TAXATION BOARDS OF REVIEW (TRANSFER OF JURISDICTION) ACT 1986 (REPEALED)

PART VII - AMENDMENTS OF THE FRINGE BENEFITS TAX ASSESSMENT ACT 1986  

SECTION 48   REPEAL OF PART VI AND INSERTION OF NEW PART  

48    
Part VI of the Principal Act is repealed and the following Part is substituted:

``PART VI - OBJECTIONS, REVIEWS AND APPEALS

``79   Interpretation  

In this Part, 'Supreme Court' means -

(a) the Supreme Court of a State; or

(b) the Supreme Court of the Australian Capital Territory or the Supreme Court of the Northern Territory.

``79A(1)   Transfer of proceedings  

A Supreme Court in which proceedings under this Part have been instituted (whether or not it has jurisdiction in the proceedings) may, if the Court thinks fit, upon the application of a party at any stage in the proceedings, by order, transfer the proceedings to another Supreme Court having jurisdiction under this Part.

``79A(2)    
Where proceedings are transferred from a Court pursuant to this section -

(a) all documents of record filed in that Court shall be transmitted by the Registrar or other proper officer of that Court to the Registrar or other proper officer of the Court to which the proceedings are transferred; and

(b) the Court to which the proceedings are transferred shall proceed as if the proceedings had been originally instituted in that Court and as if the same proceedings had been taken in that Court as had been taken in the Court from which the proceedings were transferred.

``80(1)   Objections  

An employer who is dissatisfied with an assessment may, within 60 days after service of the notice of that assessment, lodge with the Commissioner an objection in writing against the assessment stating fully and in detail the grounds on which the employer relies.

``80(2)    
The Commissioner shall consider the objection, and may either disallow it or allow it wholly or in part.

``80(3)    
The Commissioner shall cause notice in writing of the Commissioner's decision on the objection to be served on the employer.

``80(4)    
Where an assessment has been amended in any particular, the right of an employer to object against the amended assessment is limited to a right to object against alterations or additions in respect of, or matters relating to, that particular.

``80(5)    
Where a notice of assessment of tax incorporates notice of one or more assessments of additional tax, the assessments shall, for the purposes of this Part, be regarded as one assessment.

``81   Request for reference  

An employer who is dissatisfied with a decision under section 80 on an objection by the employer may, within 60 days after service on the employer of notice of the decision, lodge with the Commissioner, in writing, either -

(a) a request to refer the decision to the Tribunal; or

(b) a request to refer the decision to a specified Supreme Court.

``82(1)   Applications for extension of time  

Where the period for the lodgment by an employer of an objection against an assessment has ended, the employer may, notwithstanding that the period has ended, send the objection to the Commissioner together with an application in writing requesting the Commissioner to treat the objection as having been duly lodged.

``82(2)    
Where the period for the lodgment by an employer of a request under section 81 has ended, the employer may, notwithstanding that the period has ended, send the request to the Commissioner together with an application in writing asking that the request be treated as having been duly lodged.

``82(3)    
An application under sub-section (1) or (2) shall state fully and in detail the circumstances concerning, and the reasons for, the failure by the employer to lodge the objection or request as required by this Act.

``83(1)   Consideration of applications for extension of time for lodging objections  

The Commissioner shall consider each application made under sub-section 82(1) and may grant or refuse the application.

``83(2)    
The Commissioner shall give to the employer who made the application notice in writing of the decision on the application.

``83(3)    
An employer who is dissatisfied with a decision under sub-section (1) in respect of an application made by the employer may apply to the Tribunal for review of the decision.

``83(4)    
Where an application under sub-section 82(1) has been granted, the employer who made the application shall, for the purposes of this Part, be treated as having duly lodged the objection to which the application relates.

``84(1)   Consideration of applications for extension of time for lodging requests for reference  

Where the Commissioner receives an application under sub-section 82(2), the Commissioner shall, as soon as practicable -

(a) if the application relates to a request to refer a decision to the Tribunal-send the application to the Tribunal; or

(b) of the application relates to a request to refer a decision to a specified Supreme Court-send the application to that Supreme Court.

``84(2)    
The sending of an application to the Tribunal under paragraph (1)(a), shall, for the purposes of the Administrative Appeals Tribunal Act 1975 , be deemed to constitute the making by the employer concerned of an application to the Tribunal to extend the time within which the request may be lodged with the Commissioner.

``84(3)    
The sending of an application to a Supreme Court under paragraph (1)(b) constitutes the making by the employer concerned of an application to that Court to extend the time within which the request may be lodged with the Commissioner and the application shall be heard by that Court constituted by a single Judge.

``84(4)    
The Tribunal or the Supreme Court, as the case may be, may grant or refuse the application.

``84(5)    
Where an application under sub-section 82(2) has been granted, the employer shall, for the purposes of this Part, be treated as having duly lodged the request to which the application relates.

``85(1)   Reference to Tribunal or Court  

Where an employer duly lodges, or is to be treated as having duly lodged, a request under section 81, the Commissioner shall comply with the request.

``85(2)    
The referral of a decision on an objection to the Tribunal shall, for the purposes of the Administrative Appeals Tribunal Act 1975 , be deemed to constitute the making by the employer of an application to the Tribunal for review of the decision.

``85(3)    
The referral of a decision on an objection to a Supreme Court constitutes the instituting by the employer concerned of an appeal against the decision, and that appeal shall be heard by that Court constituted by a single Judge.

``86(1)   Notice to refer  

Subject to sub-sections (2) and (3), if, within 60 days after receiving a request under section 81 in relation to a decision on an objection, the Commissioner does not comply with the request, the employer may give notice in writing to the Commissioner requiring the Commissioner to do so and the Commissioner shall, within 60 days after receiving the notice, comply with the request.

``86(2)    
Where an application under section 82 in relation to a request has been granted, the employer is not entitled to give notice under sub-section (1) of this section in relation to the request before the expiration of 60 days after the day on which the application was granted.

``86(3)    
If, within 60 days after receiving a request under section 81 in relation to a decision on an objection or, in a case to which sub-section (2) of this section applies, within 60 days after an application under section 82 in relation to a request has been granted, the Commissioner, by notice in writing served on the employer, requires the employer to give information relating to the objection, the Commissioner is not required to comply with the request until the expiration of 60 days after the receipt by the Commissioner of that information.

``86A   Procedure on review or appeal  

In proceedings under this Part on a review before the Tribunal or on appeal to a Supreme Court -

(a) the employer is, unless the Tribunal or Court otherwise orders, limited to the grounds stated in the objection; and

(b) the burden of proving that an assessment is excessive lies on the employer.

``86B(1)   Case stated to Federal Court  

A Supreme Court hearing an appeal under this Part may, if it thinks fit, state a case in writing for the opinion of the Federal Court of Australia on a question of law arising on the appeal.

``86B(2)    
A Full Court of the Federal Court of Australia shall hear and, by order, determine the question and remit the case with its opinion to the Supreme Court, and may make such order as to the costs of the case stated as it thinks fit.

``86C(1)   Powers of Supreme Court on appeal  

A Supreme Court hearing an appeal under this Part may make such order in relation to the decision to which the appeal relates as it thinks fit, including an order confirming or varying the decision.

``86C(2)    
An appeal does not lie from an order referred to in sub-section (1) except as provided in section 86D.

``86D(1)   Appeals from Supreme Court and Federal Court  

The Commissioner or an employer may appeal against an order of a Supreme Court made under section 86C -

(a) to the Federal Court of Australia; or

(b) by special leave of the High Court-to that Court.

``86C(2)    
An appeal does not lie from a decision of the Federal Court of Australia in a matter under this Part unless the High Court gives special leave to appeal.

``86E(1)   Implementation of decisions  

When a decision of the Tribunal or of a court under this Part becomes final, the Commissioner shall, not later than 60 days after that decision becomes final, take such action, including amending the assessment concerned, as may be necessary to give effect to the decision.

``86E(2)    
Where a decision may, by special leave of the High Court, be taken on appeal to that Court, then, in determining, for the purposes of sub-section (1), when that decision becomes final -

(a) if that decision is a decision of a Supreme Court of a State or Territory and neither an appeal is made to the Federal Court of Australia within the period for lodging such an appeal nor an application made for special leave to appeal to the High Court within the period of 30 days after the making of the decision-the decision will become final upon the expiration of the later of those periods to expire; or

(b) if that decision is a decision of the Federal Court of Australia and an application is not made for special leave to appeal to the High Court within the period of 30 days after the making of the decision-the decision will become final upon the expiration of that period.

``86E(3)    
In this section, 'decision', in relation to a court, includes the making of an order under sub-section 86C(1).

``87   Practice and procedure of Supreme Courts  

Until regulations have been made under this Act for or in relation to the practice and procedure of a Supreme Court in proceeding under this Part, and so far as regulations so made do not make adequate provision, the High Court Rules as in force under the Judiciary Act 1903 immediately before the date of commencement of this Act apply, so far as practicable, mutatis mutandis, to and in relation to a proceeding under this Part in like manner as they would apply if the proceeding were a proceeding in the High Court.

``88   Pending review or appeal not to affect assessment  

The fact that a review or appeal is pending in relation to an assessment does not, in the meantime, interfere with, or affect, the assessment, and tax, or additional tax under section 93 or Part VIII, may be recovered as if no review or appeal were pending.''.