EMH IV v Commissioner of Taxation: lodgment concession did not delay the start of GIC

On 28 August 2026 the Full Federal Court dismissed the taxpayer's appeal in EMH IV Pty Ltd as trustee for the EMH IV Family Trust v Commissioner of Taxation [2026] FCAFC 112, a challenge to a refusal to remit general interest charge (GIC). The Court held that a concession in the Tax Agent Lodgment Program 2015-16 waived the failure to lodge penalty but did not move the trustee's lodgment due date. GIC therefore ran from June 2016.

What happened

The taxpayer, the trustee of a family trust, lodged its 2015 income tax return on or about 7 June 2016, showing nil tax to pay.

The Tax Agent Lodgment Program 2015-16 listed 15 May 2016 as the "lodgment end date" for remaining trusts "not eligible for the 5 June concession". That concession let some returns be lodged by 5 June 2016 without penalty if any payment required was also made. With weekends and a public holiday, the working dates were 16 May and 7 June 2016.

After an audit, the Commissioner assessed about $9 million of income tax for 2015 on 20 May 2020, and said the tax was payable by 7 June 2016, 21 days after the return was due. The trustee said the return was due on 7 June 2016 and lodged on time, so the tax fell due 21 days after the notice of assessment, on 10 June 2020.

In October 2024 the Deputy Commissioner remitted $4,478,456.85 of GIC but refused full remission for 7 June 2016 to 10 June 2020. On 17 December 2024 a delegate refused remission under the Taxation Administration Act 1953 (TAA), s 8AAG, saying the return was due by 15 May 2016 and no deferral had been sought or granted.

The primary judge dismissed the trustee's judicial review application, finding the concession only remitted the failure to lodge penalty, did not extend the lodgment date, and did not cover the trustee anyway.

What the court decided

The Full Court dismissed the appeal with costs (at [93]). It held:

• The return was due on 16 May 2016. The primary judge's reading of the program was correct (at [73]). "Lodgment end date" meant the date a return must be lodged, and the program said 5 June 2016 was not one (at [74]).
• The concession dealt only with the penalty. A taxpayer who missed 16 May but lodged and paid by 7 June was relieved of the failure to lodge penalty. The concession "was not intended to alter the date from which GIC runs" under the Income Tax Assessment Act 1997 (ITAA 1997), s 5-5 (at [75]).
• The trustee did not qualify anyway. Its liability of about $9 million was not paid by 7 June 2016, so it met neither the "actually non-taxable" test nor the payment test (at [86]). The concession looks to actual liability under the tax law, not the amount shown in a nil return (at [87]).
• The other grounds failed. There was no denial of procedural fairness (at [81]), and the primary judge had not gone beyond judicial review (at [90]).

The Court noted, without deciding, a question neither party raised: whether judicial review of a remission decision is the right vehicle to challenge how GIC was imposed or calculated (at [94]).

Why it matters

• A penalty concession is not an extension of time. Under the 2015-16 program, lodging inside the concession window avoided the failure to lodge penalty, but the return was still late. The decision turns on that program's wording, so check the relevant year's program.
• A late return can backdate the tax due date by years. For a taxpayer that is not a self-assessment entity, tax on a later original assessment is due 21 days after the notice if the return was lodged on time. If it was late, the tax is treated as due 21 days after the return was due. Here that meant GIC from June 2016, not June 2020.
• A nil return does not make a taxpayer non-taxable. The concession was tested against actual liability, not the figure in the return.
• Know what you are challenging. This case was about when GIC started, not whether the s 8AAG discretion should have been exercised. Whether judicial review is the right route for that argument remains open. See how to request remission and what to do if remission is refused.

Read the decision

EMH IV Pty Ltd as trustee for the EMH IV Family Trust v Commissioner of Taxation [2026] FCAFC 112

Next step

If the ATO has refused to remit GIC, or you think interest has been charged from the wrong date, send us the remission decision and the notices of assessment. In a first call we'll tell you which decision can be challenged, where, and how long you have.