108 Time bar for amendment of income tax assessment

(1)

Except as specified in this section or in section 108B, if—

(a)

a taxpayer furnishes an income tax return and an assessment has been made; and

(b)

4 years have passed from the end of the tax year in which the taxpayer provides the tax return,—

the Commissioner may not amend the assessment so as to increase the amount assessed or decrease the amount of a net loss.

(1A)

[Repealed]

(1B)

[Repealed]

(1C)

The Commissioner may not amend an assessment so as to increase an amount assessed when—

(a)

a taxpayer

(i)

provides a return for an amount of ancillary tax for a period which, for the purposes of this section, is treated as the making of an assessment of the amount of the tax by the taxpayer:

(ib)

provides a return for an amount required to be deducted under section 221 of the Accident Compensation Act 2001 for a period which, for the purposes of this section, is treated as the making of an assessment of the amount by the taxpayer:

(ii)

provides a statement in relation to approved issuer levy payable under section 86K of the Stamp and Cheque Duties Act 1971 for a period which, for the purposes of this section, is treated as the making of an assessment of the levy by the taxpayer:

(iii)

makes an application for a refund made under section 41A in relation to a tax credit for a charitable or other public benefit gift; and

(b)

4 years have passed from the end of the period in which the taxpayer provided the return or statement, or made the application, as applicable.

(1D)

For the purposes of the time bar in subsection (1C)(b), a taxpayer who furnishes a statement referred to in subsection (1C)(a)(ii) is treated as having met the requirements for furnishing a tax return for non-resident withholding tax.

(1E)

Despite subsection (1), the Commissioner may not amend an assessment so as to increase an amount of research and development tax credit if 1 year has passed from the latest date to provide a return of income for the relevant tax year, except if the increase is to take into account—

(a)

a notice of proposed adjustment initiated by a taxpayer in accordance with section 113E:

(b)

a request under section 113 initiated by a taxpayer in accordance with section 113E.

(2)

If the Commissioner is of the opinion that a tax return provided by a taxpayer—

(a)

is fraudulent or wilfully misleading; or

(b)

does not mention income which is of a particular nature or was derived from a particular source, and in respect of which a tax return is required to be provided,—

the Commissioner may amend the assessment at any time so as to increase its amount.

(2B)

A period equal to the number of days in the period described in this subsection is added to the 4 years under subsection (1), if a taxpayer successfully challenges a Commissioner’s refusal under section 89K(4). The relevant period—

(a)

starts on the day of the refusal:

(b)

finishes on the day on which that challenge is finally judged successful by the relevant Taxation Review Authority or court, or the day on which the Commissioner concedes.

(3)

This section overrides every other provision of this Act, and any other rule or law, that limits the Commissioner’s right to amend assessments.

(3B)

The Commissioner may amend an assessment or a determination to give effect to section LA 6(3) of the Income Tax Act 2007 despite the time bar.

(4)

Subsection (1) applies to all returns filed on or after 1 April 1997.

Section 108: replaced, on 1 October 1996, by section 29 of the Tax Administration Amendment Act (No 2) 1996 (1996 No 56).

Section 108 heading: replaced, on 24 October 2001 (applying to 2002–03 and subsequent income years), by section 213(3) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).

Section 108(1): amended (with effect on 24 October 2001 and applying for the 2002–03 and later income years), on 27 February 2014, by section 139(1) of the Taxation (Annual Rates, Foreign Superannuation, and Remedial Matters) Act 2014 (2014 No 4).

Section 108(1): amended, on 24 October 2001 (applying to 2002–03 and subsequent income years), by section 236(1) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).

Section 108(1)(a): replaced, on 24 October 2001 (applying to 2002–03 and subsequent income years), by section 213(1) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).

Section 108(1)(b): amended, on 1 April 2005 (effective for 2005–06 tax year and later tax years, except when the context requires otherwise), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 108(1A): repealed, on 1 April 2019, by section 72(1) (and see section 72(3) for application) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Section 108(1B): repealed, on 1 April 2019, by section 32(1) (and see section 3 for application) of the Taxation (Research and Development Tax Credits) Act 2019 (2019 No 15).

Section 108(1C): inserted (with effect on 3 May 2016), on 30 March 2017, by section 335 of the Taxation (Annual Rates for 2016–17, Closely Held Companies, and Remedial Matters) Act 2017 (2017 No 14).

Section 108(1C)(a): amended, on 1 April 2019, by section 72(2)(a) (and see section 72(3) for application) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Section 108(1C)(a)(i): amended, on 1 April 2019, by section 72(2)(b) (and see section 72(3) for application) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Section 108(1C)(a)(ib): inserted, on 30 March 2022, by section 201 of the Taxation (Annual Rates for 2021–22, GST, and Remedial Matters) Act 2022 (2022 No 10).

Section 108(1C)(a)(ii): amended, on 1 April 2019, by section 72(2)(c)(i) (and see section 72(3) for application) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Section 108(1C)(a)(ii): amended, on 1 April 2019, by section 72(2)(c)(ii) (and see section 72(3) for application) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Section 108(1C)(a)(iii): inserted, on 1 April 2019, by section 72(2)(d) (and see section 72(3) for application) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Section 108(1C)(b): amended, on 1 April 2019, by section 72(2)(e) (and see section 72(3) for application) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Section 108(1D): inserted (with effect on 3 May 2016), on 30 March 2017, by section 335 of the Taxation (Annual Rates for 2016–17, Closely Held Companies, and Remedial Matters) Act 2017 (2017 No 14).

Section 108(1E): replaced (with effect on 1 April 2019), on 30 March 2021, by section 168 of the Taxation (Annual Rates for 2020–21, Feasibility Expenditure, and Remedial Matters) Act 2021 (2021 No 8).

Section 108(2): amended, on 24 October 2001 (applying to 2002–03 and subsequent income years), by section 236(1) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).

Section 108(2)(b): amended, on 1 April 2005 (effective for 2005–06 tax year and later tax years, except when the context requires otherwise), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 108(2)(b): amended, on 26 July 1996 (applying to 1997–98 and subsequent income years), by section 483(1) of the Taxation (Core Provisions) Act 1996 (1996 No 67).

Section 108(2B): inserted, on 29 August 2011, by section 175 of the Taxation (Tax Administration and Remedial Matters) Act 2011 (2011 No 63).

Section 108(3B): replaced, on 1 April 2008 (effective for 2008–09 income year and later income years, unless the context requires otherwise), by section ZA 2 of the Income Tax Act 2007 (2007 No 97).