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  • Monthly business declarations for JobKeeper Fortnights in March need to be completed by 14 April 2021 to receive final JobKeeper payments. The JobKeeper Payment scheme finished on 28 March 2021.

    JobKeeper Payment and the 'later time' discretion

    The JobKeeper Payment scheme finished on 28 March 2021, however there may be entities that can apply for payments for an eligible business participant. See the information below for further detail.

    On 24 March 2021, the Full Federal Court (FFC) handed down its decision in Commissioner of Taxation v Apted [2021] FCAFC 45.

    The FFC held that backdating an ABN to have an effective date on or before 12 March 2020 did not satisfy the requirement for the entity to have had an ABN on 12 March 2020.

    The court also held that a decision in respect of the Commissioner’s discretion to allow a later time to have an ABN is reviewable in the manner prescribed by Part IVC of the Taxation Administration Act 1953 as part of a decision on an entity's entitlement to JobKeeper, and it did not disturb the Administrative Appeals Tribunal's decision to exercise the discretion in the respondent's circumstances.

    The ATO has decided not to appeal the FFC decision.

    In response to the court's decision and to clarify the circumstances in which the Commissioner will exercise his discretion, we have updated our law administrative practice statement PSLA 2020/1 Commissioner's discretion to allow further time for an entity to hold an ABN or provide notice to the Commissioner of assessable income or supplies.

    The updates to PSLA 2020/1 also apply to the discretion to allow further time to provide notice of assessable income/taxable supplies to the Commissioner.

    The FFC's decision has not changed the need to satisfy all of the other JobKeeper eligibility conditions.

    This means entities who satisfy all of the other eligibility conditions and whose circumstances fall within the guidance outlined in PSLA 2020/1 may now be eligible to apply for JobKeeper payments for eligible business participants. This decision does not impact on your JobKeeper eligibility as an employer.

    We consider that the court's decision applies equally to the identical requirements for the Cash Flow Boost.

    On this page:

    How the decision affects you

    As a consequence of the FFC’s decision, the Commissioner will be revisiting decisions where we consider the outcome may have been different if the court’s reasoning was applied.

    This action is being taken to ensure that the law is consistently and fairly applied. It will only result in access to a stimulus payment where the Commissioner considers that overall eligibility for either JobKeeper payments (Eligible Business Participants) or Cash Flow Boost credits are met. In other words, where eligibility will still not be established (because one or more other eligibility criteria has not been satisfied) even if the Commissioner’s discretion was exercised, the Commissioner will not revisit his previous decision.

    You can check whether you satisfy all the eligibility requirements for the JobKeeper payment for eligible business participants by referring to:

    Upon review of your application, if the Commissioner decides to exercise his discretion and you proceed to claim for the JobKeeper payment, your claim may be subject to a post-enrolment review of all the other eligibility conditions.

    What happens next

    If you have a decision which declines to exercise the Commissioner’s discretion, the Commissioner will automatically review your circumstances and whether his discretion should be applied. There is no need to contact us at this time. We will contact you when we have completed our review or if we require further information. Our aim is to have the process completed by the end of June 2021.

    Starting on 20 May 2021 we will write to you to

    • confirm that we are reviewing your previous request to grant the discretion
    • in some circumstances we will also confirm that we have completed our review and agreed to exercise the discretion
    • provide further information on next steps

    Not all entities will be contacted on the same day. We anticipate that we will have contacted you by 1 June.

    We are taking a similar approach in relation to eligibility for Cash flow boost.

    If you have not previously received a decision relating to the Commissioner's discretion to allow further time to hold an ABN or provide notice to the Commissioner of assessable income or supplies (either at first instance or at objection) and you consider that our guidance in PSLA 2020/1 applies to you, you can contact us on 13 28 66. If you want to talk to us about your circumstances, let us know before 30 June 2021.

    The ATO has a dedicated team available to assist taxpayers with their applications and any enquiries they may have in relation to discretion requests for JobKeeper and Cash Flow Boost.

    Our response to the FFC decision is outlined in the Decision Impact Statement, which is open for comment until 28 May 2021.

    What if I have been receiving income support payments?

    The arrears of JobKeeper payment for self-employed people will be considered income for social security purposes, with the lump sum amount apportioned forward over a year from the date of receipt. Please visit the Services Australia website for more information about the income test for each social security payment. Alternatively, you may wish to speak with one of Centrelink’s Financial Information Service (FIS) officers by telephoning Centrelink on 13 23 00.

    Checklist for sole traders

    You may be eligible for the JobKeeper payment if you answer Yes to all of the following:

    Yes

    No

    You were a sole trader at 1 March 2020 and for the fortnight you are claiming.

     

     

    On 1 March 2020, you carried on a business in Australia.

    More information on carrying on a business:

     

     

     

    You satisfy the relevant decline in turnover test.

     

     

    You had an ABN on 12 March 2020.

    OR

    You believe that you fall within the circumstances outlined in PSLA 2020/1 to be allowed further time to have an ABN.

     

     

    You had lodged, on or before 12 March 2020, at least one of the following:  

    • a 2018–19 tax return showing an amount included in your assessable income for carrying on a business
    • a notice showing you made a taxable, GST-free or input-taxed sale for any tax period that applied to you that started on or after 1 July 2018 and ended before 12 March 2020.

    OR

    You believe that you fall within the circumstances outlined in PSLA 2020/1 to be allowed further time to lodge.

     

     

    You are not an approved provider of child care serviceExternal Link (from 20 July 2020 onwards).

     

     

    You are actively engaged in your business (at 1 March 2020 and for each fortnight you are claiming).

     

     

    At 1 March 2020, you were at least 18 years old. If you were 16 or 17 years old, you can also qualify if you are independent or not studying full time.

     

     

    At 1 March 2020, you were an Australian resident (under section 7 of the Social Security Act 1991), or a resident for income tax purposes and the holder of a Special Category (Subclass 444) visa.

     

     

    You are not receiving government parental leave or Dad and Partner Pay.

     

     

    You are not totally incapacitated for work and receiving payments under an Australian workers compensation law for your total incapacity to work.

     

     

    You are not an employee (other than a casual employee) of another entity.

     

     

    You are able to give us a JobKeeper nomination notice as a sole trader. This is done during the online enrolment process in the Business Portal or in ATO online services using myGov. You do not need to complete a separate nomination notice for yourself.

     

     

    You have not previously given another entity, or us, a JobKeeper employee nomination notice.

     

     

    Checklist for partnerships, trusts and companies

    Your entity may be eligible for the JobKeeper payment if you answer Yes to all of the following:

    Note: The court's decision does not impact on your JobKeeper eligibility as an employer.

    Yes

    No

    On 1 March 2020, your entity carried on a business in Australia.

    More information on carrying on a business:

     

     

     

    The entity satisfies the relevant decline in turnover tests.

     

     

    The entity had an ABN on 12 March 2020.

    OR

    The entity believes that it falls within the circumstances outlined in PSLA 2020/1 to be allowed further time to have an ABN.

     

     

    The entity had lodged, on or before 12 March 2020, at least one of the following:  

    • a 2018–19 tax return showing it had an amount included in its assessable income in relation to carrying on a business
    • a notice showing it made a taxable, GST-free or input-taxed sale for any tax period that applied to it that started on or after 1 July 2018 and ended before 12 March 2020.

    OR

    The entity believes that it falls within the circumstances outlined in PSLA 2020/1 to be allowed further time to lodge.

     

     

    The entity is not an approved provider of child care servicesExternal Link (from 20 July 2020).

     

     

    The entity has nominated an eligible business participant.

     

     

    The eligible business participant is one of the following (at 1 March 2020 and for each fortnight your entity is claiming):

    • a partner in the partnership
    • an adult beneficiary of the trust
    • a shareholder in or director of the company. 

     

     

     

    The eligible business participant is actively engaged in your entity’s business (at 1 March 2020 and for the fortnight your entity is claiming), but not an employee of the business.

     

     

    At 1 March 2020, the eligible business participant is at least 18 years old. If they are 16 or 17, they can also qualify if they are independent or not studying full-time.

     

     

    At 1 March 2020, the eligible business participant is an Australian resident (under section 7 of the Social Security Act 1991), or a resident for income tax purposes and the holder of a Special Category (Subclass 444) visa.

     

     

    The eligible business participant is not receiving government parental leave or Dad and Partner Pay.

     

     

    The eligible business participant is not totally incapacitated for work and receiving payments under an Australian workers compensation law for their total incapacity to work.

     

     

    The eligible business participant is not an employee (other than a casual employee) of another entity.

     

     

    The eligible business participant has provided your entity with a completed Eligible business participant nomination notice (excluding sole traders) to record that they have agreed to be nominated to receive JobKeeper payments through your entity.

     

     

    The eligible business participant has not previously given another entity, or us, a JobKeeper employee nomination notice.

     

     

      Last modified: 21 May 2021QC 65478