Skip to content

Choosing the Correct Forum to Appeal a Tax Assessment From the ATO

It is important to know what you can do if the Australian Taxation Office (ATO) is investigating your affairs or the affairs of your business. Suppose you have received an objection decision or a tax assessment from the ATO that you are dissatisfied with. In that case, you may seek an appeal of that decision either before the Administrative Appeals Tribunal (AAT) or the Federal Court. But how do you determine whether to commence appeal proceedings in the AAT or the Federal Court? This article will outline some factors you may consider in making this decision. 

Factors to Consider 

Below is a table that sets out and compares important factors to consider when deciding whether to commence and run appeal proceedings against the ATO in the AAT or the Federal Court.

 
AAT 
Federal Court 
How do I commence appeal proceedings?

You need to either: 

  • complete and lodge an ‘application for review of a decision’ form; or 
  • lodge an application through the AAT’s online service.

You will also need to provide supporting documents, such as the ATO’s objection decision. 


The relevant forms are accessible on the AAT’s website. The suitable form will depend on whether you are a small business, an individual or an organisation. 


Further, you can lodge the relevant forms in person, by fax, email or post.


The AAT will then provide a copy of your application and its supporting documents to the Commissioner. 



You need to complete and file a ‘notice of Appeal’ using the prescribed form, together with supporting documents. 


The prescribed form is accessible on the Federal Court’s website


You must file the notice of appeal in the Federal Court Registry either in person, by post or using the Commonwealth Courts Portal. 


You must then serve a filed copy of your notice of appeal on the Commissioner within five days of filing. 

What are the fees to commence appeal proceedings?

As of 28 June 2021: 

  • The standard application fee is $962.
  • A lower fee of $95 is payable if:
    • the amount of tax in dispute is less than $5,000;
    • the ATO refused your request to be released from paying a tax debt; or 
    • the ATO refused to extend the time for you to lodge an objection. 
  • A fee of $517 is payable if you are a small business entity, but you are not eligible for the lower fee of $95. 
  • In limited circumstances, you can pay a reduced fee of $100. 

As of 1 July 2021: 

  • $4,235 for a corporation; or 
  • $1,455 in any other case. 
Can I request an extension of time to commence my case?

Yes, if you make an ‘application for extension of time for making an application for review of decision’, and the AAT considers it is reasonable to provide the extension in all the circumstances. 



No. 

Do I have an automatic right to request a private hearing?

Yes.





No. However, in some cases, the Federal Court may exercise its discretion to grant a private hearing. 

How formal is the appeal process?

The process is less formal. 


The case is not heard by a judge but by a decision-maker called a ‘tribunal member’. 


Also, there is a more flexible approach to applying the rules of evidence in the Evidence Act 1995 (Cth). 

The process is more formal.


The case is heard by a judge. 


Also, it requires that the parties strictly comply with the Evidence Act 1995 (Cth).




Can I expedite my case if it is urgent?

No. It does not have an expedited hearing list for urgent matters.

 

Yes. It has a hearing list for urgent matters and may expedite your case to that list if needed. 

 

Can I get an order for the other party to pay my costs of the proceedings?

Generally, no. However, in some limited circumstances, the AAT may make an order for costs. 

Yes. The Federal Court has broad powers to make costs orders. 

What kind of decisions can be made?

The AAT can consider the merits of the objection decision made by the ATO. That is, it can substitute its own decision for the decision of the ATO.


The AAT may: 

  • affirm the objection decision;
  • vary the objection decision;
  • set aside the objection decision and substitute a new decision; or
  • remit the objection decision to the Commissioner of Taxation for reconsideration.

The Court can decide on the facts in dispute, whether the objection decision is excessive or otherwise incorrect.


It is then a matter for the ATO to apply the Court’s decision accordingly.

Is the decision binding?

A judge in the Federal Court is not strictly bound to follow a decision of the AAT.


Additionally, tribunal members are not bound to follow other AAT decisions, but they usually do for consistency and sound administration in practice.

The Federal Court’s decision is binding on decision-makers and the AAT.


Further, tribunal members are bound to follow a decision of the Federal Court.


However, you may appeal a Federal Court decision in the Federal Court of Appeal in certain circumstances. 

Front page of publication
Guide to Share Sales

Want to sell your business? A share sale may be beneficial compared to an asset sale. Download our free Guide to Share Sales today.

Download Now

Key Takeaways

Before commencing proceedings, there are numerous factors to consider when appealing an ATO objection decision, including the: 

  • costs; 
  • procedure; and
  • intended outcome. 

If you need assistance with commencing such proceedings, LegalVision’s disputes and litigation lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Continue reading this article below the form
Loading form

Frequently Asked Questions

What is the AAT?

The Administrative Appeals Tribunal (AAT) is a tribunal that conducts independent merit reviews of administrative decisions made under Commonwealth laws, by government agencies such as the ATO.

Is the AAT or the Federal Court more formal?

The appeal process is more formal in the Federal Court. The case is heard by a judge and the parties must strictly comply with the Evidence Act 1995 (Cth). On the other hand, cases before the AAT are not heard by a judge but rather by a ‘tribunal member’.  There is also a more flexible approach to applying the rules of evidence.

Register for our free webinars

ACCC Merger Reforms: Key Takeaways for Executives and Legal Counsel

Online
Understand how the ACCC’s merger reforms impact your legal strategy. Register for our free webinar.
Register Now

Ask an Employment Lawyer: Contracts, Performance and Navigating Dismissals

Online
Ask an employment lawyer your contract, performance and dismissal questions in our free webinar. Register today.
Register Now

Stop Chasing Unpaid Invoices: Payment Terms That Actually Work

Online
Stop chasing late payments with stronger terms and protections. Register for our free webinar.
Register Now

Managing Psychosocial Risks: Employer and Legal Counsel Responsibilities

Online
Protect your business by managing workplace psychosocial risks. Register for our free webinar.
Register Now
See more webinars >
Julia Cremona

Julia Cremona

Practice Leader | View profile

Julia Cremona (née Simonovska) is a Practice Leader in LegalVision’s Disputes and Litigation team. Julia has experience in a broad range of commercial litigation, including director, shareholder, insolvency, bankruptcy, taxation and general contractual disputes. She also has experience in building and construction disputes in NSW, and extensive experience in personal injury claims, including public liability, motor vehicle and workers compensation claims.

Qualifications: Bachelor of Laws (Hons), Graduate Diploma of Legal Practice, Bachelor of Commerce, University of Notre Dame Australia.

Read all articles by Julia

About LegalVision

LegalVision is an innovative commercial law firm that provides businesses with affordable, unlimited and ongoing legal assistance through our membership. We operate in Australia, the United Kingdom and New Zealand.

Learn more

We’re an award-winning law firm

  • Award

    2025 Future of Legal Services Innovation Finalist - Legal Innovation Awards

  • Award

    2025 Employer of Choice - Australasian Lawyer

  • Award

    2024 Law Company of the Year Finalist - The Lawyer Awards

  • Award

    2024 Law Firm of the Year Finalist - Modern Law Private Client Awards

  • Award

    2022 Law Firm of the Year - Australasian Law Awards