Birdseye and Commissioner of Taxation (Practice and procedure)
[2025] ARTA 2147
•10 October 2025
Birdseye and Commissioner of Taxation (Practice and procedure) [2025] ARTA 2147 (10 October 2025)
Applicant:Nicholas Birdseye
Respondent: Commissioner of Taxation
Tribunal Number: 2025/2942
Tribunal:General Member J Dunne
Place:Melbourne
Date:10 October 2025
Decision:The Tribunal dismisses the reinstatement application made under section 102 of the Administrative Review Tribunal Act 2024 (Cth) as there was no error in the Tribunal’s decision to dismiss this application under section 97 of the Administrative Review Tribunal Act 2024 (Cth).
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General Member J DunneCatchwords
PRACTICE AND PROCEDURE – Reinstatement application for proceedings dismissed under section 97 of the Administrative Review Tribunal Act 2024 (Cth) for lack of jurisdiction as there was no reviewable decision – Applicant required to demonstrate error for the proceedings to be reinstated and failed to do so – Reinstatement application dismissed
Legislation and regulations
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Administrative Review Tribunal Act 2024 (Cth), ss 11, 12, 97, 102
Corporations Act 2001 (Cth) Part 5.3B, s 1317B
Corporations Regulations 2001 (Cth) Part 5.3B, regs 5.3B.20(1), 5.3B.25
Income Tax Assessment Act 1997 (Cth) Subdivision 328-G
Tax Agent Services Act 2009 (Cth) s 70-10
Taxation Administration Act 1953 (Cth) ss 14Y, 14ZO, 14ZQ, 14ZZA
Cases
Birdseye and Tax Practitioners Board [2021] AATA 1011
Secondary Materials
Australian Securities and Investments Commission “Small business restructuring and the restructuring plan” at (as at 9 October 2025)
Australian Taxation Office “Insolvency processes that support small business” at (as at 9 October 2025)
Australian Taxation Office Law Companion Ruling LCR 2016/2 Small Business Restructure Roll-over: consequences of a roll-over
Australian Taxation Office “Small business restructuring” at (as at 9 October 2025)
Statement of Reasons
Issue
This case is a reinstatement application by Mr Birdseye pursuant to section 102 of the Administrative Review Tribunal Act 2024 (Cth) (“ART Act”).
On 8 August 2025, the Tribunal dismissed Mr Birdseye’s proceedings pursuant to section 97 of the ART Act because there was no reviewable decision. Section 97 provides the Tribunal must dismiss the application if it is satisfied the decision is not reviewable by the Tribunal.
This means that for this case to be reinstated, Mr Birdseye must demonstrate that the Tribunal’s 8 August 2025 decision was in error. This is because where a decision to dismiss is made under section 97 of the ART Act, the only applicable power for the Tribunal to reinstate the application is in subsections 102(5) and 102(6) of ART Act[1] which read as follows:
[1] Subsection 102(2) provides that the Tribunal may also, by its own initiative, reinstate an application dismissed under section 97 if it considers the application was dismissed in error, but in this case that is not relevant.
Party may apply for reinstatement if application dismissed in error
(5) A party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
(6) If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
For the reasons outlined in this decision I am not satisfied that the Tribunal’s decision on 8 August 2025 was in error, and I dismiss Mr Birdseye’s application for reinstatement.
Background to the Application for Review
This case relates to a business formerly operated by a company called Claim It Financial Planning Pty Ltd (“the Company”), of which Mr Birdseye was a director.
In 2021, a simplified debt restructuring process applicable to small business was established at law (“small business simplified debt restructuring”). Broadly, subject to satisfying a number of requirements, this process enables viable but distressed small businesses to negotiate with creditors, to satisfy debt, to continue trading, and not to face liquidation.
The small business simplified debt restructuring process is set out in Part 5.3B of the Corporations Act 2001 (Cth) (“Corporations Act”) and Part 5.3B of the Corporations Regulations 2001 (Cth) (“Regulations”). There are a number of requirements to meet before a small business simplified debt restructuring process can be undertaken. They are summarised in varying publications including from the Australian Securities and Investments Commission[2] and from the Commissioner.[3] The important requirement in this case is that pursuant to regulation 5.3B.25 of the Regulations a restructuring plan must be accepted by the majority in value of creditors. If the majority in value of creditors do not accept the restructuring plan, regulation 5.3B.20(1) of the Regulations provides that it lapses.
[2] For instance “Small business restructuring and the restructuring plan” at For instance “Insolvency processes that support small business” at and “Small business restructuring” at >
In 2024 it was determined that the Company was insolvent or likely to become insolvent. The Company sought to engage in small business simplified debt restructuring. It engaged a restructuring practitioner as required by the small business simplified debt restructuring process. A restructuring plan dated 14 October 2024 was prepared and put to creditors in October 2024. There were two creditors, and the Commissioner was by a vast distance the major creditor. The Commissioner did not accept the restructuring plan, and provided brief reasons to the Company for that decision on 4 November 2024. This meant that the restructuring plan lapsed and did not proceed. The Tribunal notes that the Company no longer has an ABN and assumes it was liquidated.
Mr Birdseye’s Application for Review relates to the Commissioner’s decision to refuse to accept the restructuring plan under the Regulations. In his Application for Review and in his submissions before the Tribunal Mr Birdseye said that the restructuring proposal was in accordance with guidance issued by the Commissioner and the liquidator followed those procedures. He said he was forced to pay $15,000 for the report the Commissioner required. He said $400,000 is at issue and that this is what it has cost him. Mr Birdseye said that the reasons for the Commissioner’s rejection of the restructuring plan provided to him on 4 November 2024 were not consistent with the Commissioner’s guidance.
Mr Birdseye made an array of submissions which were to the effect that the Commissioner had created a legitimate expectation by its guidance, or was estopped by that guidance, and was required to accept the restructuring plan. His emails to the Tribunal made allegations including “procedural unfairness”, “lack of good faith”, “deliberate abuse and manipulation” by the Commissioner and suggested that “functus officio” is relevant in this case.[4] These are judicial review grounds and are commented upon below.
[4] Email dated 28 August 2025 from Mr Birdseye to the Tribunal. Functus officio is entirely irrelevant to this matter and is a judicial review ground in any event.
Mr Birdseye referred to other unrelated matters such as those involving a director penalty notice, and his registration as a tax agent. I took this to be suggesting that irrelevant considerations were taken into account by the Commissioner when coming to its conclusion to reject the restructuring plan. That is also a judicial review ground and commented upon below.
Mr Birdseye also suggested that earlier cases he was engaged in (such as with the Tax Practitioners Board) where decisions were found to be reviewable by the Tribunal, mean that all decisions made by the Commissioner are reviewable by the Tribunal. This point is misguided. The reason jurisdiction was found in those earlier matters is because the Acts at issue provided that jurisdiction to the Tribunal. For instance, in Birdseye and Tax Practitioners Board [2021] AATA 1011, section 70-10 of the Tax Agent Services Act 2009 (Cth) provided the Tribunal with powers to review the relevant decisions. That has nothing to do with the present matter.
Other suggestions of a scandalous nature were made by Mr Birdseye in his 28 August 2025 email, such as that the Commissioner has “friends” at the Tribunal or is “bullying the Tribunal”. I completely reject those suggestions. The Tribunal is entirely independent of all parties and simply applies the law, like all of the Courts. Mr Birdseye’s suggestions otherwise are both offensive to the Tribunal and ridiculous. I have generously interpreted those remarks as being borne out of frustration with the impact of the Commissioner’s decision to reject the restructuring plan. They will not be commented upon further. Scandalous allegations of “lies” by the Commissioner in other proceedings or by barristers in other proceedings, are not commented on either. They are not relevant to the present case.
In a further email dated 10 September 2025 Mr Birdseye made similar comments, but that email was to the broad effect that he did not understand why the Commissioner’s refusal to accept the restructuring plan was not reviewable by the Tribunal. That email included comments such as “[t]here is no section in the ATO Act which says the specific section of the Act is not reviewable” and “[a]fter 40 years, I have no knowledge of any ATO decision [that] is not reviewable.” I comment on this below.
Before me on reinstatement Mr Birdseye seemed to also be suggesting that unless the Commissioner specified comprehensively in public guidance what could not be reviewed by the Tribunal, review was possible. This submission is completely misguided. It is the law that says what can and cannot be reviewed by the Tribunal, not the Commissioner’s guidance. The Commissioner’s guidance is not the law.
The Tribunal’s jurisdiction
No jurisdiction to consider judicial review grounds
The Tribunal directed an email to the parties on 2 October 2025. In that email the Tribunal explained its jurisdiction. This included setting out the fact that judicial review grounds (such as improper purpose, procedural fairness, lack of good faith, abuse of process, considering irrelevant considerations as alleged by Mr Birdseye) are not in the Tribunal’s jurisdiction, and these are solely the purview of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) by virtue of section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The allegations Mr Birdseye wishes to pursue in relation to the Commissioner’s decision to refuse the restructuring plan are outside of the Tribunal’s jurisdiction.
In terms of Mr Birdseye’s suggestion that the Commissioner is estopped by its guidance and was required to accept the Company’s restructuring plan, this too is a judicial review ground, and is not in the Tribunal’s jurisdiction.
As an aside, I note that I am not certain what guidance Mr Birdseye believes gives rise to this issue. The Commissioner’s website guidance[5] refers to its ability to reject restructuring plans as follows:
[5] “Small business restructuring” at of restructuring plans
We assess each restructuring plan based on its own merits. We aim for outcomes that benefit all parties while ensuring the integrity of the tax and superannuation systems.
We'll support financially viable small businesses, while taking a firm approach with those who present a risk to the system or have a poor compliance history.
Rejection of restructuring plans
If we decide to reject a restructuring plan, it can't be reviewed. We are under no obligation to provide reasons for the rejection. However, it's our normal practice to provide general reasons, unless we determine that doing so could breach privacy or confidentiality.
The most common reasons for rejecting a restructuring plan are:
·non repayment of director or related entity loan accounts
·poor tax compliance history
·non-payment of tax liabilities
·it would provide an unfair advantage over other businesses.
The reference in the website guidance to the rejection of a restructuring plan not being able to be reviewed was raised by the Tribunal with Mr Birdseye as a separate matter at the hearing of his reinstatement application. I advised him to seek legal advice, as, while the vast majority of the Commissioner’s decisions are reviewable by the Courts, he is wrong to think that every decision of the Commissioner can be reviewed.
I explained to him that judicial review (such as the grounds he wanted to pursue) could be pursued where (broadly) the Commissioner was required by law to give reasons for decision. I noted that neither the Corporations Act nor the Regulations appeared to require the Commissioner to give reasons for decision, and he needed to seek legal advice about this. None of that is anything to do with the Tribunal as I have no jurisdiction to consider the arguments Mr Birdseye wants to raise in any event. I make no further comment about it.
The Tribunal’s jurisdiction
The Tribunal can review reviewable decisions.[6] Under section 12 of the ART Act a reviewable decision arises if an Act or legislative instrument provides for the application to be made to the Tribunal for review of the relevant decision. As the Tribunal’s email of 2 October 2025 stated, in terms of decisions by the Commissioner, the Tribunal has powers to review “reviewable objection decisions” (broadly, these are disallowed objections to taxation assessments) certain extension of time decisions, and other narrow categories of decision by virtue of the Taxation Administration Act 1953 (Cth) (“TAA”).[7] The decision Mr Birdseye wants to review does not fall within those categories. Mr Birdseye seemed to suggest that if the decision at issue was not specified as an “ineligible income tax remission decision” and excluded from being a “reviewable objection decision” by virtue of the definitions at section 14ZQ of the TAA that this somehow means that the Tribunal can review it. This is incorrect. The fact is that the decision Mr Birdseye wants to review is not made under the TAA. It is made under the Regulations. Section 11 of the ART Act directs Applicants such as Mr Birdseye to review the specific Act or other enactment under which the decision was made to determine if the Tribunal has powers of review.
[6] Section 11 of the ART Act.
[7] See sections 14ZZA, 14ZO and 14Y.
The decision Mr Birdseye wants to review was made by the Commissioner under Part 5.3B of the Regulations. The Regulations do not give the Tribunal any power to review the Commissioner’s decision that Mr Birdseye is concerned about. In fact, the Tribunal is not mentioned at all in the Regulations. Under the Corporations Act certain decisions in various parts of the Act are reviewable by the Tribunal,[8] but these do not have a linkage to Part 5.3B of the Corporations Act, nor to the Commissioner.
[8] For instance, see section 1317B of the Corporations Act.
Finally, Mr Birdseye’s efforts to try and link this matter to subdivision 328-G of the Income Tax Assessment Act 1997 (Cth) and to Law Companion Ruling LCR 2016/2 Small Business Restructure Roll-over: consequences of a roll-over are misguided. The decision the Commissioner made that he wishes to review was to reject the restructuring plan. That decision is not made under subdivision 328-G of the Income Tax Assessment Act 1997 (Cth). It is made under the Regulations. Further, if Mr Birdseye wanted to challenge a decision by the Commissioner that was made under subdivision 328-G he needed to participate in an objection process with the Commissioner first, and cannot simply apply to the Tribunal without there being a reviewable objection decision. In any event, it seems unlikely that a reviewable decision was made by the Commissioner under subdivision 328-G of the Income Tax Assessment Act 1997 (Cth) as the restructuring plan did not proceed.
Conclusion
For those reasons, I dismiss Mr Birdseye’s application for reinstatement. There was no error in the Tribunal’s decision dated 8 August 2025 to dismiss the application pursuant to section 97 of the ART Act, and the Tribunal has no jurisdiction to hear the application because there is no reviewable decision.
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Dated: 10 October 2025
Date of hearing: 9 October 2025 Counsel for the Applicant:
Self-represented
Solicitors for the Respondent:
ATO Review and Dispute Resolution
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