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Edited version of your private ruling
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Ruling
Subject: Australian Business Number (ABN) entitlement
Question 1
Are you able to use and quote your ABN whilst the entity type recorded against your ABN registration is incorrect?
Answer
Whilst you are waiting for the new ABN to be issued to you with the correct entity type recorded against the registration you may continue to use the ABN that you currently have. As you are entitled to the ABN and it has been issued to you, you may continue to use it in accordance with the A New Tax System (Australian Business Number) Act 1999.
This ruling applies for the following periods:
Year ending 30 June 2013
The scheme commences on:
1 July 2012
Relevant facts and circumstances
When an ABN was originally applied for, your entity type was recorded as "other trust" instead of "other incorporated entity".
To remedy this you have been advised by the ATO to apply for a new ABN and TFN as the entity type cannot be changed. You have done this.
Your existing ABN has been quoted on all invoices and documents since 1 July 2000.
You are now seeking approval that your ABN is valid and that you can continue to use it until the time when the new ABN is issued.
Relevant legislative provisions
Section 8 of the A New Tax System (Australian Business Number) Act 1999
Reasons for decision
Section 8 of the A New Tax System (Australian Business Number) Act 1999 (ABN Act) states that you are entitled to have an Australian Business Number (ABN) if you are carrying on an enterprise in Australia or in the course or furtherance of carrying on an enterprise, you make supplies that are connected with Australia.
Upon applying for an ABN you are required to provide certain details regarding your registration which the Registrar of the Australian Business Register ("the Registrar") will then enter into the Australian Business Register ("ABR").
Section 11 of the ABN Act states that the Registrar registers you in the ABN by allocating you an ABN, and entering into the ABR your name, your ABN and the date of effect of the registration.
The A New Tax System (Australian Business Number) Regulations 1999 (the ABN Regulations) also prescribe at Regulation 5 that the Registrar is also to record the kind of entity that is being registered (eg. an individual, corporation, other incorporated entity).
As you meet the criteria of section 8 of the ABN Act you are entitled to an ABN. Part of that entitlement to an ABN is using the ABN, quoting the ABN etc in accordance with the ABN Act. The Registrar has issued you an ABN under section 10 of the ABN Act as the prescribed conditions have been met.
Section 14 of the ABN Act imposes obligations on you which include notifying the Registrar if circumstances change so that the information given to the Registrar is incorrect. You have contacted the Registrar to rectify the fact that your entity type that is recorded is incorrect.
Whilst you are waiting for the new ABN to be issued to you with the correct entity type recorded against the registration you may continue to use the ABN that you currently have. As you are entitled to the ABN and it has been issued to you, you may continue to use it in accordance with the ABN Act.
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