Taxation Administration Deferral of Third Party Reports by Eligible Community Housing Providers for the 2020–21 Financial Year Determination 2022

General outline of instrument

1. This instrument is made under paragraph 396-55(b)(ii) of Schedule 1 to the Taxation Administration Act 1953 (TAA).
2. This instrument allows eligible community housing providers to defer third party reporting for the 2020–21 Financial Year until 1 August 2022. This aligns with the due date for third party reporting for the 2021-22 Financial Year, being the first business day after the legislated due date for the 2021-22 Financial Year of 31 July 2022, which falls on a Sunday in accordance with section 388‑52 of Schedule 1 to the TAA. The reports were originally due 2 August 2021 being the first business day after 31 July 2021.
3. The instrument is a legislative instrument for the purposes of the Legislation Act 2003.
4. Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Date of effect

5.                  This instrument commences on the day after it is registered on the Federal Register of Legislation.

What is the effect of this instrument

6.                  From 1 January 2018, eligible community housing providers (CHPs) are required to provide an annual report to the Commissioner with details of affordable housing certificates issued during each financial year.

7.                  Legislative Instrument Exemption of Eligible Community Housing Providers from Providing Third Party Reports for the 2018/19 and 2019/20 Years Determination 2019 (F2019L01044) exempted CHPs from their requirement to lodge annual reports for the 2018–19 and 2019–20 financial years. This meant the first annual report was due by 31 July 2021.

8.                  As additional time is needed for CHPs to meet the changed reporting requirements, this instrument has the effect of deferring the requirement to provide information to the Commissioner in relation to affordable housing certificates issued during the 2020–21 financial year until 1 August 2022. This deferred due date will align with the due date for the 2021-22 financial year. Ordinarily the due date is 31 July, however as 31 July falls on a Sunday in 2022, the actual due date becomes 1 August 2022 in accordance with section 388-52 of Schedule 1 to the TAA.

Compliance cost assessment

9.                  Minor – There will be no additional regulatory impacts as the instrument is minor and machinery in nature.

Background

10.              Under the Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures) Act 2019, the law was changed so that from 1 January 2018 certain obligations were placed on eligible CHPs as part of a suite of changes to make housing more affordable. In accordance with section 980-15 Income Tax Assessment Act 1997, eligible CHPs must issue an affordable housing certificate to each entity that holds an ownership interest in a dwelling that has been used for affordable housing. Under section 396-55 in Schedule 1 to the TAA, the CHP must also provide an annual report notifying the Commissioner of all certificates issued during a financial year.

11.              To allow sufficient time to introduce and understand the new reporting system, Legislative Instrument Exemption of Eligible Community Housing Providers from Providing Third Party Reports for the 2018/19 and 2019/20 Years Determination 2019 (F2019L01044) exempted the requirement for CHPs to provide an annual report for the 2018–19 and 2019–20 financial year.

12.              Reporting issues for the 2020–21 year and consultation with CHPs indicates that additional time is needed for CHPs to understand and prepare for the changes to the affordable housing reporting obligations. Therefore, this instrument defers the deadline for reporting by CHPs in relation to affordable housing certificates issued for the 2020–21 financial year until 1 August 2022, which aligns with the due date for the reports for the 2021-22 financial year.

Consultation

13.              Subsection 17(1) of the Legislation Act 2003 requires, before the making of a determination, that the Commissioner is satisfied that appropriate and reasonably practicable consultation has been undertaken.

14.              Broad consultation has occurred. The draft determination and draft explanatory statement were published on the ATO Legal Database at ato.gov.au on 1 February 2022 seeking feedback and comments for a period of four weeks. The ATO Legal Database sends emails and news feeds to direct subscribers such as tax professionals and other industry stakeholders. Consultation on the draft determination and draft explanatory statement was also announced on ‘What we are consulting about’ at ato.gov.au. The draft determination and draft explanatory statement were also distributed to the Community Housing Industry Association and passed on to their stakeholders. No submissions were received, only three questions of an administrative nature that did not require or result in any changes to the draft determination and/or draft explanatory statement.

Legislative references

Acts Interpretation Act 1901

Human Rights (Parliamentary Scrutiny) Act 2011

Income Tax Assessment Act 1997

Legislation Act 2003

Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures) Act 2019

Taxation Administration Act 1953

Statement of compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Taxation Administration Deferral of Third Party Reports by Eligible Community Housing Providers for the 2020–21 Financial Year Determination 2022

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

Eligible community housing providers must prepare and lodge an annual report about the eligible community housing they manage on behalf of investors. This instrument allows these providers to defer preparation and lodgment of this annual report for the 2021 financial year until 1 August 2022.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms as it provides a concession of deferral for eligible community housing providers from the requirement to lodge an annual report for the 2020–21 financial year until 1 August 2022.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.