Commissioner of Taxation v Apted [2021] FCAFC 45

Federal Court of Australia

Commissioner of Taxation v Apted [2021] FCAFC 45 Appeal from: Apted and Commissioner of Taxation [2020] AATA 5139

File number: QUD 11 of 2021

Judgment of: ALLSOP CJ, LOGAN AND THAWLEY JJ

Date of judgment: 24 March 2021

Catchwords: TAXATION – application for Coronavirus economic response payment (jobkeeper payment) – whether respondent eligible for jobkeeper payment – whether respondent "had an ABN on 12 March 2020" within the meaning of s 11(6) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (CERP Rules) – where respondent was not registered for an ABN on 12 March 2020 – where respondent was later registered for an ABN with a "date of effect" covering 12 March 2020 – held respondent did not have an ABN within the meaning of s 11(6) of the CERP Rules – whether the Commissioner's decision not to exercise the discretion in s 11(6) of the CERP Rules to allow a later time for the respondent to have an ABN forms part of the reviewable decision – held Commissioner's decision not to exercise the later time discretion was part of the reviewable decision – whether Tribunal erred in exercising the discretion to allow a later time in the respondent's favour – held Tribunal did not err in exercising discretion – appeal dismissed

Legislation: A New Tax System (Australian Business Number) Act 1999 (Cth) ss 3, 8, 9, 10, 11, 13, 14, 15, 17, 18, 19, 21, 24, 25, 26, 27, 28, 35, 41 Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43, 44 Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) ss 3, 7, 11, 11A, 13, 19, 20, 25 Income Tax Assessment Act 1997 (Cth) s 995-1 Taxation Administration Act 1953 (Cth) s 2 Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) ss 2, 4, 5, 11