Middleton J assumed that the taxpayer had an "accrued right" to a ruling based on the taxing rules operative before 31 March 2011. The question then arose as to whether a contrary intention was clearly disclosed by the 2012 Amending Act to displace the continuation of that accrued right. In Middleton J's view "the legislature by the 2012 Amending Act has made its intentions clear beyond doubt in setting out the taxation to be imposed".
The taxpayer's appeal was dismissed: IOOF Holdings Limited v FCT  FCA 1189 (Federal Court, Middleton J, 15 November 2013).