Auckram and Commissioner of Taxation (Taxation) - [2022] AATA 1583

Auckram and Commissioner of Taxation (Taxation) [2022] AATA 1583 (8 June 2022)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2021/5936
Re:Brian Auckram
APPLICANT

AndCommissioner of Taxation
RESPONDENT

DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:8 June 2022
Place:Sydney

The Tribunal refuses the Applicant’s request for the issue of six summonses.
.................................[SGD].......................................
Senior Member Dr Linda Kirk
CATCHWORDS
PRACTICE & PROCEDURE – Objection to issue summonses to give oral evidence – whether persons summonsed able to give evidence relevant to the Tribunal's determination of substantive issues – whether summons is a fishing expedition - whether members of the Administrative Appeals Tribunal can be summonsed to give evidence - where evidence does not go to narrow issue before the Tribunal – request for summonses refused – interlocutory application granted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Appeals Tribunal Regulation 2015
Social Security Act 1991 (Cth)
Taxation Administration Act 1953 (Cth)
CASES
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250
Comcare v Maganga [2008] FCA 285
Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432; [1997] FCA 1504
Re General Merchandise & Apparel Group Pty Ltd and the Chief Executive Officer of Customs [2008] FCA 285
Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs (2009) 114 ALD 289; [2009] AATA 988
Re Moore and Military Rehabilitation and Compensation Commission (2006) 90 ALD 417; [2006] AATA 425
Re Phillips and Inspector-General in Bankruptcy (2011) 127 ALD 113; [2011] AATA 432
Re Polymath Investors Pty Ltd and Australian Securities and Investments Commission [2019] AATA 5628
Re QT97/35-36 and Commissioner of Taxation [1997] AATA 339; (1997) 37 ATR 1036
Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262
Trade Practices Commission v Arnotts Ltd (No. 2) (1989) 88 ALR 90
REASONS FOR DECISION
Senior Member Dr Linda Kirk
8 June 2022
BACKGROUND
Reviewable Decision

On 22 August 2021 Brian Auckram (‘the Applicant’) applied to the Tribunal seeking review (‘the Review Application’)[1] of the disallowance by the Commissioner of Taxation (‘the Respondent’) of his objection to an assessment for the year ended 30 June 2016 (‘the 2016 income year’) under the Taxation Administration Act 1953 (Cth) (‘TAA 1953’) (‘the Reviewable Decision’).[2]
[1] T1, 4-12.
[2] T2, 13-16.
The Reviewable Decision concerns the Applicant’s receipt of franked dividends from Integrity Consulting Pty Ltd (‘the Company’), which the Applicant reported as income in his personal income tax return for 2016 income year.[3]
[3] T04, 28.
Fraud Allegations
During the course of the Review Application, the Applicant has claimed that Centrelink officers raised a fraudulent debt against him (‘the Fraud Allegations’). The Fraud Allegations relate to two previous Tribunal decisions concerning the Applicant and his wife as follows:
·Mr Brian Auckram and Mrs Fiona Auckram and Secretary, Chief Executive Centrelink, dated 4 May 2017 (‘Centrelink AAT decision’);[4]
·Auckram and Secretary, Department of Social Services (Social services second review) [2018] AATA 2976 (20 August 2018) (‘second tier AAT decision’).[5]
[4] T9, 104-111.
[5] T9, 112-119.
These decisions related to a determination made by Centrelink in respect of the Applicant’s and his wife’s claim for Austudy benefits. Their claims were refused on the basis that the couple exceeded the asset cap test prescribed by the Social Security Act 1991(Cth).
The Applicant detailed the Fraud Allegations in his Statement of Facts, Issues and Contentions dated 26 January 2022:[6]
The matter has been further complicated by the fact that the case Auckram and Secretary, Department of Social Services (Social services second review) [2018] AATA 2976 (20 August 2018), (‘second tier AAT decision’) was influenced and effected by fraud. [Centrelink] officers raised a fraudulent debt against me and then used that debt to harass me while proceeding with that case. This knowledge should give the respondent grounds to challenge the [second tier AAT decision] in the Federal Court. This information must be included in the current case as it shows that the original ruling was influenced by significant confusion created by the malicious and criminal actions of Centrelink Officers.
[6] Applicant’s SFIC page 1, [10].
The Applicant first raised the Fraud Allegations with the Respondent at a conciliation conference conducted by Conference Registrar Lynch on 16 December 2021. During the conference, the Applicant emailed to the Tribunal’s Registry and the Respondent’s representatives a document detailing the Fraud Allegations. After the Respondent confirmed receipt of the email during the conference, the Applicant threatened the Respondent’s representatives with professional misconduct complaints if they did not refer the allegations to the Australian Federal Police (‘AFP’). Registrar Lynch dismissed the Fraud Allegations as irrelevant to the Review Application, and informed the Applicant he could make the referral to the AFP himself.
On 12 January 2022, the Applicant emailed Mr Rouein Momen, the officer of the Australian Taxation Office (‘ATO’) who at the time represented the Respondent in the Review Application, requesting an update in relation to what action the Respondent had taken in relation to the Fraud Allegations.[7]
[7] Email from the Applicant to Mr Momen on 12 January 2022, ‘RE: 2021/5936 Auckram and Commissioner of Taxation’.
On 19 January 2022, Mr Momen responded to the Applicant’s email dated 12 January 2022.[8] The email stated in part:
[W]e note you have referred to fraud allegations and requested an explanation as to why “this case has not been reported to the appropriate authorities” in your below email. We have considered the information you have provided and do not believe there has been fraud or suspicious behaviour to warrant an escalation. We have come to this conclusion after obtaining and considering internal advice received from our Fraud Investigations Unit.
[8] Email from Mr Momen to the Applicant on 19 January 2022, ‘Re 2021/5936 Auckram and Commissioner of Taxation’.
The Applicant has written to the AFP, the Tribunal, the Commonwealth Ombudsman and the Office of the Australian Information Commissioner (OAIC) in an attempt to escalate the Fraud Allegations.[9]
[9] Applicant’s SFIC, p30, 47 and 50.
Request for Issue of Six Summonses
On 6 April 2022, the Applicant requested the Tribunal issue the following summonses:[10]
a)    Summons to give evidence to Justice Berna Joan Collier (‘Justice Collier summons’)
b)    Summons to give evidence to Rouein Momen (‘Rouein Momen summons’)
c)    Summons to give evidence to “Officer contacted by Mr Rouein Momen, Fraud Investigations Unit, Australian Taxation Office”
d)    Summons to give evidence to “Manager / Supervisor / Director (as applies) Fraud Investigations Unit, Australian Taxation Office”
e)    Summons to Produce Documents to “Those concerned as listed below” (being variously listed employees of the ATO).
[10] Applicant’s Request to Issue Summons to Justice Berna Collier, Acting President, Administrative Appeals Tribunal dated 5 April 2022; Applicant’s Request to Issue Summons to Rouein Momen, dated 5 April 2022; Applicant’s Request to Issue Summons to ‘Fraud Officer who was in contact with Mr Rouein Momen, Fraud Investigations Unit, Australian Taxation Office’, dated 5 April 2022; Applicant’s Request to Issue Summons to ‘Manager / Supervisor / Director (as applies) Fraud Investigations Unit, Australian Taxation Office’, dated 5 April 2022; Applicant’s Request to Issue Summons to ‘Those concerned, Litigation and Legal Services & Fraud Investigations Unit, Australian Taxation Office’, dated 5 April 2022.
On 8 April 2022, the Respondent informed the Tribunal by email that his position is that all the Applicant’s requests for summonses should be refused.[11]
[11] Email from the Ms Calligaro to the Tribunal on 8 April 2022, ‘RE: 2021/5936 - RE Auckram and Commissioner of Taxation - General Correspondence’.
On 22 April 2022, the Applicant requested a sixth summons to give evidence to Mr Andrew Orme (‘Andrew Orme summons’).[12] Andrew Orme is the Deputy Commissioner of Taxation.
[12] Applicant’s Request to Issue Summons to ‘Andrew Orme, Deputy Commissioner of Taxation’, dated 22 April 2022.
On 27 April 2022, the Respondent filed and served his written submissions outlining his reasons why it contends that the Tribunal should refuse the Applicant’s request to issue the six summonses.[13]
[13] Respondent’s Written Submissions for Interlocutory Proceeding dated 27 April 2022.
The matter was heard by the Tribunal at an interlocutory hearing held by video-conference on 29 April 2022. The Applicant appeared at the hearing and was self-represented.
The following material is before the Tribunal:
·Applicant’s Statement of Facts, Issues, and Contentions dated 26 January 2022 (Applicant’s SFIC)
·Respondent’s Statement of Facts, Issues, and Contentions dated 24 February 2022 (Respondent’s SFIC)
·Applicant’s Reply to the Respondent’s Statement of Facts, Issues, and Contentions dated 4 March 2022
·Respondent’s Written Submissions for Interlocutory Proceeding dated 27 April 2022
·Section 37 T-Documents (T1 – T15), pp1 – 150, filed on 18 October 2021
LEGAL FRAMEWORK AND PRINCIPLES
Section 40A AAT Act
Section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) provides the power to summon a person to appear before the Tribunal to give evidence:
40A Power to summon person to give evidence or produce documents
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
a) appear before the Tribunal to give evidence;
b) produce any document or other thing specified in the summons.
(2) The President or an authorised member may refuse a request to summon a person.
(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:
a) the summons or another summons requires the person to appear before the Tribunal; or
b) the Tribunal directs the person to attend the hearing.
Provided the request to issue a summons is accompanied by a summons in the approved form, an officer of the Tribunal will generally issue that summons. When the person named in the summons is given it in accordance with Part 4 of the Administrative Appeals Tribunal Regulation 2015 (‘AAT Regulation’), he or she has an obligation to comply with it unless doing so might tend to incriminate the person, or unless it is subject to a successful challenge.[14]
[14] AAT Act, s 61
Discretion to Issue a Summons
The power of the Tribunal to issue a summons is discretionary, and an application may be refused. The general principles relating to the issue of subpoenas by a court are applicable to the issue of a summons by the Tribunal.[15] In Cosco Holdings Pty Ltd v Commissioner of Taxation,[16] Spender J approved the approach adopted by Deputy President Forgie in Re QT97/35-36 and Commissioner of Taxation in applying the principles applicable to subpoenas duces tecum issued by the courts to summonses to produce documents issued under the AAT Act.[17]
[15] Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) 37 ATR 432; [1997] FCA 1504; Re Moore and Military Rehabilitation and Compensation Commission (2006) 90 ALD 417; [2006] AATA 425; Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs (2009) 114 ALD 289; [2009] AATA 988; Re Phillips and Inspector-General in Bankruptcy (2011) 127 ALD 113; [2011] AATA 432; Re Polymath Investors Pty Ltd and Australian Securities and Investments Commission [2019] AATA 5628.
[16] [1997] FCA 1504; (1997) 37 ATR 432; Spender J
[17] Re QT97/35-36 and Commissioner of Taxation [1997] AATA 339; (1997) 37 ATR 1036
Relevance
The primary consideration relevant to the exercise of the Tribunal’s discretion to issue a summons is whether the documents being sought are relevant to the application before the Tribunal. It is well-accepted that a subpoena may be set aside if it requires the production of documents which are manifestly irrelevant to the issues between the parties.[18] This rule applies equally to a summons issued at the request of a party to a Tribunal proceeding as s 40A of the AAT Act only confers power to the Tribunal ‘for the purposes of a proceeding before the Tribunal’.[19] As DP Forgie stated in Re General Merchandise & Apparel Group Pty Ltd and the Chief Executive Officer of Customs (‘General Merchandise’):[20]
… The power may not be used in the course of a proceeding for the purposes of obtaining documents that may assist one or more of the parties to the proceeding to pursue a collateral purpose even if it is a purpose that bears a relationship to the decision being reviewed by the Tribunal but does not raise an issue that is reviewable. As it would be put in the context of a subpoena, it must be issued in good faith, and so bona fide, for a purpose relevant to the review.
Therefore, in considering whether to set aside a summons, it must be examined with that in mind. If the documents, books or things it seeks ‘… could reasonably be expected to throw light on some of the issues in the principal proceedings’[21] then the relevance of the summons for the purposes of the hearing of the proceeding will be established. ‘It is not a question of looking at the documents to see if the documents might permit a case to be made.’[22] It is clear from the authorities that the relevance of the documents sought in the summons requested does not have to be established on the balance of probabilities. …
[18] Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262 at [11] per Hill J
[19] Phillips at [8]
[20] [2008] FCA 285 at [37]-[38]. [2009] AATA 988; (2009) 114 ALD 289; 51 AAR 1; 78 ATR 221 at [231]-[232]; 362; 80; 296-297
[21] [1997] FCA 1504 at [42] explaining the reference by Beaumont J in Trade Practices Commission v Arnotts Ltd and Others (No. 2) (1989) 88 ALR 90 at 103 to its being relevant to ask whether material had an apparent relevance to the issues in the principal proceedings and so an adjectival, as distinct from substantive, relevance established. Beaumont J had said: “The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.”
[22] [1997] FCA 1504 at [42]
In Comcare v Maganga, the Federal Court observed that the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings.[23]
[23] [2008] FCA 285, [37].
Abuse of Process
It is also accepted that a subpoena will be set aside if it is an abuse of process.[24] This is a consequence of the inherent power in a court, and the express power given to the Tribunal under s 33 of the AAT Act, to control and supervise its proceedings. That power includes the incidental power to prevent an injustice. Whether injustice will arise depends upon a consideration from the perspective not only of the parties to the proceedings, but also that of the person to whom the subpoena has been issued.
[24] Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262; Hill J
In Trade Practices Commission v Arnotts Ltd,[25] Beaumont J outlined two different aspects of the concept of an abuse of process:
The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose: see Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-1. But, as Deane and Gaudron JJ observed in Hamilton v Oades (1989) 85 ALR 1 at 11, the court’s general powers in this area have a dual aspect: ‘The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice … [This] power … is not restricted to defined and closed categories … In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. …’
In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly [Pty Ltd, being the party to whom the subpoena had been issued to it].”[26]
[25] (1989) 88 ALR 90
[26] (1989) 88 ALR 90 at 102
‘Fishing expeditions’
In General Merchandise, DP Forgie explained a further consideration relevant to the exercise by the Tribunal of the discretion to issue a summons:
If the summons is essentially based on mere speculation that the person named in it has relevant material, its being seen as for the purposes of the hearing of a proceeding becomes more tenuous. Principles developed by the courts in relation to ‘fishing expeditions’ when considering subpoenas will raise themselves for consideration. They are part of a wider group of principles developed by the courts to determine whether a subpoena is oppressive. Given that the person answering the subpoena is a stranger to the proceedings, the principles can be seen as tools to determine the proper balance between obtaining evidence and material to the issues between the parties in a matter and the burden imposed upon the recipient of the subpoena. Precisely the same balance must be achieved in deciding whether a request for a summons should be refused or, if issued, a summons should be set aside.
A fishing expedition has been described by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd[27] in this way:
A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.[28]
CONSIDERATON AND REASONS
[27] (1952) 72 WN(NSW) 250
[28] Ibid at 254
a) Justice Collier Summons
Her Honour Justice Collier was the acting President of the Tribunal until 1 April 2022 when Her Honour Justice Meagher was appointed as the President.
The Applicant submits that his request for the issue of the Justice Collier summons is so that he can ask Her Honour the following questions at the hearing of the Review Application:[29]
(i) The requirement of AAT staff and members to report fraud
(ii) The ‘separate entity’ principle
(iii)Whether rulings made by one division of the ‘AATA’ are valid / binding on other divisions
(iv)Whether rulings of the AAT can ‘simply be ignored by government departments or whether those departments are obliged to take those rulings to the Federal Court if they wish to challenge them’
(v) The jurisdiction of the ‘AATA’
(vi) Whether the AAT has ‘the power to make precedents’
(vii) Whether the AAT should refer questions of law to the Federal Court.
[29] Applicant’s Request to Issue Summons to Justice Berna Collier, Acting President, Administrative Appeals Tribunal dated 5 April 2022.
The Respondent submits:
(i)The evidence sought is not relevant to the current proceedings and will not assist the Tribunal in making a decision
(ii) The summons amounts to a fishing expedition
(iii) The summons is an abuse of process
(iv)Justice Collier is currently the acting President of the Tribunal and should not be required to give evidence to the Tribunal in the current proceedings.[30]
[30] Respondent’s Written Submissions for Interlocutory Proceeding dated 27 April 2022, [28]

The Applicant objected to the Respondent’s assessment on the basis that the franked dividend payments should not be included as assessable income in the 2016 year. He also claims that his assessment is excessive on the basis of deemed Division 7A loans, and an imputation credit.[31]
[31] Applicants SFIC pp1 – 3, at [7]-[9], [24], [25], and [28]
The Respondent contends that the sole issue for determination in the Review Application is whether a franked dividend payment should be included in Applicant’s assessable income for the 2016 income year. He points out that he has not assessed the Applicant for Division 7A loans and accordingly this is not an issue before the Tribunal.[32] In relation to the imputation credit that relates to the Company, as it is a separate taxpayer and is not a matter that is reviewable by the Tribunal in the Review Application.[33]
[32] Transcript of proceedings, 29 April 2022, 4.
[33] Transcript of proceedings, 29 April 2022, 4.
The Respondent claims that any evidence given by Justice Collier could not reasonably be expected to ‘throw light’ on the sole issue in dispute. Nor would it assist the Tribunal for Her Honour to provide an opinion on the matters identified by the Applicant, as it is for the Tribunal, as presently constituted, to determine these matters to the extent that they arise for determination.[34]
[34] Respondent’s Written Submissions for Interlocutory Proceeding dated 27 April 2022 at [33]
Based on the material before it, the Tribunal finds that the Review Application concerns a review of the Reviewable Decision made by the Respondent in relation to the Applicant’s inclusion in his assessable income for the 2016 income year of a franked dividend payment from the Company. Accordingly, it is the inclusion in the Applicant’s 2016 income of this franked dividend payment which is sole issue to be determined by the Tribunal in the Review Application.
Having identified the inclusion of this franked dividend payment in the Applicant’s 2016 income as the issue for determination, the Tribunal finds that any evidence that may be provided by Justice Collier relevant to administrative matters and the legal status of Tribunal decisions could not be reasonably be expected to ‘throw light’ on the issue in dispute. To the extent that the Justice Collier summons relates to the issue in [25(i)] above, the Applicant is attempting to ‘fish’ for evidence on an unrelated issue not before the Tribunal. There is no reasonable basis for the Fraud Allegations to be considered in the context of the Review Application. There is also no basis for consideration by the Tribunal of Justice Collier’s opinions on administrative processes of the Tribunal outlined in the Applicant’s questions in [24(ii)-(vii)] above as it would do nothing more than repeat information publicly available. The Tribunal finds that the purpose for which the Applicant is requesting it to exercise its discretion to issue this summons is not to resolve the current issue before the Tribunal but to pursue the Fraud Allegations. The summons therefore lacks a legitimate forensic purpose, and the Tribunal finds it amounts to an abuse of process. The Tribunal therefore is not satisfied that there are grounds for the exercise of its discretion to issue the summons.
Further to the above, the Tribunal notes that subsection 66(3) of the AAT Act provides:
A person who is, or has been, a member of the Tribunal should not be required to give evidence to a court in relation to any proceedings before the Tribunal.
Subsection 66(4) of the AAT Act defines ‘court’ to include any ‘… tribunal … having power to require the production of documents or the answering of questions.’ ‘Tribunal’ is defined in paragraph 3(a) of the AAT Act to mean the Administrative Appeals Tribunal.
Based on this provision, the Tribunal finds that Her Honour Justice Collier should not be required to give evidence to the Tribunal in relation to any proceedings before it.
For the reasons stated above, the Tribunal refuses to exercise its discretion to issue the summons to Justice Collier.
(b) Rouein Momen Summons
The Applicant wishes to summon Mr Momen to obtain evidence regarding the email described in [8] above. In his request, the Applicant submitted that the reasons for the request to issue the summons is that ‘[b]ased on the information provided [he does] not believe that lawyers of the ATO provided the staff at the Fraud Investigations Unit with correct and complete information in order to make a correct assessment [of the Fraud Allegations]’.[35] The Applicant submits that this information influenced and affected the second tier AAT decision, which, the Applicant contends, is a critical component of the current Review Application.[36]
[35] Applicant’s Request to Issue Summons to Rouein Momen, dated 5 April 2022.
[36] Ibid.
The Respondent opposes the issue of the summons for the following reasons:[37]
(i) The evidence sought is not relevant to the current proceedings and will not assist the Tribunal in making a decision;
(ii) The summons amounts to a fishing expedition; and
(iii) The summons is an abuse of process.
[37] Respondent’s Written Submissions for Interlocutory Proceeding dated 27 April 2022, 7 at [49].
The Tribunal finds that any evidence that may be provided by Mr Momen pursuant to a summons is not relevant to the Review Application and will not assist the Tribunal in making a decision in relation to the issue central to the review, namely whether a franked dividend payment should be included in Applicant’s assessable income for the 2016 income year. Any evidence from Mr Momen could not be reasonably be expected to ‘throw light’ on the issue in dispute. The evidence sought to be elicited from Mr Momen is communications he had with internal ATO staff members in respect of the Applicant’s Fraud Allegations. As noted above, these Fraud Allegations are irrelevant to the Tribunal’s review of the Reviewable Decision. The request for the issue of the summons to Mr Momen amounts to a fishing expedition. It is an entirely speculative exercise to progress the Applicant’s pursuit to have the Fraud Allegations investigated. The Tribunal finds that the Applicant’s request is an abuse of process and it therefore refuses to exercise its discretion to issue the summons to Mr Momen.
(c) Summons to Give Evidence to “Officer contacted by Mr Rouein Momen, Fraud Investigations Unit, Australian Taxation Office”
The Applicant relies on the same reasons as the Rouein Momen summons outlined at [36] for requesting the issue of the summons for the ‘Fraud Officer who was in contact with Mr Rouein Momen, Fraud Investigations Unit, Australian Taxation Office’ (‘the Officer’).[38] The Respondent relies on his submissions outlined at [37] above, and further contends that the summons is not able to be complied with in its current form.[39]
[38] Applicant’s Request to Issue Summons to ‘Fraud Officer who was in contact with Mr Rouein Momen, Fraud Investigations Unit, Australian Taxation Office’, dated 5 April 2022.
[39] Respondent’s Written Submissions for Interlocutory Proceeding dated 27 April 2022, 8 at [57].
The Tribunal finds that any evidence that may be provided by the Officer pursuant to a summons is not relevant to the Review Application and will not assist the Tribunal in making a decision in relation to the issue central to the review, namely whether a franked dividend payment should be included in Applicant’s assessable income for the 2016 income year. Any evidence from the Officer could not be reasonably be expected to ‘throw light’ on the issue in dispute. The evidence sought to be elicited from the Officer is in respect to the Applicant’s Fraud Allegations. As noted above, these Fraud Allegations are irrelevant to the Tribunal’s review of the Reviewable Decision. The request for the issue of the summons to the Officer is a fishing expedition. It is an entirely speculative exercise to progress the Applicant’s pursuit to have the Fraud Allegations investigated. The Tribunal finds that the Applicant’s request is an abuse of process and it therefore refuses to exercise its discretion to issue the summons to the Officer.
(d) Summons to Give Evidence to “Manager / Supervisor / Director (as applies) Fraud Investigations Unit, Australian Taxation Office”
The Applicant relies on the same reasons as the Rouein Momen summons outlined at [36] above for requesting the issue of the summons for the “Manager / Supervisor / Director (as applies) Fraud Investigations Unit, Australian Taxation Office” (‘Manager/Supervisor/ Director’).[40] The Respondent relies on his submissions outlined at [37] above and further contends that the summons is not able to be complied with in its current form.[41]
[40] Applicant’s Request to Issue Summons to ‘Manager / Supervisor / Director (as applies) Fraud Investigations Unit, Australian Taxation Office’, dated 5 April 2022
[41] Respondent’s Written Submissions for Interlocutory Proceeding dated 27 April 2022, 8 at [59]
The Tribunal finds that any evidence that may be provided by the Manager/Supervisor/ Director pursuant to a summons is not relevant to the Review Application and will not assist the Tribunal in making a decision in relation to the issue central to the review, namely whether a franked dividend payment should be included in Applicant’s assessable income for the 2016 income year. Any evidence from the Manager/Supervisor/Director could not be reasonably be expected to ‘throw light’ on the issue in dispute. The evidence sought to be elicited from the Manager/Supervisor/Director is in respect to the Applicant’s Fraud Allegations. As noted above, these Fraud Allegations are irrelevant to the Tribunal’s review of the Reviewable Decision. The request for the issue of the summons to the Manager/Supervisor/Director is a fishing expedition. It is an entirely speculative exercise to progress the Applicant’s pursuit to have the Fraud Allegations investigated. The Tribunal finds that the Applicant’s request is an abuse of process and it therefore refuses to exercise its discretion to issue the summons to the Manager/Supervisor/Director.
(e) Summons to Produce Documents to “Those concerned as listed below” (being variously listed employees of the ATO).
The Applicant relies on the same reasons as the Rouein Momen summons outlined at [36] above for requesting the issue of the summons for the “Those concerned as listed below” (being variously listed employees of the ATO)’ (‘Other Persons’).[42] The Respondent relies on his submissions outlined at [37] above, and further contends that the summons is not able to be complied with in its current form, noting that a summons to an entity that is not an individual should be addressed to ‘The Proper Officer’.[43]
[42] Applicant’s Request to Issue Summons to ‘Those concerned, Litigation and Legal Services & Fraud Investigations Unit, Australian Taxation Office’, dated 5 April 2022.
[43] Respondent’s Written Submissions for Interlocutory Proceeding dated 27 April 2022, 9 at [61].
The Tribunal finds that any evidence that may be provided by Other Persons pursuant to a summons is not relevant to the Review Application and will not assist the Tribunal in making a decision in relation to the issue central to the review, namely whether a franked dividend payment should be included in Applicant’s assessable income for the 2016 income year. Any evidence from the Other Persons could not be reasonably be expected to ‘throw light’ on the issue in dispute. The evidence sought to be elicited from the Other Persons is in respect to the Applicant’s Fraud Allegations. As noted above, these Fraud Allegations are irrelevant to the Tribunal’s review of the Reviewable Decision. The request for the issue of the summons to the Person is a fishing expedition. It is an entirely speculative exercise to progress the Applicant’s pursuit to have the Fraud Allegations investigated. The Tribunal finds that the Applicant’s request is an abuse of process and it therefore refuses to exercise its discretion to issue the summons to the Other Persons.
(f) Andrew Orme Summons
The Applicant submits that the reason his request for the Andrew Orme summons is ‘… to seek absolute clarity as to whether this AAT case does, or does not, close out the issues of the outstanding Division 7A loans and the withheld Imputation Tax Credits.’[44]
[44] Applicant’s Request to Issue Summons to ‘Andrew Orme, Deputy Commissioner of Taxation’, dated 22 April 2022.
The Respondent contends that:[45]
(i)The evidence sought is not relevant to the current proceedings and will not assist the Tribunal in making a decision; and
(ii) The summons is an abuse of process.
[45] Respondent’s Written Submissions for Interlocutory Proceeding dated 27 April 2022, 9 at [64].
The Tribunal finds that any evidence that may be provided by Andrew Orme pursuant to a summons is not relevant to the Review Application and will not assist the Tribunal in making a decision in relation to the issue central to the review, namely whether a franked dividend payment should be included in Applicant’s assessable income for the 2016 income year. Any evidence from Mr Orme could not be reasonably be expected to ‘throw light’ on the issue in dispute. The evidence sought to be elicited from Mr Orme is in respect to the Applicant’s Fraud Allegations. As noted above, these Fraud Allegations are irrelevant to the Tribunal’s review of the Reviewable Decision. The request for the issue of the summons to Mr Orme is a fishing expedition. It is ultimately the Tribunal’s role to identify and determine the issues. It follows that if Mr Orme were to provide a lay opinion on the issues it would be of no benefit or relevance to the Tribunal. The Respondent’s position has already been identified in his Statement of Facts, Issues and Contentions. The Tribunal finds that the Applicant’s request is an abuse of process and it therefore refuses to exercise its discretion to issue the summons to Mr Orme.
DECISION
The Tribunal refuses the Applicant’s request for the issue of the six summonses.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

................................[SGD]........................................
Associate
Dated: 8 June 2022

Date(s) of hearing: 29 April 2022

Applicant: In person

Solicitors for the Respondent: Ms M Calligaro, Australian Taxation Office

Date(s) of hearing:	29 April 2022
Applicant:	In person
Solicitors for the Respondent:	Ms M Calligaro, Australian Taxation Office