Private ruling application 21-point checklist

If a client asks you to apply to the ATO for a private ruling, you will need to:

  1. Download the appropriate private ruling application form.
  2. Complete the private ruling application form and attach all the required information.
  3. Lodge your application.

You can find the private ruling application form here. Or use this streamlined form if you are providing a draft ruling on behalf of yourself or a client for the ATO to consider. Tax agents can lodge this form through the Tax Agent Portal. Businesses can lodge this form through the Business Portal.

Practitioners need to include all relevant information in your application. You may need to provide supporting documentation (see samples here).

The ATO says questions must be clear so that it can identify the issues accurately and fully. It says references to the specific provisions of law on which you need a ruling are more than helpful.

The ATO also asks that a description is provided of all the facts relevant to the scheme or circumstance. It reminds practitioners that a private ruling will be ineffective if there is any substantial difference between what your client actually does, and the scheme or circumstance that is described in the resulting private ruling.

If the scheme described is only a proposal, the facts must still be reasonably certain. The ATO says it can’t issue private rulings about hypothetical situations. Also helpful will be to provide the results of any research you have undertaken, as well as including your own opinion about how the law applies to the question.

The checklist
The following checklist can help in a successful application. If the answer to each question is YES, this will help to avoid rejection of the application or a delay in its processing.

  1. Entity named in the ruling identified?
  2. Applicant identified, if they differ from the entity named in the ruling?
  3. If the applicant is a tax agent or tax professional applying on behalf of a client, are their details provided, including tax agent number (if applicable)?
  4. Is/are the TFNs/ABNs supplied (where applicable)?
  5. Is the application in the approved form?
  6. Has the application been signed by the applicant (or an authorised entity)?
  7. If the application is made by someone other than the applicant (eg an agent), has written consent been obtained?
  8. Is the application in respect of a law the Commissioner is authorised to administer?
  9. Does the application identify a contact person for the application?
  10. Does the application provide the required contact details including an address to which the ruling can be sent?
  11. Are the questions to be answered identified?
  12. Are the issues to be considered identified?
  13. Is a full description of the facts provided, and are they reasonably certain?
  14. Has the applicant provided an opinion of how the law applies to the scheme or circumstance?
  15. Are the relevant sections of tax law identified as references commensurate with the applicant’s opinion of how the law applies to the scheme or circumstance?
  16. Are relevant Public Rulings and/or case law identified commensurate with the applicant’s opinion of how the law applies to the scheme or circumstance?
  17. Has the applicant clearly identified the year(s) for which rulings are sought (if possible)?
  18. If the arrangement is proposed, has the applicant provided a statement confirming that it is seriously contemplated?
  19. Is there, or has there been, an ATO audit or notification or a proposed audit on the issues raised in the application, and if so have details of the audit/proposed audit been provided?
  20. If the applicant sought an oral or written ruling for these issues before, have these details been provided?
  21. Is the applicant registered for GST?

 

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