Sole trader granted access to JobKeeper after tribunal overturns ATO decision

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The Australian Taxation Office (ATO) says it is considering appealing a ruling by the Administrative Appeals Tribunal (AAT) that gave access to JobKeeper payments to a business owner who was previously deemed ineligible for the wage subsidies. 

One of the eligibility requirements for the JobKeeper program is for business operators to have an Australian Business Number (ABN) as of March 12, 2020, and in this case, the ATO initially said sole trader Jeremy Apted was not eligible for the wage subsidies as his ABN was not active at this time. 

However, in a decision handed down in December, the AAT found Apted did in fact meet the JobKeeper eligibility criteria of having an ABN on March 12, 2020, because the Australian Business Registry had reactivated an old ABN and backdated the reactivation to before March 12.

The tribunal heard Apted was carrying on a business and recording income from the business prior to March 12, after he set up the business years prior and began operating again when he came out of retirement in 2019.

The business owner successfully applied to reactivate an old ABN, to take effect in mid-2019, and the tribunal found this meant he was eligible to receive JobKeeper payments. 

The JobKeeper legislation gives the commissioner of taxation the ability to grant applicants extra time to obtain an ABN, however, this discretion was not used in this case. 

In deciding to reverse the commissioner’s ruling, the AAT president Justice D G Thomas said Apted’s failure to reactivate his ABN in 2019 was an “oversight” and not a deliberate effort to conduct a business without an ABN. 

“We are satisfied the applicant is the kind of person who was intended to benefit from the JobKeeper scheme,” said Thomas. 

“While his business was small and his income irregular, he still satisfied all of the eligibility criteria … There is nothing to be achieved by denying him access to the payments in order to make a point about the desirability of obtaining an ABN.”

In a statement, the ATO said it is “considering the decision and its implications, including whether to appeal”. 

The ATO said it will provide further information in coming weeks to businesses operators who meet all other JobKeeper eligibility requirements but had their applications declined because of the ABN requirement.


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