Edited version of your written advice

Authorisation Number: 1012899719345

Date of advice: 11 November 2015

Ruling

Subject: Refundable Tax Offset - Research and Development

Question 1

For the year ended 30 June 20XX, does the refundable tax offset that the taxpayer received under section 67-30 of the Income Tax Assessment Act 1997 form part of the taxpayer's 'assessment' as defined in subsection 6(1) of the Income Tax Assessment Act 1936?

Answer

No.

Question 2

For the 20XX income year, may the ATO amend the taxpayer's 'assessment' as contemplated in subsections 355-710(1) or 355-710(3) of the Income Tax Assessment Act 1997 so as to deny a refundable tax offset received under section 67-30 of the Income Tax Assessment Act 1997, where such an assessment would not change taxable income calculated under section 4-15 of the Income Tax Assessment Act 1997?

Answer

No.

Question 3

In terms of section 355-705 of the Income Tax Assessment Act 1997, does a finding bind the Commissioner where there is a purpose that is other than 'assessment(s)' (as defined for the 20XX income year under subsection 6(1) of the Income Tax Assessment Act 1936), in the same way as a finding binds the Commissioner for the purposes of assessments?

Answer

No.

Question 4

If the Commissioner made a mistake by paying the taxpayer an amount shown on its tax return as a refundable tax offset pursuant to section 67-30 of the Income Tax Assessment Act 1997, does the Commissioner have a right of recovery over the amount paid?

Answer

Yes.

The period to which this ruling applies

1 July 2011 to 30 June 2012

Date in which the scheme commences

1 July 2011

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

The taxpayer was registered under the Industry Research and Development Act 1986 for the 20XX income year.

In its 20XX income year tax return, the taxpayer disclosed a taxable loss (to be carried forward to later income years) and a refundable Research and Development (R&D) tax offset. Based on the information provided by the taxpayer in its income tax return for the 20XX income year, the Commissioner had refunded to the taxpayer the refundable component of the R&D tax offset.

There have been no subsequent amendments to the taxpayer's original tax return for the 20XX income year.

Based on ATO records, the taxpayer's aggregate annual turnover as an R&D entity for the 20XX income was less than $20 million.

During the 20YY income year, XXXXXprovided the taxpayer with a 'Notice of Certificate for Post Registration Finding Under Section 27J of the Industry Research and Development Act 1986' in relation to the taxpayer's registration for the 20XX income year. A copy of this notice was provided to the Commissioner of Taxation.

According to that Notice, XXXXXfound that R&D activities registered by the taxpayer were not core R&D activities or eligible supporting R&D activities. As such, the effect of these findings was that the taxpayer's registration was taken to exist as though those activities were not registered for the 20XX income year.

According to Innovation Australia, the taxpayer's registration details indicate that the R&D activities referred to above were the only R&D activities that were registered for the 20XX income year. This indicates that the full amount of the refunded R&D tax offset is subject to the finding by Innovation Australia.

The taxpayer advised that, regardless of whether or not the finding by XXXXXis effective or correct, the taxpayer's taxable income for the 20XX income year under section 4-15 of the Income Tax Assessment Act 1997 will remain nil.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

Income Tax Assessment Act 1997 Subsection 4-10(3)

Income Tax Assessment Act 1997 Section 4-15

Income Tax Assessment Act 1997 Section 67-30

Income Tax Assessment Act 1997 Subsection 355-100(1)

Income Tax Assessment Act 1997 Section 355-705

Income Tax Assessment Act 1997 Section 355-710

Industry Research and Development Act 1986 Section 27J

Taxation Administration Act 1953 Section 8AAZN

Reasons for decision

Question 1

For the year ended 30 June 20XX, does the refundable tax offset that the taxpayer received under section 67-30 of the Income Tax Assessment Act 1997 (ITAA 1997) form part of the taxpayer's 'assessment' as defined in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Summary

The refunded component of the refundable R&D tax offset that the taxpayer received under section 67-30 of the ITAA 1997 does not form part of the taxpayer's 'assessment' (as defined in subsection 6(1) of the ITAA 1936) for the 20XX income year.

Detailed reasoning

The Research and Development (R&D) Refundable Tax Offset

The R&D Tax Incentive provides targeted R&D tax offsets designed to encourage more companies to engage in R&D.

Under the R&D Tax Incentive, companies assess for themselves whether or not the company is eligible to register activities and claim R&D tax offsets in any given year.

AusIndustry (on behalf of XXXXX) and the Australian Taxation Office (ATO) administer the R&D Tax Incentive jointly.

Only 'R&D entities' can register R&D activities and claim R&D tax offsets.

A refundable R&D tax offset is applied in reducing a taxpayer's tax liability following the ascertainment of taxable income. Where a taxpayer is entitled to more than one kind of tax offset, the rules in Division 63 of the ITAA 1997 specify the order in which the offsets are to be applied.

The introduction of the R&D Tax Incentive under Division 355 of the ITAA 1997 applies generally from the 20XX and subsequent income years. The 20XX income year is significant in this respect as it is one to which the transitional arrangements for notification and review of any amount of refund from a refundable tax offset (as contained in Subdivision 67-L of the Income Tax (Transitional Provisions) Act 1997) do not apply.

The refundable tax offset rules are provided in Division 67 of the ITAA 1997. With specific regard to the R&D refundable tax offset, section 67-30 of the ITAA 1997 states:

(1) A tax offset to which an R&D entity is entitled under section 355-100 (about R&D) for an income year is subject to the refundable tax offset rules if all or part of the amount of the tax offset is worked out using the percentage in item 1 of the table in subsection 355-100(1).

Note 1:  Otherwise, the tax offset will be a non-refundable tax offset (see item 35 of the table in subsection 63-10(1)).

Note 2:  This subsection can apply to an entitlement under any subsection of section 355-100.

Subsection 355-100(1) of the ITAA 1997 generally provides that, where an R&D entity's aggregated turnover for the income year is less than $20 million, the R&D entity is entitled to a tax offset for an income year equal to a percentage of 45% of the total of the amounts (if any) that the entity can deduct for the income year under a number of provisions in Division 355 of the ITAA 1997. In such circumstances, the tax offset will be a refundable tax offset, as per section 67-30 of the ITAA 1997.

Definition of 'assessment': 20XX income year

The term 'assessment' is defined in subsection 6(1) of the ITAA 1936 - as it applied during the 20XX income year - as follows:

(a) the ascertainment of the amount of taxable income (or that there is no taxable income) and of the tax payable on that taxable income (or that no tax is payable); or

Note 1:

A taxpayer does not have a taxable income if the taxpayer's deductions equal or exceed the taxpayer's assessable income: see subsection 4-15(1) of the Income Tax Assessment Act 1997.

Note 2:

A taxpayer may have no tax payable on an amount of taxable income if that income is below the tax-free threshold or if the taxpayer's tax offsets reduce the taxpayer's basic income tax liability to nil.

…

In each of the circumstances outlined in Notes 1 and 2 under paragraph (a) of the definition of 'assessment' in subsection 6(1) of the ITAA 1936, there is still an 'assessment', though one which states there is no tax payable (i.e. a 'nil assessment').

In Batagol v Federal Commissioner of Taxation (1963) 109 CLR 243 (Batagol), Kitto J held that:

Assessment in the sense of mere calculation produces no legal effect. No step that the Commissioner may take, even to the point of satisfying himself of the amount of the taxable income and of the tax thereon, has under the Act any legal significance. But if the Commissioner, having gone through the process of calculation, services on the taxpayer notice that he has assessed the taxable income and the tax at specified amounts, the tax becomes by force of the Act due and payable on the date specified in the notice…Thus, and thus only, there is brought about an "ascertainment" of the taxable income and of the tax, in the sense that thereafter it is possible to say what could not have been said before: that amounts have been fixed so that they are to be taken for all purposes (except those of appeal) to be the result flowing from the application of the Act in the particular case. The respective amounts of the taxable income and the tax have been rendered certain. The word "ascertainment" being understood in this sense, the definition of "assessment" means in my opinion, the completion of the process by which the provisions of the Act relating to liability to tax are given concrete application in a particular case with the consequence that a specified amount of money will become due and payable as the proper tax in that case.

His Honour's remarks were concerned with the definition of 'assessment' in subsection 6(1) of the ITAA 1936 that applied prior to the 2005 income year. However, as a matter of principle, the remarks would seem capable of being able to be applied to the definition of 'assessment in subsection 6(1) of the ITAA 1936 that applied to the 20XX income year, where the words 'ascertainment of the taxable income and of the tax' were substituted by 'ascertainment of the amount of taxable income (or that there is no taxable income) and of the tax payable thereon (or that there is no tax payable thereon)'.

As highlighted in Batagol, a key word in the definition of 'assessment' in subsection 6(1) of the ITAA 1936 is 'ascertainment'; the ascertainment in the 20XX income year of two elements - taxable income and income tax payable.

Calculation of 'taxable income'

Pursuant to section 4-15 of the ITAA 1997, 'taxable income' is generally calculated using the following formula:

Taxable Income = Assessable Income - Deductions

Calculation of 'income tax payable'

The amount of 'income tax payable' is calculated using the formula (the 'income tax equation') and Method Statement provided in subsection 4-10(3) of the ITAA 1997, as outlined below:

Formula

Income tax = (Taxable Income x Rate) - Tax Offsets

Method Statement

Step 1

Work out your taxable income for the income year [calculated using the formula in section 4-15 of the ITAA 1997, as stated above].

Step 2

Work out your basic income tax liability on your taxable income using:

a. the income tax rate or rates that apply to you for the income year; and

b. any special provisions that apply to working out that liability.

[Refer to the Income Tax Rates Act 1986 and section 4-25.]

Step 3

Work out your tax offsets for the income year. A tax offset reduces the amount of income tax you have to pay. [List of tax offsets is provided in section 13-1 of the ITAA 1997.]

Step 4

Subtract your tax offsets from your basic income tax liability. The result is how much income tax you owe for the financial year.

As per Step 4 of the above Method Statement, a taxpayer's tax offsets are subtracted from their basic income tax liability. The result is how much income tax the taxpayer owes for the income year. Implicit in this result is the notion that a taxpayer's income tax liability can only ever be a nil or positive amount and cannot be reduced below nil. This is further supported by Step 3 of the above Method Statement which states that a tax offset reduces the amount of income tax a taxpayer needs to pay.

More significantly, paragraph 60 of Taxation Ruling (TR) TR 2011/5: Income tax: objections against income tax assessments states that the meaning of 'assessment' does not extend to ascertaining the amount of a tax loss.

Are refundable tax offsets a part of the assessment process?

In considering a taxpayer's entitlement to a tax offset under the Method Statement in subsection 4-10(3) of the ITAA 1997 (as outlined above), a distinction must be made between:

1. the component that reduces the taxpayer's tax payable to nil (which forms part of the 'assessment as defined in subsection 6(1) of the ITAA 1936), and

2. the component that is in excess of the nil tax payable which is refundable to the taxpayer under the Refundable Tax Offset rules in Division 67 of the ITAA 1997. The Commissioner considers that this component does not form part of the 'assessment' as defined in subsection 6(1) of the ITAA 1936.

Consistent with the treatment of tax losses under the income tax assessment process, it is the Commissioner's position that:

1. Where a tax offset reduces an amount of tax payable to nil, the assessment process ends (this is also the view that was held in Batagol).

2. The ascertainment of a negative amount of tax payable - as in the case where there is excess tax offset subject to the refundable tax offset rules - is not part of the 'assessment' process.

3. The excess that is subject to the refundable tax offset rules in Division 67 of the ITAA 1997 is an independent, self-contained process that cannot properly be viewed as forming part of the income tax equation. It is a secondary process that follows from the 'assessment' process of working out a taxpayer's taxable income and tax payable on that taxable income as outlined in subsection 4-10(3) of the ITAA 1997.

Under the ITAA 1997, there are specific rules in respect of certain types of rebates ('offsets') which can be refunded to a taxpayer where they are in excess of the tax payable. As per Note 1 to subsection 4-10(3) of the ITAA 1997, Division 63 of the ITAA 1997 explains what happens if tax offsets exceed basic income tax liability. The Commissioner's view is that these specific rules do not affect the role that tax offsets play in the income tax equation. That is, their purpose, insofar as the income tax equation is concerned, is to reduce a taxpayer's income tax liability, akin to how rebates featured in that equation. The excess that is subject to the refundable tax offset rules in Division 67 of the ITAA 1997 is very much an independent, self-contained process that cannot properly be viewed as forming part of the income tax equation.

Further, the following words in paragraph 7.28 of the Explanatory Memorandum to the Tax and Superannuation Laws Amendment (2013 Measures No. 1) Bill 2013 - which resulted in an expanded definition of 'assessment' for the 20YY and later income years - indicate that an excess/ refundable component of a R&D tax offset did not form part of an assessment as per the definition of 'assessment' in subsection 6(1) of the ITAA 1936 as it applied to the 20XX income year:

…Therefore, the amendments extend the definition of 'assessment' to include the amount of a refund arising from the taxpayer's refundable tax offsets.

Conclusion

For the 20XX income year, the refunded component of the refundable R&D tax offset (that is, the component that was in excess of the nil tax payable which was refunded to the taxpayer under section 67-30 of the ITAA 1997) followed on from the 20XX income year assessment, but did not form part of that assessment.

Question 2

For the 20XX income year, may the ATO amend the taxpayer's 'assessment' as contemplated in subsections 355-710(1) or 355-710(3) of the ITAA 1997 so as to deny a refundable tax offset received under section 67-30 of the ITAA 1997, where such an assessment would not change taxable income calculated under section 4-15 of the ITAA 1997?

Summary

The Commissioner cannot amend the taxpayer's assessment for the 20XX income year pursuant to subsections 355-710(1) or 355-710(3) of the ITAA 1997 (in circumstances where there would be no change to the amount of taxable income as calculated under section 4-15 of the ITAA 1997) for the purposes of denying the refundable tax offset that the taxpayer received under section 67-30 of the ITAA 1997. However, as discussed in the response to Question 4, where a refundable R&D tax offset is refunded to a taxpayer who is not eligible to claim some or all of that tax offset, the Commissioner is entitled to recover such incorrectly-refunded R&D tax offsets as an administrative overpayment pursuant to section 8AAZN of the Taxation Administration Act 1953 (TAA).

Detailed reasoning

In circumstances where XXXXX issues a finding and a decision under the Industry Research and Development Act 1986 in respect of a R&D entity (for example, whether the activities registered by the R&D entity have been demonstrated to be eligible R&D activities), section 355-710 of the ITAA 1997 operates to enable the Commissioner to amend the entity's assessment for an income year affected by the finding/decision for the purposes of giving effect to that finding/decision.

Based on the facts provided, regardless of whether or not the finding and decision by XXXXX pursuant to section 355-710 of the ITAA 1997 in respect of the taxpayer's R&D activities is effective and correct, the taxpayer's taxable income for the 20XX income year under section 4-15 of the ITAA 1997 will remain nil.

As per the response to Question 1 above, the process of an assessment halts - in conformance with the definition of 'assessment' in subsection 6(1) of the ITAA 1936 - at the point a conclusion is reached that there is no tax payable. An assessment for the 20XX income year involves the ascertainment of only two key elements: taxable income, and income tax payable. Parity of reasoning suggests that, if an original assessment is directed at ascertaining these two elements at the time of making that assessment, so must an amended assessment be directed at when amending that assessment.

In terms of whether any re-calculation of the refunded component of the R&D tax offset entitlement necessarily entails a re-calculation of the taxpayer's taxable income and tax payable amounts as per the Method Statement in subsection 4-10(3) of the ITAA 1997, the Commissioner considers that the only amount that is being re-calculated in such circumstances is the amount of the refund the taxpayer received under Division 67 of the ITAA 1997. This is irrespective of the fact that the only way the taxpayer can calculate their 'correct' Division 67 (ITAA 1997) refund amount is through the Method Statement in subsection 4-10(3) of the ITAA 1997. No re-calculation of the 'assessment' amounts is taking place under such an exercise. The starting point for any adjustment is always going to be Division 67 of the ITAA 1997) in these circumstances. The Commissioner is only being asked to refund a 'different' Division 67 (ITAA 1997) amount.

Therefore, an amendment to a 20XX income year assessment pursuant to subsections 355-710(1) or 355-710(3) of the ITAA 1997 is not applicable in circumstances where there is a nil assessment with a refundable tax offset, where adjustments are required only to the refundable tax offset and not the calculation of taxable income or income tax payable. No part of any further process to reduce the amount of the refundable R&D tax offset in question can be said to entail any re-ascertainment of whether there is no taxable income (or any taxable income) or no tax payable (or any tax payable), as supported by the principles held in Batagol.

Conclusion

The refunded component of the R&D tax offset amount that the taxpayer received under section 67-30 of the ITAA 1997 was not part of the taxpayer's original assessment for the 20XX income year, and therefore would not give rise to an amended assessment so as to deny the amount refunded to the taxpayer.

As discussed in the response to Question 4, where a refundable R&D tax offset is refunded to a taxpayer who is not eligible to claim some or all of that tax offset, the Commissioner is entitled to recover such incorrectly-refunded R&D tax offsets as an administrative overpayment pursuant to section 8AAZN of the TAA.

Question 3

In terms of section 355-705 of the ITAA 1997, does a finding bind the Commissioner where there is a purpose that is other than 'assessment(s)' (as defined for the 20XX income year under subsection 6(1) of the ITAA 1936), in the same way as a finding binds the Commissioner for the purposes of assessments?

Summary

Where a finding made by XXXXX is not 'for the purposes of assessment' (for example, where such a finding only affects a taxpayer's refundable tax offset and no adjustment or re-calculation of the taxpayer's taxable income or tax payable is required), that finding is not binding on the Commissioner pursuant to subsection 355-705(1) of the ITAA 1997. This is because any excess/refunded component of the R&D tax offset does not form part of an 'assessment' as defined in subsection 6(1) of the ITAA 1936 (as it applied in the 20XX income year).

Detailed reasoning

Subsection 355-705(1) of the ITAA 1997 has the effect of binding the Commissioner to the findings made by XXXXX in respect of registrations (sections 27B and 27J of the Industry Research and Development Act 1986) and core technology (section 28E of the Industry Research and Development Act 1986). This provision also requires that these findings be made within four years after the end of the income year or the last income year to which the findings relate. Pursuant to subsection 355-705(1) of the ITAA 1997, such findings are binding on the Commissioner 'for the purposes of assessments of the R&D entity' for the applicable income year.

As per the responses to Question 1 and 2 above, it is the Commissioner's position that any excess/refunded component of the R&D tax offset does not form part of an 'assessment' as defined in subsection 6(1) of the ITAA 1936 (as it applied in the 20XX income year). As such, the Commissioner cannot relevantly be said to be bound by any XXXXX findings under the Industry Research and Development Act 1986 'for the purposes of assessments of the R&D entity' in respect of the taxpayer for the 20XX income year.

The Commissioner views the operation of sections 355-705 and 355-710 of the ITAA 1997 to be important in circumstances where there is an 'amendment' to an assessment as a result of a change to a R&D tax offset claim - for example, to the amounts claimed that reduces a taxpayer's tax liability to nil. In these instances, section 355-710 of the ITAA 1997 enables the Commissioner to amend the taxpayer's assessment outside the limited amendment period in section 170 of the ITAA 1936.

However, for the reasons discussed in the responses to Questions 1 and 2 above, sections 355-705 and 355-710 of the ITAA 1997 are not considered to apply for the purposes of dealing with adjustments to the refunded component of the R&D tax offset for the 20ZZ and earlier income years.

Conclusion

The finding made by XXXXX in respect of the taxpayer's R&D activities for the 20XX income year - which was made within four year after the end of the 20XX income year - is not binding on the Commissioner pursuant to subsection 355-705(1) of the ITAA 1997 as the finding is not 'for the purposes of assessment'.

However, regardless of whether or not XXXXX findings are binding on the Commissioner, the Commissioner is nonetheless able to review a taxpayer's refund entitlement based on any information he has at hand (including information from XXXXX pertaining to the nature of a taxpayer's R&D activities), and come to a view as to whether there has been an overpayment of credit that needs to be recouped under section 8AAZN of the TAA (see discussion within the response to Question 4 below).

Further, it is noted that action by the Commissioner to recover incorrectly-refunded R&D tax offsets as an administrative overpayment pursuant to section 8AAZN of the TAA is not reliant on there being an assessment, nor there being a finding that binds the Commissioner for the purposes of that assessment (for the 20XX income year).

Question 4

If the Commissioner made a mistake by paying the taxpayer an amount shown on its tax return as a refundable tax offset pursuant to section 67-30 of the ITAA 1997, does the Commissioner have a right of recovery over the amount paid?

Summary

The refund paid to the taxpayer of the refundable component of the R&D tax offset pursuant to section 67-30 of the ITAA 1997, which the taxpayer was not entitled to claim, was not a mistake of the Commissioner. This is because the Commissioner relied upon information provided by the taxpayer in its tax return as lodged for the 20XX income year.

Based on the assessment and subsequent finding and decision by XXXXX in relation to the taxpayer's activities for the 20XX income year, the taxpayer had incorrectly claimed the refundable R&D tax offset in the 20XX income year as a consequence of registering certain R&D activities with AusIndustry (on behalf of XXXXX) which were ineligible under the R&D Tax Incentive.

The Commissioner is entitled to recover - as an administrative overpayment pursuant to section 8AAZN of the TAA - the amount of R&D tax offsets incorrectly-refunded to the taxpayer for the 20XX income year.

Detailed reasoning

Based on the facts, the taxpayer lodged a tax return for the 20XX income year disclosing a taxable loss and claimed a refundable R&D tax offset.

The self-assessment system places the onus on the taxpayer to ensure the taxpayer's tax return complies with taxation laws - in particular, that the taxpayer declared all of its assessable income and that the taxpayer claims only the deductions and tax offsets to which the taxpayer is entitled. The Commissioner relied upon the information the taxpayer provided in its 20XX income year tax return to issue a refund to the taxpayer, being the refundable component of the R&D tax offset.

In undertaking an examination of the taxpayer's registration for the 20XX income year, XXXXX found that certain R&D activities registered by the taxpayer were not eligible R&D activities for the purposes of claiming the refundable R&D tax offset. Consequentially, the taxpayer had claimed a refundable R&D tax offset in its 20XX income tax return to which the taxpayer was not entitled to claim.

Therefore, the resultant payment to the taxpayer of the refundable R&D tax offset pursuant to section 67-30 of the ITAA 1997 was not a mistake of the Commissioner.

Paragraph 3.104 of the Explanatory Memorandum to the Tax Laws Amendment (Research and Development) Bill 2010 provides an explanation on how refundable R&D tax offsets are intended to operate, including circumstances where there is a refundable component of a R&D tax offset:

…If there is an excess, the taxpayer is entitled to a refund, subject to the rules in Divisions 3 (Treatment of payments, credits and RBA surpluses) and 3A (Refunds of RBA surpluses and credits) of Part IIB of the Taxation Administration Act 1953, which cover how the Commissioner must apply credits, including refunds.

In Ozone Manufacturing Pty Ltd v Deputy Commissioner of Taxation [2006] SASC 91, it was made clear that a refund relating to a R&D refundable tax offset is a credit that is posted to a taxpayer's account for the purposes of the running balance account provisions in Part IIB of the TAA.

The Commissioner is duty-bound by law to ensure that money paid out of consolidated revenue, in circumstances where there is no entitlement for the recipient to receive such payment, is recovered in the most effective and timely manner. In doing so, the Commissioner will use the appropriate option for recovery. In circumstances where an excess R&D tax offset is incorrectly refunded to a taxpayer during the 20XX income year, the Commissioner is entitled to recover such incorrectly-refunded R&D tax offsets from the taxpayer as an 'administrative overpayment' pursuant to section 8AAZN of Part IIB of the TAA. Subsection 8AAZN(3) of the TAA defines an 'administrative overpayment' as 'an amount that the Commissioner has paid to a person by mistake, being an amount to which the person is not entitled'.

Subsection 8AAZN(1) of the TAA states:

An administrative overpayment (the overpaid amount):

(a) is a debt due to the Commonwealth by the person to whom the overpayment was made (the recipient); and

(b) is payable to the Commissioner; and

(c) may be recovered in a court of competent jurisdiction by the Commissioner, or by a Deputy Commissioner, suing in his or her official name.

Under subsection 8AAZN(2) of the TAA, if the Commissioner gives a taxpayer (the recipient of an overpaid amount) at least 30 days' notice (in writing) to repay the administrative overpayment and specifies a due date, general interest charges will be payable (from the due date) on any of the overpayment that remains unpaid.

Whether the incorrectly-refunded excess R&D tax offset was due to the mistake of a taxpayer or the Commissioner is not relevant for the purposes of section 8AAZN of the TAA. Based on information the taxpayer provided in its 20XX income tax return, the taxpayer was paid a refundable R&D tax offset to which it was not entitled to claim. This amount constitutes an administrative overpayment as per the definition of an 'administrative overpayment' in subsection 8AAZN(3) of the TAA.

Therefore, the Commissioner is entitled to recover - as an administrative overpayment pursuant to section 8AAZN of the TAA - the amount of excess R&D tax offset that was incorrectly-refunded to the taxpayer under section 67-30 of the ITAA 1997 for the 20XX income year.