Anson and Diede (Child support)

[2021] AATA 1260

Anson and Diede (Child support) [2021] AATA 1260 (12 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/BC020483 & 2020/BC020475

APPLICANT:  Mr Anson

OTHER PARTIES:  Child Support Registrar

Miss Diede

TRIBUNAL:Member S Brakespeare

DECISION DATE:  12 March 2021

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the adjusted taxable income declared by the liable parent was accurate – provisional adjusted taxable income determined – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Anson and Miss Diede are the parents of two children who are aged 17 and 13 respectively.  The child support case has been registered with the Child Support Agency  since 25 June 2007.

2. On 5 August 2020 an officer of the Child Support Agency decided to apply a provisional adjusted taxable income for Miss Diede of $67,126 to the administrative assessment for the child support period 1 December 2019 to 28 February 2021.

3. Mr Anson objected to the decision.

4. On 9 August 2020 an officer of the Child Support Agency decided to apply a provisional adjusted taxable income for Miss Diede of $51,151 to the administrative assessment for the child support period 1 September 2020 to 8 October 2021.

5. Mr Anson objected to the decision.

6. On 20 November 2020 an objections officer disallowed both objections. Mr Anson lodged an application for review of the objection decisions with the tribunal. A hearing was held on 12 March 2021. Mr Anson gave evidence on affirmation to the tribunal via conference telephone. The tribunal was unable to contact Miss Diede at the time set down for the hearing. The hearing proceeded in her absence. The Child Support Agency provided the tribunal and the parties with papers relevant to the reviews (264 pages).

7. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is whether it was appropriate to use a provisional income in the administrative assessment.

CONSIDERATION

1. Section 58 of the Act allows the Child Support Agency to determine a person’s adjusted taxable income for a child support period (a provisional adjusted taxable income) where either the person’s taxable income for the last relevant year of income has not been assessed under the Income Tax Assessment Act 1997 or the Child Support Agency is unable to ascertain whether or not the person’s taxable income for that year has been so assessed.  Section 5 of the Act provides that the last relevant year of income in relation to a child support period means the last year of income that ended before the start of the period.

2. The last relevant year of income for the child support period commencing 1 December 2019 is the 2018/19 income year. The last relevant year of income for a child support period commencing 1 September 2020 is the 2019/20 income year.

3. The tribunal finds that as at 5 August 2020 Miss Diede had not lodged her 2018/19 income tax return. Therefore it was open to the Child Support Agency to use a provisional adjusted taxable income in accordance with section 58 of the Act in respect for the child support period commencing 1 December 2019.

4. The tribunal finds that as at 9 August 2020 Miss Diede had not lodged her 2019/20 income tax return. Therefore it was open to the Child Support Agency to use a provisional adjusted taxable income in accordance with section 58 of the Act in respect for the child support period commencing 1 September 2020.

5. Mr Anson told the tribunal that he understood the methods used by the Child Support Agency to determine Miss Diede’s adjusted taxable income. However in his view the Child Support Agency should force Miss Diede to lodge her income tax returns in a timely manner.

6. The tribunal notes that the Child Support Agency does not have the power to force Miss Diede to lodge her income tax returns.

7. Subsections 58(2), 58(3) and 58(4) provide a number of methods for determining a person’s provisional adjusted taxable income. The Child Support Agency may rely upon information or a document which specifies the person’s adjusted taxable income for the last relevant year of income or that allows an amount to be worked out.  Alternatively the Child Support Agency may apply an indexation factor to a person’s adjusted taxable income from a previous year. Alternatively the Child Support Agency may use the amount that is equal to two thirds of the annualised MTAWE (Male Total Average Weekly Earnings) figure for the relevant June quarter in relation to the child support period.

8. The tribunal finds that Miss Diede provided the Child Support Agency with information on 5 August 2020 stating that she had earned a gross income of $67,126 from employment with [Employer] for the 2018/19 income year. The tribunal therefore finds that Miss Diede’s provisional adjusted taxable income is $67,126 for the child support period commencing 1 December 2019.

9. A new child support period commenced on 1 September 2020 in accordance with section 34A of the Act as a new adjusted taxable income became available for Mr Anson on 9 August 2020.  As Miss Diede’s adjusted taxable income for 2019/20 had not been assessed, a provisional adjusted taxable income needed to be determined under section 58 of the Act. An amount of $51,151, being the relevant 2/3 MTAWE figure, becomes Miss Diede’s provisional adjusted taxable income from 1 September 2020 in accordance with subsection 58(4) of the Act.

10. Section 58A of the Act applies if the Child Support Agency subsequently ascertains components of a person’s adjusted taxable income and the amount is different than the amount determined under section 58. The tribunal notes there have been subsequent decisions, made on 12 October 2020 and 9 December 2020 to take account of Miss Diede’s actual adjusted taxable incomes for 2018/19 and 2019/20. Those decisions are not before the tribunal.

11. Mr Anson told the tribunal that Miss Diede’s adjusted taxable income is likely to be incorrect as she receives an extra $10,000 per year in non-taxable payments. It is not open to the tribunal, in reviewing the current decisions, to alter the adjusted taxable income as assessed.

DECISION

The decisions under review are affirmed.