A business sought to acquire excise-paid spirit in containers of more than 2 litres (i.e. bulk containers) to repackage them into smaller containers for retail sale. The ATO advised the business that they could only acquire excise-paid spirit in containers of 2 litres or less for repackaging. Alternatively, the business may acquire excise-unpaid (‘underbond’) spirit in bulk containers for repackaging if they had an excise storage licence. The ATO officer suggested, however, that the licence would unlikely be granted as it would cause an unnecessary delay to the payment of excise.  

The business sought assistance from the IGTO as they were concerned that the ATO’s advice to them was incorrect. If the ATO’s advice was correct, the business was concerned that similar businesses only had two options:  

1. acquire excise-paid spirit in many small containers of 2 litres or less – this would create inefficiencies and produce large and unnecessary amounts of waste; or  
2. acquire spirit underbond, provided that an excise storage licence is granted by the ATO – this would impose disproportionate regulatory burden on small businesses.  

As a result of the IGTO’s investigation:  

• the IGTO provided independent assurance to the business that the ATO’s advice (other than the granting of storage licence) was in line with section 58 of the Excise Act 1901;  
• the ATO issued a written apology to the business because the previous ATO advice about not granting a storage licence to the business was not appropriate and did not consider the business’s operations; and  
• the ATO made available an officer from the ATO Excise Centre to assist the business with applying for a storage licence. 

The complainant is an 81-year-old taxpayer who operated a travel agency with his wife. The complainant had not enrolled for JobKeeper until July 2020 as he had initially been unaware that JobKeeper payments were available to support businesses without employees.  

But for his late enrolment, the complainant had satisfied all other eligibility criteria for JobKeeper.  

When he approached the ATO for an extension of time to enrol (and to backdate relevant JobKeeper payments), the ATO refused on the basis that the business had not been affected by ‘exceptional circumstances’ to warrant the grant of extension of time. As a result, the ATO would only commence making JobKeeper payments to the complainant from July 2020 onwards.  

Following our investigation, the IGTO found that the ATO had applied a narrow test when deciding whether or not to grant an extension of time. The IGTO observed that the relevant test, as set out in the ATO’s practice statement PSLA 2011/15 (the PSLA), was whether it would be ‘fair and reasonable’ to grant an extension of time having regard to the factors listed in paragraphs 45 and 46 of the PSLA and not the subset of ‘exceptional circumstances’ listed in paragraphs 47 and 48 of the PSLA.  

As a result of the IGTO investigation, the ATO reconsidered the complainant’s case and reversed its initial decision and allowed the backdating of JobKeeper payments to the complainant. The IGTO noticed a pattern in similar complaint cases managed by our office and published a report setting out our findings in detail. The full IGTO report containing the ATO’s formal response is available on our website.

The taxpayers had, for 10 years, managed a successful restaurant. In October 2019, the taxpayers incorporated a company and registered for an Australian Business Number (ABN) and purchased the restaurant from the former owners with ownership to commence on 31 January 2020. In December 2019, the company executed a lease for the restaurant’s premises to commence when it took over the business. The restaurant’s operations continued seamlessly and the company registered to report GST on a quarterly basis as had always been done.  

In 2020, the company applied for access to Boosting Cash Flow (BCF) payments to support it through the COVID-19 pandemic. The ATO initially rejected the company’s eligibility to BCF on the grounds that the company could not have lodged a GST return for the quarter ended 31 December 2019 as its business commenced operation after 1 January 2020.  

The IGTO commenced an investigation and, as a result of which, the ATO agreed to undertake an internal review of the matter. The internal review found that in November 2019, the company had opened a bank account for the new business, which constituted a taxable supply for consideration for the purposes of the BCF. Accordingly, the Commissioner’s discretion was exercised in this case to allow the company later time to provide notice of a taxable supply, resulting in the company obtaining access to BCF.

In the Federal Budget (11 May 2021), the Government announced that it would reduce the eligibility age (from 65 to 60 on 1 July 2022) for downsizer contributions (a one off, post-tax contribution for each member of a couple following the sale of their main residence that at least one of them has owned for more than 10 years) into superannuation. As downsizer contributions are required to be made within 90 days of receiving the proceeds of sale, the complainant contacted the ATO to discuss whether she would be able to obtain an extension of 35 days following the 90 day period of receiving the proceeds of sale of her property as her settlement date was more than 90 days before 1 July 2022. 

The complainant explained that she had initially contacted the ATO and was advised that she would not have any difficulties obtaining an extension. The complainant proceeded to sell her property and contacted the ATO to request the necessary extension. However, the ATO advised her that she was not eligible for an extension. The complainant explained that she is financially disadvantaged as a result of acting on incorrect information she had received from the ATO.  

The ATO initially advised that it was not able to locate the telephone recording where the initial advice had been given. Following the IGTO’s investigation, a copy of the telephone call recording was located and the ATO acknowledged that it had provided incorrect advice to the complainant.  

The complainant subsequently advised that she was able to defer settlement of her property so that she would be able to make a downsizer contribution in the first week of 1 July 2022 (i.e., within 90 days of settlement).  

The IGTO advised the ATO of the new settlement date and requested the ATO confirm whether the complainant would be eligible to make a downsizer contribution. The ATO advised that the settlement date of the sale of the property is required to be on or after 1 July 2022. In the complainant’s circumstances, she would not be eligible to make a downsizer contribution as her settlement date is prior to 1 July 2022.  

As part of our investigation, the IGTO drew the ATO’s attention to information on its website which does not include any requirement that the settlement date be on or after 1 July 2022. The ATO reconsidered its position and subsequently confirmed that the complainant would be eligible to make a downsizer contribution.

The complainant was a director of a charity that had been wound up due to the actions of a former employee who had defrauded the charity. The fraud was identified, and the employee arrested and convicted. The employee had also been responsible for managing the charity’s payroll and superannuation obligations and failed to discharge those obligations.  

The complainant approached the IGTO for assistance in engaging with the ATO in relation to notices he had received concerning the charity’s outstanding superannuation guarantee (SG) obligations. The complainant raised concerns that the ATO was not returning his calls or responding to his queries about the notices. 

In addition to commencing an investigation into the matter, the IGTO also considered the complainant’s case and determined that, in view of the fraud that had been perpetrated, there may be sufficient grounds for a waiver of debt application to the Department of Finance. The IGTO provided information and guidance to the complainant in relation to lodging the waiver application.  

The waiver application was subsequently approved, which reduced the charity’s SG debts to nil.  

The IGTO does not have any insight in relation to other criminal or civil actions that may have been undertaken to seek compensation or reparations for losses suffered by the charity and its employees as a result of the fraud. These matters fall outside of the IGTO’s jurisdiction. 

A complainant approached the IGTO to raise concern that the ATO was pursuing him for an amount of taxation debt through a Director Penalty Notice (DPN) that was excessive. Directors are personally liable for some undischarged company debts, including superannuation guarantee charge (SGC). DPNs are used to recover the tax debts incurred by a company from its directors personally.  

Due to the complex technical nature of the matter, the complainant had sought to engage with the ATO over a lengthy period via multiple channels, including lodging an objection, appealing the matter to the Administrative Appeals Tribunal (AAT) and lodging a formal complaint with the ATO complaints team. However, throughout these processes, the ATO did not sufficiently address the complainant’s tax issue.  

The complainant had a large amount of information which he believed showed that the amounts sought to be recovered through the DPN was incorrect. However, as the company had been de-registered for a period of time, the complainant did not have authority to discuss or seek details about the company’s debts, including with the ATO. The IGTO commenced an investigation to ensure that the ATO had considered the information in the taxpayer’s possession and to confirm the amounts in the DPN were correct.  

As a result of the IGTO investigation, the ATO agreed to review the information in the complainant’s possession in the interests of fairness and transparency. Furthermore, through the course of the investigation, the ATO acknowledged that there were keying and other administrative errors in calculating the debts that were the subject of the DPN. Any changes to the underlying debts of the company would also correspondingly result in a reduction of the DPN debt. However, as the company had been de-registered, it was not possible to amend its accounts to reflect the reduced debt amounts in ATO systems.  

To remediate the situation, the ATO determined that it would be appropriate to support an application by the complainant to the Department of Finance for a waiver of debt. 

The complainant was under a temporary guardianship arrangement whereby their financial affairs were managed by a trustee appointed to be their guardian. The trustee lodged several income tax returns for the complainant and nominated for any refunds to be deposited into the trustee’s bank account. After the ATO processed the tax returns, it refunded approximately $15,000 to the nominated account. Following the expiry of the guardianship arrangement, the trustee ceased to act as the complainant’s guardian and returned the monies to the ATO via electronic funds transfer (EFT). Unfortunately, the ATO was unable to locate the returned monies because the ATO’s system never identified it as belonging to the complainant’s account. This was due to an unfortunate coincidence whereby the 15-digit reference number in the trustee’s bank transfer matched details relating to a third party taxpayer (unrelated to either the complainant or the trustee) on the ATO’s system. 

The complainant approached the ATO to request their refund and lodged a complaint in May 2022. The ATO’s complaints area advised the complainant it had correctly issued the refund to the bank account nominated on the tax return, that it could not assist further and that this was now a matter between the complainant and their former guardian. The ATO did not request the complainant to provide any additional information to assist it with locating the refund, including records of the trustee’s EFT payment which evidenced that the monies had been returned to the ATO.  

The IGTO commenced a dispute investigation with the ATO and supplied the trustee’s EFT records to the ATO which proved to be instrumental in enabling the ATO to locate the missing monies. Within three weeks of the IGTO commencing an investigation, the ATO located and refunded the monies directly to the complainant’s bank account and the matter was resolved.