The instrument builds on a small set of core concepts drawn from, and linked to, the Rules. Understanding these concepts is necessary to apply the prescribed alternatives.

• Relevant comparison period and turnover test period. These are terms defined in the Rules and imported into this instrument (s 5). The Rules determine whether the decline in turnover test uses a quarter or a calendar month as the relevant comparison period; the instrument’s alternatives reference those concepts and in many places treat calendar months differently (for s 8 and s 8A purposes). Because the instrument does not redefine them, an applicant must consult the Rules for the precise scope and meaning of these terms.

• Current GST turnover. The instrument repeatedly substitutes alternative figures for an entity’s “current GST turnover” for the relevant comparison period (see ss 7-14). The instrument states that “current GST turnover has the same meaning as in the Rules” (s 5). That means the underlying composition of current GST turnover is controlled by the Rules’ definition; this instrument changes which historical period’s current GST turnover is used for comparison.

• Commissioner’s satisfaction. The entire instrument applies only where “the Commissioner is satisfied that there is not an appropriate relevant comparison period” (s 3). That is a threshold administrative discretion. The instrument does not provide a statutory checklist for the Commissioner’s satisfaction beyond listing the classes of entities to which the alternative calculations apply (ss 7-14). The instrument therefore displaces the default comparison period test in the Rules only at the Commissioner's direction.

• Event‑driven alternatives. Each alternative test ties the replacement comparison turnover to a specific event or feature: business commencement (s 7), acquisition or disposal (s 8), restructure (s 9), a prior substantial increase (s 10), declared drought or natural disaster (s 11), irregular turnover (s 12), sole trader or small partnership sickness/leave (s 13), and temporary cessation of trading (s 14). The instrument prescribes arithmetic substitutions tied to those events (for example, using the three months immediately before 1 March 2020, or the month immediately before a restructure multiplied by three).

• Exclusions for ATO concessions. The instrument consistently permits exclusions of months covered by Bushfires 2019-20 lodgment and payment deferrals or Drought Help concessions from calculations, with the proviso that such exclusions cannot leave no months available (see, for example, ss 7(8), 8(5), 9(5), 12(5), 13(4), 14(4)). That mechanism recognises prior ATO concessions and prevents distortions from months where turnover would not be representative due to relief measures.

• Relationship to the Rules. The instrument is expressly applied “for the purposes of section 8, section 8A and section 8B of the Rules” (see multiple subsections, e.g. s 7(2)). It is not an independent eligibility framework; it supplies alternative inputs to the decline in turnover tests in those Rule provisions. The instrument is therefore dependent on, and subordinate to, the Rules.

• Temporal limits. Several provisions reference 1 March 2020 as a firm benchmark (for example s 7 uses “before 1 March 2020” when dealing with newly commenced businesses, and s 10 uses 1 March 2020 as an alternative reference point for substantial increase tests). The instrument is therefore anchored to the pre‑COVID baseline period chosen in the JobKeeper architecture.

Together, these concepts form a modular toolkit: an applicant first must identify which fact pattern (commencement, acquisition, restructure, etc.) applies, and then must apply the arithmetic substitution laid out for that pattern, making permitted exclusions for Bushfire/Drought concessions where appropriate. The Commissioner’s gatekeeping role remains the procedural hinge.

Primary affected parties

• Entities seeking to be qualifying employers for JobKeeper payments. The instrument explicitly applies to “entities seeking to be a qualifying employer for JobKeeper payments” and is limited to the classes of entities described in ss 7-14 (s 4). That includes individuals, bodies corporate, partnerships, trusts, superannuation funds and approved deposit funds as defined in s 5 (“Entity means an individual, a body corporate, a body politic, a partnership, any other unincorporated association or body of persons, a trust, a superannuation fund, and approved deposit fund”).

• Sole traders and small partnerships. The instrument contains specific relief for sole traders and small partnerships (s 13). “Small partnership” is defined by cross‑reference to subsection 995‑1(1) of the Income Tax Assessment Act 1997 (s 5). The sole trader/small partnership provision applies where a sole trader or at least one partner did not work for whole or part of the relevant comparison period due to sickness, injury or leave and turnover was affected (s 13(1)).

• Businesses recently commenced. Entities that commenced business after the first day of the relevant comparison period and before 1 March 2020 are a specified class (s 7). Within that class the instrument supplies two alternative tests (an average‑monthly extrapolation and a 3‑month immediate pre‑1 March 2020 total).

• Entities that underwent acquisition, disposal or restructure. Entities that experienced an acquisition or disposal of part of the business, or a business restructure, between the start of the relevant comparison period and the applicable turnover test period, and where that event changed current GST turnover, are directly affected (ss 8-9).

• Entities with irregular turnover or substantial prior increases. Entities whose turnover was irregular in the 12 months before the applicable test period (s 12) or that had a substantial increase in turnover in the months before the applicable turnover test period or before 1 March 2020 (s 10) are within scope.

• Businesses affected by drought or declared natural disaster. Entities operating in declared drought or declared natural disaster zones during the relevant comparison period and whose turnover changed as a result may substitute prior year turnover for the comparison period (s 11).

Indirectly affected parties

• Employees of qualifying employers. The instrument’s effect on which employers qualify for JobKeeper will influence which employees can be supported by JobKeeper payments; the instrument therefore indirectly affects employees’ eligibility for that employer’s wage‑subsidy claims.

• Accountants, tax agents and payroll providers. These advisers must apply the alternative tests, make the arithmetic adjustments, and document the factual bases for the alternative approach; the instrument therefore creates advisory and compliance work for professional firms.

• The Commissioner/Australian Taxation Office. The Commissioner is the decision‑maker as to whether an entity lacks an appropriate relevant comparison period and therefore when the instrument can be applied (s 3). The ATO will therefore receive applications, review documentary evidence, and apply the alternative calculations administratively.

Who pays and who decides

• Who pays: The instrument does not reallocate funds. It determines how an entity calculates turnover for the decline in turnover tests; JobKeeper payments are still administered through the JobKeeper Rules and the Australian Government’s payment mechanisms. Entities that qualify may receive JobKeeper funds; the instrument therefore affects the flow of public funds indirectly through its effect on qualification.

• Who decides: The Commissioner controls whether the instrument applies by being satisfied that there is not an appropriate relevant comparison period (s 3). The Rules’ decision framework then applies to the decline in turnover tests using whichever alternative figures are supplied under ss 7-14.

Scope limits and timing

• The instrument is limited to JobKeeper fortnights starting on, or after, 28 September 2020 for the actual decline test (s 3). The Application note clarifies that if an entity already satisfied section 8 for fortnights before 28 September 2020, they need not re‑apply that test for fortnights starting on or after that date, and would only need this instrument for section 8B (s 3, note). The instrument therefore mainly targets entities seeking to qualify for JobKeeper for fortnights starting on or after late September 2020 where baseline comparison periods are not representative.

Geographic and sectoral scope

• The instrument is not restricted by industry, location (except where drought/natural disaster declarations apply) or size except where small partnership/single‑owner specific provisions operate. As the definitions include a broad definition of “Entity”, both large and small taxpayers may rely on the alternatives, subject to meeting the factual predicates and the Commissioner’s satisfaction.

This instrument does not create novel criminal offences or civil penalties. Instead, it creates duties and procedural rights relating to how an entity calculates a relevant comparison period’s current GST turnover for the decline in turnover tests in the Rules. The primary operative duties and rights are administrative and evidentiary.

Duty to apply correct alternative calculation when appropriate

• Duty to identify applicability. An entity desiring JobKeeper qualification must first determine whether there is “not an appropriate relevant comparison period” for the purposes of the Rules’ tests and whether it falls within one of the classes set out in ss 7-14 (s 3). If the entity meets the factual condition and the Commissioner is satisfied, the entity must apply the alternative test specified in the relevant section (for example, the average monthly extrapolation in s 7(2) or the 3 months’ current GST turnover in s 10(2)).

• Duty to use the substitute turnover figure. Where an alternative test applies, the entity is required to use the substitute figure instead of its current GST turnover for the relevant comparison period “for the purposes of section 8, section 8A and section 8B of the Rules” (repeated across ss 7-14). That is, the substitute figure replaces the usual comparator in the decline in turnover tests.

Duty to account for ATO concessions and exclusions

• Where the entity “qualified for the ATO’s Bushfires 2019-20 lodgment and payment deferrals” or “received Drought Help concessions”, the instrument permits the entity to exclude months covered by those concessions from certain calculations unless they are the only months available (see, for example, s 7(8), s 12(5), s 14(4)). The entity therefore has a duty to consider whether such concessions apply and to apply the relevant exclusion rules if appropriate.

Right to use an alternative method when factual predicates are met

• The instrument grants an evidentiary right: where the factual predicates are satisfied and the Commissioner is satisfied an appropriate comparison period is absent, the entity may rely on the specific alternative test laid out. For instance, a sole trader who stopped working through sickness during the relevant comparison period and whose turnover was affected may use the month immediately before the sickness month multiplied by three, instead of the comparison period turnover (s 13(2)). These are statutory rights to alternative inputs to the decline in turnover tests.

Right to have Commissioner make a legislative instrument about timing of supplies

• The Definitions note in s 5 states that, for the actual decline in turnover test in section 8B of the Rules, the Commissioner may make a legislative instrument treating supplies as if made at different times than actually made, and such determinations apply to calculations of current GST turnover for a relevant comparison period in this instrument. That provides a procedural right for entities affected by timing of supplies , the Commissioner may make broader adjustments affecting current GST turnover calculations by separate legislative instrument.

Obligations implied by the Commissioner’s discretionary role

• The Commissioner’s gatekeeping role introduces a procedural obligation on entities to prepare and provide the factual record that will satisfy the Commissioner that there is not an appropriate relevant comparison period and that a particular alternative is the correct one. While the instrument does not spell out documentary requirements, the Commissioner’s administrative role implies that entities will need to submit credible turnover records, event timelines (business commencement, acquisition, restructure, sickness or cessation dates, relevant declarations for drought/natural disaster), and evidence of any ATO concessions relied upon.

No specific appeal or review mechanism in the instrument

• The instrument does not itself provide an internal appeal right against the Commissioner’s decision to permit or refuse application of an alternative test. Any review of the Commissioner’s exercise of administrative power would therefore follow whatever avenues are available under the Rules, taxation law, or general administrative law, rather than by a provision within this instrument. The instrument is silent on appeal or review pathways.

Record‑keeping and calculation duties

• Entities must compute averages, 3‑month totals, and identify “whole months” for averaging purposes according to the formulas in ss 7-14 (for example, s 7(3) and s 12(3)). The formulas impose a duty to calculate carefully and to document the arithmetic steps , the instrument sets precise computational methods that must be followed where an alternative applies.

Delegated rights and duties through cross‑referencing

• Because “current GST turnover” and “relevant comparison period” retain their meanings from the Rules (s 5), duties and rights attached to those definitions in the Rules will continue to apply. Entities must therefore ensure they are compliant with the Rules’ general obligations on reporting and substantiation in addition to applying the alternative arithmetic provided here.

In sum, the instrument creates rights to alternative comparison figures when specified factual predicates are met and when the Commissioner accepts that a standard comparison period is inappropriate. It imposes duties to apply the prescribed arithmetic and to take account of prior ATO concessions. It leaves the procedural design for gaining the Commissioner’s satisfaction to wider administrative practice rather than prescribing it in the instrument.

This instrument itself does not prescribe criminal offences, civil penalties, or specific enforcement procedures. Its enforcement is administrative and integrated with the broader JobKeeper Rules and the ATO’s compliance framework.

Administrative enforcement via the Commissioner

• Gatekeeping role. The instrument applies only where “the Commissioner is satisfied that there is not an appropriate relevant comparison period” (s 3). The Commissioner therefore controls whether the alternative calculations can be relied upon. Enforcement in practice will largely take the form of the Commissioner accepting or rejecting an entity’s claim to use a particular alternative test; the instrument provides the mathematical substitute but not the administrative standard or the documentary process for satisfying the Commissioner.

• Application to JobKeeper tests. The alternative figures are expressly for “the purposes of section 8, section 8A and section 8B of the Rules” (repeated references in ss 7-14). Any enforcement action in relation to JobKeeper eligibility, including recovery of amounts, incorrect claims, or penalties, would normally be taken under the Rules and under taxation or social security administrative powers governing JobKeeper payments, rather than under this instrument per se.

Potential compliance and audit risk

• Documentation risk. Because the instrument permits substitution of turnover figures based on specific events or short periods (for example, using a single month multiplied by three after an acquisition or restructure, ss 8-9), entities that adopt these alternatives will increase the focus on documentary substantiation. The instrument’s silence on documentary standards means the ATO can apply its usual audit powers under taxation law to test whether the factual predicates were genuinely met and whether turnover has been correctly computed.

• Recovery of overpayments. The instrument supplies an input into the Rules’ eligibility tests. If the substitute figure is later found to have been incorrectly determined or claimed, recovery of JobKeeper payments and associated administrative penalties would be enforced under the Rules and existing taxation recovery mechanisms. The instrument does not itself create new recovery powers, but it does create points where incorrect application (or misrepresentation) of the alternatives could lead to downstream enforcement.

No express new penalty regime

• The instrument does not create a new penalty schedule or criminal offences, nor does it specify civil penalty amounts for false statements in applications to use an alternative test. Any sanctions for incorrect claims must be sought under the JobKeeper Rules, general taxation law or general administrative law powers.

Interaction with other instruments and ATO determinations

• The Definitions note that the Commissioner may make separate legislative instruments treating supplies as made at different times for the purposes of the actual decline in turnover test in section 8B of the Rules, and that such instruments apply to calculation of current GST turnover for a relevant comparison period in this instrument (s 5, note). That means enforcement and compliance might also involve application of those separate Commissioner determinations that change the timing of supplies and therefore the numerical basis of current GST turnover.

Practical enforcement implications

• Entities should prepare to support applications with contemporaneous records, be aware that the Commissioner has discretion to accept or reject the use of an alternative, and recognise that incorrect application could result in recovery and standard administrative penalties under the Rules and tax law. The instrument is an enabling calculation tool; enforcement will operate through the Commissioner’s administrative control and the broader compliance framework rather than through new ex post sanctioning measures set out in the instrument itself.

The instrument operates as an adjunct to, and relies upon, other statutory instruments and statutory definitions. It is not freestanding; effective application requires reading it alongside the Rules and, in places, other legislation and ATO concessions.

Primary linkage: the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020

• Direct cross‑references. The instrument repeatedly states that the substitute turnover figures are to be used “for the purposes of section 8, section 8A and section 8B of the Rules” (for example, ss 7(2), 8(2), 9(2), 10(2), 12(2), 13(2), 14(2)). It imports defined terms from section 4 of the Rules (s 5). The Rules therefore supply the substantive JobKeeper eligibility tests (which the instrument modifies only by changing the comparator inputs) and the definitions that underpin terms such as “current GST turnover”, “relevant comparison period” and “turnover test period”.

• Timing and fortnights. The instrument’s application is tied to JobKeeper fortnights starting on or after 28 September 2020 (s 3). That temporal framing is a feature of the Rules and JobKeeper scheduling; this instrument cannot be read or applied in isolation from the Rules’ timing structure.

Tax law and definitions

• Income Tax Assessment Act 1997. The instrument defines “small partnership” by reference to subsection 995‑1(1) of the Income Tax Assessment Act 1997 (s 5). That cross‑reference brings into play the tax law’s definitions and any interpretative guidance from that Act when assessing small partnership status for s 13.

• GST concepts. “Current GST turnover” has the meaning given in the Rules (s 5). The Rules’ definition of current GST turnover will reflect GST law concepts and may rely on the GST Act’s definitions of supplies and the timing of supplies; the instrument notes that the Commissioner may alter the treatment of the timing of supplies for the purpose of calculating current GST turnover (s 5, note). Therefore, GST statutory rules and any judicial or ATO administrative interpretation of “current GST turnover” and timing of supplies are relevant.

ATO concessions and Disaster Recovery arrangements

• Bushfires 2019-20 lodgment and payment deferrals and Drought Help concessions. Multiple provisions permit exclusion of months covered by these ATO concessions from alternative calculations (for example, ss 7(8), 12(5), 14(4)). Those concessions are external administrative arrangements and may themselves arise from separate legislation or executive arrangements, such as the Disaster Recovery Funding Arrangements 2018 (referenced in s 5 as Drought Help concessions). Entities relying on these exclusions must ensure the periods they exclude correspond to the scope of the ATO concessions and related instruments.

Administrative law

• Commissioner discretion and administrative review. The Commissioner’s satisfaction that there is not an appropriate relevant comparison period (s 3) is an administrative decision. While the instrument does not set out administrative procedural rights or appeals, the exercise of that discretion will be amenable to normal administrative law principles: procedural fairness, reasonableness and judicial review, where applicable. That means entities may have recourse to review mechanisms external to the instrument if dissatisfied with a Commissioner decision, subject to the broader law.

Interaction with other JobKeeper determinations or instruments

• Legislative instruments by the Commissioner. The Definitions note indicates the Commissioner may make legislative instruments treating supplies as if they were made at different times for s 8B purposes, and those determinations apply to calculations under this instrument (s 5, note). Those Commissioner instruments interact with these rules by potentially changing which supplies fall into which comparison period, affecting the arithmetic in ss 7-14.

Operational interplay

• The instrument is computational in character: it does not alter tax liabilities, GST entitlement, or primary tax law; it alters the comparison metric used in the Rules’ JobKeeper decline in turnover tests. Entities must therefore perform calculations both under GST and under JobKeeper rules, ensuring that numbers used are consistent with GST/turnover definitions and any ATO determinations.

In sum, the instrument is tightly integrated with the JobKeeper Rules, GST concepts, selected tax definitions in the Income Tax Assessment Act and the ATO’s prior concessions. It delegates the decision to apply it to the Commissioner and explicitly allows other Commissioner instruments to bear on its calculations. Entities must coordinate application of this instrument with the Rules, relevant tax law definitions, and any ATO administrative concessions they rely on.

The instrument itself includes compiled endnotes that record its registration, commencement and subsequent amendment. The endnotes provide an authoritative log of the instrument’s legislative history as compiled in this version.

• Registration and commencement. Endnote 3 records that the Coronavirus Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules (No. 2) 2020 was registered on 23 September 2020 (F2020L01200) and commenced on 24 September 2020 pursuant to s 2. The instrument indicates at s 2 that commencement is on the day after registration on the Federal Register of Legislation; the compilation’s endnote corroborates the specific dates.

• Amending instrument. Endnote 3 also records a subsequent instrument titled Coronavirus Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Amendment Rules 2020, registered on 9 October 2020 (F2020L01295) and commencing on 10 October 2020. The endnote cites Sch 1 (item 2) as containing application, saving and transitional provisions related to that amendment.

• Provision‑level notation. Endnote 4 contains a table headed “Amendment history”. That table lists “s 2..........................................s 6……………………………..s 14........................................” in the “Provision affected” column, and “rep LA s48Drep LA s48Cad F2020L01295” in the “How affected” column. The compilation’s note therefore records that certain sections (including s 2 through s 14) were affected by the amending instrument, with abbreviations indicating repeal/replace or modification as recorded in the register. The precise meaning of the abbreviated entry is a transcription from the compilation infrastructure, and the endnote is the source record for how the instrument was altered in that amending instrument.

• Endnotes describing compilation practice. The instrument’s endnotes 1 and 2 explain compilation conventions used in the document. Endnote 1 explains the purpose of endnotes generally; Endnote 2 supplies an abbreviation key that decodes the shorthand used in the amendment history (for example, “rep” = repealed, “am” = amended). Users of the instrument should consult that key when reading the amendment history to understand whether provisions were amended, repealed, renumbered, or affected otherwise.

Practical reading of the amendment history

• The compiled law records that an amendment instrument was made shortly after registration and commencement. Practitioners should consult the Federal Register of Legislation entries F2020L01200 (the original determination) and F2020L01295 (the amendment instrument) to inspect the precise textual changes and any transitional provisions in Sch 1. Endnote 3’s table entry is the compilation summary; the full amending instrument will contain clause‑level changes and possibly saving or transitional provisions that affect how the instrument operated between the two registration dates.

• Because the endnotes are part of the compiled document, they are authoritative for the purposes of identifying when the law came into force and whether it was subsequently amended. To establish the precise operative text at any date, practitioners should consult the Federal Register of Legislation entries and any schedules to the amending instruments.

In short, the instrument was registered and commenced in late September 2020 and was the subject of an amending instrument registered in early October 2020. The compilation’s endnotes record those events and identify which sections were affected. For precise changes, the original and amending Federal Register entries should be inspected.

The instrument’s text contains no references to case law and the compilation does not record any judicial decisions interpreting it. The endnotes and body of the instrument include no litigation metadata.

What the source records

• No cases named. The instrument and its endnotes do not list any court decisions, reviews or precedents that have interpreted or applied its provisions.

• Administrative operation likely precedes litigation. The instrument primarily alters administrative calculation rules for the decline in turnover tests. Historically, such instruments are first applied administratively by the Commissioner and the ATO. Any litigation arising would likely involve review of an administrative decision by the Commissioner to accept or reject an entity’s claim to use an alternative test, or judicial review of the legal correctness of the instrument’s application in a particular factual context. The instrument itself does not identify, anticipate or reference any such litigation.

What to monitor

• ATO guidance and practice. Because no litigation is recorded in the instrument, practitioners should look to ATO public guidance, internal administrative practice statements, or binding rulings (if any) for authoritative operational interpretation. The instrument’s operation depends significantly on the Commissioner’s satisfaction and any Commissioner legislative instruments about the timing of supplies. ATO procedural guidance will therefore be an important post‑instrument interpretative source.

• Potential for judicial review. The Commissioner’s satisfaction as the gating condition (s 3) is an administrative decision. If an entity is refused permission to use an instrument alternative, the entity may have recourse to judicial review channels, where issues such as the legality or reasonableness of the Commissioner’s decision would be judicial questions. The instrument contains no provisions limiting review; standard administrative law principles apply.

No recorded litigation in this compilation

• The compilation does not contain a litigation history section that reports cases. Practitioners seeking cases that interpret either the Rules’ decline in turnover provisions or this instrument should search court databases and ATO publicly available decisions for subsequent developments beyond the compiled text.

In short, the instrument as compiled does not contain any litigation history. Practitioners should monitor ATO guidance and administrative practice for clarifications, and consider that judicial review remains a possible avenue if disputes about Commissioner decisions arise.

The instrument contains several mechanical and practical traps for the uninitiated. Below are specific areas where errors, misreadings or compliance failures are likely if a practitioner or taxpayer is not careful.

1. Commissioner’s satisfaction is a gating condition (s 3). The instrument applies only where “the Commissioner is satisfied that there is not an appropriate relevant comparison period”. The instrument does not prescribe how the Commissioner is to be satisfied or what evidence is required. Entities should not assume an automatic entitlement to apply an alternative simply because one of the factual states in ss 7-14 broadly describes their situation; the entity must persuade the Commissioner. Prepare documentary evidence, timelines and calculations for the Commissioner’s review.

2. The instrument only supplies replacement inputs; it does not change JobKeeper thresholds. The arithmetic alternatives replace the “current GST turnover” for a relevant comparison period in the decline in turnover tests (ss 7-14), but the substantive tests and thresholds remain in the Rules (ss 8, 8A, 8B of the Rules). Using an alternative figure does not automatically produce eligibility; it simply changes the comparator used to measure decline.

3. Calendar month exceptions and distinctions. Many provisions treat calendar months differently: when the relevant comparison period is a calendar month, the instrument often instructs using average monthly figures or dividing a 3‑month total by 3 for use in section 8 and 8A only (see, for example, ss 7(7), 8(4), 9(4), 10(4), 12(4), 13(3), 14(3)). Entities must identify whether the Rules treat their comparison period as a calendar month or as a quarter before applying the arithmetic.

4. “Whole month” language. Several averaging formulas require summing “whole months” (for example s 7(3)(a), s 12(3)). Where business commencement, acquisition, restructure or temporary cessation occurs mid‑month, practitioners must be careful to count months correctly. The instrument also provides fall‑back rules where there is no whole month after an acquisition/restructure: use the month immediately before the applicable turnover test period (see ss 8(3), 9(3)).

5. Use of “month immediately after” vs “immediately before”. For acquisitions/disposals and restructures the primary instruction is to use the month immediately after the event (ss 8(2), 9(2)), multiplied by three. If there is “no whole month after the acquisition or disposal and before the applicable turnover test period” then use the month immediately before the applicable turnover test period (s 8(3)). These conditional rules create timing sensitivities where transactions occurred close to the test period.

6. Exclusion of Bushfires/Drought months has a caveat. Multiple provisions permit exclusion of months covered by Bushfires 2019-20 lodgment and payment deferrals and Drought Help concessions, “unless those are the only months since the entity commenced the business” (see s 7(8)). That caveat can trap businesses that commenced during the concession period and have no other months available; the exclusion cannot be used to leave no months for calculation.

7. Relevance of the Commissioner’s legislative instrument on timing of supplies. The Definitions note in s 5 says the Commissioner may make an instrument treating supplies in a class as having been made at different times and that such a determination applies to current GST turnover calculations here. That means the timing of supplies can be administratively reallocated, altering the arithmetic inputs. Entities should check whether such Commissioner instruments exist and whether they apply to the supplies at issue.

8. Multiple potential alternatives; selection matters. The instrument offers alternative tests in multiple sections that may, in some factual situations, both appear to apply (for example, a business that commenced shortly before 1 March 2020 and also had irregular turnover). The instrument does not prescribe a rule for conflicts between alternative tests. Entities should identify the single alternative that best fits the prescribed factual predicates and be able to justify that selection to the Commissioner.

9. Temporal anchors: 1 March 2020 and the applicable turnover test period. Several provisions reference 1 March 2020 explicitly (for instance s 7’s second alternative uses the 3 months immediately before 1 March 2020; s 10 permits reference to 1 March 2020 for substantial increase tests). Misidentifying whether the applicable benchmark is 1 March 2020 or the applicable turnover test period will produce incorrect calculations.

10. Sole trader/small partnership specificities. s 13 applies only where the entity is a sole trader or small partnership “that has no employees” and where the sole trader or at least one partner did not work for all or part of the relevant comparison period due to sickness, injury or leave (s 13(1)). That narrowly focused eligibility means that a small business with employees cannot rely on s 13 even if an owner was sick.

11. Temporary cessation requires resumption before 28 September 2020. s 14(1)(d) requires that trading resumed before 28 September 2020 for the temporary cessation alternatives to be available. Entities that resumed trading after that date cannot rely on these alternatives.

12. No express procedural form in the instrument. Because the instrument does not provide an application form, statutory declaration template or specified supporting documents, entities must rely on ATO published guidance or administrative practice for procedural steps. Do not assume an automatic, formulaic administrative pathway; be proactive in seeking ATO guidance.

13. Amendment history. The endnotes show the instrument was amended shortly after registration (Endnote 3 records a registered amending instrument on 9 October 2020). Practitioners must ensure they use the correct consolidated text relevant to the date of the jobkeeper fortnight being considered.

14. Interaction with the Rules’ decline in turnover tests. The substitute figures produced by this instrument are only inputs. Practitioners must still run the Rules’ tests in full; that includes checking whether the decline meets the required percentage thresholds in sections 8/8A/8B of the Rules.

Account for these specific mechanical and timing traps when advising clients and preparing applications. Document choices, timing and the exclusion or inclusion of months carefully, and be prepared for ATO queries on the chosen alternative.

This instrument prescribes precise arithmetic substitutions and factual predicates. Compliance therefore requires careful identification of which alternative applies, accurate arithmetic, documentation, and engagement with the Commissioner or the ATO as necessary. Below is a practical step‑by‑step compliance checklist grounded in the instrument.

1. Confirm need to use the instrument (s 3)

   • Determine whether there is an “appropriate relevant comparison period” under the Rules for the JobKeeper fortnight(s) in question. The instrument is available only if the Commissioner is satisfied that no appropriate comparison period exists. If a standard comparison period exists and is suitable, do not use the instrument.
   • If in doubt, prepare an explanatory note setting out why the standard relevant comparison period is inappropriate and why one of the instrument’s factual classes applies.

2. Identify the applicable factual class (ss 7-14)

   • Match facts to one of the specific sections: business commenced (s 7), acquisition/disposal (s 8), restructure (s 9), substantial increase in turnover (s 10), drought/natural disaster (s 11), irregular turnover (s 12), sole trader/small partnership with sickness/leave (s 13), or temporary cessation of trading (s 14).
   • Do not assume overlap. If multiple facts exist, prepare legal analysis as to which single alternative is the correct fit and why. The instrument does not provide tie‑breaker rules.

3. Gather documentary evidence

   • Collect contemporaneous records: GST turnover records, BAS statements, bank statements, sales ledgers and invoices for the months/quarters concerned.
   • For events: obtain dates and supporting documents for business commencement, acquisition or disposal contracts/completion dates, restructure documents, medical certificates or statutory declarations for sickness/leave, ATO concession letters for Bushfires or Drought Help, and evidence of declared drought or natural disaster zone status.
   • For temporary cessation: evidence of cessation date, duration (at least a week), and resumption date (note resumption must be before 28 September 2020 per s 14(1)(d)).
   • For small partnership status, obtain documentation demonstrating the partnership meets the definition in ITAA 1997 s 995‑1(1).

4. Perform the arithmetic prescribed in the applicable section

   • Follow the exact formulas in the relevant subsection. For example:
     • s 7(2) (first alternative): compute the average monthly current GST turnover for whole months after commencement and before 1 March 2020 (s 7(3)(a)), multiply by three, and use that for the relevant quarter.
     • s 8(2): if acquisition/disposal changed turnover, multiply the current GST turnover for the month immediately after the event by three (or, where there is no whole month after, use the month immediately before the applicable turnover test period per s 8(3)).
     • s 12(2): where irregular turnover applies, compute average monthly current GST turnover over the prior 12 months and multiply by three.
   • Pay careful attention to calendar month exceptions: where the relevant comparison period is a calendar month and the Rules require month‑by‑month comparison (s 8 and s 8A applications), use the modified instructions set out (for example s 7(7), s 8(4), s 12(4)).

5. Apply permitted exclusions for Bushfires and Drought Help (where relevant)

   • If the entity “qualified for the ATO’s Bushfires 2019-20 lodgment and payment deferrals” or “received Drought Help concessions”, follow the specific exclusion rules in the section (for example s 7(8)). Exclude the months covered by the concession unless those are the only months available.
   • Keep the ATO concession documentation and justify selection of nearest months before or after the concession period as required by relevant subsections.

6. Prepare a clear explanatory submission to the Commissioner / ATO

   • Because the instrument requires the Commissioner’s satisfaction that no appropriate relevant comparison period exists (s 3), submit a short, evidence‑based statement: (a) identify the operative JobKeeper fortnight(s) and the applicable turnover test period; (b) explain why the standard comparison period is inappropriate; (c) identify which subsection of ss 7-14 applies and why; (d) attach the calculations, supporting invoices/statements, event documentation and any ATO concession letters; (e) state whether any Commissioner legislative instruments on timing of supplies are in issue and how you have accounted for them.
   • Keep the submission focused, citing the specific provision you rely on and the precise arithmetic you have performed.

7. Retain working papers and calculations

   • Keep detailed spreadsheets and working papers that show the step‑by‑step computations, with citations to the instrument’s paragraphs (for example, s 8(2) calculation) and references to the underlying GST turnover records.
   • Save copies of any communications with the ATO or Commissioner, and copies of any ATO concessions relied upon (Bushfires/Drought concession letters).

8. Be ready for audit and recovery

   • Recognise that the ATO may request additional substantiation and that an incorrect reliance on an alternative test could lead to recovery of JobKeeper payments under the Rules and taxation law. Ensure documentation supports the facts asserted and the arithmetic used.

9. Check consolidated text and possible amendments

   • The compiled instrument was amended shortly after initial registration (Endnote 3 shows an amendment registered 9 October 2020). Ensure you are working from the consolidated, current version of the instrument as published on the Federal Register of Legislation for the relevant date.

10. Seek professional advice where facts are mixed or borderline

• Where multiple sections may plausibly apply, or where the Commissioner’s satisfaction is likely to be contested, obtain tax/legal advice. The instrument’s thresholds (for instance, percentage increases in s 10) require precise measurement; professional advice will help ensure correct selection and computation.

11. Coordinate with payroll and accounting systems

• Because the ultimate effect is on JobKeeper eligibility and associated payment flows, co‑ordinate with payroll and systems providers to ensure any claimed JobKeeper entitlements are flowed correctly to employees and recorded appropriately in financial statements.

12. Monitor ATO guidance

• The ATO’s administrative guidance and any Commissioner legislative instruments about timing of supplies affect calculations and compliance approach. Monitor the ATO’s website and bulletins for practice directions.

Applying the instrument correctly requires matching facts to the right subsection, precise arithmetic, documentation of concessions and events, and a contemporaneous submission to the Commissioner where required. The instrument supplies clear computational rules, but it is the interaction with the Commissioner’s administrative process and the Rules that determines successful compliance.