In particular, only certain documents provide a “precedential ATO view”. This is the ATO’s documented view about the application of any of the law administered by the ATO in relation to a particular interpretative issue. The ATO has precedential views to ensure its decisions on interpretative issues are accurate and consistent. PS LA 2003/3 states that precedential ATO views are set out in the following documents:

• Public rulings (including draft public rulings);
• ATO interpretative decisions (ATO IDs);
• Decision impact statements; and
• Documents listed in the Schedule of Documents containing precedential ATO views (attached to PS LA 2003/3).

We discuss the main types of ATO publications below and also provide a handy summary at the end of this article.

Public rulings

Public rulings are binding advice that express the ATO’s interpretation of the law. The ATO publishes different types of public rulings, including:

• TR – taxation ruling
• TD – taxation determination (short-form ruling)
• GSTR – GST ruling
• MT – Miscellaneous taxation ruling
• SGR – Superannuation guarantee ruling
• CR – class ruling
• PR – product ruling

Where a taxpayer follows a public, private or oral ruling that applies to them, the ATO is bound to assess them as set out in the ruling. If the correct application of the law is less favourable to a taxpayer than the ruling provides, the ruling protects the taxpayer from the law being applied by the ATO in that less favourable way.

A public ruling usually applies to both past and future years and protects a taxpayer from the date of its application, which is usually the date of effect of the relevant legislative provision. In addition, a public ruling that is withdrawn continues to apply to schemes that had begun to be carried out before the withdrawal.

TR 2006/10 is an ATO public ruling that provides details on the protection offered by public rulings, etc.

The ATO’s “advice under development program” tracks the development of rulings, determinations and significant addenda, including topics that have been added or withdrawn, and rulings and determinations that have been finalised.

Note that an ATO ruling (both public and private) may include parts that are binding on the ATO and parts that are not. The ATO identifies the parts that are binding and non-binding. Care is, therefore, needed when reviewing rulings to determine whether the part you wish to rely on is, in fact, binding.

Administratively binding advice

The ATO provides administratively binding advice to assist taxpayers in certain limited circumstances.

Some laws the ATO administers do not enable it to provide advice in a legally binding form. But in the interest of assisting taxpayers, the ATO provide administratively binding advice in limited circumstances.

The ATO considers that it is administratively bound by its advice and an early engagement (for advice) request can be lodged with the ATO to discuss the matter before applying for such advice.

Generally, the ATO stands by its advice and will not depart from it unless:

• There have been legislative changes since the advice was given.
• A tribunal or court decision has affected the ATO’s interpretation of the law since the advice was given.
• The advice is no longer appropriate for other reasons.

If a taxpayer follows the advice and the ATO later find out that it does not apply the law correctly to you (and none of the points above apply), you will be protected from having to repay amounts of tax that would otherwise be payable, and any penalties and interest on those amounts.

You can apply for administratively binding advice via a private binding ruling (PBR) application form.

Private binding rulings

A PBR on a tax query is binding on the ATO. Note that this is the information provided at the start of most PBRs:

• You cannot rely on the rulings in the register of PBRs in relation to your tax affairs. You can only rely on a private ruling that the ATO has given to the particular taxpayer or to someone acting on their behalf.
• The register of PBRs is a public record of edited private rulings issued by the ATO. The register is a historical record of rulings, which is not updated to reflect changes in the law or ATO policies.
• The rulings in the register have been edited and may not contain all the factual details relevant to each decision. Do not use the register to predict ATO policy or decisions.

The ATO aims to provide a private ruling within 28 calendar days of receiving all the necessary information. In practice, our experience is that some rulings are not finalised by at least six months and sometimes up to 12 months. If the request is complex, the ATO may seek further time. If the ATO has not made a private ruling within 60 days of receiving all the necessary information, a taxpayer may request a ruling to be made. The ATO has 30 days from such a written request to either provide the private ruling or decline to rule on the matter.

As noted above, a PBR only provides protection to the particular taxpayer in the PBR. Thus, the register of PBRs does not provide protection to anyone else who may seek to rely on another taxpayer’s PBR.

Tax determinations

A tax determination (TD) provides similar protection to a public ruling. By way of example, the protection provided by a TD, as described in TD 2013/22 follows:

This publication provides you with the following level of protection:

This publication (excluding appendixes) is a public ruling for the purposes of the Taxation Administration Act 1953.

A public ruling is an expression of the Commissioner’s opinion about the way in which a relevant provision applies, or would apply, to entities generally or to a class of entities in relation to a particular scheme or a class of schemes.

If you rely on this ruling, the Commissioner must apply the law to you in the way set out in the ruling (unless the Commissioner is satisfied that the ruling is incorrect and disadvantages you, in which case the law may be applied to you in a way that is more favourable for you – provided the Commissioner is not prevented from doing so by a time limit imposed by the law). You will be protected from having to pay any underpaid tax, penalty or interest in respect of the matters covered by this ruling if it turns out that it does not correctly state how the relevant provision applies to you.

ATO IDs

An ATO interpretative decision (ID) is a summary of a decision on an interpretative issue and is indicative of the ATO’s view on the interpretation of the law on that particular issue. ATO IDs are produced to assist ATO officers to apply the law consistently and accurately to particular factual situations. An ATO ID sets out the precedential ATO view that applies in resolving an interpretative issue. An ATO ID, therefore, differs from a ruling or a TD.

An example of the level of protection provided by ATO ID 2015/10:

This ATO ID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect, you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.

Practice statement law administration

A PS LA provides direction and assistance to ATO staff on the approach to be taken in performing duties involving the application of the laws administered by the Commissioner. Practice statements are policy documents, providing mandatory instructions and guidance to ATO staff on how they should undertake technical work, assisting ATO staff to perform their duties and make decisions about the laws they administer.

While they may discuss technical issues, practice statements do so in a way to give sense to the instructions they are providing. They are not intended to provide interpretative advice and do not express precedential ATO views.

Even though ATO staff are the primary audience for a practice statement, in the interest of open tax administration, they are published externally and to inform taxpayers what to expect.

If a taxpayer relies on a particular practice statement that is incorrect or misleading and makes a mistake as a result, they will remain liable for any resulting tax shortfall, but will be protected against:

• Any shortfall penalty that would otherwise arise.
• Interest charges on the shortfall, provided that the particular practice statement was reasonably relied on in good faith.

For more information, see PS LA 1998/1.

Practical compliance guidelines

Practical compliance guidelines (PCGs) provide broad law administration guidance, addressing the practical implications of tax laws and outlining our administrative approach. For example, they might set out:

• How the ATO assess tax compliance risk across a range of activities or arrangements in relation to a certain area of the law – where the ATO would consider an activity or arrangement low risk (unlikely to require scrutiny) and where the ATO might consider an activity or arrangement high risk (likely to attract scrutiny); or
• A practical compliance solution where tax laws are creating a heavy administrative or compliance burden, or where the tax law might be uncertain in its application.

These guidelines can provide taxpayers with additional certainty and compliance savings and allow the ATO to direct its compliance resources to higher-risk areas of the law.

From 2016, PCGs have largely overtaken PS LAs as the appropriate communication product providing broad law administration guidance to taxpayers. PCGs generally contain guidance on how they can be relied upon by taxpayers and descriptions of relevant classes of taxpayers to which they apply (refer to PCG 2016/1).

Provided a taxpayer follows a PCG, the ATO will administer the law in accordance with the approach reflected in that guideline. PCGs are not binding on the ATO and are used as safe harbours to provide an indication of how the ATO will apply its compliance resources. For example, PCG 2016/5 provides safe harbour terms for related-party limited recourse borrowing arrangements (LRBAs) that, if satisfied, will not result in the ATO applying resources to review and audit LRBAs prior to 31 January 2017.

Note that a PCG covering a matter where the ATO is not dedicating its compliance resources will not provide protection to a taxpayer that is detected under normal ATO review or audit activities. This is because many PCGs state that the ATO is not dedicating compliance resources to find the issue covered by the particular PCG, but if the ATO happens to detect the issue as a result of its usual review or audit activities, the taxpayer may not be protected by a PCG worded in this way.

Law companion rulings

A law companion ruling (LCR, formerly known as law companion guidelines) provides the ATO view on how recently enacted law applies and is usually developed at the same time as the drafting of the bill.

An LCR will normally be published:

• In draft form for comment when the bill is introduced into Parliament and will be finalised soon after the bill receives royal assent. It provides early certainty in relation to the application of the new law; or
• Where taxpayers need to take additional action to comply with the law, to provide certainty about what needs to be done.

An LCR will not usually be issued where the new law is straightforward, is limited in its application, or does not relate to an obligation to pay tax, penalties or interest.

For example, the ATO issued LCR 2019/D3 in relation to the 2019 amendment to the Income Tax Assessment Act 1997 (Cth) on non-arm’s length income and expenditure (NALI/E) incurred under a non-arm’s length arrangement. This draft was finalised as LCR 2021/2.

An LCR will usually be finalised as a public ruling at the time the bill receives royal assent and becomes law, unless issues arise during consultation or the bill is significantly amended in the bill’s passage through Parliament. The NALI/E legislation was ultimately finalised in June 2024.

Because LCRs are prepared at such an early time, an LCR will not be informed by experience of the new law operating in practice. Therefore, while they offer the same protection in relation to underpaid tax, penalties or interest as a normal public ruling, this will only apply if a taxpayer relies on an LCR in good faith.

LCR 2015/1 covers the purpose, nature and role in ATO’s public advice and guidance.

SMSF specific advice

The ATO, as the regulator of SMSFs, has no power to make a binding ruling in relation to the Superannuation Industry (Supervision) Act 1993 (Cth) (SISA) or a Superannuation Industry (Supervision) Regulations 1994 (Cth) (SISR) question. Typically SMSF specific advice is sought in relation to how the super law applies to a particular transaction or arrangement for the following topics:

• Investment rules, including:
  • acquisition of assets from related parties;
  • borrowing and charges;
  • in-house assets; or
  • business real property;
• In-specie contributions/payments; and
• Payment of benefits under a condition of release.

In certain cases, if taxpayers request a PBR and SMSF specific advice, the ATO generally ask that these be separated into different requests. However, we have noticed that the ATO has combined these two forms of guidance in a number of PBRs that have been issued where the ATO has expressly set out where the PBR starts and finishes and similarly where the SMSF specific advice starts and finishes in the combined ATO response so there is no confusion as to what part is binding (as the PBR) and what is not binding (as the SMSF specific advice) on the ATO.

Taxpayer alerts

Taxpayer alerts (TA) are intended to be an early warning of the ATO’s concerns about significant and emerging potential aggressive tax planning issues or arrangements that the ATO has under risk assessment. Moreover, the ATO usually develops its views more comprehensively following the issue of a TA on a topic, and prior TAs can be superseded shortly after being issued.

The comment at the beginning of a TA is:

Taxpayer Alerts are intended to be an early warning of our concerns about significant or emerging higher risk planning issues or arrangements that the ATO has under risk assessment, or where there are recurrences of arrangements that have been previously risk assessed.

PS LA 2008/15 outlines, among other things:

• The ATO TA framework, including why the ATO issues TAs.
• Factors the ATO considers when deciding whether a TA is appropriate.
• Key activities in developing and issuing a TA.

Decision impact statements

Decision impact statements (DIS) are succinct statements of the ATO’s response to significant cases decided by the courts or tribunals. They provide the details of the case, including the implications of the decision and whether any ATO rulings, ATO IDs, etc., need to be amended.

Invariably, the ATO seek to distinguish a decision based on the facts and circumstances of the case where the ATO does not succeed. For example, the DIS on Greig v Commissioner of Taxation [2020] FCAFC 25 states:

The Commissioner considers that this case does not change the principle in Myer Emporium and, in particular, does not disturb the Commissioner’s understanding of the factors that will be relevant in determining whether an acquisition of shares is made in carrying out a ‘business operation or commercial transaction’.

SMSF regulatory bulletins

Self-Managed Superannuation Fund Regulator’s Bulletins outline the ATO’s concerns about new and emerging arrangements that pose potential risks to SMSF trustees and their members from a superannuation regulatory and/or income tax perspective.

These bulletins are specifically designed for the SMSF sector. The ATO’s aim is to share its concerns early to help you make informed decisions about your SMSF. Each bulletin has the following guide on its protection:

Relying on this Bulletin

Self-Managed Superannuation Fund Regulator’s Bulletins outline our concerns about new and emerging arrangements that pose potential risks to SMSF trustees and their members from a superannuation regulatory and/or income tax perspective. To the extent that this Bulletin provides guidance to you, and you apply it in good faith to your own circumstances, the Commissioner will administer the law in accordance with the guidance outlined in this Bulletin.

For example, SMSFRB 2020/1 examines the ATO’s position on SMSFs and property development and the common mistakes that arise in these types of arrangements.

ATO web page and fact sheets

The ATO web page and fact sheets can be useful but cannot be relied on as binding on the Commissioner in a legal sense. The general administrative practice is that the ATO feels bound to follow its own written materials, but in the event that the ATO is wrong, the tax is still generally payable but penalties may be reduced or may not be imposed.

PS LA 2008/3 explains that, in the interests of sound administration, the ATO’s practice has been to provide administratively binding advice in a limited range of circumstances.

For example, the ATO provides administratively binding advice on matters under the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGAA). There is no legislative framework for the provision of public, private or oral advice in relation to matters under the SGAA.

Media releases and speeches

Media releases are brief announcements used to deliver ATO messages on topics and to communicate the ATO’s intentions in relation to certain issues. A media release reflects the ATO’s position at the time of its publication, which may subsequently be updated.

Speeches by senior ATO officers reflect the ATO’s thinking on particular issues and are published for transparency reasons.

Oral rulings – for individuals

An oral ruling is a form of legally binding advice the ATO gives over the phone to individual in relation to their specific circumstance, typically in relation to personal income tax or the Medicare levy.

If an individual relies on an oral ruling, the ATO is bound to assess their liability in accordance with the oral ruling.

If the oral ruling is incorrect and disadvantages an individual, the ATO may apply the law in a way that is more favourable to that person, provided there is no time limit in doing so.

Tailored technical assistance

The ATO provides tailored technical assistance in some circumstances, orally or in writing, depending on the nature and complexity of the query.

• A taxpayer may seek tailored technical assistance if they are not able to find an ATO view of how the law applies to a particular technical issue.
• A taxpayer is not certain how the ATO view of the law applies to their circumstances.
• A taxpayer is seeking greater certainty (protection) than what ATO published products provide.

Typically, this is best managed by a tax agent or a tax expert.

Summary of ATO materials

There is a vast array of information issued by the ATO. Advisers should be aware of each type of product and understand how it applies to taxpayers. In particular, different levels of protection apply to taxpayers relying on ATO materials. A summary of numerous ATO products follows.