Ability to rule when the matter is subject to a case before the courts

(Clauses 52(1) and 58(1))

Summary of proposed amendment

The Commissioner’s discretion not to rule on matters before the courts is being clarified by limiting its application to cases involving substantially similar arrangements. The purpose of the amendment is to clarify when the Commissioner will exercise the discretion.

Application date

The amendment will apply from the date of enactment.

Key features

Sections 91E(3)(b) and 91F(3)(b) are being amended to clarify the Commissioner’s discretion not to rule on matters which are the subject of a dispute with the applicant or another person. The application of the discretion is being limited to an arrangement on which the ruling is sought, or a separately identifiable part of that arrangement, which is substantially the same as an arrangement which is before the courts.

Background

The Commissioner has a discretion under which he can decline to rule “if the matter on which the ruling is sought is subject to an objection, challenge or appeal, whether in relation to the applicant or to any other person”. The provision is expressed in general terms and the scope of the provision, particularly the term “matter” is unclear. The provision does not allow for an unduly narrow interpretation such as requiring an identical transaction and the same or associated taxpayer. At the other extreme, it would be inappropriate to apply it to all instances where an issue arises that is commonly determined in a transaction – for example, the application of the general anti-avoidance provision – as that would allow the Commissioner to turn down any ruling application on that issue. This lack of clarity does not give businesses certainty.