Bondzulic and Secretary, Department of Social Services (Social services second review)

[2017] AATA 455

Bondzulic and Secretary, Department of Social Services (Social services second review) [2017] AATA 455 (10 April 2017)

Division:GENERAL DIVISION

File Number:           2016/2975

Re:Maryanne Bondzulic

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A C Cotter

Date:10 April 2017

Place:Brisbane

The Tribunal affirms the decision under review.

...........................[Sgd].............................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – family tax benefit – late claim - whether the reconciliation period should be extended – whether special circumstances prevented applicant from lodging returns within time – decision under review affirmed

LEGISLATION

Acts Interpretation Act 1901 (Cth), ss 28A and 29

A New Tax System (Family Assistance) Act 1999 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 10, 28, 32A, 32B, 32C, 32D

Evidence Act 1995 (Cth), s 160

CASES

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9

Grasso and Secretary, Department of Social Services [2015] AATA 1017

Groth v Secretary, Department of Social Security (1995) 40 ALD 54

Hooker and Secretary, Department of Social Services [2015] AATA 732

Robson and Secretary, Department of Social Services [2016] AATA 1012

Secretary, Department of Social Services and Hollis [2015] AATA 941

SECONDARY MATERIALS

The Concise Oxford English Dictionary (12^th edition, 2011).

The Macquarie Dictionary (7^th edition, 2017).

REASONS FOR DECISION

Senior Member A C Cotter

10 April 2017

INTRODUCTION

1. In August 2015, the Department of Human Services (“Department”) determined that Mrs Maryanne Bondzulic was not entitled to Family Tax Benefit (“FTB”) top-ups and supplements for the 2014 financial year, because she and her partner lodged their 2013-2014 income tax returns more than 12 months after the end of that financial year.

2. A review by an Authorised Review Officer (“ARO”) affirmed that decision.

3. Similarly, Mrs Bondzulic’s subsequent request for a review by the Social Services & Child Support Division (“SSCSD”) of this Tribunal was unsuccessful, with the SSCSD affirming the decision of the ARO.

4. Mrs Bondzulic has now sought a review of the SSCSD’s decision by the General Division of this Tribunal.

5. For the reasons outlined below, I agree with the SSCSD’s decision and consider that it should be affirmed.

   THE LEGISLATIVE CONTEXT

6. The legislation relevant to FTB is contained in A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“Administration Act”).

7. FTB is worked out as an annual entitlement, based on the combined adjusted income of a recipient and their partner. In the financial year in question, recipients could elect to receive FTB by fortnightly instalments, based on their income estimates. Alternatively, they could elect to receive their full FTB entitlement after the end of the financial year.

8. At the end of the financial year, a reconciliation occurs, where the recipient’s estimate is compared with their income assessed by the Australian Taxation Office (“ATO”). Depending on the income estimate, a recipient could find that they were overpaid FTB (where their income estimate was too low) and incurred a debt or, where the income estimate was too high, receive a top-up FTB payment. Because the correct entitlement could not be determined until the income of the recipient and their partner could be verified by the ATO, they were obliged to lodge their income tax returns by the end of the following financial year (that is, in the case of the 2013-2014 financial year, by the end of the 2015 financial year, being 30 June 2015).

9. Where a recipient and/or their partner lodged their returns after 30 June 2015, s 28(3) of the Administration Act applied, such that their full entitlement for the 2013-2014 financial year would be the lesser of what was paid, or would have been paid, based on the estimate of income, and the correct entitlement based on their actual verified income.

10. Generally, FTB supplements are paid annually during the course of the reconciliation. However, s 32A of the Administration Act requires the Secretary to disregard FTB supplements when making a determination until the prospective recipient has satisfied the FTB reconciliation conditions applying to the relevant period. The reconciliation conditions to be satisfied are set out in s 32B, which cross-refers to a number of subsequent provisions.

11. Sections 32C and 32D of the Administration Act go on to prescribe the relevant reconciliation times for recipients and their partners. In effect, they require the recipient’s and the partner’s income tax returns to be lodged before the end of the first income year after the relevant financial year. In the case of the 2014 financial year, that meant by 30 June 2015. Under those sections, the Secretary has a discretion to extend that period up to the end of the second income year after the relevant financial year if he or she is “satisfied that there are special circumstances that prevented (the individual) from lodging the return before the end of that first income year”.[1]

    [1] See A New Tax System (Family Assistance)(Administration) Act 1999 (Cth), s 32C(3)(b) and s 32D(1)(c)(ii).

    FACTUAL BACKGROUND

12. At all relevant times, Mrs Bondzulic was partnered to her husband, Mr Christopher Leach, and had two FTB children.[2]

    [2] Exhibits 2(a) and 2(b), Attachments A and B to Secretary’s Statement of Facts, Issues and Contentions dated 18 November 2016, Departmental notes dated 8 November 2016.

13. For the 2013-2014 financial year, Mrs Bondzulic elected to receive a nil rate of FTB, meaning that she wished to be paid her full FTB entitlement after the end of the financial year.[3]

    [3]

14. On 9 May 2013, the Department wrote to Mrs Bondzulic, inviting her to update her family income estimate for the 2013-2014 financial year. The letter set out the estimate of family income (based on Mrs Bondzulic’s then current income estimate increased in line with changes in Australian Average Weekly Earnings) that would be used to calculate her FTB payment. She was advised that if the figure was accurate, she need do nothing. However, if the figure was not accurate, she was asked to update her income estimate by 14 June 2013.[4] Mrs Bondzulic did not provide a new estimate by that date.[5] Significantly, the letter contained the following notice:

    [4] Ibid, page 34.

    [5] Exhibit 1, T Documents, T 12, page 48, letter from Authorised Review Officer to Mrs Bondzulic dated 22 January 2016.

    Lodge your tax return

    If you need to lodge a tax return, you should do so in the time frames advised by the Australian Taxation Office. If you do not lodge your tax return within 12 months of the end of the relevant financial year, your entitlement will be cancelled and you will be asked to repay all you received from us.[6]

    [6] Exhibit 1, T Documents, T 5, pages 33-34 and 36, letter from Department of Human Services to Mrs Bondzulic dated 9 May 2013.

15. On 24 March 2015, the Department wrote a letter to Mrs Bondzulic, with the reference title “Family Tax Benefit – Important action required by 30 June 2015”. It relevantly stated:

    To make sure you receive your full Family Tax Benefit entitlement, you and your partner need to lodge a 2013-2014 tax return, or tell us if you and/or your partner are not required to lodge a tax return, by 30 June 2015.

    There are benefits to lodging your 2013-2014 tax return or telling us if you are not required to lodge a tax return before 30 June 2015. These include:

    ·Top up payment - if you were underpaid Family Tax Benefit, you may receive any payment owing as a lump sum.

    ·Family Tax Benefit supplements – depending on your circumstances, you may be entitled to an additional lump sum Family Tax Benefit supplement after the end of the financial year.

    …
    If you and your partner do not take action by 30 June 2015
    If you and your partner have not lodged a tax return or you have not advised us that you and your partner are not required to lodge tax return/s by 30 June 2015:

    ·you will not be eligible for any further Family Tax Benefit, including the Family Tax Benefit supplements, for the 2013-2014 financial year

    ·…

    What you and your partner need to do

    1.Lodge your 2013-2014 tax return/s with the Australian Taxation Office before 30 June 2015…

    OR

    2.Tell us that you and/or your partner are not required to lodge a tax return for 2013-2014. You need to tell us and confirm your income before 30 June 2015…

    Information you should know

    If there are special circumstances that prevent you from lodging your tax return, or telling us you are not required to lodge a tax return, please call us on 136 150 to discuss.[7]

    [7] Exhibit 1, T Documents, T9, pages 43-44, letter from Department of Human Services to Mrs Bondzulic dated 24 March 2015.

16. The Department was advised by the ATO that the tax returns of Mrs Bondzulic and Mr Leach were lodged on 29 July 2015.[8]

    [8] Exhibit 1, T Documents, T 15, page 61, Departmental notes dated 2 February 2016.

17. On 25 August 2015, the Department determined that Mrs Bondzulic’s entitlement to FTB for the 2013-2014 financial year was $2,542.98[9] and that supplement and top-up amounts totalling $5,997.72 would not be paid.[10]

    [9] Exhibit 1, T Documents, T 15, page 55, Departmental notes dated 2 February 2016.

    [10] Exhibit 1, T Documents, T 15, pages 59 and 61, Departmental notes dated 2 February 2016.

18. Mrs Bondzulic unsuccessfully sought a review of that decision by an ARO.[11] The ARO’s decision was in turn affirmed by a first tier review by the SSCSD.[12]

    [11] Exhibit 1, T Documents, T 12, pages 47-53, letter (and notes) from Authorised Review Officer to Mrs Bondzulic dated 22 January 2016.

    [12] Exhibit 1, T Documents, T 2, pages 3-8, decision and reasons for decision of the Social Services & Child Support Division dated 15 February 2016.

19. Dissatisfied with the outcome, Mrs Bondzulic has now sought a second tier review of the SSCSD’s decision by the Tribunal’s General Division.

    ISSUES FOR THE TRIBUNAL

20. There is no dispute that Mrs Bondzulic and Mr Leach lodged their tax returns on 29 July 2015, being after the required date. Therefore, the question is whether the reconciliation time could be extended to that date. Central to that consideration is whether the Secretary (or, in this case, the Tribunal on review) is satisfied that there were “special circumstances” that “prevented” Mrs Bondzulic and Mr Leach from lodging their returns on or before 30 June 2015.

21. A provision not dissimilar to the wording used in sections 32C (3)(b) and

    
    

    32D (1)(c)(ii)[13] was considered by the Tribunal in Hooker and Secretary, Department of Social Services.[14] There SM Toohey observed:

    In order for the time for making a claim to be extended, the Secretary (and so the Tribunal) must be satisfied, firstly, that circumstances existed that were special and, secondly, that those special circumstances prevented the claimant from making his or her claim within time.

    …

    There are a number of provisions in social security law concerning “special circumstances”. For example, a preclusion period following receipt of a lump sum compensation payment may be waived or waived if the Secretary thinks “it is appropriate to do so in the special circumstances of the case”…Recovery of a debt may be waived “if there are special circumstances” that make it desirable to do so…

    In such cases, it is sufficient for the Tribunal to be satisfied that special circumstances exist. In the case of a late claim for FTB, the special circumstances must prevent a person from making a claim on time. That is a more stringent, two-part test.[15]

    [13] See A New Tax System (Family Assistance)(Administration) Act 1999 (Cth), s 10(2)(b)(ii).

    [14] [2015] AATA 732 (SM Toohey).

    [15] Ibid, [14], [18]-[19]. Statutory references removed.

22. That decision was cited with approval and followed by DP Humphries in Secretary, Department of Social Services and Hollis.[16]

    [16] [2015] AATA 941, [30]-[31]. See also my decision and reasons in Robson and Secretary, Department of Social Services [2016] AATA 1012, [13]-[14].

23. It follows from those decisions that, in considering whether the reconciliation period should be extended, a two-stage process is to be employed: did “special circumstances” exist in the particular case and, if so, did they “prevent” Mrs Bondzulic and Mr Leach from complying with the reconciliation conditions? I address those questions below.

    CONSIDERATION

    Mrs Bondzulic and Mr Leach’s circumstances

24. At the SSCSD hearing, Mrs Bondzulic denied having received the Department’s letters referred to above.[17] She earlier told the ARO that they had been experiencing problems with their mail.[18] However, it seems clear that both letters were addressed and sent to the last known postal address, a Post Office box at Noosa Heads.[19] In those circumstances and absent evidence to the contrary, I am prepared to accept that the letters were delivered to, or received at, that address in the ordinary course of post.[20]

    [17] Exhibit 1, T Documents, T 2, page 5, decision and reasons for decision of the Social Services & Child Support Division dated 15 February 2016, [16].

    [18] Exhibit 1, T Documents, T 13, page 51, Authorised Review Officer’s notes dated 4 January 2016.

    [19] See Exhibit 2, Attachment C to Secretary’s Statement of Facts, Issues and Contentions dated 18 November 2016 and [3cii] and [25]; and Exhibit 1, T Documents, T 2, page 5, decision and reasons for decision of the Social Services & Child Support Division dated 15 February 2016, [16].

    [20] See Acts Interpretation Act 1901 (Cth), ss 28A and 29; and Evidence Act 1995 (Cth), s 160.

25. Mrs Bondzulic told me that she and Mr Leach have run a small holiday rental management business for about four years. Mr Leach, a builder by trade, looks after the properties that they manage, while Mrs Bondzulic “meets and greets” guests and handles the administration. They operate a trust account and have assistance from a bookkeeper, who is also a friend. They have also had an accountant/tax agent for some years.

26. Mr Leach was diagnosed with high risk prostate cancer on 30 May 2014. He had surgery at the Royal Brisbane and Women’s Hospital (”RBWH”) on 27 August 2014 and was discharged two days later. The advised period of time off work was up to six weeks following surgery.[21] However, Mrs Bondzulic told me that Mr Leach was in considerable pain following the surgery. Because of that ongoing pain and their concern of increased risk due to the size of the tumour removed, Mr Leach did not return to work for some six months (that is, about February/March 2015). Even then, that was not at full capacity; he has only returned to full capacity in the last three to four months.

    [21] Exhibit 1, T Documents, T 10, page 45, letter from Ms Robyn Medcraft, Clinical Trial Nurse, the University of Queensland/ Royal Brisbane and Women’s Hospital, dated 14 December 2015.

27. Understandably, Mrs Bondzulic was very stressed by Mr Leach’s illness and the costs of treatment. The cost of the surgery was originally quoted at almost $25,000.00.[22]  However, the surgery was able to be performed at RBWH at no cost. Following the surgery, they elected to proceed with alternative post-operative treatment through Ibuki Health + Wellness, the estimated cost of which was almost $54,000.00.[23] Mr Leach did not undertake the entire recommended 12 month program of treatment, but also consulted an iridologist and other practitioners. The total cost was about three quarters of what was initially quoted (on my calculations, about $40,000.00).

    [22] Exhibit 1, T Documents, T 8, page 42, quote from Dr Gregory Malone, undated.

    [23] Exhibit 1, T Documents, T 7, page 41, Ibuki Health + Wellness estimate dated 7 August 2014.

28. Mrs Bondzulic told the SSCSD that their financial circumstances were dire and, at the time of that hearing, remained difficult. On 30 June 2014, Mrs Bondzulic successfully applied for an early release of superannuation on compassionate grounds.[24]

    [24] Exhibit 1, T Documents, T 2, page 7, decision and reasons for decision of the Social Services & Child Support Division dated 15 February 2016, [27].

29. She told me that, following Mr Leach’s diagnosis, she had difficulty in running their business. She described it as “a mess”. She did what she had to do with respect to meeting guests and ensuring they had keys to the properties they had booked, but her husband was her “number one priority”. However, she realised that the business had to keep operating, otherwise they would be bankrupt. She could not let guests down. Despite that, she said everything was late. Her bookkeeper reminded her that she would get into trouble if she failed to comply with the relevant trust account obligations, and would remind her that she had to deal with monies held in the trust account. She was late in paying clients the rent she received in respect of their properties. She did not open the mail at all, only responding to phone calls or emails (although her bookkeeper looked at emails for her). They lost business because she was unable to respond quickly enough to inquiries about prospective accommodation bookings.

30. Their accountant/tax agent had looked after them for a number of years and was responsible for lodging their individual tax returns as well as the return for the business.  Mrs Bondzulic said that while her husband was ill, she was always late in attending to the Business Activity Statement (“BAS”) for the business. I asked whether the tax agent had followed her up over this period to remind her of their tax obligations. She replied that his practice was to send reminders by mail rather than email or telephone her, so any reminders that might have been sent did not come to her attention. Asked by the Secretary’s advocate whether she would have acted sooner had she known she would be out of pocket for her FTB top-ups and supplements, she replied “no”; everything was late and “nothing mattered” (compared with her husband and family). She could not recall when she provided the information to the tax agent to prepare the 2013-2014 returns.

31. In addition to the burden of running the business, Mrs Bondzulic also had the responsibility of looking after her two adolescent children (although she said they could see the stress she was under). Their extra-curricular activities slowed down and friends offered to assist her with tasks such as transport.

32. Following her husband’s return to work in about February/March 2015, Mrs Bondzulic was also able to return to her normal duties. However, she was suffering from stress. She said that she did not want her husband to take on additional work, as he himself was still not working at full capacity.

33. Mrs Bondzulic consulted her general practitioner, Dr Theo Shemansky, on 5 and 6 March 2015. According to the doctor, she initially presented in a state of panic and was generally unwell. The next day, she was assessed further. The opinion was formed that she was suffering from a generalised anxiety disorder, displaying symptoms of “dysfunction in managing her time, organisation, memory, attention issues and a general disorganisation”. Dr Shemansky remarked:

    This manifested itself in many ways, and was the prime reason why she was not able to complete her tax return for that financial (year) in the time required.

    It is my opinion that due to her medical condition she was not fit enough to be able to complete her paperwork at that time, and would have in fact been at risk of incorrectly filling out her paperwork at that time due to the level of her disability.[25]

    [25] Exhibit 4, letter from Dr Theo Shemansky to Department of Human Services dated 12 September 2016.

34. Dr Shemansky referred Mrs Bondzulic to a psychologist, Mr Ambrose McKinnery, whom she commenced seeing on 11 March 2015. She saw him regularly until 18 June 2015, when she could no longer afford consultations with him. She returned to see Mr McKinnery again on 12 January 2016, following the Department’s decision not to pay the FTB top-up and supplements. Mr McKinnery reported that she presented with “considerable distress due to coping with her husband’s illness, treatment and recovery, running a small business with marginal viability, and managing an extremely stressful financial situation”. Those factors further impacted on the demands to manage her children’s issues, as well as support her husband.[26] He concluded:

    As a result, severe and ongoing stress has been a feature of our sessions, and the resulting overload with stress and anxiety has been at time [sic.] overwhelming and impacted on Maryanne’s ability to think clearly, and organise herself efficiently, including managing her time and commitments.[27]

    [26] Exhibit 1, T Documents, T 11, page 46, letter from Mr Ambrose McKinnery to Department of Human Services dated 16 January 2016.

    [27] Ibid.

1. Mr McKinnery added that Mrs Bondzulic’s stress and anxiety had reached the point where her functioning was significantly impacted, including her ability to focus, organise herself and attend to the plethora of issues that she had to manage. As a result, he thought that she would be unable to attend to various deadlines.[28] She had “an inability to be across all matters”. Just because she was able to do one thing (such as apply for the early release of superannuation), it did not logically follow that Mrs Bondzulic could do something else[29] (such as lodge her tax returns within the required time).

   [28] Exhibit 1, T Documents, T 14, page 54, letter from Mr Ambrose McKinnery to Department of Human Services dated 22 January 2016.

   [29] Exhibit 3, letter from Mr Ambrose McKinnery to Department of Human Services dated 6 September 2016.

   What are “special circumstances”?

2. The expression “special circumstances” is not defined in the Administration Act.  However, that expression has been considered extensively by the courts and this Tribunal in the context of both this and other social services legislation. For present purposes, it is suffice to say that the term is often said to refer to circumstances which distinguish the particular case from others; there must be something that takes it out of the usual or ordinary case.[30]

   [30] See for example Groth v Secretary, Department of Social Security (1995) 40 ALD 54 and Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9, [33].

   Were Mrs Bondzulic and Mr Leach’s circumstances “special”?

3. While it is true, and regrettable, that many such cases involve ill health and associated financial and emotional pressures, there are a number of aspects peculiar to the present case which lead me to believe that their convergence amounts to “special circumstances”. Mr Leach’s illness was sudden, unexpected and serious. The post-operative treatment was both lengthy and costly. No doubt, those factors together heightened the emotional and financial stress that Mrs Bondzulic and Mr Leach would have been experiencing. As if that were not enough, Mrs Bondzulic had to keep their small business operating, as well manage the everyday demands of her family (a convalescing Mr Leach and their two adolescent children). When those various matters are taken together, I believe the circumstances are sufficiently unusual or out of the ordinary to warrant being described as “special”.

   Did the special circumstances “prevent” Mrs Bondzulic and Mr Leach from meeting the reconciliation condition?

4. Although I consider Mrs Bondzulic and Mr Leach’s circumstances to have been special, that is not the end of the matter. As I mentioned earlier, the notion of “special circumstances”, as such, is well established and understood in the social services context. However, where ss 32C (3)(b) and 32D (1)(c)(ii) of the Administration Act differ is in the deliberate inclusion of language that imposes an additional requirement about which the Secretary (or in this case, the Tribunal) has to be satisfied before the relevant period can be extended: special circumstances need not only exist, they must also have prevented the FTB recipient from lodging the tax returns before the end of the first income year following the financial year in question. As SM Toohey observed in Hooker, that two-part test is a stringent one.

5. In Grasso and Secretary, Department of Social Services, I noted that the word “prevented” was not defined in the relevant Act and that therefore, recourse had to be had to its plain English meaning, namely “to keep from occurring; hinder; to hinder (a person, etc.), as from doing something” (The Macquarie Dictionary); or “(t)o stop, keep, or hinder (a person or other agent) from doing something” (The Oxford English Dictionary).[31]

   [31] [2015] AATA 1017, [26].

6. The question therefore is whether Mrs Bondzulic and Mr Leach’s special circumstances stopped, hindered or kept their tax returns from being lodged on or before 30 June 2015.

7. Mrs Bondzulic contended that at the relevant time, she was not of sound mind, and that it was that condition which prevented her from lodging the returns on time.

8. While I do not dispute that Mrs Bondzulic was suffering from a generalised anxiety disorder, I am not satisfied that it, or her associated circumstances, were responsible for the tax returns not being lodged by the required date. I say that for several reasons.

9. First, based on Mrs Bondzulic’s evidence, it is clear that Mr Leach was back at work (albeit not at full capacity) from about February/March 2015, some four to five months ahead of the end of the 2015 financial year. Although he normally attended to the maintenance of the properties they had under management, there seems no good reason why he could not have assisted, at the very least, by assisting in clearing the “mess” and backlog of unopened mail. Mrs Bondzulic disputes this, saying that Mr Leach knew nothing about the administration of the business, not even knowing where their Post Office box was located. Although Mr Leach did not attend the hearing, I have difficulty accepting that he would be incapable, in conjunction with the bookkeeper and the accountant/tax agent, of identifying issues that required attention, prioritising them and determining what was to be done, and by whom. To illustrate the point with an example. Given the date it was sent, it is more than likely that the Department’s letter of

   
   

   24 March 2015 was amongst the bundle of mail that went unopened for some considerable time. That letter spelt out in clear and unambiguous terms what was required of Mrs Bondzulic and Mr Leach. It was self-explanatory and would not have required the reader to have any peculiar or special knowledge in order to decide what needed to be done. That is particularly so when Mrs Bondzulic and Mr Leach had both a bookkeeper and accountant/tax agent available to provide the necessary assistance.

10. Second, notwithstanding her condition, it is clear that Mrs Bondzulic was capable of assessing issues for herself and prioritising them before deciding on a course of action (or inaction). She was very much alive to the need to keep the business running throughout the relevant time and the importance of being available to attend to guests. She was able to rely on the advice and support of her bookkeeper who reminded her of the importance of her trust account obligations. Faced with the financial implications of her husband’s illness and the cost of its treatment, she organised the early release of superannuation on compassionate grounds. While there is no direct evidence on the point, she presumably played a role in arranging for her husband’s surgery to be performed at RBWH at no cost (compared with the $25,000.00 estimate received for surgery in the private health system). In the accounting and tax area, she resigned herself to the fact that “everything was late”, including the business’ BAS, saying that “nothing mattered”. Similarly, when asked by the Secretary’s advocate if she would have acted sooner had she known that she could be out of pocket for FTB entitlements, she replied “no”, repeating that “nothing mattered”. In short, in spite of her anxiety disorder, Mrs Bondzulic demonstrated throughout the period an ability to identify priorities and address a range of different matters, while leaving others for another time. It was within her capacity to arrange for the returns to be lodged by the required date.

11. In saying that, I appreciate that Mr McKinnery’s most recent letter disputes the significance of Mrs Bondzulic having been able to apply for an early release of superannuation. He expresses the view that it does not logically follow that because a person can do one thing, they can do something else: “(s)uch logic applies in a functioning individual, of which Maryanne was not”.[32] However, what that letter fails to address is the range of other activities which I mention above that Mrs Bondzulic was in fact able to undertake in the relevant period. In that context, I note that Mr McKinnery’s initial letter suggests that while Mrs Bondzulic suffered from anxiety, it was only “at time” (sic.) that her condition impacted on her ability to think clearly and organise herself efficiently.[33]

    [32] Exhibit 3, letter from Mr Ambrose McKinnery to Department of Human Services dated 6 September 2016.

    [33] Exhibit 1, T Documents, T 11, page 46, letter from Mr Ambrose McKinnery to Department of Human Services dated 16 January 2016.

12. It is also significant, and somewhat paradoxical, that the tax returns were lodged just over four weeks late. Although Mrs Bondzulic could not remember when the raw information was provided to their accountant/tax agent, it is apparent that it would have been compiled and provided some reasonable time beforehand.

13. In his letter, Dr Shemansky concluded that Mrs Bondzulic was not fit enough (at some unspecified time) to be able to complete her paperwork, saying that she would have in fact “been at risk of incorrectly filling out her paperwork at that time due to the level of her disability”.[34] However, with respect to Dr Shemansky, that letter is significant for what it does not say. For example, it fails to indicate at what time Mrs Bondzulic was said to be suffering from the disability which would have rendered her unfit to complete the relevant paperwork. That is relevant, bearing in mind that the returns were in fact lodged a relatively short time after the due date and there would have necessarily been some “lead in” work undertaken by Mrs Bondzulic beforehand. It also makes no reference to the fact that Mrs Bondzulic utilised, and relied on, professional bookkeeping and accounting/tax agent services. Nor does the letter offer any attempt to reconcile the perceived risk of

    
    

    Mrs Bondzulic incorrectly completing her tax paperwork with the fact that, throughout the period, she was able to continue to operate the business’ trust account and deal with clients’ money without any apparent complaint (apart from timing). In the absence of more detail on matters such as those, I do not think that Dr Shemansky’s letter greatly assists Mrs Bondzulic.

    [34] Exhibit 4, letter from Dr Theo Shemansky dated 12 September 2016.

14. For the reasons outlined above, I am not satisfied that Mrs Bondzulic and Mr Leach’s special circumstances prevented them from lodging their returns on or before 30 June 2015.

15. Accordingly, the discretion to extend the reconciliation times under ss 32C (3)(b) and

    
    

    32D (1)(c) (ii) of the Administration Act cannot be invoked. In those circumstances, where the reconciliation conditions have not been satisfied, the FTB supplements are to continue to be disregarded in accordance with s 32A (2) of the Administration Act.

    CONCLUSION

16. While Mrs Bondzulic and Mr Leach’s circumstances were special, I do not consider that those circumstances prevented them from lodging their tax returns for the 2013-2014 financial year by 30 June 2015. Accordingly, the discretion to extend the reconciliation time is not invoked.

17. As a consequence, Mrs Bondzulic is not entitled to receive FTB supplements and FTB top-up payments for the 2013-2014 financial year.

18. The decision under review is therefore affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

...........................[Sgd].............................................

Associate

Dated: 10 April 2017

Date of hearing:	14 March 2017
Applicant:	By phone
Advocate for the Respondent:	Ms Maleah Underhill
Solicitors for the Respondent:	Department of Human Services

Exhibit 1, T Documents, T 5, page 33, letter from Department of Human Services to Mrs Bondzulic dated

9 May 2013.