Meanwhile, south of the border down Victoria way...

Victoria State Revenue Office

A recent joint submission to the Victorian SRO shows that adherence to the Rule of Law, the creation of taxpayer uncertainty, lack of wide consultation and the appearance that websites are part of the legislative program… are not limited to Queensland. This can result in taxpayers and tax advisers being ambushed with resultant liability.

All State and Territories websites MUST undergo vigorous technical and quality audit. And while that is going on, how about getting an Australia-wide template for everything which goes on websites …and harmonising the Website information … and …

The faults identified in the submission are equally applicable in Queensland. For example, totally misleading rules on aggregation, disconnect between website and public rulings, incomplete statements on matrimonial instruments and much more: see, for example The Stamp Duty Mess in Queensland” by Stephen Page.

On 23 June 2022, a Joint submission on the use and effect of State Revenue Office (SRO) website guidance and rulings was sent to the Victorian State Revenue Office. The signatories were Chartered Accountants Australia and New Zealand, the Law Institute of Victoria, the Property Council of Australia, The Tax Institute, Tax and Super Australia and the Urban Development Institute of Australia. It highlights issues similar to those in Queensland on Website Guidance:

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.

Download the Joint Submission file (PDF).

Is there no shame in revenue offices allowing their websites or rulings (for example) to be so confusing? Remember the Rule of Law? And if the excuse is that there is not enough resources to attend to all of these cases, well, get your government to smarten up. Why should taxpayers and tax advisers continue to have to be ambushed in simply trying to do the right thing?