ATO Interpretative Decision
ATO ID 2004/356
Income Tax
Consolidation - choice to consolidate - choice does not have effectFOI status: may be released
-
A note has been added about the application of amendments to section 703-50 contained in Tax Laws Amendment (2010 Measures No. 1) Act 2010 (No. 56 of 2010)(Schedule 5, Part 18). The note does not change the view expressed in this ATO ID.
This ATO ID has been amended following the decision in MW McIntosh Pty Ltd & Anor v. FC of T (2008) FCA 1949
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Can the date specified in a choice to form a consolidated group under section 703-50 of the Income Tax Assessment Act 1997 (ITAA 1997) be changed, if the group was ineligible to consolidate from the original date notified to the Commissioner?
Decision
No, the original choice to form a consolidated group would be ineffective.
Facts
A company provided the Commissioner with its choice to form a consolidated group with effect from 1 July 2002. It has since been discovered that the group was in fact ineligible to consolidate from the date originally specified in the notice. The head company wishes to change the date of effect to a later date.
Reasons for Decision
Subsection 703-50(1) of the ITAA 1997 sets out the conditions for making a choice to consolidate:
- •
- the choice must be made in the approved form;
- •
- there must be a consolidatable group on the day specified in the choice;
- •
- the choice must be provided to the Commissioner within the period specified in subsection 703-50(3) of the ITAA 1997; and
- •
- the company making the choice must be the head company of the consolidatable group on the day specified.
Where any of the conditions in subsection 703-50(1) of the ITAA 1997 are not satisfied, the choice made by the company will be ineffective.
Where a choice to consolidate has been made in accordance with subsection 703-50(1) of the ITAA 1997 but the Commissioner is satisfied that the choice contains information that is incorrect in a material particular, the combined effect of subsections 703-50(5) and (6) of the ITAA 1997 is that the choice has no effect unless the Commissioner gives the company written notice that the choice is effective. However, the Commissioner is not able to give effect under subsection 703-50(6) to a notice which does not satisfy the conditions of subsection 703-50(1) of the ITAA 1997.
In nominating 1 July 2002 as the date of effect, the requirements in subsection 703-50 (1) of the ITAA 1997 were not satisfied because there was no consolidatable group at that time.
The amended section 703-50 of ITAA 1997 no longer requires a choice to consolidate to be given to the Commissioner, instead the choice to consolidate must be made in writing and section 703-58 of the ITAA 1997 requires the relevant information about the choice to be notified to the Commissioner in the approved form. Subsections 703-50(5) and (6) of ITAA 1997 have been repealed.
Year of income: Year ended 30 June 2003
Legislative References:
Income Tax Assessment Act 1997
section 703-50
subsection 703-50(1)
subsection 703-50(3)
subsection 703-50(5)
subsection 703-50(6)
ATO ID 2004/354
Keywords
Consolidation
Consolidation - formation
Formation time
Head Company
ISSN: 1445-2782