|Issue date||3 April 2018|
|Date of effect||24 October 2017|
This ruling replaces GEN-009v2. It contains a minor amendment to clarify when the Commissioner will issue a private ruling.
The Commissioner of State Revenue (Commissioner) issues both public and private rulings.
Public rulings are issued as part of the Revenue Rulings Service introduced by the State Revenue Office (SRO) in June 1993 as a method of publishing and disseminating decisions on the interpretation and application of legislation administered by the SRO (see Revenue Ruling GEN.001). These rulings detail the SRO’s position or policy on a particular issue and are of general application to taxpayers.
Private rulings are issued in response to specific requests by taxpayers or their representatives seeking advice on the interpretation of the legislation and its application to a taxpayer’s particular situation. The SRO is not required by law to issue private rulings but does so to help taxpayers understand the legislation administered by it and to pay the correct amount of tax.
This ruling updates and replaces GEN-009 to clarify the circumstances in which a taxpayer can request a private ruling and to outline the requirements, process and application of a private ruling.
(a) Application requirements
Anyone who is uncertain of their liability to pay tax under legislation administered by the SRO, due to an ambiguity in the application of legislation, may apply to the Commissioner for a private ruling seeking clarification of the application of the legislation to the taxpayer’s particular transaction or arrangement. This includes clarification in relation to whether the Commissioner will exercise a discretion under the legislation.
An applicant may apply individually or jointly with others who are party to the arrangement or transaction. The application may be made through an agent or representative who is authorized to act on behalf of the applicant or applicants.
The application must be in the form of a written submission lodged with the SRO and must:
- explain why a private ruling is required;
- identify all parties involved by name and address;
- provide all material facts and complete copies of any relevant documents or draft documents;
- permit the Commissioner access to such information or third parties as the Commissioner may require;
- identify the relevant legislation and outline the issue in respect of which clarification is sought; and
- explain the applicant’s interpretation of the relevant legislation, including arguments which support the applicant’s view and any relevant supporting material, such as extrinsic material, public rulings and case law.
Where the ruling request concerns a proposed transaction or arrangement, the application must include an estimated completion date together with a declaration by the applicant (or their representative) that a full disclosure of all material facts has been made.
(b) Commissioner to decide whether a private ruling will be issued
The SRO seeks to provide taxpayers with as much assistance and guidance as possible to enable them to comply fully with the legislation administered by the SRO. Accordingly, the Commissioner will issue a private ruling at the request of an individual taxpayer provided the application meets the requirements set out above.
Circumstances may arise, however, where it is not appropriate for the Commissioner to issue a private ruling. These circumstances include where:
- issuing a ruling would enable a taxpayer to practice tax avoidance or to exploit ambiguities in the legislation;
- a taxpayer presents a hypothetical situation for an opinion;
- a taxpayer seeks a private ruling in order to evaluate alternatives and chose the option which results in the least liability for tax or duty;
- a taxpayer who receives an unfavourable decision requests another ruling for a similar, but modified, situation or document;
- the issue, transaction or arrangement is already being considered by the SRO, or has previously been considered by the SRO for that taxpayer on a similar transaction or arrangement;
- the taxpayer has not provided all of the information requested by the SRO within a reasonable time;
- the Commissioner considers that issuing the private ruling would prejudice or unduly restrict the SRO’s administration of the law;
- it is considered that the correctness of a private ruling depends on certain assumptions.
The Commissioner may issue a private ruling on a proposed transaction or arrangement where there is genuine ambiguity in the legislation or a statutory interpretation issue, including surrounding the exercise of a discretion or grant of an exemption, and the taxpayer is unable to decide whether to proceed without first receiving the SRO’s view of the ambiguity or statutory interpretation issue.
Before a ruling will be issued in these circumstances, the taxpayer must demonstrate a genuine intention to proceed unless the ruling indicates that it would be impractical to do so, or raises unforeseen issues.
In some instances it may be necessary to give a qualified ruling stating the Commissioner’s current position but advising the taxpayer of the possibility of a change of opinion. This would occur when the SRO is awaiting judicial interpretation of a similar or related issue which concerns the taxpayer or when it is known that legislative amendments are contemplated.
The Commissioner will examine the application and advise the applicant whether a private ruling will be issued.
If the Commissioner decides to issue a private ruling, further information from the taxpayer, or third parties, may be sought.
A private ruling will always be given in writing and will not be provided until the Commissioner has obtained and considered all relevant information. No discussions or other written documentation exchanged in the process of developing the ruling forms part of a private ruling. Oral information or advice given by the SRO is not a private ruling.
(d) Application of private ruling
A private ruling applies only to the taxpayer(s) to whom it is issued and only in respect of the specific factual situation considered by the SRO. No one else can rely on it as a binding precedent.
The Commissioner will only be bound by a private ruling issued to a taxpayer if:
- the taxpayer and all relevant parties have been fully identified;
- the taxpayer has made a full disclosure of all material facts and information in the application and any subsequent submissions sought by the Commissioner;
- the circumstances to which the ruling is applied are identical to those represented to the Commissioner in the application and subsequent submissions; and
- the taxpayer acts, or has acted, in accordance with the ruling.
If the facts or circumstances, as presented by the applicant, change after the private ruling has been issued, the taxpayer must contact the SRO to clarify whether the private ruling still applies.
A qualified private ruling applies as long as the conditions stated in the ruling continue to apply and the onus rests with the taxpayer to monitor the continuing validity of the ruling.
(e) Non-application of private ruling
The Commissioner will not be bound by a private ruling where a taxpayer or their representative has:
- failed to provide all material information which ought to have been provided; or
- misrepresented information when seeking a private ruling.
In these circumstances, the ruling will be considered never to have applied. If the Commissioner withdraws such a private ruling, that withdrawal will have both a prospective and retrospective effect.
The onus is on the taxpayer and/or their representative to provide all material information in the first instance and to monitor all communications from the SRO which advise of legislative amendments, judicial decisions and policy changes.
(f) Withdrawal of private ruling
The Commissioner may depart from a decision made in a private ruling if:
the advice is subsequently overruled by a court, tribunal or legislative amendment; or
the Commissioner has determined that a particular ruling issued is incorrect.
The Commissioner will review the circumstances of the case before deciding whether the ruling should be withdrawn. If the Commissioner decides the ruling must be withdrawn, it will be withdrawn from a date determined by the Commissioner. Generally this will be the date of the decision of the court or tribunal, the date of the legislative amendment, the date of the Commissioner’s notification of the withdrawal, or such other date determined by the Commissioner. If the withdrawal of the ruling results in a liability for the taxpayer, the liability for the tax or duty will arise from the date on which the ruling is withdrawn.
Commissioner of State Revenue
Please note: Rulings do not have the force of law. Each decision made by the State Revenue Office is made on the merits of each individual case having regard to any relevant ruling. All rulings must be read subject to Revenue Ruling GEN.001