Australia: Objections on hold as tax authority appeals JobKeeper case (COVID-19)

Australia: Objections on hold as tax authority appeals

If taxpayers have had their eligibility for the JobKeeper payments denied by the Australian Tax Office (ATO), they need to consider filing an objection pending the outcome of an appeal from a tribunal decision.

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The JobKeeper program was established to provide employment-related relief in response to the coronavirus (COVID-19) pandemic.

Following the Administrative Appeals Tribunal decision in favour of the taxpayer in the first JobKeeper payment case, Apted v. Federal Commissioner of Taxation [2020] AATA 5139 (21 December 2020), the tax authority filed an appeal to the Full Federal Court on 15 January 2021.

The Full Federal Court appeal has been listed for hearing on 19 March 2021. Given the importance and time-sensitive nature of obtaining clarification regarding the eligibility criteria for JobKeeper, the Commissioner applied for an expedited hearing in the Full Federal Court and agreed to provide test-case funding to the taxpayer.

The ATO also released a Decision Impact Statement (18 January 2021) and published guidance on the ATO website on 10 February 2021, advising that the ATO will not administer the law in accordance with the decision pending the appeal. The current ATO approach is:

  • To postpone making decisions on objections dealing with the eligibility issue that is the subject of the decision in the Apted case
  • When taxpayers would like the ATO to make a decision, the decision will be made in accordance with the ATO view in PS LA 2020/1 and contrary to the decision in Apted

The ATO has encouraged taxpayers that have not yet lodged (filed) an objection to wait until the appeal has been decided and has indicated that if the review period for an objection has expired, the Commissioner will take this guidance into account in considering requests to extend the time for filing an objection so that the taxpayers are not disadvantaged.

KPMG observation

To the extent there are taxpayers who believe their eligibility to JobKeeper payments have been denied by the ATO in similar circumstances to those in the Apted case, these taxpayers need to consider filing an objection to protect their rights.


For more information, contact a KPMG tax professional in Australia:

Keith Swan | +61 2 9455 9261 | keithswan@kpmg.com.au

Sumitha Krishnan | +61 2 9273 5105 | skrishnan10@kpmg.com.au

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