This matter was brought to the Federal Court of Australia by TJM Products to review the retrospective effect of the IR&D Amendment Act 1996 preventing TJM Products registration of application for R&D activities. The IR&D Board sought for a summary disposal of the application by TJM Products for an order of review under the Administrative Decision (Judicial Review) (ADJR) Act 1977.
The application brought by TJM Products concerned registration under s39J of the Industry Research and Development (IR&D) Act 1986 of TJM Products in nine separate tax years, in respect of the 150% tax concession for R&D available under s73B of the Income Tax Assessment (ITA) Act.
TJM Products made application in October 1995 in respect of the years 1985-86 to 1993-94 to the IR&D Board to register for R&D activities.
TJM products sought a review by the federal court of the “decision not to register, the decision not to make a decision, the conduct engaged in by the Respondent and the refusal or failure to make a decision” claiming that they were improper exercises of the power conferred on the respondent.
The Federal Court has held that a decision of the IR&D Board cannot be taken to have been made earlier than it was actually made for the purpose of determining whether a taxpayer company was able to be registered under s39J of the IR&D Act 1986.