Some of you may have read or heard about the AAT case, Apted and Federal Commissioner of Taxation  AATA 5139 handed down on 21 December 2020 regarding JobKeeper eligibility and whether an entity ‘had an ABN’ on 12 March 2020.
Very briefly, and as noted by the ATO, the AAT held that the applicant did meet the requirement to have an ABN on 12 March 2020, in circumstances where the ABR Registrar decided to reactivate a previously cancelled Australian Business Number (ABN) after 12 March 2020 and backdated the reactivation to have effect on or before 12 March 2020.
Given the proximity to Christmas, we wanted to ensure our members remain informed and up to date on this issue.
At this time, we note that the ATO is presently considering its appeal options and therefore we anticipate that we will understand more of the ATO’s next steps around mid- to late-January.
We acknowledge that access to JobKeeper is a particularly sensitive matter for clients of our members, particularly where they may have previously been denied access to the stimulus measure.
Similar to the ATO’s request as outlined on the ATO’s website, we request our members await further guidance before contacting the ATO on this issue. We will continue to work with the ATO to understand more and establish efficient and effective channels to liaise with the ATO on this issue at the relevant time.
Update 18 January 2021: On 18 January 2021, the ATO updated its web content to advise that the Commissioner has lodged an appeal in the Federal Court concerning this decision. Given the importance of establishing clarity on these matters as soon as possible, the ATO has applied for the appeal to be expedited through the courts and will be providing test case funding.
On 18 January 2021, the ATO also issued an interim Decision impact statement which explains that, while the appeal outcome is pending, the ATO will:
- continue to resolve matters where an eligible business participantʼs eligibility can be determined in a manner favourable to them. For example, where an entity did not have an ABN on 12 March 2020 but the Commissioner determines that the entity’s circumstances fall within the approach contemplated in PS LA 2020/1;
- postpone finalising decisions regarding eligibility for JobKeeper payments in circumstances where the ATO determines the entity does not satisfy the eligibility criteria but considers they might become eligible depending on the views of the Full Federal Court on the issues in this case; and
- if an entity would like the ATO to make a decision while the appeal is pending — do so in line with the ATO view set out in PS LA 2020/1.
The ATO is taking a similar position in regard to eligibility for the cash flow boost. The AAT's decision has not changed the need to satisfy all other eligibility conditions. The ATO will provide further guidance on next steps as further information comes to hand.
We will similarly continue to update our blog as further information and advice regarding relevant next steps for affected taxpayers becomes available.
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