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Commissioner of Taxation v Apted [2021] FCAFC 45

In Commissioner of Taxation v Apted [2021] FCAFC 45, Luke Livingston and Keni Josifoski appeared for the Commissioner led by Peter Hanks QC. The jobkeeper test case was an appeal directly to the Full Federal Court and concerned the requirement, for eligible entities, that the entity have an ABN on 12 March 2020, or a later time allowed by the Commissioner. The case arises from the Government’s package of reforms introduced in April 2020 to address the adverse financial impacts on Australian businesses and employees as a result of the coronavirus pandemic.

Mr Apted cancelled his ABN in 2018 as he retired. Mr Apted later resumed work but did not activate his ABN until after 12 March 2020, albeit with a date of effect of 1 July 2019. The Administrative Appeals Tribunal found that by virtue of backdating the date of effect of his ABN, Mr Apted had an ABN on 12 March 2020 and was eligible for a jobkeeper payment. The Tribunal also said it would exercise the Commissioner’s discretion in s 11(6) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 to allow a later time to have an ABN if it was wrong about the backdating effect of Mr Apted’s ABN registration.

The Court (Allsop CJ, Logan and Thawley JJ) gave separate reasons but concluded that backdating an ABN after 12 March 2020 to have an effective date on or before 12 March 2020 did not satisfy the requirement for the entity to have had an ABN on 12 March 2020. This aspect of the appeal reversed the Tribunal’s decision. However, the Court also held that a decision in respect of the Commissioner’s discretion in s 11(6) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 to allow a later time to have an ABN is reviewable in the manner prescribed by Part IVC of the Taxation Administration Act 1953 and that the Commissioner’s discretion should be exercised in Mr Apted’s circumstances. In any event, the Court was of the view that the Tribunal had jurisdiction to exercise the discretion by reason of s 43(1) of the Administrative Appeals Tribunal Act 1975.

The Court’s decision potentially has implications for other jobkeeper applications as well as entities who have applied for a cash flow boost payment.

A copy of the Full Federal Court’s decision can be found here.

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