Ballintine and Commissioner of Taxation (Taxation)

The applicant, Mr. Ballintine, sought review of the Australian Taxation Office's (ATO) decision to refuse to release him from a significant tax liability. This liability, amounting to over $1.4 million including interest by the time of the hearing, arose from shortfalls in income tax for the 2012/2013 and 2013/2014 tax years. The applicant, formerly the CEO and a founding shareholder of NewSat Ltd, did not dispute the assessments themselves but rather sought release from the obligation to pay on the grounds of serious hardship. The matter was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the ATO's decision to disallow the applicant's objection to the refusal of release from his tax liability was correct. This required the Tribunal to consider the exercise of the discretion granted under section 340-5 of Schedule 1 to the *Taxation Administration Act 1953* (Cth), which allows for release from tax liabilities if payment would cause serious hardship. The Tribunal was tasked with determining, in two steps, whether the applicant would suffer serious hardship if required to pay the liability, and if so, whether the discretion to release him should be exercised in all the circumstances. The burden of proof rested with the applicant to demonstrate that the objection decision was incorrect.

The Tribunal considered the applicant's contentions, including his lack of present capacity to pay, his advancing age, reputational damage from business collapse, and the ongoing impact of COVID-19 on his ability to earn income. The applicant argued that bankruptcy would further limit his prospects and that the circumstances leading to the liability were due to company failures, though he acknowledged a lack of attention to his tax affairs during a tumultuous period. He also highlighted his long history of tax compliance, his lack of assets to liquidate, and that he had not structured his affairs to create hardship. The Tribunal, however, was not satisfied that the applicant had discharged the onus of proving that the decision under review was incorrect or should have been made differently.

Consequently, the Tribunal affirmed the decision under review.