ATO Interpretative Decision
ATO ID 2005/64
Income Tax
Commissioner's Discretion: deferring due date for issuing distribution statementsFOI status: may be released
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Will the Commissioner exercise his discretion under subsection 388-55(1) of the Taxation Administration Act 1953 (TAA) to defer the time by which a corporate tax entity must issue a distribution statement?
Decision
No. The Commissioner will not exercise his discretion under subsection 388-55(1) of the TAA to defer the time by which a corporate tax entity must issue a distribution statement.
Facts
The corporate tax entity is a public trading trust and an Australian resident for income tax purposes. Its first distribution was paid to its unit-holders on 19 March 2004. No distribution statement was issued to unit holders on or before 19 March 2004 because the trustee mistakenly thought the public trading trust was treated as a private company for income tax purposes.
Reasons for Decision
Under subsection 202-75(1) of the Income Tax Assessment Act 1997 (ITAA 1997), an entity that makes a frankable distribution must give the recipient a distribution statement. A public company is required to do this on or before the day on which the distribution is made. The public trading trust, which is considered to be a public company for the purposes of the simplified imputation system, has to date not complied with this obligation.
Under subsection 388-55(1) of the TAA, the Commissioner 'may defer the time within which an approved form is required to be given to the Commissioner or to another entity'. Under subsection 202-80(2) of the ITAA 1997 the distribution statement is required to be in an approved form, as defined in section 388-50 of the TAA.
Subsection 388-55(1) of the TAA refers to an approved form that 'is required to be given' rather than one that was required to have been given. Although the distribution statement has not yet been given, a mistake as to the status of the corporate tax entity is not a sufficient reason and the Commissioner does not consider it appropriate in this instance to exercise his discretion under subsection 388-55(1) of the TAA to retrospectively defer the time within which the distribution statement is required to be given.
However, should the entity at a later time provide the relevant distribution statements in the approved form, it will be taken to have complied with its obligations under section 202-75 of the ITAA 1997, albeit at a later time than required.
Date of decision: 17 February 2005Year of income: Year ended 30 June 2004
Legislative References:
Income Tax Assessment Act 1997
section 202-75
section 202-80
section 388-50
section 388-55
Keywords
Commissioner's discretion
Distributions
Date reviewed: 13 November 2017
ISSN: 1445-2782