• The impact of this case on ATO policy is discussed in Decision Impact Statement: North Sydney Developments Pty Ltd and Commissioner of Taxation (Published 26 June 2015).

NORTH SYDNEY DEVELOPMENTS PTY LTD v FC of T

Members: PW Taylor SM

PW Taylor SM [2nd]

Tribunal:
Administrative Appeals Tribunal, Perth

MEDIA NEUTRAL CITATION: [2014] AATA 363

Decision date: 6 June 2014

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PW Taylor SC (Senior Member)

6 June 2014

1. North Sydney Developments Pty Ltd ( " North Sydney " ) wants the Tribunal to set aside the Commissioner ' s private ruling, and determine that it is entitled to GST input credits for the months of December 2005 and January 2006. North Sydney claims it is entitled to input credits of $ 2.175,983 (relating to December 2005) and $ 600,000 (for January 2006).

2. The details of the relevant decision events culminating in North Sydney ' s review application are as follows:

• (a) 19 October 2012: North Sydney lodged an application for a private ruling
• (b) 6 June 2013: the Commissioner issued the private ruling
• (c) 4 July 2013: North Sydney lodged a Notice of Objection
• (d) 16 September 2013: the Commissioner disallowed North Sydney ' s objection
• (e) 18 September 2013: North Sydney lodged its review application with the Tribunal.

3. The principal events underlying North Sydney ' s input tax credit claim entitlement are set out below.

• (a) May 2004 to November 2005: North Sydney lodged 17 monthly Business Activity Statements reporting GST purchase payments totalling $ 1,070,800, and no sales. The Commissioner accepted that North Sydney was entitled to input tax credits in relation to the amounts claimed in each statement.
• (b) December 2005: North Sydney did not lodge a Business Activity Statement for the month.
• (c) January 2006: North Sydney again did not lodge a Business Activity Statement for the month.
• (d) 16 February 2006: the Commissioner issued a " lodgement and payment " notice requiring North Sydney to lodge its December 2005 Business Activity Statement, and pay any liability amount it recorded.
• (e) 8 March 2006: a mortgagee appointed a controller to the substantial property, whose (not yet completed) development had been the reason for the $ 11.78m GST purchases reported in the Business Activity Statements lodged up to November 2005.
• (f) 24 March 2006: the Commissioner issued a further " lodgement and payment " notice requiring North Sydney to lodge its January 2006 Business Activity Statement, and pay any liability amount it recorded.
• (g) 23 June 2006: North Sydney was placed in receivership, and the receiver subsequently sold the partially completed development.
• (h) 3 September 2009 North Sydney wrote to the Commissioner. The letter reported the receiver ' s appointment on 8 March 2006 and stated that " ASIC and the receivers " had taken possession of all North Sydney ' s books and records, and refused to either return them or provide access to them. The letter continued with statements to the effect that
  • (i) North Sydney was unable to complete the lodgement of Business Activity Statements for December 2005 and January 2006
  • (ii) The letter was to " provide notice that substantial GST refunds are due for these months " .
  • (iii) North Sydney would be unable to lodge Business Activity Statements for those months until it gained access to the necessary books and records.

THE 6 JUNE 2013 PRIVATE RULING

4. The principle elements of the private ruling were as follows:

• (a) North Sydney was entitled to input tax credits (under A New Tax System (Goods and Services Tax) 1999 (the " GST Act " ) s 11-20 for the months of December 2005 and January 2006 - subject to the time limits in the Taxation Administration Act 1953 ( " TAA " ) Schedule 1: s 105-55 .
• (b) The TAA Schedule 1: s 105-55 time limit had expired.
• (c) Neither of the Commissioner ' s " lodgement and payment " notices (of 16 February 2006 and 24 March 2006) satisfied the requirements of TAA s 105-55(1)(b) . Neither notice operated to abrogate the time limit for which the section otherwise provided.

THE INPUT TAX CREDIT TIME LIMIT

5. TAA s 105-55 relevantly imposes a conditional four year time limit in relation to input tax credits for any particular tax period. The conditional limit is expressed in the following provisions:

105-55 Time limit on refunds etc. from the Commissioner

• (1) You are not entitled to a refund, other payment or credit to which this subsection applies in respect of a * tax period or importation unless:
  • (a) within 4 years after:
    • (i) the end of the tax period; or
    • (ii) the importation;
    • as the case requires, you notify the Commissioner (in a * GST return or otherwise) that you are entitled to the refund, other payment or credit; or
  • (b) within that period the Commissioner notifies you (in a notice of assessment or otherwise) that you are entitled to the refund, other payment or credit; or
  • …
  • Note : Division 93 of the GST Act puts a time limit on your entitlement to an input tax credit. Division 47 of the Fuel Tax Act 2006 puts a time limit on your entitlement to a fuel tax credit.
• (2) Subsection (1) applies to:
  • (a) a refund in relation to a * net amount or * net fuel amount in respect of a particular * tax period; or
  • (aa) another payment that represents some or all of an amount:
    • (i) that you paid as an amount of * indirect tax payable by you in respect of a particular tax period; and
    • (ii) that exceeded the amount (if any) of such tax that you were liable to pay in respect of that tax period; or
  • (b) an * input tax credit or * fuel tax credit that is attributable to a particular tax period; or
  • … .

6. The Note to TAA Schedule 1: s 105-55 refers to Division 93 of the GST Act. Its, presently relevant, provisions are in the following terms.

93-5 Time limit on entitlements to input tax credits

• You cease to be entitled to an input tax credit for a * creditable acquisition to the extent that the input tax credit has not been taken into account, in an * assessment of a * net amount of yours, during the period of 4 years after the day on which you were required to give to the Commissioner a * GST return for the tax period to which the input tax credit would be attributable under subsection 29-10(1) or (2).
• … .

93-10 Exceptions to time limit on entitlements to input tax credits

Commissioner has notified you of excess or refund etc.

• (1) You do not cease under section 93-5 to be entitled to an input tax credit to the extent that:
  • (a) the input tax credit arises out of circumstances that also gave rise to the whole or a part of:
    • (i) an amount, or an amount of an excess, in relation to which paragraph 105-50(3)(a) in Schedule 1 to the Taxation Administration Act 1953 applies; or
    • (ii) a refund, other payment or credit in relation to which paragraph 105-55(1)(b) in Schedule 1 to that Act applies; and
  • (b) the Commissioner gave to you the notice referred to in that paragraph not later than 4 years after the end of the tax period to which the credit would be attributable under subsection 29-10(1) or (2) of this Act.
  • Note 1: Section 105-50 in Schedule 1 to the Taxation Administration Act 1953 deals with the time limit within which the Commissioner can recover indirect tax amounts, and section 105-55 in Schedule 1 to that Act deals with the time limit within which you can claim amounts relating to indirect tax.
  • Note 2: Section 93-15 of this Act may preclude this subsection from applying to the input tax credit, in which case section 93-5 of this Act will apply.
  • Note 3: Sections 105-50 and 105-55 in Schedule 1 to the Taxation Administration Act 1953 only apply in relation to tax periods starting before 1 July 2012.
  • …
• You have notified the Commissioner of refund etc.
• (3) You do not cease under section 93-5 to be entitled to an input tax credit to the extent that:
  • (a) the input tax credit arises out of circumstances that also gave rise to the whole or a part of a refund, other payment or credit in relation to which paragraph 105-55(1)(a) in Schedule 1 to the Taxation Administration Act 1953 applies; and
  • (b) you gave to the Commissioner the notice referred to in that paragraph not later than 4 years after the end of the tax period to which the credit would be attributable under subsection 29-10(1) or (2) of this Act.

7. Section 93-10(1)(a)(i) of the GST Act refers to TAA Schedule 1 s 105-50(3)(a) . That provision operates as a qualification to s 105-50(1) . The two provisions are in the following terms:

105-50 Time limit on recovery by the Commissioner

• (1) Any unpaid * net amount, * net fuel amount or amount of * indirect tax (together with any relevant * general interest charge under this Act) ceases to be payable 4 years after it became payable by you.
• … .
• (3) However, subsection (1) does not apply to an amount, and subsection (2) does not apply to an amount of an excess, if:
  • (a) within those 4 years the Commissioner has required payment of the amount or the amount of excess by giving a notice to you; or
  • (b) the Commissioner is satisfied that:
    • (i) the payment of the amount was avoided by fraud or evaded; or
    • (ii) the payment of the amount of excess, or its application under Division 3 of Part IIB of this Act, was brought about by fraud or evasion.

8. The effect of these provisions, relevant to the present proceedings, is that any input tax credit entitlement relating to the December 2005 and January 2006 tax periods would have expired (by the time of North Sydney ' s 19 October 2012 private ruling application) - unless North Sydney could show that it had given a timely notification, or the Commissioner had given a notice requiring payment of an amount for those tax periods.

NORTH SYDNEY ' S 3 SEPTEMBER 2009 LETTER

9. The principle effect of the Commissioner ' s private ruling was to reject North Sydney ' s 3 September 2009 letter as satisfying the " unless " condition in TAA Schedule 1: s 105-55(1)(a) . That provision avoids the application of the 4 year time limit where a taxpayer does " notify the Commissioner " , before the period ends, that it was " entitled to the … credit " .

10. There is evidence that North Sydney posted the letter to the Commissioner. There is no evidence to establish affirmatively that the Commissioner either did, or did not, receive the letter. However both North Sydney and the Commissioner submitted that ss 28A and 29 of the Acts Interpretation Act 1901 operated to make the posting of the letter sufficient to establish, for the purpose of the review application, that notice had been given. Having regard to those submissions I consider that the review should proceed on the basis that North Sydney gave the Commissioner the communication it contends was the effective notification: see AAT Act s 25(4A).

EFFICACY OF THE 3 SEPTEMBER 2009 LETTER AS NOTIFICATION

11. The parties are agreed that no formal requirement, other than that derived from the wording of the " unless " condition itself, applies to the content of the notice communication. There is a permissive form of notification that the Commissioner endorses as sufficient notification - see paragraph 19 below. But North Sydney ' s 3 September 2009 letter was not in that form.

12. North Sydney contends that the absence of any " approved form " requirement underscores the permissible informality, and the non-prescribed content, of a satisfactory " notify " communication. The Commissioner contends that the contents of his permitted notification form indicate the substantive requirements of an effective " unless " notification.

13. A communication relied on as a notification for the purposes of TAA Schedule 1 s 105-55(1)(a) does not have to specify an input tax credit amount. The Commissioner concedes that is the case. Nevertheless the Commissioner insists that the communication must " tell the Commissioner what the refund is " : see the Commissioner ' s " Supplementary Written Outline Submissions " at ¶ 26. This insistence was said to be based on what Gordon J said in
Central Equity Ltd v Federal Commissioner of Taxation [ 2011 ] FCA 908 ; (2011) 214 FCR 255 , 271 at [ 75 ] . According to the Commissioner, North Sydney ' s 2 September 2009 letter did not satisfy the " unless " condition because it did identify " what (North Sydney ' s input tax credit) entitlements were " .

14. The polarities of the Commissioner ' s submissions - disavowal of amount and yet specification of " the " refund - provide a rather elusive explanation of the actual meaning of TAA Schedule 1 s 105-55(1)(a) . The Commissioner ' s contentions, as evidenced in the reasons for the objection decision, suggested that the explanation lay in the proposition that the communication relied on by a taxpayer must provide " the specific nature of the refund and the circumstances under which the refund arises " . This proposition appears to derive from the content of the Commissioner ' s permitted form of notification (see paragraph 19 below). Item 4 in that form enquired about " the circumstances of the GST refund " . The proposition however remains somewhat obscure about the specific content of the required information. Another part of the Commissioner ' s reasons contended that the notice must contain sufficient information " such that when a subsequent claim is made it could reasonably be identified as being covered by the notification " - referring to MT 2009/1 .

15. In
Central Equity Ltd v Federal Commissioner of Taxation [ 2011 ] FCA 908 ; (2011) 214 FCR 255 , 271 the taxpayer had paid about $ 29m in GST between June and November 2001. Some years later it lodged a " Notification of entitlement to a GST refund " . The notification stated the tax period to which it applied - the whole period between 1 July 2000 and 31 May 2008. It also contained what Gordon J referred to as a description of " the circumstances of the refund " - relevantly, that the taxpayer had " mistakenly " paid GST " in relation to the supply of real property transactions " entered into before 1 July 2000.

16. The Commissioner had rejected the effectiveness of the, otherwise timely, notice. The grounds on which the Commissioner relied were that the notice

• (a) covered a span of time rather than specified tax periods
• (b) did not detail the number of contracts or the developments concerned
• (c) did not state that the entitlement arose from " pre 1 July 2000 " supplies
• (d) was internally inconsistent and did not constitute " notification of any clearly identified overpayment of GST "
• (e) did not detail the nature of the " real property transactions " and was unclear.

17. Gordon J upheld the sufficiency of the taxpayer ' s notification. Her Honour accepted the Commissioner ' s basic contention (repeated in the present proceedings) that a complying notification " must fulfil its purpose and convey the information … it is intended to convey " : citing
Deputy Commissioner of Taxation v Woodhams (2000) 199 CLR 370 at [ 33 ] . Her Honour also noted (at paragraph [ 76 ] ) that whilst the legislative provision required notification of " the refund, other payment or credit " , there was no mandated form of notification. The taxpayer had, however, used a form with items that required both the " specific nature of the refund " and " the circumstances under which the refund arise " . Her Honour found that notice identified the period of the claim and that the information summarised in paragraph 15 above provided information about the " nature of the refund " and its " circumstances " . But Her Honour continued on to state that " the specificity sought by (the Commissioner) was unnecessary " . The overall thrust of Gordon J ' s judgment was to find that all of the specific aspects of the Commissioner ' s objections were either wrong or irrelevant. Her Honour concluded with the summary that

[ 79 ] In the present case, the absence of the information identified by the respondent did not involve a failure to provide necessary details if, without such information, the Notification would not fulfil its purpose (cf Woodhams at [ 33 ] ) and, moreover, the Notification did not fail to meet a requirement made essential by s 105-55 of Sch 1 to the TAA … "

18. Gordon J ' s analysis of the requirements of the " unless " notification contemplated by s 105-55 of Sch 1 to the TAA support the Commissioner ' s decision and contentions in the present case only to the extent of accepting that the notification must be of " an entitlement to " the refund, other payment or credit " . But nothing in Gordon J ' s reasons for judgment can properly be relied on to support the proposition that the notification must provide the kind of specificity contemplated in paragraph 15 above, or that it must provide the " circumstances in which the refund arises " - if that phrase means more than that it must identify the relevant tax period and the entitlement claimed.

19. In
MTAA Superannuation Fund (RG Casey Building) Property Pty Ltd v Commissioner of Taxation [ 2011 ] AATA 769 ; (2011) 84 ATR 334 a taxpayer had paid about $ 7.5m in GST in relation to rent it had charged for the period from 1 March 2001 to 30 June 2005. Following a number of relevant decisions in the Federal Court of Australia, the taxpayer contended that no GST was in fact payable and, on 26 June 2008, gave an " unless " notice of the kind contemplated by s 105-55 of Sch 1 to the TAA. The notice used a " Notification of entitlement to GST refund " form which the Tribunal described as having " the appearance of having been produced by the Australian Taxation Office for use to claim GST refunds " . The information in the completed form included the period for which the refund claim was made. It also described the claim as one where " the GST liability has been overstated due to the fact that supplies made under certain contracts were treated as being subject to GST when in fact they were GST free pursuant to Section 13 of the GST Transition Act " .

20. As in the
Central Equity case (which had been decided some three months earlier), the Commissioner contended that the taxpayer ' s notification was ineffective - because it did not provide " specific facts about the circumstances under which the entitlement arose " : see [ 2011 ] AATA 769 at [ 48 ] . More specifically, the Commissioner ' s contention was that the notification was deficient because it was " too general, provided no details that were specific to the applicant ' s circumstances, failed to set out the nature of the supply, failed to identify the recipient of the supply or the nature of the contracts pursuant to which the supply was made and failed to explain how the relevant entitlement related to the specified tax " : see [ 2011 ] AATA 769 at [ 50 ] . The Tribunal dismissed these contentions as complaints about deficiencies equivalent to those considered by Gordon J in the
Central Equity case, and not needed for the notice to serve its purpose. The Tribunal then concluded by contrasting the permissive generality of the " unless " notification condition with the requirement for fully detailed grounds required for taxation objections. That contrast was expressed in the following finding - by reference to TAA s 14ZU(c) .

[ 51 ] . In the present matter the Commissioner does not take issue with an absence of specification of an amount claimed and he was advised or put on notice that a refund entitlement was asserted concerning mistaken application of the transitional rules. In a regime under which neither s 105-55 of Sch 1 nor item 16(2) of Sch 2 to the Amendment Act calls for specificity (cf. Administration Act; s 14ZU(c) ) the advice dated 26 June 2008 is enough to be a valid notice.

21. The Tribunal ' s decision in
National Jet Systems Pty Ltd v Commissioner of Taxation [ 2011 ] AATA 766 was delivered on the same day as the
MTAA Superannuation Fund decision discussed above. It involved GST payments of about $ 48.3m, between 1 July 2000 and 30 June 2005, in relation to a jet aircraft lease that had been entered into some time prior to June 1999. The taxpayer ' s contentious notification was dated 25 June 2008, and specified that it related to the whole period from 1 July 2000 to 30 June 2008. It described the circumstances of the claim as based on having " mistakenly overstated its net amount for the relevant tax periods " - as a result of paying GST on " GST-free " supplies, and understating its input tax credit entitlements.

22. The Commissioner ' s contentions in
National Jet disputed the efficacy of the taxpayer ' s notification on substantially the same grounds (of lack of specificity) as those that had been put forward in both
MTAA Superannuation Fund and
Central Equity . They suffered the same fate. The Tribunal ' s determinative reasoning repeated, substantially verbatim, the passage set out in paragraph 20 above: see
[ 2011 ] AATA 766 at [ 60 ] .

23. In
Brookdale Investments Pty Ltd v Commissioner of Taxation [ 2013 ] AATA 154 , following a tax audit, the Commissioner had issued a notice requiring repayment of amounts the Commissioner contended he had incorrectly refunded, and payment of unpaid indirect tax. The notice relied on TAA Schedule 1: s 105-50 (see paragraph 7 above). Brookdale disputed the Commissioner ' s notice on a number of grounds, including that it failed to specify the payment amount required. The Commissioner responded to that contention with the propositions that (i) no formality was required and the notice merely had to bring to the taxpayer ' s notice the fact that " the Commissioner claims an entitlement to an unpaid net amount " , (ii) TAA Schedule 1: s 105-50 was directed at providing notice, rather than a formal demand, and that it merely required the Commissioner to " bring to the taxpayer ' s attention that the Commissioner is of the view that there is an unpaid net amount " in respect of a particular tax for a specified period, and (iii) that
Cyonara Snowfox Pty Ltd v Commissioner of Taxation [ 2012 ] FCAFC 177 at [ 135 ] to [ 142 ] is clear authority for the proposition that amount specificity and accuracy are not pre-conditions to the validity of a notification: see [ 2013 ] AATA 154 at [ 80 ] .

24. The Tribunal in
Brookdale accepted the Commissioner ' s contention that no amount specificity was required. The Tribunal also accepted the submission that TAA Schedule 1: s 105-50 only required communication of the fact that the Commissioner claimed " an entitlement to an unpaid net amount in respect of a particular tax period " :
[ 2013 ] AATA 154 at [ 83 ] .

25. The common themes resonating through the decisions to which I have referred are the absence of any formal notification content requirement, a disavowal of amount specificity and the apparent sufficiency of a notice where it communicates a claim relating to a particular tax period in relation to a particular kind of tax liability. Implicit in the third theme, and variously expressed in the judgments and reasons, is a refusal to endorse any particular requirement for the details, grounds or even circumstances relied on to support the claim.

26. I recognise that in the three cases that deal specifically with a taxpayer ' s notification, the contentious communication either used, or appears to have used, the ATO form referred to in paragraph 19 above. I recognise that the form " requires " (I use the term in the sense of " contemplates " ) that the taxpayer will provide information about the " circumstances " of the " refund claim " . I recognise also that in each of the matters there was a holding that each form of communication conveyed sufficient information to satisfy any " circumstances " notification - if any was in fact required by TAA Schedule 1: s 105-55(1)(a) itself. But none of the previous decisions endorses the proposition that a notice must provide details of " circumstances " and no such requirement is expressed in the section itself. The critical part of the " unless " condition is merely that the taxpayer " notify the Commissioner (in a GST return or otherwise) that you are entitled to the refund, other payment or credit " .

27. It is understandable that notification, or the possibility of notification, will arouse interest in the " circumstances " of the claimed entitlement. Anticipation of the need for some additional information of that kind, in order to assess the validity of any claim that might ultimately be made, is understandable. And it likely explains why the ATO notification form includes provision for details of that kind. But this kind of understandable administrative exegesis cannot substitute for, or add to, the requirements of the legislative provision itself.

28. In the result, one is left with the task of assessing the force of the Commissioner ' s insistence that the contentious notification must " tell the Commissioner what the refund is " . The use of the definite article in both the Commissioner ' s contention and the statutory provision itself, would be most naturally construed as requiring specificity of amount. But a requirement of that kind is both disavowed by the Commissioner and contrary to authority. Following that disavowal there is considerable difficulty in identifying the factual matters necessary to provide the requisite " definition " required (by the use of the definite article), without erroneously elevating the underlying grounds and details to the status of matters that must be included in order to define " the " entitlement being notified. That difficulty is not alleviated in the present case by the absence of any clearly articulated complaint by the Commissioner about any particular deficiency in the contentious notification, (An observation I make without implying that the Commissioner bore any relevant burden.)

29. In the taxpayer notification cases to which I have referred above, each of the taxpayers had provided GST returns, and paid the amounts for which they had provided. In cases of those kinds, where a taxpayer seeks to depart from the content of previous returns, it is perhaps understandable that a notification might be required to condescend to some aspect of the underlying details of the taxpayer ' s contention. But, as the cases show, whatever additional aspect might be required, it is not the kind of detailed specificity for which the Commissioner contended in those cases. And in the present case, where North Sydney had not submitted any Business Activity Statements for the two tax periods to which its notification related, there is little to support the view that the notification required any details of the " circumstances " of the input tax credit claim. In that context it is significant to note that TAA Schedule 1: s 105-55(1)(a) itself apparently contemplates that the " unless " condition could be satisfied by the provision of " a GST return " - a return which would not, in the ordinary course of events, include any adjectival details of the GST payments or taxable supplies. It is also significant to note that, in heralding the subsequent provision of Business Activity Statements for the two tax periods of December 2005 and January 2006, North Sydney ' s 3 September 2009 letter would have given rise to no difficulty in reasonably permitting identification of any input tax credit claims in those Statements as " covered by the notification " : see MT 2009/1 and paragraph 14 above.

30. In the present case North Sydney ' s 3 September 2009 letter provided details of the tax periods to which it related. It identified the foreshadowed Business Activities Statements as the subject of its notification. It also referred to an expected (indeed actual) entitlement to " GST refunds " for those months. It also provided the explanation that the reason for the notification was that it had been unable to complete the Business Activity Statements because of a lack of access to the company ' s books and records. That inability may not have been directly relevant to the circumstances underlying the actual refund claim, or more specifically, any entitlement to input tax credits. But it did sufficiently convey, if only by necessary implication, that North Sydney had paid GST to which input tax credits would apply. It also conveyed its expectation that its Business Activity Statements, when completed according to the existing information recorded in the books and records maintained by the receivers, would result in GST refunds being available.

31. In my view, North Sydney ' s 3 September 2009 letter did notify the Commissioner of " the refund, other payment or credit " to which TAA Schedule 1: s 105-55(1)(a) applied. It did so for two reasons. Firstly, the provision required no greater specification than the tax period involved, and the nature of the refund or input tax credit claimed. The letter, by describing the notification as relating to the expected outcome of Business Activity Statements for December 2005 and January 2006, satisfied the requirements of a complying notification. Secondly, if the letter required some greater degree of specificity in order to permit satisfaction that any subsequent claim was covered by the notification, the letter also satisfied that requirement. It did so because it indicated that the reason for the notification was the lack of access to the contemporary books and records in the possession of the receiver. On this view any subsequent claim would be limited to a summarised reproduction of the information in the purchase, payment and supply records maintained by the receivers.

THE COMMISSIONER ' S LODGEMENT AND PAYMENT NOTICES

32. North Sydney contended that the Commissioner ' s February and March 2006 notices (see paragraphs 3(d) and 3(f) above) had the effect of removing the time limit that would otherwise apply. In so doing North Sydney contended that the notices had required payment of an amount - for the purposes of TAA Schedule 1: s 105-50(3)(a) (see paragraph 7 above).

33. The Commissioner ' s February and March 2006 notices did not relate to any unpaid amount of tax of the kind to which TAA Schedule 1: s 105-50 applies. The substance of the situation was one where North Sydney had paid GST on purchases it had made, it had an entitlement to input tax credits, but there was no evidence that it had any unpaid liability at all: see
Wynnum Holdings No 1 v Federal Commissioner of Taxation [ 2011 ] AATA 296 ; (2011) 83 ATR 44 at 451 paragraph [ 35 ] (explaining the particular legal status of " input tax credits " ). The Commissioner ' s notices, which required lodgement of Business Activity Statements, and purportedly required payment of any amounts that might be payable as a result of due completion of those Statements, cannot properly be characterised as a notice requiring payment of an unpaid amount. Consequently the notices did not operate to avoid the 4 year time limit that would otherwise apply.

THE CIRCUMSTANCES PREVIOUSLY NOTIFIED TO THE COMMISSIONER

34. North Sydney contends that its 3 September 2009 letter, if it lacked required information when read on its own, nevertheless constituted sufficient notification, in the light of the information previously provided to the Commissioner. In this respect North Sydney relied on the numerous Business Activity Statements it had lodged prior to November 2005, and the information the Commissioner had obtained in response to previous requests for information about North Sydney ' s May 2004 and December 2004 Business Activity Statements. The thrust of North Sydney ' s contention was that it had made no sales prior to January 2006 (because its residential property development was incomplete) and the Commissioner knew that to be the case. Consequently, so North Sydney contended, the Commissioner knew, because of information already in his possession, that it would be entitled to input tax credits for the expenses it incurred in completing the development.

35. I do not accept North Sydney ' s contention. Whatever informality may be permissible for the purpose of an effective notification, it is the communication relied on as the notification that must provide the requisite information. It may be the case that information previously provided to the Commissioner disclosed the general nature of its activities. It may even have disclosed a basis for inferring the likelihood that North Sydney would be make purchases, which would give rise to input tax credits for December 2005 and January 2006. But expectation and inference are not the same as notification. And if (contrary to the finding I have previously made) the 3 September 2009 letter was deficient (by failing to provide details of the input tax credit entitlement for those particular months) that deficiency could not relevantly be overcome by pointing to information that had been provided to the Commissioner in relation to previous tax periods.

DECISION

36. The decision under review is set aside.

37. North Sydney ' s 3 September 2009 letter was a notification for the purposes of TAA Schedule 1: s 105-55(1)(a) in relation to input tax credits relating to the tax periods ending December 2005 and January 2006.