CA ANZ, The Tax Institute, [insert other signatories] prepared a joint submission to the Victorian Commissioner of State Revenue.
This submission expresses concern about the State Revenue Office's practice of relying on website guidance to set out how the Commissioner of State Revenue intends to apply Victorian taxation and duties legislation. Particular concern is expressed about the substantive Website Guidance issued by the SRO include its website pages in respect of the economic entitlement regime, the off-the-plan duty concession, and foreign purchasers of property.
Website guidance resembles law and often is applied in practice as if it were law. This creates the illusion of legal certainty where no such certainty in fact exists. Members of the public and taxation professionals are encouraged to rely on such commentary, even though there is no strong legal foundation for that reliance, and there are very limited protections if the guidance is subsequently departed from (either by the Commissioner or by a court or tribunal). This leads to the risk that a taxpayer may rely on Website Guidance in organising their affairs, and then may be faced with a subsequent contradictory decision by the Commissioner, a court or tribunal (with the taxpayer's reliance on Website Guidance being no substantial defence).
The submission recommends, amongst other matters, that:
Where Website Guidance is proposed to provide substantive guidance which has no clear basis in legislation, it should be:
subject to similar consultation processes as public rulings, and
publicly archived when replaced or revised so that the Commissioner's point-in-time position can be accessed by taxpayers.
If the SRO's official position is that it will 'ordinarily' stand by Website Guidance, then the SRO should release a policy outlining:
the circumstances in which it may depart from its Website Guidance,
its approach in the event that a taxpayer has relied on Website Guidance and the SRO subsequently departs from that position,
its position when a taxpayer and the SRO disagree on the interpretation of Website Guidance, and
what reliance the SRO will allow a taxpayer to place on Website Guidance in a court or tribunal.
There should introduce a post-implementation review process for significant changes to Victorian revenue law, so that underlying issues with the substance and administration of the relevant measure or regime can be properly assessed (and addressed as required).
the SRO should prioritise issuing public rulings and decrease its reliance on Website Guidance.