Date posted: 02/12/2024

2024 ATO advice and guidance

List of rulings, determinations, legislative instruments, practical compliance guidelines and other items released by the Australian Taxation Office (ATO) since 1 January 2024 (excluding class rulings and product rulings).

Guidance released the week ended 29 November 2024

The ATO has released updated versions of the following practice statements:

  • PS LA 2007/2 (GA) – GST joint venture operators in the mining and petroleum industries accounting for the GST on taxable supplies that generate non-product sales income. Content checked for technical accuracy and currency. Updated in line with current ATO style and accessibility requirements.
  • PS LA 2006/19 – Self-managed superannuation funds – issuing a notice of non-compliance. Updated references to Administrative Appeals Tribunal to Administrative Review Tribunal accordingly.
  • PS LA 2009/4 – Update – Decisions made by the Commissioner in the general administration of the taxation laws. Updated 'severe' to 'very high' in Section 6, in line with the update to the ATO Risk Matrix. Updated in line with current ATO style and accessibility requirements.

TD 2024/9 Income tax: factors taken into account in applying paragraphs 99B(2)(a) and (b) of the Income Tax Assessment Act 1936.  This determination sets out the ATO’s view on the relevant factors in applying the hypothetical resident taxpayer tests, for the purposes of reducing the amount assessable under s 99B, the assessability of an amount received by a resident beneficiary from a non-resident trust. The factors include the characteristics of the hypothetical taxpayer, the circumstances that gave rise to the relevant amount as being assessable, and the source of the amount paid or applied.

PCG 2024/3 Section 99B of the Income Tax Assessment Act 1936 - ATO compliance approach. The ATO has noted an increase in resident taxpayers who receive payments or benefits from non-resident trusts which may trigger the application of s 99B. The purpose of this PCG is to help taxpayers to comply with their s 99B obligations. This includes providing common scenarios when s 99B should be considered, record keeping obligations for amounts excluded under s 99B(2) and the ATO’s compliance approach to low risk distributions and benefits, and the associated record keeping expectations.

LI 2024/26 Excise (Concessional Spirits – Class of Persons) Determination 2024. This instrument allows a person belonging to certain classes of persons to use up to a specified quantity of spirit in a calendar year free of duty, provided they use the spirit for an industrial, manufacturing, scientific, medical, veterinary or educational purpose. This instrument will reduce the compliance burden on such persons because they will not be required to individually apply for approval to use up to the specified quantity of spirit free of duty for the approved purposes.

Withdrawals:

TR 2010/1DC Income tax: superannuation contributions has been withdrawn and replaced by draft TR 2010/1DC2 Income tax: superannuation contributions

Taxation Determinations

Withdrawal TD 2019/2 Income tax: value of goods taken from stock for private use for the 2018–19 income year.

TD 2024/8 Income tax: value of goods taken from stock for private use for the 2024–25 income year. This Determination provides an update of amounts that the ATO will accept as estimates of the value of goods taken from trading stock for private use by taxpayers for the 2024-25 income year.

Addendum to TR 2013/2 - amends the ATO’s ruling on donations to school and college building funds to reflect the decision of the Federal Court in Buddhist Society of Western Australia Inc v FCT (No 2) [2021] FCA 1363.

TD 2024/7 - Income tax: deductions for financial advice fees paid by individuals who are not carrying on an investment business - This Determination replaces Taxation Determination TD 95/60 Income tax: are fees paid for obtaining investment advice an allowable deduction under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for taxpayers who are not carrying on an investment business? (now withdrawn). This Determination does not change the view expressed in TD 95/60. However, it does include new content on the deductibility of financial advice fees as tax related expenses under section 25-5 of the Income Tax Assessment Act 1997.

TD 2024/6 - Income tax: trustee risk reserves - deductibility of payments made by a superannuation fund to its trustee - Outlines the Commissioner’s views on the deductibility for a superannuation fund, under section 8-1 of the Income Tax Assessment Act 1997, of payments that are made by the trustee of the fund (in its capacity as trustee) to the trustee in its own capacity to address the trustee’s risk of exposure arising from amendments to section 56 of the Superannuation Industry Supervision Act 1993. The amendments were effective from 1 January 2022 and expanded the range of penalties that could be incurred by a trustee for which they cannot use trust assets to pay.

TD 2024/5 - Income tax: how the non-arm's length income and capital gains tax provisions interact to determine the amount of statutory income that is non-arm's length income - outlines the ATO’s views as to how the non-arm’s length income and capital gains tax provisions interact in determining the amount of statutory income that is non-arm’s length income where a capital gain arises as a result of non-arm’s length dealings. This Determination applies to years of income both before and after its date of issue.

TD 2018/14W - Income tax: what is the benchmark interest rate applicable for the year of income that commenced on 1 July 2018 for the purposes of Division 7A of Part III of the Income Tax Assessment Act 1936 and how is it used? 

TD 2024/4 - Income tax: hybrid mismatch rules - application of certain aspects of the 'liable entity' and 'hybrid payer' definitions

TD 2018/11W - Income tax: what are the reasonable travel and overtime meal allowance expense amounts for the 2018-19 income year?

TD 2024/1 - Fringe benefits tax: what are the rates to be applied on a cents per kilometre basis for calculating the taxable value of a fringe benefit arising from the private use of a motor vehicle other than a car for the fringe benefits tax year commencing 1 April 2024?

TD 2024/2 - Fringe benefits tax: reasonable amounts under section 31G of the Fringe Benefits Tax Assessment Act 1986 for food and drink expenses incurred by employees receiving a living-away-from-home allowance fringe benefit for the fringe benefits tax year commencing 1 April 2024.

GSTD 2024/1 - Goods and services tax: supplies of combination food - provides the Commissioner’s view on the meaning of ‘food that is a combination of one or more foods’ for the purposes of paragraph 38-3(1)(c) of A New Tax System - Goods and Services Tax Act 1999 following the Administrative Appeals Tribunal decision in Chobani Pty Ltd and Commissioner of Taxation [2023] AATA 1664. 

Practical Compliance Guidelines

PCG 2023/1 - Update - Claiming a deduction for additional running expenses incurred while working from home - ATO compliance approach - A minor update to clarify the availability of the fixed rate method in circumstances where some, but not all, additional work from home expenses have been paid or reimbursed by the employer.

PCG 2018/4 - Update - Income tax - liability of a legal personal representative of a deceased person - The revised Guideline updates the requirements for legal personal representatives of less complex deceased estates to finalise those estates before the review period expires without concern that they may have to fund an outstanding tax-related liability of the deceased person from their own assets.

PCG 2024/1 – Intangibles migration arrangements – This Guideline explains when we are likely to apply resources to consider the potential application of the general anti-avoidance rules or the transfer pricing rules to cross-border related party Intangibles Migration Arrangements with respect to structuring issues and tax risks associated with the migration of intangible assets, and the mischaracterisation and non-recognition of Australian activities connected with intangible assets.

PCG 2024/2 - Electric vehicle home charging rate - calculating electricity costs when a vehicle is charged at an employee's or individual's home – the PCG sets out the methodology that has been developed to calculate the cost of electricity when an electric car is charged at an employee’s or an individual’s home. Taxpayers may choose to use the methodology outlined in this Guideline on a year-by-year basis.

Practice Statements

The ATO has released updated versions of the following practice statements which have been revised and updated to conform with the ATO's current style and accessibility requirements, and the content has been checked for technical accuracy and currency. There are no changes to the ATO's approach:

  • PS LA 2009/5 - Provision of advice and guidance by the Australian Taxation Office in relation to the application of the Superannuation Industry (Supervision) Act 1993 and the Superannuation Industry (Supervision) Regulations 1994 to self-managed superannuation funds
  • PS LA 2017/1 - Petroleum resource rent tax: amendment period for transfers of exploration expenditure

The ATO has released updated versions of the following practice statements which have been revised and updated to conform with the ATO's current style and accessibility requirements. There are no changes to the ATO's approach:

  • PS LA 2012/1 (GA) - How to calculate input tax credits and bad debt adjustments when a dividend is paid to creditors
  • PS LA 1999/2 - Calculating joint car expense deductions. This practice statement has also been updated the term “depreciation” to “decline in value”.
  • PS LA 2005/20 - Signature requirements for approved virtual forms, lodged electronically or given by phone
  • PS LA 2009/8 - The Commissioner's determination under paragraph 71(1)(e) of the Superannuation Industry (Supervision) Act 1993 that an asset is not an in-house asset of a self-managed superannuation fund
  • PS LA 2011/2 - Administering penalties for failing to electronically notify or pay goods and services tax or pay as you go liabilities
  • PS LA 2011/8 - The registration of entities

The following practice statements have been updated in line with current ATO style and accessibility requirements:

The ATO has released updated versions of the following practice statements:

  • PS LA 2007/7 - Making default assessments of taxable income in respect of attributable income
  • PS LA 2008/9 - GST "revenue-neutral" corrections, and
  • PS LA 2021/3 - Remission of additional superannuation guarantee charge.

The three practice statements have been revised and updated to conform with the ATO's current style and accessibility requirements. There are no changes to the ATO's approach.

PS LA 2004/10 - provides guidance to ATO staff on how to deal with correspondence from taxpayers who claim that they will not comply with tax laws because the laws are invalid or do not apply to them. The update reflects the change in business processes where ATO staff will not be responding to correspondence where taxpayers claim tax laws are invalid or do not apply.  

PS LA 2005/23 - Update - Disclosing information about a taxpayer's taxation affairs to Treasury – updated to reflect part of the recent legislative changes to the information sharing laws, specifically that the ATO is now able to share information with Treasury about a breach or suspected breach of an obligation of confidence owed to the Commonwealth

PS LA 2006/2 (GA) - Update - Operation of Division 7A of the Income Tax Assessment Act 1936 on loans that have become statute-barred

PS LA 2008/2 - Update - Forestry managed investment schemes 

PS LA 2002/15 - Withdrawn - Workplace giving programs: required evidence

PS LA 2003/1 - Update - Petroleum excise duty - reporting for adjustments outside the current reporting period

PS LA 2003/13 - Update - Valuing trading stock for retailers and wholesalers

PS LA 2004/12 - Update - Consolidation - general shortcuts for resetting the tax cost under Division 705 of the Income Tax Assessment Act 1997 for depreciating assets for which the decline in value is worked out under Division 40 of that Act

PS LA 2005/2 (GA) update - Goods and services tax and time of choice to apply the margin scheme  

PS LA 2008/15 - Update - Taxpayer Alerts

PS LA 2021/1 - Update - Application of the promoter penalty laws – The PSLA has been updated to reflect the recent legislative changes to the promoter penalty laws, including the expanded scope of schemes to which the laws will apply, the increased maximum penalties for contravention and the changed definition of when an entity is a ‘promoter’ of a ‘tax exploitation scheme’.  

PS LA 1998/1 - Law administration practice statements - updated to provide clearer guidance and instructions to staff about how practice statements support the overall policy framework, factors to consider when deciding whether to prepare a practice statement, responsibilities as both an author and a user of practice statements, maintenance and conformance monitoring obligations and development procedures. These updates have been made to ensure the practice statement system remains a consistent, current and relevant method of communicating instructions to staff about decision-making and administering the law.

PS LA 2009/4 - Update - Decisions made by the Commissioner in the general administration of the taxation laws – The Practice Statement has been updated to improve how key concepts are explained so as to focus the guidance on the making of general administration decisions that are most commonly about the allocation of ATO resources. The ATO has also further clarified the types of general administration decisions that should be escalated to the Commissioner and the process for that escalation.

PS LA 2011/4 - Update - collection and recovery of disputed debts – Updated to clarify the ATO’s existing policy position regarding disputed debts. The update clarifies the ATO’s expectation that large businesses and some wealthy group taxpayers with a disputed debt pay their debt in full or enter into a 50/50 arrangement.

PS LA 2006/19 - Update - Self-managed superannuation funds - issuing a notice of non-compliance

PS LA 2007/4 - Update - Remission of penalty for failure to comply with GST registration obligations

PS LA 2008/18 - Update - Interaction between Subdivisions 284-B and 284-C of Schedule 1 to the Taxation Administration Act 1953 To provide guidance to officers on the assessment of penalties under Division 284 of Schedule 1 to the Taxation Administration Act 1953 when assessments which rely on adjustment provisions (including the general anti-avoidance provisions) are issued

PS LA 2011/19 - Update - Administration of the penalty for failure to lodge on time 

PS LA 2007/4 - Update - Remission of penalty for failure to comply with GST registration obligations 

PS LA 2008/18 - Update - Interaction between Subdivisions 284-B and 284-C of Schedule 1 to the Taxation Administration Act 1953 To provide guidance to officers on the assessment of penalties under Division 284 of Schedule 1 to the Taxation Administration Act 1953 when assessments which rely on adjustment provisions (including the general anti-avoidance provisions) are issued 

PS LA 2011/19 - Update - Administration of the penalty for failure to lodge on time

PS LA 2000/2 - An exemption for the trustees of some trust estates from the requirement to furnish a tax return on behalf of the trust estate.

PS LA 2015/2 - Time limits for trustee assessments.

PS LA 2016/5 - The disclosure of information and documents collected by the Registrar of the Australian Business Register

PS LA 2008/6 - Update - Fraud or evasion - This Practice Statement has been updated to provide guidance to ATO staff considering fraud or evasion in the context of the unlimited time periods, which allow the Commissioner to amend assessments (or to seek the payment of indirect tax which has been underpaid) due to fraud or evasion.

Update: PS LA 2011/29 - Exercise of the Commissioner's discretion under section 109RB of Division 7A of Part III of the Income Tax Assessment Act 1936 to either disregard a deemed dividend or to permit a deemed dividend to be franked - Updated to reflect an updated instrument of authorisation concerning officers from the SMB business line.

PS LA 2004/6 - Giving advice on proposed changes to the tax law before royal assent or registration on the Federal Register of Legislation 

PS LA 2007/11 - Administrative treatment of taxpayers affected by announced but unenacted legislative measures which will apply retrospectively when enacted

PS LA 2011/20 – update – Payment and credit allocation – updated to reflect that from 1 January 2024, the Trade Support Loans Act 2014 will be referred to as the Australian Apprenticeship Support Loans Act 2014 and the Trade Support Loan will be referred to as the Australian Apprenticeship Support Loan.

PS LA 2011/23 – update – Credit interest – This practice statement discusses the credit interest regime administered by the Commissioner and details when interest is payable. This practice statement has been updated to reflect that from 1 January 2024, the Trade Support Loans Act 2014 will be referred to as the Australian Apprenticeship Support Loans Act 2014 and the Trade Support Loan will be referred to as the Australian Apprenticeship Support Loan.

Taxation rulings

Addendums:

  • GSTR 2014/2 Goods and services tax: treatment of ATM service fees, credit card surcharges and debit card surcharges. The addendum reflects the Administrative Appeals Tribunal's (AAT) decision in Banktech Group Pty Ltd and Commissioner of Taxation [2023] AATA 3850 regarding the meaning of 'automatic teller machine (ATM) services'. The AAT decided that the supply of cash withdrawals through cash dispensing devices used by the taxpayer were not 'ATM services' as they were inconsistent with the ordinary meaning of the term. Other editorial updates have been made to meet accessibility requirements and to ensure currency of legislative and other citations.
  • GSTR 2002/2 Goods and services tax: GST treatment of financial supplies and related supplies and acquisitions. Minor consequential updates have been made to the definition of 'ATM' as part of the updates to GSTR 2014/2 (above). Other editorial updates have been made to meet accessibility requirements and to ensure currency of legislative and other citations.
  • MT 2012/2 Miscellaneous taxes: application of the income tax and GST laws to deferred transfer farm-out arrangements. Updates have been made for references to legislative instruments and address accessibility issues.

TR 92/2A1 - Addendum - Income tax: scientific research - the application of section 73A - amends the ATO’s ruling to address changes in relation to who may approve any university, college, institute, association or organisation in writing for the purposes of section 73A of the Income Tax Assessment Act 1936 expenditure on scientific research.

LCR 2024/1 - explains the tax rules applying to corporate collective investment vehicles (CCIVs), in particular the deeming rules in Subdiv 195-C of the ITAA 1997 that result in taxation on a flow-through basis, with investors assessed as beneficiaries (not as shareholders).

GSTR 2014/2DC1W - Withdrawal - Goods and services tax: treatment of ATM service fees, credit card surcharges and debit card surcharges

TR 2022/3ER2 - Erratum - Income tax: personal services income and personal services businesses

Withdrawal: TR 2019/D1W - Income tax: income of international organisations and persons connected with them that is exempt from income tax

TR 95/2W - Income tax: Overseas Aid Gift Deduction Scheme. 

TR 2024/2 - Income tax: when does a corporate limited partnership 'credit' an amount to a partner in that partnership? This Ruling provides the Commissioner’s view about when a corporate limited partnership (CLP) ‘credits’ an amount to one or more of its partners, within the meaning the section 94M of the Income Tax Assessment Act 1936. The Commissioner’s view was previously issued in draft Taxation Ruling TR 2017/D4. In order to provide certainty for Australian CLPs and Australian-resident partners of foreign CLPs, the Ruling has been updated to address the flexibility available in many CLP constitutions, such that a relevant ‘benefit’ may be conferred upon a partner without formally issuing additional partnership interests to that partner.   

TR 2024/3 - Income tax: deductibility of self-education expenses incurred by an individual - sets out the principles on the deductibility of self-education expenses under section 8-1 of the Income Tax Assessment Act 1997. It also discusses the types of expenditure that can be deductible as a self-education expense, as well as those that cannot. 

TR 2005/13A2 - Addendum - Income tax: tax deductible gifts - what is a gift 

GSTR 2002/5A5 - Addendum - Goods and services tax: when is a 'supply of a going concern' GST-free?

TR 2024/1 - Income tax: composite items - identifying the relevant depreciating asset for capital allowances – the ruling addresses the issue of whether an asset that is made up of a number of parts or components (that is, the composite item) is itself a depreciating asset, or whether one or more of its components are separate depreciating assets.

TR 2021/D4W – Notice of Withdrawal – Income tax: royalties – character of receipts in respect of software.

Other items

The ATO has updated Fringe benefits tax - a guide for employers Chapter 3 – How fringe benefits tax works for incorrect hyperlinks and to reflect change from Administrative Appeals Tribunal to Administrative Review Tribunal.

Interpretation NOW! Episode 113 – considers the rules of construction, building codes, insurance contracts and human rights. 

Episode 112 of interpretationNOW! - ChatGPT, LLMs & ordinary meaning – Considers the possible relevance generative AI may have in determining the ordinary meaning of words in legal texts.

Interpretation NOW! Episode 111 -– looks at the same word and same meaning, expressio unius principle, environmental plans and deeds of company arrangement.

Interpretation NOW! Episode 110 – looks at the axiomatic approach to interpretation, how far domestic law can reach outside the jurisdiction, legislative code and across the Tasman.

ED 2024/D1W - Withdrawal - Alcohol excise: the addition of water to beer

GST II FL1A6 –  - Addendum - Goods and Services Tax Industry Issues Detailed Food List - amends Goods and Services Tax Industry Issue GST II FL1 to align relevant entries with Goods and Services Tax Determination GSTD 2024/1 Goods and services tax:  supplies of combination food, add new food and beverage product lines, merge similar entries, update a number of entries to correctly reference the A New Tax System Goods and Services Tax Regulations 2019, delete duplicate entries and combine similar entries.

Update - Employees guide for work expenses – The guide has been updated to include:

information on the electric vehicle home charging rate for zero emission vehicles (electric vehicles) and references to PCG 2024/2 Electric vehicle home charging rate – calculating electricity costs when a vehicle is charged at an employee’s or individuals home
references to TR 2024/3 Income tax: deductibility of self-education expenses incurred by an individual
additional common myths about claiming work expense deductions
updated information to clarify when certain commonly claimed work expenses are allowable.

Vietnam - Synthesised text of the MLI and the Agreement between the Government of Australia and the Government of the Socialist Republic of Vietnam for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income as amended by the 1996 Exchange of Notes and the 2002 Exchange of Letters

GST industry issues withdrawal notice - What are 'sunscreen preparations for dermal application'?
GST industry issues withdrawal notice - When is a sunscreen preparation marketed principally as a sunscreen?

Spain - Synthesised text of the MLI and the Agreement between Australia and the Kingdom of Spain for avoidance of double taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, and Protocol.

Checklist for GST product classification - This self-review checklist provides practical, step-by-step guidance for you to:

  • self-review the GST classification of your supplies (products you purchase as stock, or import, or produce for sale)
  • assess the robustness of your business systems, processes and controls that directly impact your GST classification decisions.

GST classification of food and health products - This self-review guide for medium to large business provides businesses with step-by-step guidance to undertake regular self-reviews of the GST classification of food and health products.

Justified Trust:

GST analytical tool - Update
Future GST engagement after initial GST assurance review - Update
Monitoring and maintenance approach - Update
Top 100 program - Tailored approach to obtaining, maintaining and refreshing assurance
Top 100 GST refresh review
Top 100 Income tax refresh review
Top 100 Pre-lodgment disclosure framework

Interpretation NOW! - Episode 109 – looks at the use of headings, enterprise agreements, explanatory memoranda and similar provisions elsewhere in statutory interpretation.

China - Synthesised text of the MLI and the Agreement between Australia and the People's Republic of China for the Avoidance of Double Taxation with Respect to Taxes on Income and Fringe Benefits and the Prevention of Fiscal Evasion

interpretation NOW! Episode 108 – looks at statutory definition, impracticable outcomes and legislative intention

Withdrawals:
TD 2016/11W - Income tax: what is the benchmark interest rate applicable for the year of income that commenced on 1 July 2016 for the purposes of Division 7A of Part III of the Income Tax Assessment Act 1936 and how is it used?
TD 2016/8W - Income tax: what is the car limit under section 40-230 of the Income Tax Assessment Act 1997 for the 2016-17 financial year?
TD 2017/17W - Income tax: what is the benchmark interest rate applicable for the year of income that commenced on 1 July 2017 for the purposes of Division 7A of Part III of the Income Tax Assessment Act 1936 and how is it used?
TD 2017/18W - Income tax: what is the car limit under section 40-230 of the Income Tax Assessment Act 1997 for the 2017-18 financial year?

interpretation NOW!  Episode 107 - Looks at human rights, single purpose, consumer protection and remedial legislation

ATO expectations on how you support your reduced input tax credit claims on complex information technology outsourcing agreements

ATO Fact sheet Category B players of WAFL clubs - taxation of match payments - This fact sheet outlines the taxation implications of payments received if you play Australian Rules Football as a 'Category B player' for a club associated with or governed by the West Australian Football League (WAFL). It only applies to payments received pursuant to WAFL Category B player contracts.

Interpretation NOW! Episode 106 - looks at the use of extrinsic materials in interpretation

Romania - Synthesised text of the MLI and the Agreement between Australia and Romania for the Avoidance of Double Taxation with Respect to Taxes on Income and Fringe Benefits and the Prevention of Fiscal Evasion with Respect to Taxes on Income, and Protocol

GST industry issues addendum notice - Detailed Food List - amends the Detailed Food List to align relevant entries with GSTD 2024/1, add new food and beverage product lines, merge similar entries and update a number of entries to better explain why they are GST-free. 

South Africa - Synthesised text of the MLI and the Agreement between Australia and the Republic of South Africa for the Avoidance of Double Taxation with Respect to Taxes on Income and Fringe Benefits and the Prevention of Fiscal Evasion

Interpretation NOW! Episode 104 - looks at the meaning of ‘suicide’ and ‘remains, the frustration of purpose and extraterritoriality.

ATO Legal Database

For more information on past or new ATO rulings, determination etc. release please visit the ATO Website.

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