Biviano and Secretary, Department of Family and Community Service S

[2004] AATA 73

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 73

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/708

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LISA BIVIANO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal M.A. Griffin

Date29 January 2004

PlaceSydney

Decision The Tribunal affirms the decision under review.

[sgd] Mr M Griffin, Member

CATCHWORDS

SOCIAL SECURITY - Family Tax Benefit - income tax return not lodged by the particular time - variation of determination - entitlement limited to amount received - no provision for 'top-up' payment - decision affirmed

A New Tax System Family Assistance (Administration) Act 1999

Baronessa and Secretary to the Department of Family and Community Services [2003] AATA 1276

REASONS FOR DECISION

29 January 2004 M.A. Griffin            

1.      This is an application to review a decision of the Social Security Appeal Tribunal dated 21 March 2003 which affirmed a decision of the Secretary to the Department of Family and Community Services (the Respondent) that the applicant, Mrs L. Biviano, was not entitled to a "top up" payment of Family Tax Benefit (FTB) for the year ended 30 June 2001. 

2. At the 16 January 2004 hearing Mrs Biviano represented herself. Ms Green, an advocate with Centrelink represented the Respondent. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T13) and a bundle of documents exhibited as R1 for the Respondent.

BACKGROUND

3.      During the financial year ended 30 June 2001, Mrs Biviano was paid fortnightly instalments of FTB based on combined estimated income of herself and her husband of $45,000.00 (R1 attachment A).  The instalments totalled $5,335.72.  Actual combined income shown in the income tax return lodged on 18 November 2002 for the year ended 30 June 2001 was $28,742.00.  This would have produced an entitlement of FTB of $11,528.34.  As the return had not been lodged by 30 June 2002, the Respondent determined that there was no entitlement to the difference of $6,192.62 as a "top up" of FTB.

EVIDENCE

4.      By letter dated 26 April 2002, Mrs Biviano was advised that:

…

If your partner needs to lodge a tax return for the 2000/2001 financial year, then you must do so before 30 June 2002.

Please read and have your partner read the enclosed information regarding 'Do you need to Lodge a Tax Return for the 2000/01 income year' If your partner does not need to lodge tax returns, either complete the attached statement and return in the envelope provided, contact us on the phone number at the bottom of this letter or come into any Family Assistance Office.

Important Information

If you and/or your partner do not lodge tax returns, or let us know you are not going to lodge by 30 June 2002, you may be asked to pay back the Family Tax Benefit and/or Child Care Benefit you have received for the 2000/2001 financial year.

No 'top up' of Family Tax Benefit or Child Care Benefit for the 2000/2001 financial year can be made if your partner lodges income tax returns after 30 June 2002.

There was no dispute that this letter was received or that Mr Biviano lodged his return in November 2002.

5.      Mrs Biviano said the decision was unfair. She said she relied upon advice from her husband and the family accountant. She said the accountant advised her to deliberately overestimate their income so that she would not incur a debt at the end of the year. She said the accountant arranged for the late submission of her husband’s tax return with the approval of the tax office. She said 2000-2001 was the first year of operation of the newly introduced FTB scheme. She said her accountant did not know about this aspect of the legislation, which precludes ‘top-up’.. She said the 26 April 2002 letter was badly set out as the important information for her about ‘top-up’ was printed on the reverse of the page. She said others who had underestimated their income and incurred debts had had $1000.00 waived by the Respondent. She said her children were being unfairly denied a benefit they were entitled to because she had reasonably relied upon her accountant and the tax office.

6.      Ms Green said she had instructions to inform the Tribunal that the Government had introduced a Bill before the Parliament, which is designed to cure this problem. The Bill will extend the period of time allowed for lodgement of tax returns by a further 12 months. Ms Green said the Bill was retrospective but did not include those matters which date from the 2000-2001 first year of operation. Ms Green said there had been proposals in Parliament to amend the Bill so that it would pick-up the matters from the first year of operation such as Mrs Biviano’s matter. Ms Green was unable to say what the present status of the Bill or the proposed amendments is. Ms Green said the Respondent would make the ‘top-up’ payment to Mrs Biviano if the Bill as amended became law, even if the Tribunal affirms the present decision.

CONSIDERATION OF ISSUES

7.      The Tribunal has considered the effect of this legislative scheme on previous occasions. In Re Baronessa [2003] AATA 1276 at paragraph 5, Senior Member Pascoe had this to say about the relevant section:

Section 28 of A New Tax System Family Assistance (Administration) Act 1999 (the Act) is quite clear that:

·     where a person has received FTB;

·     the person or their partner is required to lodge an income tax return for the year ended 30 June 2001;

·     the person or their partner has not lodged such return by 30 June 2002;

·     no income tax assessment has been made by the Commissioner of Taxation by 1 July 2002; and

·     the return is lodged after 30 June 2002

the person is entitled to the lesser of the entitlement to FTB based on the actual taxable income for the year ended 30 June 2001 or the total instalments actually received.

8.      In reviewing the facts of that particular matter the Senior Member said:

While having considerable sympathy for the position in which Mrs Baronessa has found herself, the legislation is clear and contains no discretion to provide a "top up" payment in any circumstances, no matter how special, where an income tax return is not lodged by 30 June 2002.  The clear words of s28 of the Act result in the entitlement to FTB for the year ended 30 June 2001 being limited to the amount of $5,792.95 actually received with no entitlement to any "top up" payment.  

9.      With respect I agree that the effect of section 28 is as described in Re Baronessa above. I have considerable sympathy for the position in which Mrs Biviano finds herself. Mrs Biviano was an impressive witness who is obviously honest and genuine and has acted reasonably in the circumstances. Nevertheless I am satisfied there is no discretion available to this Tribunal in the interpretation of the legislation and that a payment of ‘top-up’ of FTB cannot be made to Mrs Biviano. In the event that the Bill with the proposed amendments is passed by the Parliament then the Respondent has undertaken to make the ‘top-up’ payment to Mrs Biviano.

DECISION

10.     The Tribunal affirms the decision under review.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         Guy Moloney
  Associate

Date/s of Hearing  16 January 2004
Date of Decision  29 January 2004
Applicant’s Representative      Self
Respondent’s Advocate           J. Green