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Silver Mines Limited and Minister for Infrastructure and Regional Development [2016] AATA 707

October 31st, 2016

The AAT has affirmed the decision of the Minister for Infrastructure and Regional Development not to exercise the discretion under the Industry Research and Development Act 1986 to grant the taxpayer an extension of time to register for R&D tax concessions for an engineering “conceptual process study” in relation to its silver mining activities.

In 2014, Silver Mines Limited applied to register its past R&D activities for the 2010-11 [under the R&D Tax Concession] and 2011-12 [under the R&D Tax Incentive] income years. Innovation Australia refused to register these applications. Under the R&D Tax Incentive, applicants must register R&D activities within 10 months after the end of their income year. Silver Mines Limited requested an internal review of Innovation Australia’s decision – which was affirmed – and the company applied to the AAT for an external review.

Silver Mines Limited registrations were lodged 12 and 14 months after the deadlines. The applicant argued that “exceptional circumstances” existed that warranted the exercise of the discretion in terms of the death of a director of the applicant and the failure by its original tax agent to provide any advice regarding R&D at any of the relevant times.

In its review of the matter, the AAT affirmed that a further period of time for late registration could be provided where the action, omission or event causing the applicant’s delay was:

not the responsibility or fault of the applicant; and
not within the control of the applicant.

In considering Silver Mines Limited ‘s evidence, the AAT found that after Silver Mines Limited became aware of the R&D Tax Incentive it had not taken timely and prudent steps to inform itself and progress its registration applications. The AAT also rejected Silver Mines Limited’s claims that it had been poorly advised and found its evidence unconvincing that it lacked knowledge of the R&D Tax Incentive.

It was found the circumstances causing Silver Mines Limited ‘s delay were not outside its control. This was not sufficient to justify granting an extension of time of 12 to 14 months to allow its R&D registrations.

The AAT stated the longer the period of time an applicant seeks for an extension for R&D registration requires stronger explanation, evidence and justification to support any extra time for their late registration.

The AAT affirmed that:

late applications for registration under the R&D Tax Incentive are not normally accepted;
extensions of time to lodge late registrations are generally only granted at the discretion of the Innovation Australia and in limited circumstances;
applications for registration that are made well after the deadline date are generally refused;
requests for additional time to register requires strong explanation, evidence and justification to support the granting of an extension.

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