Berges and Secretary, Department of Social Services (Social services second review) - [2020] AATA 3507

Berges and Secretary, Department of Social Services (Social services second review) [2020] AATA 3507 (11 September 2020)
Division:General Division
File Number(s):2019/1705
Re:Susan Berges
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:D Cox, Member
Date:11 September 2020
Place:Adelaide

The decision of the Administrative Appeals Tribunal (Social Security and Child Support Division) dated 15 February 2019 is affirmed.
……………………[sgnd]……………………………………..
Member D Cox

Catchwords
SOCIAL SECURITY – pensions, benefits and allowances - family tax benefit – lodgement of tax return – whether special circumstances - decision under review affirmed
Legislation
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Cases
Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle and Director-General of Social Security [1984] AATA 176; (1984) 6 ALD 1
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Dranichnikov v Centrelink [2003] FCAFC 133
Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones [2012] FCA 639; (2012) 89 ATR 267, 274
REASONS FOR DECISION
Decision under review
11 September 2020

The applicant has appealed a decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 15 February 2019 which affirmed a decision made by an authorised review officer (ARO) of the Department of Human Services (Department) dated 27 July 2018 not to grant an extension of time to lodge the income tax returns of Mrs Berges and her partner for the 2015-2016 financial year.
Background
The applicant is partnered and has three children for whom she claims family tax benefit (FTB).
During the 2015-2016 financial year the applicant received fortnightly payments of FTB based on estimates she provided of her and her partner’s combined adjustable taxable income (ATI).
By letter dated 21 March 2017, the Department informed the applicant that to receive her full entitlement to FTB including supplementary and “top-up” payments, her and her partner’s tax returns for the 2015-2016 financial year needed to be lodged by 30 June 2017 or she and her partner needed to advise the Department by 30 June 2017 that they were not required to lodge tax returns.
The letter[1] of 21 March 2017 also said that if the applicant and her partner did not lodge their tax returns or advise the Department that they were not required to lodge tax returns by 30 June 2017 the applicant would not be eligible for any further FTB, including FTB supplementary and top up payments for the 2015-2016 financial year.
[1] T8, 53-54.
On 14 July 2017 the Department sent the applicant a letter[2] explaining that her FTB income information for the 2015-2016 financial year was overdue.
[2] T8, 57.
On 1 September 2017 an account payable letter[3] was sent to the applicant advising her that the full amount of FTB paid to her in 2015-2016 was to be recovered because both she and her partner had not lodged their tax returns.
[3] T8, 59-60.
On 17 April 2018, the income tax returns for both the applicant and her partner for the 2015-2016 financial year were lodged with the Australian Taxation Office (ATO).[4]
[4] T2, P24; T13 p104.
On 10 May 2018, the applicant’s FTB payments for the 2015-2016 financial year were reconciled with her and her partner’s tax returns.[5] The Secretary decided that, because the applicant and her partner’s income tax returns were lodged more than twelve months after the conclusion of the 2015-2016 financial year, the Department was unable to pay her any FTB supplement or top-up payment.
[5] T8, p64.
The reconciliation showed that had the applicant and her partner lodged their 2015-2016 financial year tax returns on time she would have had a total entitlement to FTB payments for the year of $18,442.74 of which she had already received $10,709.16. As a result of the late lodgement the applicant was not entitled to the remaining $7,733.58.
The letter of 10 May 2018 advised the applicant that the reason she was not entitled to the remaining $7,733.58 was the late lodgement of her and her partner’s 2015-2016 tax returns.
On 11 May 2018 the applicant requested a review and an extension of time to lodge the tax returns. She claimed special circumstances.
On 27 July 2018 an ARO affirmed the decision that supplementary and top-up FTB payments were not payable for the 2015-2016 financial year.[6]
[6] T2.
On 20 October 2018 the applicant applied for a review of the ARO’s decision by AAT1.
On 15 February 2019 AAT1 affirmed the ARO’s decision.
The Legislation
The relevant legislation in this matter is contained within the A New Tax System (Family Assistance) Act 1999 (FA Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (FA Admin Act).
Section 28 of the FA Admin Act sets out the consequences of a failure to comply with the reconciliation conditions. If a person has received instalments of FTB based upon an over-estimate of their assessable income (such that their instalments are less than what they are entitled to), the failure to comply with the reconciliation conditions will render unpayable any difference between what they were paid and what they ought to have been paid.
Section 32A of the FA Admin Act requires that the Secretary disregards amounts of FTB supplement when making a determination until the claimant has “satisfied the FTB reconciliation conditions” which apply for the relevant period.
Section 32B of the FA Admin Act sets out when the reconciliation conditions are satisfied depending on the reconciliation times.
Section 32C of the FA Admin Act defines the reconciliation time for a claimant who is partnered, has not been separated in the income year and whose partner must lodge a tax return, as either: the first income year after the relevant income year; or
such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the individual from lodging their tax return before the end of the first income year.
32D of the FA Admin Act defines the reconciliation time for the partner of a claimant who has not been separated in the income year and the partner must lodge a tax return, as either: the first income year after the relevant income year; or such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the individual from lodging their tax return before the end of the first income year.
Both sections 32C and 32D provide that if the Secretary allows a further period for lodgement of tax returns that period must end no later than the end of the second income year after the relevant income year.
In summary the legislation says that the applicant and her partner were required to lodge their tax returns for the 2015-2016 income year by 30 June 2017 unless the Secretary is satisfied that there are special circumstances that prevented them lodging their tax returns by that date. If they did not lodge their tax returns by that date and the Secretary is not satisfied that there are special circumstances that prevented them lodging their tax returns by that date the applicant is not eligible for FTB supplement or top-up payments.
In this case the date of the lodgement of the tax returns is not in dispute, it was after
30 June 2017. Therefore, the issue that must be determined is whether there were special circumstances that prevented the tax returns being lodged by 30 June 2017.
The legislation provides a two-part test. Were there special circumstances? If so, did these special circumstances prevent lodgement of the tax returns by 30 June 2017? Both these questions are required to be resolved in the affirmative for the applicant to receive a further period for lodgement of the tax returns.
Claim of Special Circumstances
The applicant raised a number of issues which she said in combination constituted special circumstances.
Complexity of Tax Affairs
The applicant and her partner have relatively complex tax affairs, with a trust, self-managed
superannuation fund (SMSF) and a small electrical business. They have seven investment properties, two of which are held by their SMSF. All the properties have high loan to valuation ratios and are in areas where it is difficult to obtain reliable tenants. As a result, they are time consuming to manage.
Applicant’s Health Issues
The applicant provided evidence that she suffers from type ll diabetes, asthma and severe hidradentitis suppurativa (HS).
The applicant supplied a letter dated 2 December 2019 from her consultant dermatologist confirming the HS diagnosis and that she had suffered from it since her 20s but saying that it had flared significantly after the birth of her fifth child six years ago.[7]
[7] Exhibit 2.
The applicant described her medical condition in some detail which is reproduced below because of its significance to consideration of special circumstances:--

“HS is a very painful, debilitating and disfiguring condition, leaving me with large and painful abscesses all over me. Many of the abscesses, particularly those that develop on my torso and groin, burst and open up to become open wounds up to 5cm in diameter where they are raw infected flesh and extremely painful. Depending on where they are, it can severely restrict movement, sitting, standing or doing anything as it is very painful to do so. Large abscesses or large amounts of them can also cause you to feel very unwell and run down with little energy as you are fighting constant infection.

HS is a progressive disease and gets worse over time, causing tracking under the skin to join abscesses together, scarring and open wounds that heal very slowly as stated. Unfortunately, it took the medical profession a number of years to diagnose what was happening to me as it is more usual to develop this condition when younger.

For me it was the fact that my body’s immune system was so severely affected by my Caesarean with the birth of my youngest child that triggered it developing in me although they believe it was there all along as it is strongly genetic in who gets it and I had had some previous much milder symptoms of what was to come. I believe that two of my children may have it also as they have both had abscesses surgically drained in infancy.

It took me developing an abscess on my underarm that was the size of a half small apple under the skin and which was constantly oozing puss and blood through another abscess which opened into my armpit, which had to be surgically drained along with several other abscesses in November 2015, for the medical profession to finally realise the condition that I had and diagnose me properly.

I was then sent to the Infectious Diseases clinic (even though it is not infectious but they are the ones that deal with skin issues) at Flinders’ Hospital as well as numerous appointments to try and sort out a management plan for this. This was in the 2015-2016 tax year that this all happened.

Following this was numerous rounds of different antibiotics to try and get my HS under control. This has not happened yet. All this did was give me other medical issues ranging from thrush to gut issues including chronic diarrhoea with one type of antbiotic. There are also antibiotics recommended for HS that I cannot take as they cause me to have reflux and heartburn.

Also following this was daily visits by RDNS tapering off over 2 years to weekly visits. My husband has been doing the wound care on the alternative days. This wound care generally took around an hour a day to do, especially when abscesses are open as they have to be carefully irrigated and cleaned which is a lengthy and painful process for me.

My husband still has to do this and in fact I cannot do something as simple as shower and get dressed without him being there to bandage wounds so that they do not ooze into my clothes.

One of the wounds operated on has only recently closed up allowing me to go without bandages in my armpit for the first time in about 3 years. It has meant that for about 3 years I have had to worry about pus and blood oozing into my clothes from this one wound in particular on a daily basis as well as other abscesses that have since opened up.

In fact my HS over that period of time became more severe and as it worsened, so did my overall health and ability to fight off any other virus or infection.

None of this has resolved the issue and after finally getting an appointment with a dermatologist, I am now waiting on being approved by PBS for a new treatment which is supposed to have good results for HS sufferers.

However, it is not just the HS that affects my health, it is also my asthma and diabetes. As stated, it is normal for me to be unwell for 4-6 weeks from a simple cold as it goes straight to my chest and becomes a chest infection and asthma. What was not normal for me but happened during the period from 2015 to 2017 and even now was that I was chronically ill 95% of the time.

During that time I was at the doctors or had a doctor come to my residence after hours every month as I was getting constant chest infections due to constantly fighting off infection due to HS and catching every bug or virus that went around.

Because I am already chronically unwell with HS, and because I am on antibiotics constantly to try and manage it, and because of my asthma and diabetes, when I get unwell it is usually rapid in taking hold of me and I become very unwell. Apart from HS, mostly I struggle with constant chest infections and viruses which rarely get better without using Prednisolone and several courses of antibiotics. These cause my asthma to flare up immediately even though I am on constant medication for this also.

When I am ill with this, I struggle to breathe, sleep poorly due to coughing and struggling to breathe and have very little energy due to lack of air intake and oxygen. I need to use my nebulizer multiple times a day to even breathe somewhat normally and I struggle to do even normal household tasks like washing, housework and driving the children to and from school.

Even when I am over the worst of it and recovering, I will still often have to use my nebulizer just to breathe and usually have a chronic cough.

I have also had constant issues with my lungs since I partially collapsed a lung due to coughing so hard a number of years ago. Every time I have a chest infection and cough the lung that collapsed is painful although I am not aware that it has happened again. I was not aware until I did it that it was even possible to do just by coughing. I am not a smoker and nor is anyone in my household and I avoid being around smokers as it sets off my asthma.

The other issue which I mentioned at the hearing with Member Webb, is that because of these constant issues with my lungs, I am forced to take a corto-steroid medication called Prednisolone. Unfortunately, this has the effect of raising my blood sugar levels to extremely high levels.

I already have issues keeping my blood sugar levels (BSL’s) under control when ill as illness and infection cause them to rise. Using Prednisolone raises them very high, but without it I rarely get to the point where I can stop using the nebulizer on a daily basis, multiple times a day. High blood sugars cause me to feel extremely tired and lethargic and I struggle to do anything but sleep when they get too high.

Unfortunately, the HS being a constant infection, along with the chronic chest infections I get because my immune system is so compromised, mean that I have struggled to keep my blood sugars in normal range without using large amounts of insulin. Insulin itself causes weight gain which exacerbates the HS.

It is a vicious cycle as HS affects my asthma and diabetes. My asthma affects my diabetes and HS. My diabetes affects my asthma and HS.

My diabetes and HS also make me more prone to other infections and I also struggle with abscesses in my teeth because of it, again making me quite ill.

Above all though, stress affects diabetes, asthma and HS.
Partner’s Workcover Claim and Starting a New Business
The applicant’s partner, who is an electrician, had previously had a workplace injury which had required an operation on his shoulder. After the Workcover claim was settled he became detached from his employer and found it difficult to find work due to his age and injury. As a result of the shoulder injury he had limitations on the amount and type of work he could do. In 2015, on his doctor’s advice, he set up his own business so that he could better manage the type of work that he undertook.
The applicant said that she was responsible for managing the paperwork for this new small business and it doubled her workload, presumably in conjunction with the paperwork required to manage the family’s real estate portfolio. The applicant said this put her under significantly more stress.
Computer Virus
The applicant said that in late 2016 her computer had been compromised when her and her partner’s computers were networked and he had clicked on an email which resulted in encryption of the files on both computers. As a result, she lost access to all records on her computer relating to their 2015-2016 tax returns.
The applicant said her partner had asked a friend, Mr Paul Stevens, who had some expertise in such matters to decrypt the files. The applicant provided a letter from Mr Stevens, dated 9 August 2019, which says that he was first contacted about the problem by the applicant’s partner in mid-December 2016 and that he received the computers early in January 2017. The letter says he worked on the computers for several weeks but was unable to decrypt most of the files.
The applicant said she had to recreate the tax files. Her partner said these were submitted to their accountant over a couple of months from March 2017.
Change of accountant
The applicant said she and her partner changed their accountant in 2016 for reasons of cost and because it was difficult to access their previous accountant’s office in the city. The applicant said:

The accountant was supposed to do our taxes for 2016 and later 2017 for personal for my husband and I, for our family trust and for our self-managed superannuation fund (SMSF).

The accountant we chose assured us he could do the work and do it promptly. He did not do so. It took him over a year to do and then he only completed the 2016 personal returns that were lodged in April 2018. During this time he made numerous mistakes, took a long time to get back to us and lost the USB with the tax records on it that we had provided to him. Whilst I acknowledge that we should have fired him and sought another accountant, because I was also dealing with so many health issues this did not happen.

The applicant claimed that the accountant’s lack of timeliness prevented her and her partner lodging their 2015-2016 tax returns by 30 June 2017.
Family Pressures
The applicant said that in 2015 she had two preschool children at home and a third in their first year at school. She said she was so unwell that she was struggling to cope with even basic family tasks.
Incorrect Advice from Centrelink
The applicant said that she and her partner had made a number of calls to Centrelink both prior to 30 June 2017 and afterward to advise of the difficulty they were having in lodging their 2015-2016 tax returns. They had also made similar calls to the ATO on the same subject.
The applicant also said that she and her partner had been given poor advice by Centrelink in that they had been advised to over-estimate their income to avoid incurring an FTB debt.
The applicant gave the following account of interactions with Centrelink on these issues:

What was stated at the hearing was that we, at the recommendation of Centrelink staff over-estimated our income for the year. This was recommended to us even though we informed staff on the phone that my husband’s income had basically dropped to half or less of what it had formerly been when he was employed in a PAYG job. Being self-employed had significantly reduced his income, especially in the first few years of his business.

Even though we informed Centrelink of this, and we had in the years prior always received a top-up as we were underpaid even when my husband was earning more than double what he was in 2016, Centrelink staff recommended that we set our income as much higher just in case his business earned much more for some reason. This did not really make much sense to us at the time but we went with the recommendation of Centrelink staff.

This had the effect of making money extremely tight for us all year and we were living on a shoe-string budget all year which again caused us huge stress, but we were always told that we would get the top-up that we were entitled to when our tax return was lodged. Other than the letter dated March 2017, we have always been told that we would get the top up by Centrelink, even after June 2107 we were told that. That it is not necessarily mentioned much in Centrelink records does not mean that it was not discussed at least in passing.

In summary, we only over-estimated our income because we were told to do so by Centrelink. Had we used our correct income, which is what we rang Centrelink to do, this would all be a moot point as we would have received the family tax benefit paid fortnightly instead of as a top up at the end of the year. Centrelink therefore gave us both the wrong information regarding both telling us to over-estimate our income and in telling us that we would receive the top up when we had lodged our tax return during ALL phone calls with them while failing to state that this was the case only if we had lodged on time.

We were definitely told this by Centrelink AFTER the cut-off date of June 30, 2017. We feel we have been very misled by Centrelink and totally shafted by them.
Combination of Circumstances

The applicant did not claim that any individual circumstance caused her and her partner not to lodge their tax returns by 30 June 2017, she said:

I am not saying that any one of the above circumstances alone caused us to lodge our 2016 tax returns late. It was the combination of all the issues we had that caused it to happen. It was the combination of first my husband being injured followed up by our dealings with workcover, the subsequent starting of his own business and the increase in my workload while struggling with my health, 3 preschool children, the virus that encrypted all of our data on two computers, and an accountant that did not do what he was supposed to do and my declining health while my husband was trying to start up his fledgling business that caused the issue.

It was not any one thing but everything together that caused the issue. While Member Webb has dismissed each thing on its own, I do not believe that she has considered them as a whole and the impact that this combination of events has had on our family, our finances and our health.
CONSIDERATION OF SPECIAL CIRCUMSTANCES
Special circumstances are not defined by the legislation. This provides wide discretion. Each case will turn on its own facts. However, the Federal Court of Australia and this Tribunal have considered it on many occasions, and this provides general guidance.
In Beadle and Director-General of Social Security [1984] AATA 176; (1984) 6 ALD 1 Toohey J said the adjective “special” “looks to circumstances that are unusual, uncommon or exceptional”.
In Dranichnikov v Centrelink [2003] FCAFC 133 Hill J, (with whom Kiefel and Hely JJ agreed at [66] said:

Other cases which have considered analogous words such as “special reasons” has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary.
The Full Court in Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443 held at 450:

Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardships, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.
In Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones [2012] FCA 639; (2012) 89 ATR 267, 274 Jacobson J said at 51:

The effect of the authorities is that the phrase “special circumstances”, although lacking in provision, is sufficiently understood as including events or things that render the operation of the statue [sic] in a particular case as unfair, unintended or unjust. What is required is something that takes the case out of the ordinary, and unfairness or unintended consequences may show that this exists.
In Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Besanko J said at [33] “(t)here is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised.
The Tribunal considered each of the elements which the applicant raised in making her claim that there are special circumstances.
The Tribunal found that the applicant’s partner’s compensable injury and his decision to start a new small business were not out of the run of ordinary cases and too remote from the subject of the appeal to be considered a relevant special circumstance.
The Tribunal finds that family pressures associated with caring for three pre-school age and school age children, while obviously demanding, are not out of the run of ordinary cases.
The computer virus was unfortunate, but it occurred more than six months before the deadline for lodgement of the tax returns. The applicant said she was able to reconstruct the tax information that had been encrypted and that she began providing this information to the accountant in March 2017and completed that process over the following two months.
The Tribunal found that the following elements:
(a) The applicant’s increased paperwork workload relating to her partner’s small business; (b) The workload relating to the applicant and her partner’s seven investment properties;
and
(c) The complexity of the applicant’s and her partner’s tax affairs with a trust, a small
business and a self- managed superannuation fund;
are not relevant considerations as special circumstances in relation to the applicant managing their FTB obligations because they are the normal obligations of any taxpayer who chooses to operate such entities.
The length of time taken by an accountant to complete tax returns is not normally treated by social security decision makers as a special circumstance. The Family Assistance Guide (Guide) sets out the following government policy on this matter:

Lodgements of tax returns are the responsibility of the individual, including those who lodge via a tax agent. Providing financial statements to a tax agent or accountant prior to 30 June of the relevant lodgement year does not constitute lodgement of tax returns for FTB purposes. Extensions to the lodgement period may be granted if there are special circumstances, which prevent the individual from meeting their income confirmation obligations. Special circumstances are circumstances that are unusual, uncommon or exceptional. Failure by an accountant or tax agent to lodge a tax return within the lodgement period (for example forgetting to lodge in time or delay due to high workloads) will not ordinarily constitute special circumstances.
The respondent argued that, in accordance with the Drake line of authority, it is appropriate that the Tribunal apply such official government policy unless there is a cogent reason not to so.
However, that does not mean that the Tribunal must apply government policy. In Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Federal Court of Australia (Full Court), Bowen CJ, Smithers and Deane JJ said:

…the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferarable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.

It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. It may be that the Tribunal concludes, on the material before it, that a particular government policy which had been applied by an administrative officer, in making a decision which the Tribunal was reviewing was, in itself unobjectionable and that the need for consistency in the particular area of administrative decision-making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it.
The Tribunal considered what weight should be applied to this policy, having regard to the facts in this particular case.
The Tribunal notes that while the policy may appear to fall most heavily on late lodgers of tax returns who would otherwise be entitled to top up payments, the deadlines are not unreasonable, there is provision to apply for extensions where there are special circumstances, and there is a need to ensure timeliness of lodgement in the context of family assistance which is generally paid on the basis of the recipient’s own estimate of their income over a financial year. The policy: ensures consistency of treatment of all recipients of family assistance; provides a disincentive to use non-lodgement of tax returns to defer reconciliation of payments with entitlements which would result in the Commonwealth being required to carry the significant costs of overpayments and uncollected debts; and it reduces the administrative costs associated with a long tail of uncompleted reconciliations.
The Tribunal found nothing in the facts of this case that would require a departure from this general policy.
The evidence given by the applicant and her partner at the Tribunal was that the reconstructed tax information was given to the accountant over a period of two months beginning in March 2017. The implication of that is that the accountant had at least a month to complete the tax returns, so the applicant and her partner could authorise their lodgement before the due date of 30 June 2017.
The applicant said that she relied on her accountant to prepare the tax returns on time and indeed expected him to do that. However, a person is not prevented from doing something because they expected, relied or trusted some other party to do it for them.
It was open to the applicant and her partner to change accountants if they were dissatisfied, or to return to their old accountant who was more familiar with their affairs. They gave evidence that they had actually considered doing this but did not do so.
The respondent, at paragraph 32 of the Secretary’s Statement of Facts, Issues and Contentions said that an email provided by the applicant showed that in late 2018 the applicant and her partner were raising issues with the accountant about his proposed treatment of depreciation which suggested that the delays may not have been entirely attributable to the accountant.
If the applicant and her partner believe that the accountant’s performance did not meet the required standard and this had caused them financial harm, then they should seek redress from the accountant and not seek to use the special circumstance provisions in sections 32C(3)(b) and 32D(1)(c)(ii) of the FA Admin Act to transfer any such responsibility to other taxpayers.
It is the responsibility of every taxpayer to ensure that their tax return is accurate. There are many issues that must be considered. However, the delays in lodging the tax returns were inordinately long, more than nine months after the deadline.
The applicant and her partner told the Tribunal they had been given incorrect information by Centrelink that they would receive the top up payments when they lodged their tax returns and that they should overstate their estimate of income to avoid an overpayment.
The Secretary’s Statement of Facts, Issues and Contentions says:

There is no evidence available to support a conclusion that the Berges’ contacted the Department prior to the cut-off date to discuss the late lodgement of their tax returns, nor is there any evidence to support a conclusion that they would receive the top up payments if they lodged late.
The applicant and her partner had limited recall of the detailed content or any dates of their telephone interactions with Centrelink. The applicant’s partner said that one of them, which was made before 30 June 2017, was made from their car and they were not able to quote the applicant’s Customer CRN. This would explain why the Customer Record Access Management Report (CRAM) did not record any interaction. The applicant and her partner did not keep contemporaneous notes and so there is no documentary evidence of what was actually said.
The recollections of the applicant and her partner as they put them to the Tribunal fell short of an unequivocal statement that they had advised Centrelink prior to 30 June 2017 that they would not be able to lodge their tax returns on time. In the absence of clarity that any advice given was in response to such a statement it is not possible for the Tribunal to conclude that the applicant was given incorrect advice during any telephone call.
Centrelink sent the applicant a letter dated 12 March 2017 telling her she would not get a top up payment if the tax returns were not lodged by 30 June 2017. The Tribunal finds that is conclusive evidence that she was given correct advice about the consequences of late lodgement more than three months before the due date.
When that deadline was missed Centrelink sent another letter on 14 July 2017 telling the applicant she would not get the top up payment and if the tax returns were not lodged she would have to pay back all the FTB that she had been paid in 2015-2016.
Centrelink’s records show that the applicant did not apply for an extension of time to lodge the tax returns until 11 May 2018.
The Tribunal is very sympathetic to the applicant and does not wish to understate the debilitating nature of her serious health issues. These are out of the run of ordinary cases and the Tribunal finds that they constitute special circumstances. However, as the preparation of the tax returns was placed in the hands of an accountant more than a month before the deadline the Tribunal cannot make a finding that the health issues prevented lodgement by the due date.
The applicant has argued that the particular combination of factors she faced constituted special circumstances that prevented the tax returns being lodged on time. However, the Tribunal found only one factor that constituted special circumstances, her health issues.
DECISION
Given that the tax returns were not lodged for more than nine months after the deadline, the Tribunal finds that the cause of the applicant’s failure to lodge the tax returns by the deadline was not special circumstances, it was that she and her partner did not give sufficient weight to timeliness in relation to the requirement that their tax returns needed to be submitted by 30 June 2017 for FTB purposes.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Member D Cox
................[sgnd]............................................
Administrative Assistant Legal
Dated: 11 September 2020

Date of hearing: 3 March 2020 & 4 March 2020

Applicant:

Self-represented

Representative for the Respondent: Ms J Edwards, Department of Social Services

Date of hearing:	3 March 2020 & 4 March 2020
Applicant:	Self-represented
Representative for the Respondent:	Ms J Edwards, Department of Social Services