88K easements

Reasonable attempts in Easements

This article will discuss the fourth and last element that must be satisfied for a court to create an easement under s 88K of the Conveyancing Act 1919 (NSW). This element requires the court to be satisfied that the applicant has made all reasonable attempts to obtain an easement or one having a similar effect but has been unsuccessful.

This element was incorporated into s 88K to encourage applicants to initiate negotiations and treat s 88K as a last resort (New South Wales, Parliamentary Debates, Legislative Council, 4 December 1995, 4000 (Douglas Moppett).

In assessing reasonableness, the Court must consider the likelihood that a consensus would be reached if further steps had been taken. There is a suggestion that the requirement is for the applicant to have negotiated until it is extremely unlikely that consensus will be reached in the foreseeable future (Coles Myer New South Wales Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14). In Bilton v Ligdas (2016) 18 BPR 36, this element was found to be satisfied when the servient tenement rejected an offer that was double the maximum market value as assessed by experts.

The Applicant does not have to show that they offered an amount that was later considered fair compensation by the Court, as long as they showed a willingness to negotiate and respond to the other party reasonably (Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045, [75]

In considering whether this requirement has been met, the Court may consider all conduct leading up to the making of the order (Studholme v Rawson [2020] NSWCA 76, [83]). As such, in Govindan-Lee v Sawkins (2016) 18 BPR 35,883, this was satisfied by the Applicant making an offer of $10,000 following the commencement of proceedings. This suggests that an applicant may satisfy this without negotiating outside of Court, even though this does not seem consistent with the Parliament’s intention for the element.

There are not many cases where the respondent uses this section to impede the imposition of an easement. One of the few examples is PD Consultants Pty Ltd v Childs [2004] NSWSC 1076, which ended with Brownie AJ adjourning the matter, suggesting that they try to reach some agreement and put the dispute behind them.

However, courts will generally not impose an easement where the respondent prefers a license to achieve the same thing (Vella v Nergl Developments Pty Ltd [2020] NSWSC 1405, [166] (Slattery J). This relates to their underlying discretion as to whether they grant an easement, even if all the requirements have been satisfied.

88K easements

Adequate compensation in Easements

This article will discuss the third element that must be satisfied for a court to create an easement under s 88K of the Conveyancing Act 1919 (NSW). This element requires the court to be satisfied that the owner of servient land can be adequately compensated for any loss or other disadvantage that would arise from the imposition of the easement.

The compensation amount is determined by reference to the loss incurred by the servient tenement and not the benefit derived by the dominant tenement (Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LEGRA 286). It has been noted that the Court should not err on the side of generosity and that although the applicant may generate profit from the development in connection with which the easement is sought, this does not justify any departure from the basic principles of compensation discussed below (Mitchell v Boutagy (2001) 118 LGERA 249, [31]).

There is a requirement for a causal relationship between the loss or disadvantage for which the claim is made and the imposition of the easement (Mitchell v Boutagy (2001) 118 LEGRA 249, [26]).

Compensation will cover the diminished market value of the affected land and associated costs, as well as any loss arising from insecurity or loss of amenities such as the loss of peace (Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16, 985; Acorp Developments Pty Ltd v HWR Pty Ltd [2018] NSWLEC 68, [153]). It will also cover compensation for loss of the proprietary rights taken by the easement and for the disturbance effected by carrying out the initial work and subsequent repair and maintenance (Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15, 845). An offset for any compensating advantages is allowed, so that the final amount is a reflection of the real detriment suffered (Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485, [26]).

The onus of proof in a case for compensation is borne by the applicant (Mitchell v Boutagy (2001) 118 LGERA 249, [34]). This is part of their duty to satisfy the Court that the person can be adequately compensated (117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504, 516).

Legal costs are usually payable by the applicant unless the servient tenement’s conduct warrants an adverse costs order. Behaviour that might warrant that includes presenting false evidence or manufacturing a case (Bilton v Ligdas (206) 18 CBPR 36, 379) but does not include refusing a reasonable offer (Owners Strata Plan No 13635 v Ryan [2006] NSWSC 342, [32]).

Generally, if the court cannot make a determination as to the compensation payable at the time the order is made, it has no power to grant the easement (Studholme v Rawson [2020] NSWCA 76, [46]). However, in some cases, the Court may determine that compensation is not payable because of special circumstances (Property Partnerships Pacific Pty Ltd v Owners of Strata Plan 58482 [2006] NSWLEC 709, [11]).

88K easements

Public interest in Easements

This article will discuss the second element that must be satisfied for a court to create an easement under s 88K of the Conveyancing Act 1919 (NSW), which is that the proposed use of the dominant land is not inconsistent with the public interest. This element represents a balancing of competing private interests as well as the promotion of the public interest (Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2, [95]).

In Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, the court took into account the fact that ranting the easement would frustrate the Development Control Plan and significantly diminish the prospect of the Tanlane land, as a point that it may be inconsistent with the public interest.

It has been noted that there are special public interest considerations in granting an easement over environmentally sensitive land (Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, [202]). This is equally true of community land. Bryson J in Marshall v The Council of the City of Wollongong [2000] NSWSC 137, [26] remarked that it would be rare that community land used in any active way could be subjected to an easement without inconsistency with the public interest in achieving the purposes for which the community land was held.


What are people doing about their crypto gains?

If you’ve made a gain on crypto, you might be wondering what your options and possibilities are. In this third part of our four-part series, our tax law specialist, Adam Ahmed, discusses the most frequently asked questions for crypto gains. 

Question 1: Is inflation taken into account at all?

Inflation is characterised by a rise of the general level of prices, which then equates to a decline of the purchasing power of a currency. In 2021, inflation was sitting at about 3.5% for the year when calculated through the Consumer Price Index. 

If your crypto assets had also risen 3.5% in value over the same period, you might then argue that you haven’t actually made a gain because its real value (compared to other goods and services in the economy) has stayed the same. If you were to cash out on the gain and spend it on goods such as groceries, the amount you would be able to buy with your crypto would not have changed. 

However, the ATO expects you to pay tax on your nominal gains and it therefore does not take into account inflation. The tax laws are rigid and designed to tax you on any increase in the Australian dollar, nominally. 

Question 2: If you’ve made a gain, how would the ATO find out?

The ATO may or may not find out that you’ve made a gain on crypto when you actually make it. However, when you actually come to spend the money, the ATO will find out. This is because it will need to somehow materialise in your account and they will question where it came from. This is especially true if the amount you’re going to spend is high compared to what your income or spending usually is. 

It makes more sense to follow the rules and focus on what your rights and obligations are. It’s important to have the right framework in place. That way you will be prepared if the ATO questions you or wants to see relevant evidence. 

Australia’s tax laws are based on a self assessment system where the taxpayer is expected to work out what their own tax should be and then notifies and pays the amount to the ATO. 

However, the ATO auditing powers are extensive. If they provide you with a number, which may or may not be correct, it takes a lot of time, energy and evidence to try and prove them otherwise. 

Question 3: Then what can you actually do if you’ve made a gain?

The possible approaches depend on whether the gain is realised or unrealised, and also on the unique facts of the situation. 

In Australia, we have set options for things to be categorised in and then taxed accordingly. Things such as crypto, which don’t fit neatly in a box, have multiple possibilities and also risks. 

Since the courts have said that it is not treated as a foreign currency, there are different possibilities for how it may be treated. It is most similar to shares, although there are some obvious differences between the two because shares are not being used to purchase other goods and services the same way crypto is. 

From the ATO perspective, the default is to treat it as a capital gain, on which you may be able to claim a capital gains tax discount. Currently, when you sell or otherwise dispose of an asset, you can reduce your capital gains by 50% if you have owned the asset for at least 12 months and are an Australian resident for tax purposes. 

However, the specific facts of a situation usually dictate what options will be available – it is dependent on things like who holds the asset and how they came to acquire it. 

In the next part, we will go through different examples to demonstrate the wide range of options that might be available. 

In the meantime, if you have any questions, feel free to contact us.


Tax Options for Crypto Losses

If you’ve made a loss on crypto, you might be wondering where that leaves you in regards to your tax position. Since Bitcoin was found by the AAT to not be a foreign currency, as we discussed in the first article of this series here, it is generally treated similarly to shares in this sense. 

For active traders: non-commercial loss rules may apply

If you are an active trader, you may be able to offset this loss against your other income. You generally can’t claim a loss for a business that is a hobby and unlikely to ever make a profit. The non-commercial loss rules determine whether you can in this case or have to defer the loss until you make a profit. 

To be able to offset this loss, you must satisfy two requirements. The first is the income requirement, which is met where the sum of the four elements for calculating your income is less than $250, 000. The elements are:

  • Taxable income, which is the assessable income minus your allowable deductions for a year.
  • Reportable fringe benefits, which is shown on a payment summary if it passes the threshold and takes part in this calculator.
  • Reportable super contributions which include your reportable employer super contributions and your personal deductive contributions.
  • Total net investment losses from 
    • Rental property investments such as negatively geared rental properties
    • Financial investments such as negatively geared share portfolios 

The second requirement is to pass at least one of the following four tests:

  • Your assessable income, made up from your ordinary income (such as gross earnings excluding GST) and statutory income (such as capital gains) from your business activities must be at least $20, 000 for the year. 
  • Your business has made a tax profit in three out of the five past years, which excludes any loss from that business that you had earlier deferred
  • You are using real property, which includes land, structures and interest in both, of at least $500, 000 in your business activity on a continuing basis. 
  • You use $100, 000 worth of ‘other assets’ in your business activity. This includes equipment, trading stock, items leased from another entity, and trademarks, patents and copyrights. This does not include real property or vehicles. 

If these two requirements are satisfied, then you may be able to offset your crypto losses against your income from other work. Otherwise, the loss would get parked to the side and you would only be able to claim it against your taxes if you later make profit off crypto.

For passive investors: capital loss rules may apply

If you have made a loss as a passive investor, capital loss rules will probably apply. This would mean you could deduct the loss you’ve made on crypto from your capital gains to reduce your capital gains tax. These must be used at first opportunity which means that if you’ve made a loss in the current year, you must use the loss to reduce any capital gains in the current year.

If your capital loss is greater than your capital gain, you could carry it forward and deduct it from capital gains in later years. There is no time limit for this. It is also important to note that a trading loss can be applied against capital gains but a capital loss can’t be applied against trading gains.


Depending on whether you satisfy the non-commercial loss rules, your main two options are either to use the loss to offset your income or to use it to decrease your capital gains tax, with the option to park it if outweighs your capital gains.

If you have any questions or would like further assistance, please contact us.

ATO jobkeeper cash flow boost backs down in Court

Paying Tax on Crypto: The Case

The Administrative Appeals Tribunal’s recent decision to a court case we ran against the ATO has significant consequences on the tax status of Bitcoin. In the first article of this four part series, we explain the crux of the case, summarise our submissions and lay out the judge’s conclusion.

The heart of the issue 

Do you have to pay tax on bitcoin? The answer lies in whether Bitcoin is considered a foreign currency for the purposes of the Income Tax Assessment Act 1997. If it is a foreign currency, then tax requirements under div 775 are applicable. Section 995-1.1 defines a foreign currency as ‘a currency other than Australian currency.’ The interpretation of this section will solve the question.

Part 1 of Submissions: How Currency should be interpreted

We submitted that the word ‘currency’ should be interpreted widely, aligned with previous cases. For example, in Watson v Lee, the High Court noted that the word ‘currency’ in a constitutional context need not be confined to money of a particular nation. Further, things like rum and bank issued notes were considered currencies and within the Commonwealth’s regulating powers. The High Court of Australia again had a similar approach in the case of Goldsbrough Mort & Co Ltd v Hall, where it noted that currency need not be issued by governmental entities. 

We also referred to the Explanatory Memorandum of the Bill to shed light on the purpose behind the foreign currency definition. In paragraph 2.7, it is clear that the intention was to create a framework where foreign currency gains and losses arising out of business transactions do not fall outside the income tax net. Reference was made to the ERA case, where a taxpayer did not have to pay tax on their foreign currency gains because they dealt only with US dollars and did not convert the proceeds into Australian dollars. The parliament, at paragraph 2.21, noted that the new law was intended to bring to account all foreign currency gains and losses for tax purposes, regardless of whether it has been converted into an equivalent amount of A$.

Part 2 of Submissions: Bitcoin fits the definition of foreign currency

Having regard to the purpose of bitcoin, we argued that it fit the definition of foreign currency. The Satoshi Paper, the blueprint used to code and develop bitcoin, written by its founder Satoshi Nakamoto, describes the purpose of bitcoin as to allow payments to be sent directly from one party to another without engaging a financial institution. 

WE assessed that Bitcoin was programmed solely for this function, it has no other use. We gave mathematical support for this premise by reference to the developer guide, which explains how it uses cryptography to create security for transactions between two willing parties. ‘

We also supported our argument by pointing out its current usage, in both general transactions and complicated arrangements. It is possible to lend and earn interest on bitcoin, as well as invest in derivatives and securities using it. We gave examples of foreign governments such as Sweden and Switzerland which have accepted it as legal tender. 

Therefore, within the legal definition of currency and with regard to the intention of Parliament in enacting the definition, we argued that Bitcoin fits the definition of currency. And if it is accepted to be currency, it would automatically qualify as ‘foreign currency’ as per the Income Tax Assessment Act 1997, since it is a currency ‘other than Australian currency’.

The Tribunal’s Decision:

Ultimately, the Tribunal held that the phrase ‘foreign currency’ should be read down to not include decentralised ‘unofficial’ currencies such as Bitcoin. 

While admitting that the s 995-1 definition is awkward, the Tribunal noted that ‘an Australian currency’ should be interpreted as a reference to the unit of exchange established in the Currency Act, and therefore ‘another currency’ must be a similar office currency issued by a sovereign state. 

Although Bitcoin may satisfy the usual definition of currency since it is a fungible, measurable and used as a medium of exchange for goods and services, it was held not to satisfy the narrow definition under the Income Tax Assessment Act.

The Tribunal made a final note that the question of whether cryptocurrencies should be dealt with as a foreign currency for the purposes of income tax is a question for the Parliament. 

This finding would presumably extend to all other cryptocurrencies that are not issued by a government.


In conclusion, since Bitcoin currently does not fall within the definition of foreign currency for the purposes of the Income Tax Assessment Act, the tax requirements set under div 775 are not applicable. 

In the following three articles and videos of this series, we explain the implications of this. 

To read the Tribunal’s findings: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/1840.html

PDFs to our submissions and the ATO’s submissions are also below. 

If you have any questions, please feel free to contact us here or call us on our number: 02 7200 8200, mentioning that you read this article.


How to Prepare for a Payment Plan

Setting up a payment plan with the ATO is one of your best options if you have been or are unable to meet your tax obligations on time. If you opt to ignore it instead, the ATO may enforce action against you which has a high chance of leaving you in a worse position.

A payment plan would allow you to pay your debt over instalments. It’s essential to be prepared and do it right the first time to avoid suffering the harsh consequences of defaulting on these payments.

Your preparation can be split into three main steps: understanding what the ATO expects; understanding how the ATO is likely to perceive you; and planning your proposal to the ATO.

1. Understanding what the ATO expects.

The ATO’s approach is to generally seek for you to pay as much as you possibly can as soon as you possibly can. 

They will also expect you to pay all tax lodgements in full on time in the future. This is important to note because, in this case, you will be paying two sets of taxes at a time: the regular taxes you have to pay and the payment plan debt instalments. 

If you don’t lodge either set of taxes on time, that will be considered a default of the plan, and the ATO may take action against you. This makes it hard to get a payment plan approved in the future.

2. Understanding how the ATO may perceive you

The ATO may presume that you have the money in an asset such as a house or a car. If this is the case and you want a payment plan of longer than 24 months, they might ask for security over your house.

The ATO would otherwise be looking for a exceptional circumstance that would compel them to give you a payment plan and allow you to pay your debts over a longer period.

3. Planning your proposal

To be successful in overcoming your debt, you first need to be honest with yourself about your situation. You need to do the math and see how much you can pay off in each instalment. 

Then, you need to communicate this with the ATO in as much detail as possible. As mentioned earlier, the ATO will seek special circumstances that would explain the need for a payment plan, so it is essential to emphasise your unique situation. Provide them with substantive proof if possible. For example, if you have been unable to pay your tax obligations on time due to a reduced turnover as a result of COVID-19, provide bookkeeping evidence and applications for rent relief if applicable.

Although the ATO will generally not seek actions against you if you’ve had a good record with them, they may pressure you to adopt a tighter payment plan. It is essential to be upfront and realistic with what you can afford. If you take on a payment plan you cannot keep up with, the situation will worsen, and they may be able to seek action against your business with justification.

If at some point during your payment plan period, you find that you cannot pay an instalment, contact the ATO before the due date, and you may be able to modify your instalment amount or due date.

Following these steps will ensure that you have the greatest chance of setting up a successful payment plan and overcoming your debt.

If you require further assistance or have any questions, contact us now.


How ATO Super Penalties Work

Employers may face a 200% penalty rate + interest for late or unfulfilled superannuation contributions. Although this has been the case for years, the ATO previously had adopted a lenient and forgiving approach. In many cases, where the employer had fulfilled the required contribution past the due date, they walked away with a small 5% or 10% penalty. Furthermore, between 24 May 2018 and 7 September 2020, the ATO provided employers with an Amnesty period, If they voluntary disclosed  liabilities for quarters from 1 July 1992 to 31 March 2018 , they would be exempt from the 200% Super Guarantee Charge (SGC).

As of 25 November 2021, the ATO is guided by the new Practice Statement Law Administration 2021/3 (PS LA 2021/3), which tightened the rules and made it more likely for employers to incur a harsh penalty unless they lodge the Superannuation Guarantee Statement (SGS) in time. 

The penalty system:

As an employer, if you fail to make your required superannuation contributions in full and you do not lodge an SG statement within 28 days after the relevant quarter, you will be liable to a penalty made up of:

  • Super Guarantee Charge – 200% of the original amount (on top of the original amount)
  • Nominal annual interest which you will accrue until the SGS has been lodged, rather than until you have completed the payments 
  • Administration fee of $20 per employee per quarter

The ATO can make penalty remissions so that the SGC is reduced to less than 200%. However, their discretion has been limited through the 4 Step Penalty Remission Process, which caps the available remissions for certain circumstances.

The 4 Step Penalty Remission Process

Step 1: The ATO considers remission based on the employer’s attempt to comply with obligations through making late payments, according to the table below. This guideline did not exist pre-2021.

Late Payments ComplianceRemissionLiable SGC
Late payment in response to ATO compliance action such as audit10%180%
Late payment made after initial ATO contact but before compliance action15%170%
Late payment 9 months after due date before ATO contact30%140%
Late payment 6-9 months after due date before ATO contact33%134%
Late payment 3-6 months after due date before ATO contact36%128%
Late payment less than 3 months after due date before ATO contact40%120%

Step 2: The ATO considers remission based on the employer’s attempt to comply with obligations through lodgement SGS. The table below compares the similar 2021 and 2020 remission limits in this aspect.

SGS compliance2021 Remission2020 Remission
Employer has demonstrated repeat disengagement to previous SGC assessments or is engaging in a phoenix arrangement*0%0%
Employer failed to lodge SGS or provide relevant information in response to ATO compliance action25%25%
Employer gives information after lodgement due date in response to ATO compliance action40%40%
Employer lodges SGS in response to ATO compliance action60%50%
Employer lodges SGS prior to SGC assessment after due date and initial ATO contact before ATO compliance action80%80%
Employer lodges SGS after due date before ATO contact90%90%
* A phoenix arrangement is where a company is liquidated to avoid paying its debts and a new company is started to continue the same business activities.

Note that the remission percentages are added to those from step 1. For example, if, according to step 1, an employer is entitled to a 10% remission for making a late payment in response to ATO action, and they also lodged a SGS in response to ATO action, they would be entitled to an additional 40% remission. That means they would be entitled to a 50% remission and only liable for 100% (50% x 200%) SGC. The exact process occurs through step 3 and 4.

Step 3: The ATO considers remission based on the employer’s compliance history. The ATO considers the employer’s history in the three years leading up to the disclosure or ATO compliance action.

Compliance History2021 Remission2020 Remission
Good 15%No change
NeutralNo change-5%
Extremely poor-30%-10%

Note the greater emphasis on compliance history in 2021. If an employer is found to have extremely poor compliance and they are not entitled to remissions in any other steps, they will be liable for a 260% (200% x 130%) SGC.

Examples of poor compliance include:

  • Lodging SGS late
  • Not adequately addressing outstanding SGC debt
  • Previously issued with SGC default assessment

Examples of extremely poor compliance include:

  • Repeatedly failed to meet obligations after multiple ATO compliance actions
  • Repeatedly attempted to obstruct or hinder compliance action

Step 4: The ATO considers mitigating factors. The ATO will not consider factors already considered in earlier steps in this step. While the 2020 PS LA did not pose percentage limits and provided broad discretion, the new 2021/3 PS LA categorises mitigating factors under 5%, 10%, 20% and 50%.

Limiting FactorsRemission
Honest mistake 
Issue is addressed
Payment arrangement is entered 
Non-compliance occurred in the first year of operation and principals had no previous business experience10%
Ill health of employer or key employee
Significant proportion of superannuation is paid on time
Miscalculation due to complex legal interpretative issue
Third party compliance issue
Malfunction of key ATO system
Natural disaster significantly impacting ability to comply with obligations
Misclassifying workers despite reasonable steps to classify them correctly

What can employers do?

Fill out the form as accurately as possible as soon as possible. This will ensure you will no longer accrue unnecessary interest, and it will also increase your chances of reducing SGC.

If you are unhappy with the assessment outcome, you can appeal to the tribunal, which does not necessarily have to follow the practice statement. 

If you have any questions, please contact us.


ATO Audit: What to expect and what you can do about it

The tax auditing process can seem to be wildly complicated and daunting. Things may seem even more difficult if you end up needing to dispute results. However, you can set yourself up for a straightforward and successful process by gaining an understanding of how the ATO audit process and disputes operate, and adopting a strategy based on this.

The Audit Process

The ATO’s objective when conducting audits is to ensure that you are complying with Australian tax law. It is therefore a primarily investigative process involving intensive case examinations.

The ATO’s approach is deducing whether you are honest and trustworthy in running your small business. They may ask you questions they already know the answers to, just to verify the accuracy of the information you provide them with. The information they require will vary depending on the scope of the audit and what their unique concerns are, which should be specified during the initial meeting.

Audit Strategy Tips

Avoid giving them a dump of information. Focus on giving them only what is relevant and act genuinely during the investigation process. This will help assure them that you are reliable. 

Avoid making claims unless you are sure that it is accurate. Avoid guessing. Since part of their role is to ascertain whether the information you originally provided them with is accurate, the ATO will test later provided information against earlier provided information.

Keep your calm. If you have given them relevant accurate information, there is no need to feel under pressure during their testing procedures. 

Do not rush them. This could frustrate the process. Allow them to move through their procedure at their own pace. Audits can take a couple of years to complete.

Review your material and understand your position. Since the material is likely to be dense, it is important to make sure it is ordered and accurate. Look out for mistakes and if you find any, make sure to notify the ATO.

The Dispute Process 

If you disagree with a tax audit result, there are multiple possible stages to pursue. The first two are internal with the ATO, and the second two are external statutory procedures outlined in Part IVC of the Tax Administration Act 1953 (Cth).

Stage 1: In-house facilitation. This is the first possible stage of a dispute. After processing your request form, an impartial professionally trained facilitator will meet with you and the auditing team. Their aim will be to identify issues, develop options and attempt to reach a resolution.

Stage 2: Independent Review. Small businesses with a turnover less than $10 million are eligible to request an independent review for a number of tax types including income tax and GST. 

You will need to specify the areas of disagreement. An officer who has not had any prior involvement in your audit will then review all the material and hold a case conference with the audit team. At this case conference, information that was previously provided will be considered. Following this, the reviewer will come to an outcome and prepare written recommendations on each issue in dispute which the audit team will incorporate in the final decision. 

Stage 3: Objection. If you are unhappy with the previous outcome, the next stage would be to lodge an objection. Section 14ZU sets out the requirements. The form must be completed in writing, specifying arguments against the ATO’s finding. It also needs to be within the prescribed period. The Commissioner of Tax will then decide whether to partly allow it, wholly allow it, or disallow it. 

Stage 4: Administrative Appeals Tribunal or Federal Court. If you remain unsatisfied, you can appeal it to either the AAT or the federal court. Generally, at this stage, you will be limited to the grounds you have previously stated. However, your objection will not be read narrowly (Re Confidential and Commissioner of Taxation (2012) 56 AAR 273) and you may seek approval to alter your existing grounds of objection (Gilder v FCT (1991) 22 ATR 872). If you are disputing an assessment, you will need to show that it is inaccurate by showing what it should have been. If you are disputing a decision, you will need to show that it should not have been made, possibly in favour of an alternative. 

By understanding the process and adopting the mentioned strategies early in the process, you will give yourself the best chance of having a successful outcome. The multiple dispute stages can help you achieve a satisfying result, but it is advisable to start off on the right track to minimise uncertainty and costs. 


Do you really have to pay GST to the ATO (Australian Taxation Office) on LVIG (Low Value Imported Goods

If you are from outside of Australia and running a website or otherwise sending goods to Australia, you might need to pay Goods and Services Tax (GST).

In the last couple of years (from 1 July 2018) the Australian Government changed the law so that goods worth less than $1000 that are sent to Australia are subject to GST. Since that time, the Australian Taxation Office (ATO) has been sending letters to many websites telling them that they need to pay. A lot of the time the people receiving these letters think that it is spam or a scam of some sort. It isn’t.

Unfortunately, the Australian Government got a bit lazy and decided to impose the tax on the website owner, even if the website owner isn’t the actual seller. Its easier to charge the person collecting the payments than try to collect from each individual seller, which would be a real hassle. Many website owners don’t actually make enough money to cover the GST, which is calculated at 1/11th of the gross payment received.

This means if, on your website, a seller sells a good for $110, you are liable to pay $10 in GST. You might not even recover this in the fees you charge your sellers.

The law is relatively new, so the ATO is taking the approach that everyone just needs to pay it. Time will tell how it pans out in practice.

If you have been contacted by the ATO and want to work out whether you need to pay, or if you want to make sure you are set up correctly so you don’t need to pay (or are covered if you do) then please contact us and we will help you.

Our number is + 61 2 7200 8200 or email me personally at adam@adamahmed.com.au