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Board of Taxation: Review of the Legal Framework for the Administration of the GST

In December 2008, the Board of Taxation made 46 recommendations to the Federal Government following its review of the Legal Framework for the Administration of the GST.

The Government announced its response to the recommendations on 12 May 2009.

In December 2013, following a review of 92 previously announced but unlegislated tax measures, the Abbott Government announced that it would not proceed with 12 of the outstanding GST recommendations below.    

Click to view details about the status of the recommended changes - as at January 2014:

Changes commencing before 1 July 2010

Incapacitated entities (Recommendation 38)

Outline: Amendments to ensure that the representative of an incapacitated entity is responsible for the GST consequences that arise from supplies, acquisitions and importations made during its appointment.

Changes commence from: Generally 1 July 2000 (some amendments commenced on 4 December 2009)

Amending legislation: Tax Laws Amendment (2009 Measures No. 5) Act 2009 – assented to on 4 December 2009

Offshore gambling (Recommendation 41)

Outline: Amendments to confirm the application of the GST rules concerning gambling supplies made to non-resident entities, (i.e. clarification of the calculation of the gambling operator's margin).

Changes commence from: 1 April 2010

Amending legislation: Tax Laws Amendment (2009 GST Administration Measures) Act 2010 – assented to on 24 March 2010

Recovering overpaid refunds (Recommendation 44)

Outline: Amendments allowing over claimed refunds to be treated as an amount of tax which becomes payable when it is either refunded to the taxpayer or applied against a tax debt.

Changes commence from: 1 April 2010 (GST and Fuel tax); 24 March 2010 (Luxury car tax)

Amending legislation: Tax Laws Amendment (2009 GST Administration Measures) Act 2010 – assented to on 24 March 2010

Associates (Recommendation 46)

Outline: Amendments to resolve the interaction of the associate provisions and other provisions (e.g. input taxed and GST-free supplies provisions) – to clarify the treatment of supplies/acquisitions between associates without consideration.

Changes commence from: 24 March 2010

Amending legislation: Tax Laws Amendment (2009 GST Administration Measures) Act 2010 – assented to on 24 March 2010

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Changes commencing 1 July 2010

Adjustments for third party rebate payments within a supply chain (Recommendation 6)

Outline: Amendments to ensure that the appropriate amount of GST is collected/input tax credits claimed where there are payments between parties in a supply chain, which indirectly alter the price paid or received by the parties for the things supplied, but for which an adjustment does not currently arise because the parties are not directly involved in a supply from one to the other.

Amending legislation: Tax Laws Amendment (2010 GST Administration Measures No. 1) Act 2010 – assented to on 24 March 2010; Tax Laws Amendment (2010 GST Administration Measures No. 3) Act 2010 - assented to on 29 June 2010; Tax Laws Amendment (2010 Measures No. 4) Bill 2010 – assented on 7 December 2010.

Tax invoices (Recommendation 9)

Outline: Simplification of the requirements for a document to be a tax invoice.

Amending legislation:
Tax Laws Amendment (2010 GST Administration Measures No. 2) Act 2010 – assented to on 28 June 2010

Tax invoices & attribution (Recommendation 10)

Outline: Clarification that an input tax credit can be claimed in a later tax period even though the tax invoice was first held in an earlier period, (i.e. until the expiry of the four year limitation period, input tax credits may always be claimed in the current tax period).

Amending legislation: Tax Laws Amendment (2010 GST Administration Measures No. 1) Act 2010 – assented to on 24 March 2010

Adjustment notes (Recommendation 11)

Outline: Increase to the threshold at which an adjustment note must be issued or held in order to claim a decreasing GST adjustments - from $50 to $75.

Amending legislation: A New Tax System (GST) Amendment Regulations 2009 (No. 2) – made on 14 December 2009

Rulings (Recommendation 17)

Outline: Adoption of the general taxation rulings system for GST, Wine Equalisation Tax, Luxury Car Tax and excise duty.

Amending legislation: Tax Laws Amendment (2010 GST Administration Measures No. 2) Act 2010 – assented to on 28 June 2010

Latest news: The ATO will apply a 12-month moratorium on conducting active compliance activities on issues covered by certain advice issued to industry associations – click to view details

Limited time to claim input tax credits and clarification about entitlement to defer an input tax credit claim (Recommendation 20)

Outline – four year limit: Limit claims for input tax credits to a four year period, and clarify that a taxpayer can defer input tax credit claims for up to four years even if they held a tax invoice at the end of the period to which the credit would otherwise be attributable. This measure applies from the time of announcement by the Government - 7.30pm on 12 May 2009.

Following the Treasury consultation process, amendments have been made to require that fuel tax credits are also claimed within a four year period. This measure applies from 1 July 2010.

Amending legislation: Tax Laws Amendment (2009 GST Administration Measures) Act 2010 – assented to on 24 March 2010

Outline – clarification: amendment to clarify that a taxpayer can defer input tax credit claims (within the four year limit) even if they held a tax invoice at the end of the period to which the credit would otherwise be attributable.

Amending legislation: Tax Laws Amendment (2010 GST Administration Measures No 1) Act 2010 – assented to on 24 March 2010

External Territory refunds (Recommendation 31)

Outline: Introduction of a system under which residents of Australia's external territories can claim GST/WET refunds under the Tourist Refund Scheme if they can show proof of shipping of exported goods to their external territory.

Amending legislation: Tax Laws Amendment (2009 GST Administration Measures) Act 2010 – assented to on 24 March 2010

GST grouping and GST joint ventures (Recommendation 32)

Outline: Amendments needed to introduce more flexible rules for GST groups and GST joint ventures, in particular to replace the detailed rules governing GST group membership with simpler, principle-based rules;  allow holding companies to register and group for GST purposes despite not carrying on an enterprise; allow entities to self-assess their eligibility to form a GST group or GST joint venture; allow entities to form, alter or revoke a GST group at any time during a tax period (and extending such arrangements to GST joint ventures); and introduce clean exit rules to allow entities to leave GST groups or GST joint ventures clear of any GST consequences.

Amending legislation: Tax Laws Amendment (2010 GST Administration Measures No. 2) Act 2010 – assented to 28 June 2010. The amendments made by this Act are limited to allowing entities to self-assess their eligibility to form, change and dissolve a GST group or GST joint venture and to do so at any time during a tax period, and allowing members of a GST group and participants in a GST joint venture to enter into an indirect tax sharing agreement in relation to their indirect tax law liabilities.

Comment: Amendments to simplify the GST group membership interests rules and to allow holding companies to be entitled to register and group for GST purposes despite not carrying on an enterprise were deferred. In December 2013 the Government announced that it will not proceed with these additional changes.

Agency rules – Subdivision 153B (Recommendation 40)

Outline: Expansion of the agency provisions to include representatives that operate in a similar way to common law agents, (e.g. commission agents, invoicing agents) to allow them to act as principal for GST accounting purposes.

Amending legislation: Tax Laws Amendment (2009 GST Administration Measures) Act 2010 – assented to on 24 March 2010

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Changes commencing 1 July 2011

Running balance account (Recommendation 39)

Outline: Amendments to the GST law so that:

  • There is only a requirement to offset a credit against a Business Activity Statement (BAS) amount when that amount becomes due and payable and not before this time
  • The activities of each JV role that a JV operator undertakes should be treated separately for RBA purposes and also separately from the activities of the JV operator in its own capacity as an entity.

Comment: Tax Laws Amendment (2010 Measures No. 5) Act 2011 - assented to 29 June 2011.

Non-profit sub-entities (Recommendation 43)

Outline: Amendment to ensure that non-profit sub-entities are able to access the same GST concessions as their parent entity.

Comment: Tax Laws Amendment (2010 Measures No. 5) Act 2011 - assented to on 29 June 2011. These amendments apply to tax periods commencing on or after 30 June 2011.

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Changes commencing 1 July 2012

Period of review to be refreshed (Recommendation 19)

Outline: Amendments to ensure that the four year period of review for GST, Luxury car tax, Wine equalisation tax and fuel tax credits is refreshed in cases where the Commissioner or taxpayer reduces/increases the amount of tax payable or increases/reduces a refund payable to a taxpayer based on the information provided by the taxpayer, but only in respect of the particular that led to the review.

Comment: Deferred from 1 July 2010. Subsequently, further deferred in the 2011-12 Federal Budget. 

Amending legislation: Indirect Tax Laws Amendment (Assessment) Act 2012 - assented to 15 April 2012.

Self-assessment (Recommendation 21)

Outline: Amendments to introduce greater harmonisation between the current self-actuating system for GST, Wine equalisation tax, Luxury car tax and Fuel tax credits and the income tax system of self-assessment.

Comment: Deferred from 1 July 2010. Subsequently, further deferred in the 2011-12 Federal Budget.

Amending legislation: Indirect Tax Laws Amendment (Assessment) Act 2012 - assented to 15 April 2012.

Financial supplies (Recommendation 23)

Outline: Following its review of the financial supplies provisions (with the aim of reducing their complexity and introducing more principled rules, while maintaining the existing policy), the Government announced on 11 May 2010 that:

  • The financial acquisition threshold input tax credit test will be increased from $50,000 to $150,000
  • The treatment of hire purchase agreements will be simplified by removing the need to apply different GST treatments to different parts of a supply (i.e. whole supply to be taxable)
  • The attribution rules for hire purchase arrangements will be made the same for both cash and non-cash GST taxpayers
  • The special rules for borrowings [i.e. s.11-15(5)] will be amended to exclude bank deposit accounts
  • The expenses qualifying for a RITC will be expanded to:
    • Include acquisitions related to supplies of life insurance by super funds to their members
    • Clarify that RITCs are available for lenders' mortgage insurance and lenders' mortgage reinsurance
    • Include transactional fraud monitoring services
  • The RITC items for trustee and responsible entity services will be amended to prevent them being used to allow RITCs for all acquisitions
  • The language used and relationship between 'guarantees' and 'indemnities' will be clarified.

Amending legislation: Tax Laws Amendment (2011 Measures No. 9) Act 2012 - assented to 21 March 2012: implements the first, third and fourth measures above.  

A New Tax System (Goods and Services Tax) Amendment Regulation 2012 (No. 1) – made on 24 May 2012: amends the GST Regulations to implement the second, fifth and seventh measures above. In relation to the sixth measure, concerning restricting RITCs for trustee and responsible entity services, a new RITC item was introduced for certain acquisitions by affected managed investment schemes and superannuation funds, allowing input tax recovery at a lower rate (i.e. 55%, instead of the normal 75% rate).

Luxury car tax and wine equalisation tax – net amount (Recommendation 42)

Outline: Amendments to confirm that LCT and WET are part of the net amount that is calculated under the GST Act.

Comment: Deferred from 1 July 2011.

Amending legislation: Indirect Tax Laws Amendment (Assessment) Act 2012 - assented to 15 April 2012.

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Changes commencing on other dates

Cross-border transactions review to simplify the design of the cross-border rules and reduce the number of non residents in the GST system (Recommendations 26, 27, 28 and 29)

Outline: Announced on 11 May 2010 - implementation of all of the recommendations made by the Board of Taxation following its review of the application of GST to cross border transactions:

  1. Amendments to the GST law, to:
  • Limit the application of the 'connected with Australia' provisions for the supplies by a non-resident of services and intangibles
  • Limit the application of the 'connected with Australia' provisions for the supply of goods by a non-resident (2012-13 Budget flagged possible changes to this measure)
  • Limit the application of the 'connected with Australia' provisions for certain supplies of goods within Australia between non-residents (2012-13 Budget flagged possible changes to this measure
  • Expand the existing compulsory reverse charge provisions to include goods
  • Allow supplies 'made' to a non-resident but 'provided' to a registered business in Australia or employee or office holder to be GST-free (Assistant Treasurer announced that "the Government will be looking at approaches which do not impose an excessive compliance burden or revenue risk on Australian suppliers")
  • Allow supplies of warranty services 'made' to a non-resident but 'provided' to an Australian warranty holder to be GST-free
  • Expand the non-resident agency provisions so that they apply more broadly than to common law agency relationships (2012-13 Budget announced that this measure would not be proceeded with)
  • Remove the requirement for non-resident registration under the agency provisions (2012-13 Budget announced that this measure would not be proceeded with) 
  • Remove the requirement for non-residents to register if they only make GST-free supplies.

Comment: Treasury consultation paper released on 15 February 2011 about the design and implementation details of the proposed changes. In the 2012-13 Budget on 8 May 2012, the Government announced that this package of changes would not take effect from 1 July 2012 as originally announced. The Government confirmed in December 2013 that it will proceed with this measure, to take effect from Royal Assent.

  1. Other recommendations to be implemented other than by amending legislation:
  • Streamlining of the GST registration process for non-residents
  • Introducing alternative options for taxpayers when calculating the transport and insurance costs to include in the value of taxable importations
  • Retention of the low value importation threshold of AUD $1,000 for GST purposes
  • Action by the ATO to improve taxpayer awareness/education about particular circumstances in which none of the entities involved is entitled to claim back the GST on the importation of goods
  • Reviewing whether a direct GST refund system should be introduced, after the other recommendations have been implemented and have been operational for an appropriate period.

Reverse charge mechanism – going concerns and farmland (Recommendation 33)

Outline: Replacement of the GST-free concessions for the supply of going concerns and farm land supplied for farming with a reverse charge mechanism. The Board of Taxation also recommended that the reverse charge mechanism be made available for a wider range of supplies of going concerns.

Comment: The Government confirmed in December 2013 that it will proceed with this measure, to take effect from Royal Assent.

Payment of refunds of overpaid GST (Recommendation 45)

Outline: Amendment to clarify that the Commissioner has discretion to refund overpaid GST where appropriate.

Comment: Announced by Government on 12 May 2009 as a change to commence upon the amending Act receiving Royal assent. This recommendation was addressed in the second Treasury Consultation Paper issued on 11 September 2009. The Government released exposure draft amending legislation for public consultation on 17 August 2012. The planned changes included removing the Commissioner's discretion to refund an overpaid amount of GST (i.e. repeal of s.105-65, Sched.1, TAA 1953); required taxpayers to self-assess their entitlement to a refund of an overpaid GST amount by reference to specified objective criteria; and extended the restriction on refunds to all overpayments of GST no matter how the overpayment arose.

In response to a raft of concerns raised during the consultation process, the Government revised the planned amendments, releasing them for a further round of public consultation on 26 February 2013. On 26 June 2013, the Government's proposed amendments were introduced into Parliament in Tax Laws Amendment (2013 Measures No. 4) Bill 2013.The Bill lapsed as a result of the September 2013 federal election. The new Government announced in November 2013 that it would proceed to enact this measure. A new Bill has yet to be introduced into Parliament.

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Previously supported recommendations that are not proceeding

Adjustments for change in use (Recommendation 4)

Outline: Amendments to the GST change of use provisions to provide higher thresholds and fewer and shorter adjustment periods and greater alignment with other adjustment rules. The Board of Taxation recommended that adjustments for private use should be explicitly aligned with the percentage of private use for income tax purposes and adjustments for change of use arising from input taxed use should only occur where the change in use is significant.

Comment: The Government announced in December 2013 that it will not proceed with this measure.

Adjustments for cessation of registration for goods leaving Australia
(Recommendation 5) 

Outline: Amendments to provide that non-resident taxpayers will not be required to make adjustments in relation to goods in the event that they deregister, if the goods are effectively exported and used in the non-Australian enterprise. Also, technical amendments to the provisions relating to attribution and entitlement upon cessation of registration to ensure consistent and appropriate treatment of all taxpayers.

Comment: Announced by Government on 12 May 2009 as change to commence from the start of the first quarterly tax period after the amending Act receives Royal Assent. This recommendation was addressed in the second Treasury Consultation Paper issued on 11 September 2009. The Government announced in December 2013 that it will not proceed with this measure.

Adjustments – technical amendment (Recommendation 7)

Outline: Amendments to ensure consistency and certainty in the use of the terms 'apply' and 'application' in the adjustment provisions.

Comment: Announced by Government on 12 May 2009 as change to commence from the start of the first quarterly tax period after the amending Act receives Royal Assent. This recommendation was addressed in the second Treasury Consultation Paper issued on 11 September 2009. The Government announced in December 2013 that it will not proceed with this measure.

Adjustments for pre-registration acquisitions (Recommendation 8)

Outline: Amendment to allow an entitlement for an adjustment to the extent of the remaining economic value for things acquired before an entity was registered for GST.

Comment: The Government announced in December 2013 that it will not proceed with this measure.

B2B transactions – option to treat as fully taxable (Recommendation 12)

Outline: Introduction of an option to treat transactions between registered businesses as fully taxable if it is not possible to know when entering into a transaction the extent to which it is taxable (not applicable to a supply that is partly or wholly input taxed).

Comment: Announced by Government on 12 May 2009 as a 1 July 2010 change. The 2011-12 Federal Budget on 10 May 2011 announced that the Government will not proceed at this stage with this measure, so that there can be more extensive consideration of the possible wider use of reverse charging or GST-free business-to-business transactions.

Multi-party transactions (Recommendation 14)

Outline: The Board of Taxation recommended that the Government further examine the treatment of multi party transactions in order to eliminate unrecoverable tax, and that it should have regard to overseas work in this area. On 12 May 2009, the Government responded to this recommendation by announcing that it supported further examining the treatment of multi party transactions in order to eliminate unrecoverable tax (having regard to overseas work in this area).

Comment: The Government announced in December 2013 that it will not proceed with this measure.

Vouchers (Recommendation 15)

Outline: The Board of Taxation recommended that the Government should undertake a review of the Australian GST vouchers regime, having regard to overseas work in this area, including that undertaken by the European Union, with a view to developing a simpler system with lower compliance costs. On 12 May 2009, the Government responded to this recommendation by announcing that it supported undertaking a review of the vouchers regime (having regard to overseas work in this area with a view to developing a simpler system with lower compliance costs).

Comment: The Government announced in December 2013 that it will not proceed with this measure.

Shortfall interest charge (Recommendation 16)

Outline: The Board of Taxation recommended that a shortfall interest charge should apply to the GST and other taxes reported on the BAS, including luxury car tax, wine equalisation tax and fuel tax credits. On 12 May 2009, the Government announced that it supported in principle a shortfall interest charge applying to the GST and other BAS-reported taxes, but that it would defer further consideration of the recommendation until fiscal conditions allow.

Comment: The Government announced in December 2013 that it will not proceed with this measure.

Margin scheme (Recommendation 22)

Outline: The Board of Taxation recommended a review of the margin scheme's effectiveness and efficiency in achieving its policy intent and its interaction with other GST provisions. Following the review, the Government announced on 11 May 2010 that the margin scheme provisions would be restructured to clarify and simplify them (i.e. to give prominence to the main principles with exceptions set out separately and insert objects clauses for the key provisions so that the intention is clear). A minor technical amendment to ensure that a valuation can be obtained for the purposes of using the margin scheme for subdivided land was also announced.

Comment: On 10 December 2010, Treasury released a discussion paper providing more information about how the announced measures might operate and to request feedback on their design and implementation.

In late June 2012, Treasury announced that the Government had decided not to proceed with the restructure of the margin scheme. According to Treasury, the public consultation and law design process had revealed that there was no clear agreement among those consulted about how to proceed with such restructuring. A restructure was considered likely to deliver little benefit, would potentially give rise to interpretational disputes and risks to the existing GST base, and would probably involve additional compliance costs for affected taxpayers and the ATO in becoming familiar with the new legislative structure. However, the technical amendment above was made (via Tax Laws Amendment (2012 Measures No. 6) Act 2013 - assented to 28 June 2013).

Cash and accrual accounting (Recommendation 24)

Outline: The Board of Taxation recommended that the Government should consider the merits of all transactions above a certain value (and meeting other criteria) being accounted for using accruals accounting. On 12 May 2009, the Government announced its support for considering the merits of all transactions above a certain value (and meeting other criteria) being accounted for using accruals accounting.

Comment: The Government announced in December 2013 that it will not proceed with this measure.

Financial acquisitions threshold (Recommendation 25)

Outline: Amendments to simplify the financial acquisitions threshold by reducing the frequency of testing to an annual basis.

Comment: Announced by Government on 12 May 2009 as a 1 July 2010 change. This recommendation was addressed in the first Treasury Consultation Paper issued on 12 May 2009. It was later incorporated into the Treasury review of the financial supplies provisions under Recommendation 23 (see section headed 'Changes commencing 1 July 2012'), but no announcements made by Government about it when the outcome of Treasury's review was announced (11 May 2010) or since.

GST grouping and GST joint ventures (Recommendation 32)

Outline: Amendments to provide for holding companies to be entitled to register and group for GST purposes despite not carrying on an enterprise, and to simplify the GST grouping membership interest rules.

Comment: The Government announced in December 2013 that it will not proceed with these measures.

GST free farm land supplied for farming (Recommendation 34)

Outline: Government "to consider" whether farm land supplied for farming to unregistered recipients should continue to be GST free.

Comment: This recommendation was addressed in the first Treasury Consultation Paper issued on 12 May 2009, but no announcements by Government about it since. In December 2013 the Government announced that it would proceed with Recommendation 33 (i.e. replace the GST-free concession for farm land supplied for farming with a reverse charge mechanism). If it does not remove the current GST-free concession for unregistered recipients of farm land before Recommendation 33 is implemented, there will be a continuation of the potentially inequitable GST outcomes identified by the Board of Taxation, (i.e. depending on the recipient's registration status).

General law partnerships (Recommendation 35)

Outline: Clarification of the GST treatment of general law partnerships (e.g. partner to partnership transactions; changes in the membership of a partnership; etc).

Comment: Announced by Government on 12 May 2009 as change to commence from the start of the first quarterly tax period after the amending Act receives Royal Assent. This recommendation was addressed in the second Treasury Consultation Paper issued on 11 September 2009. The Government announced in December 2013 that it will not proceed with this measure.

Tax law partnerships (Recommendation 36)

Outline: Amendments to clarify the GST treatment of tax law partnerships, including where a tax law partnership is formed or dissolved and when it makes a supply or acquisition.

Comment: The Government announced in December 2013 that it will not proceed with this measure.

Bare trusts (Recommendation 37)

Outline: Amendment to remove doubt surrounding the GST liabilities and entitlements of bare trusts.

Comment: Announced by Government on 12 May 2009 as change to commence from the start of the first quarterly tax period after the amending Act receives Royal Assent. This recommendation was addressed in the second Treasury Consultation Paper issued on 11 September 2009. The Government announced in December 2013 that it will not proceed with this measure.

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Recommendations not supported by Government

Simpler BAS method for reporting GST; BAS reporting concessions (Recommendations 1 and 3)

Outline: The Board of Taxation recommended that the GST law should be amended to provide for a simpler BAS method for reporting GST by having:

  • A business norm percentage applying for start-ups
  • An expanded instalment option available to all businesses and not-for-profit organisations with a turnover less than $2 million, to apply after their first year of operation, including for those in a net refund position.

It further recommended that if a simplified BAS method is implemented, current reporting concessions should be reviewed.
Comment: On 12 May 2009, the Government responded to these two recommendations by announcing that other compliance cost savings were under consideration.

Net refund position (Recommendation 2)

Outline: The Board of Taxation recommended that if Recommendation 1 was not accepted by the Government, the degree of detail in the legislation to determine whether a taxpayer is in a net refund position should be removed and replaced with more principled rules.
Comment: On 12 May 2009, the Government responded to this recommendation by announcing that other compliance cost savings were under consideration.

Correcting GST mistakes (Recommendation 13)

Outline: The Board of Taxation recommended allowing taxpayers to correct indirect tax mistakes through the current or a supplementary BAS, and that they also be able to self assess their interest charge liability when correcting GST mistakes.

Comment: The Government announced that it did not support the recommendation on 12 May 2009.

Relying on rulings issued to the other party to a supply (Recommendation 18)

Outline: The Board of Taxation recommended that recipients and suppliers should be able to rely on each other's rulings in relation to the tax status of the supply between them, where they agree to provide their rulings to each other for this purpose. Where recipients and suppliers agree to rely on the other's ruling then they should be bound to apply the ruling in the preparation of their BAS, but may object to the other's ruling. However, this should not extend to supplies in other parts of the supply chain.

Comment: Announced by Government on 12 May 2009 as a 1 July 2010 change, and was subject to consultation by Treasury. On 22 January 2010, the Assistant Treasurer announced that suppliers and recipients would not be given entitlement to rely on a GST private ruling issued to the other (unless they applied for a ruling jointly), due to the practical difficulties of implementing this change identified during the consultation process.

Extend GST deferral scheme (Recommendation 30)

Outline: The Board of Taxation recommended the extension of the GST deferral scheme to small business taxpayers that are eligible to lodge quarterly. All other requirements of the GST deferral scheme would need to be satisfied, including lodging on-line, paying electronically, and having an established track record and good compliance history.

Comment: The Government announced that it did not support the recommendation on 12 May 2009.

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