Bridge and Commissioner of Taxation
[2012] AATA 453
•26 July 2012
DECISION AND REASONS FOR DECISION [2012] AATA 453
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/0726-0729
TAXATION APPEALS DIVISION )Re: Peter Bridge
Applicant
And: Commissioner of Taxation
RespondentCORRIGENDUM TO DECISION NO. [2012] AATA 453
TRIBUNAL: Deputy President D G Jarvis
DATE: 26 July 2012
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in the within proceedings by:
1.deleting the date and words “15 to 26 July 1996 and” on page 1, paragraph 1, and page 15, paragraph 31;
2.deleting the second sentence of paragraph 22 on page 10, and replacing that sentence with the following sentence:
“The first and second periods were prior to the date when superannuation contributions were liable to the surcharge, and accordingly are not relevant.”
and
3.deleting the words “further two periods” in the penultimate line of paragraph 22 on page 11 and replacing those words with “last period”.
................ [Signed] ....................
D G Jarvis
(Deputy President)
[2012] AATA 453
Division Taxation Appeals Division File Number(s)
2012/0726-0729
Re
Peter Bridge
APPLICANT
And
Commissioner of Taxation
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis
Date of written reasons 18 July 2012 Place Adelaide 1. In matter number 2012/0726, the tribunal sets aside the objection decision in respect of the superannuation contributions surcharge assessment for the year ended 30 June 1997 insofar as it included a surcharge on the notional contributions attributed to the applicant during the periods from 12 June 1997 to 30 June 1997, when he was an acting chief executive, but otherwise affirms the objection decision in relation to that year.
2. In matter number 2012/0727, the tribunal sets aside the objection decision in respect of the superannuation contributions surcharge assessment for the year ended 30 June 1998 insofar as it included a surcharge on the notional contributions attributed to the applicant during the period from 1 to 19 July 1997, when he was an acting chief executive, but otherwise affirms the surcharge assessment.
3. In matter number 2012/0728, the tribunal sets aside the objection decision in respect of the superannuation surcharge assessment for the year ended 30 June 1999 insofar as it included a surcharge on the notional contributions attributed to the applicant during the period from 1 October 1998 to 30 June 1999, when he was Director, Office of Year 2000 Compliance, but otherwise affirms the surcharge assessment.
4. In matter number 2012/0729, the tribunal sets aside the objection decision in respect of the superannuation contributions surcharge assessment for the year ended 30 June 2000 insofar as it included a surcharge on the notional contributions attributed to the applicant during the period from 1 July 1999 to 31 January 2000, when he was Director, Office of Year 2000 Compliance, but otherwise affirms the surcharge assessment.
5. In respect of each of the above reduced assessments, the amount of statutory interest payable on the amended surcharge assessment is to be reduced to apply to the amended surcharge assessment.
6. The tribunal remits each of the above matters to the respondent to amend the superannuation contributions surcharge assessments in accordance with the above decisions.
…........ [Signed] ………
Deputy President D G Jarvis
CATCHWORDS
TAXATION - Superannuation contributions surcharge assessments - executive officer of South Australian public service - implied constitutional limitation on Commonwealth legislative power - held that Commonwealth legislation validly applied to applicant except during periods when he was chief executive of a government department, or acting as such - objection assessments affirmed except in relation to such periods.
PRACTICE AND PROCEDURE - Jurisdiction of tribunal to determine issues of constitutional validity - consideration of power to refer question of law to Federal Court.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 45
Commonwealth of Australia Constitution 1900 (Imp) 63 and 64 Vic, c 12
Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth)Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth)
CASES
Austin v Commonwealth (2003) 215 CLR 185
Clarke v Commissioner of Taxation (2009) 240 CLR 272
Re Australian Education Union; Ex parte the State of Victoria (1995) 184 CLR 188
Re Walsh and Commissioner of Taxation [2012] AATA 451
Re Wilson and Commissioner of Taxation [2012] AATA 452REASONS FOR DECISION
Deputy President D G Jarvis
18 July 2012
The applicant, Peter Bridge, applied to this tribunal for review of a decision made by the Commissioner of Taxation to disallow, either in full or in part, objections which he had lodged to superannuation contributions surcharge assessments for the years 30 June 1997 to 30 June 2000. His objections were based on the decision of the High Court of Australia in Clarke v Commissioner of Taxation[1], to which I will refer below.
[1] (2009) 240 CLR 272.
These reasons for decision should be read in conjunction with my reasons for decision in Re Walsh and Commissioner of Taxation[2] and Re Wilson and Commissioner of Taxation[3], which decisions I have also delivered today.
[2] [2012] AATA 451.
[3] [2012] AATA 452.
The laws which imposed the superannuation contributions surcharge were the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) and the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth) (the Surcharge Acts). The Acts were part of a legislative scheme which provided for the imposition of a superannuation surcharge on contributions made by or on behalf of taxpayers in receipt of taxable income above certain thresholds. The legislation that applied generally throughout Australia imposed liability for the surcharge on the trustees of superannuation funds, who were entitled to discharge their liability from the assets of the funds, but separate legislation was enacted in the form of the Surcharge Acts, to apply to “constitutionally protected superannuation funds”, which were funds established by State legislation specified in regulations, and included the South Australian Superannuation Fund. This separate legislation imposed liability upon individual members of State superannuation schemes, and not the trustees of the funds, apparently so as to avoid the operation of s 114 of the Australian Constitution, which prohibits the imposition of Commonwealth taxes on State property.
The Surcharge Acts provided for liability to pay the surcharge to be deferred until the superannuation benefit became payable to the member of the fund, and for interest to accrue on the deferred amount. In 1999, the South Australian Parliament enacted legislation to permit members of certain State superannuation funds to commute so much of their pensions as were required to provide a lump sum equivalent to the amount of the surcharge imposed on them by the Surcharge Acts. The commutation factors to be applied to the commutation of a pension were to be determined by the Treasurer on the recommendation of an actuary[4].
[4] Statutes Amendment (Commutation for Superannuation Surcharge) Act 1999 (SA), s 6, which inserted s 40A into the Superannuation Act 1988 (SA).
In Clarke (supra) the High Court held that the provisions of the legislation that imposed the superannuation contributions surcharge were invalid insofar as they purported to create a liability on the part of Mr Clarke, who was a member of the House of Assembly of the Parliament of South Australia, in respect of his membership of certain constitutionally protected superannuation funds established under Acts of the South Australian Parliament.
In the present matter, the Commissioner allowed Mr Bridge’s objections in respect of portion of the assessments for the years ended 30 June 1997, 1999 and 30 June 2000, but otherwise disallowed the objections. In support of his applications for review of the Commissioner’s decisions, Mr Bridge has contended that he occupied various positions at the higher levels of the South Australian government, and that consistently with the decision in Clarke (supra), the legislation imposing the superannuation contributions surcharge could not validly apply to him.
Mr Bridge’s objection in respect of the year ended 30 June 2000 referred only to his position as Director, Office of Year 2000 Compliance. However, during the course of the proceedings in this tribunal, he also referred to his responsibilities during the period from 1 February to 30 June 2000 as Team Leader, Procurement Reform Project with SA Water. I gave Mr Bridge leave pursuant to s 14ZZK of the Taxation Administration Act 1953 (Cth) to include in his grounds of objection his contention that the Surcharge Acts could not validly apply to him in that position either.
JURISDICTION TO CONSIDER CONSTITUTIONAL VALIDITY OF SURCHARGE ACTS
Early in the interlocutory stages of all three groups of applications the Commissioner submitted that this tribunal had no jurisdiction to determine a question involving the constitutional validity of the Surcharge Acts, because this required the exercise of the judicial power of the Commonwealth, which had not been vested in the tribunal. On the morning of the hearing, the Commissioner accepted that the tribunal had jurisdiction. I am satisfied that I have jurisdiction to form an opinion regarding this issue, notwithstanding that it raises a constitutional question, and I refer to and repeat paragraphs 7-20 of my reasons in Walsh.
SHOULD THE TRIBUNAL REFER A QUESTION OF LAW TO THE FEDERAL COURT OF AUSTRALIA?
The Commissioner further contended that the tribunal should refer the issue of constitutional validity to the Federal Court pursuant to s 45 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), thus enabling that Court to be seized of the constitutional issue which was said to be beyond the tribunal’s jurisdiction to determine. In the circumstances of these proceedings, I thought it inappropriate to exercise my discretion to refer a question of law to the Federal Court of Australia, for the reasons referred to in paragraphs 21-26 of Walsh.
CAN THE SURCHARGE ACTS VALIDLY APPLY TO THE APPLICANT?
The Commissioner rejected Mr Bridge’s objections on the grounds that he was not a person engaged at the “higher levels of government” for the purposes of the proposition enunciated by the High Court in Re Australian Education Union; Ex parte the State of Victoria[5]. In that case, the Court recognised that the arbitration power in the Constitution did not authorise the Industrial Relations Commission to make awards concerning the terms and conditions of employment of high level office holders and senior public servants. The Court said:
In our view, also critical to a State’s capacity to function as a government is its ability, not only to determine the number and identity of those whom it wishes to engage at the higher levels of government, but also to determine the terms and conditions on which those persons shall be engaged. Hence, Ministers, ministerial assistants and advisers, heads of departments and high level statutory office holders, parliamentary officers and judges would clearly fall within this group. The implied limitation would protect the States from the exercise by the Commission of power to fix minimum wages and working conditions in respect of such persons and possibly others as well ... .[6]
[5] (1995) 184 CLR 188.
[6] (1995) 184 CLR 188 at 233, per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
I referred in some detail in paragraphs 27-30 of my reasons in Walsh to the principles formulated in two subsequent High Court decisions, namely Austin v Commonwealth[7] and Clarke. I repeat what I there said.
[7] (2003) 215 CLR 185.
APPLICANT’S CONTENTIONS
Mr Bridge submitted, by reference to Austin and Re Australian Education Union[8], that he came within the category of persons who were employed in offices “at the higher levels of government”, and so he should receive the benefit of the implied constitutional limitation.
[8] (1995) 184 CLR 188.
I summarised the submissions made by Mr Walsh at paragraphs 33-37 of my reasons, and I referred in paragraph 38 of my reasons to further submissions made by the applicant, Peter Wilson, in support of applications that he had lodged for review. Although Mr Bridge did not expressly adopt the submissions made by those other applicants, I have taken them into account in considering his applications to the extent that they are relevant to his circumstances.
I referred to a brief summary of the submissions made by Dr Melissa Perry QC, counsel for the Commissioner, in paragraph 39 of my reasons in Walsh.
The issues raised by Mr Bridge’s objections entailed considering the structure and function of the executive arm of the government of South Australia. I refer in relation to those matters to paragraphs 40-44 of my reasons in Walsh.
SITUATION OF THE APPLICANT
There was no issue as to the relevant facts in this matter, and I make the following findings partly from the evidence of Mr Bridge, and partly from documentary material before me.
Offices held by the applicant
The objections that were disallowed, and are the subject of Mr Bridge’s applications for review and remain in issue, related to the following periods and positions.
Period Position Department Grade/level 3 June 1996 – 15 September 1996 General Manager Contracts Department of Information Industries EL - 3 16 September 1996 – October 1997 General Manager Operations Department of Information Industries EL - 3 October 1997 – about August 1998 General Manager Operations Department of Administration and Information Services EL - 3 August 1998 – September 1998 Director Department of Administration and Information Services EL - 3 1 February 2000 – 30 June 2000 Team Leader Procurement Reform Project SA Water EL - 3
The Fund reported surchargeable contributions for Mr Bridge for the years in which he held the above positions. In accordance with a direction that I made following the conclusion of the hearing, the Commissioner provided further information from SuperSA as to the assessment of the surcharge. It appears from this information that a Notional Surcharge Contributions (NSC) amount was determined using a Notional Surcharge Contributions Factor (NSCF) determined by actuaries. The NSC amount was calculated by multiplying the annual salary by the NSCF. A commutation factor was calculated as at Mr Bridge’s retirement date, and for each dollar of annual pension commuted Mr Bridge would receive $18.38[9]. The assessment amounts for the period 30 June 1997 to 30 June 2000 came to a total of $10,606.80[10]. The commutation of a surcharge debt of that amount would accordingly result in a reduction in his pension of approximately $577.00 per annum[11].
[9] Exhibit R2, Annexure A.
[10] Exhibit R1, T1, page 9.
[11] The above figure of $10,606.80 does not include accrued interest, and if this is taken into account, the commutation cost, and the reduction in pension would be increased correspondingly. Mr Bridge said that he has already paid the assessments of superannuation contributions surcharge tax for the years ended 30 June 1997 and 30 June 1998, but neither he nor his accountant were aware of the assessments for the years ended 30 June 1999 and 30 June 2000 until after he had lodged his objections in respect of the earlier years.
On the morning of the hearing, Dr Perry advised that the Commissioner had conceded that the Surcharge Acts could not validly apply to Mr Bridge in a further position that he had held, namely that of Director, Office of Year 2000 Compliance, which he held from 1 October 1998 to 31 January 2000. This was a stand-alone office to ensure compliance with year 2000 IT issues and was relevant to the whole of the government. A special portfolio had been created to deal with those issues. Mr Bridge reported directly to the Minister concerned, and was responsible both for the project and the running of the Minister’s office. In the above circumstances, and consistently with the considerations to which I referred in detail in Walsh, I consider that the Surcharge Acts could not validly apply to Mr Bridge while he held the above position, and that the reviewable decisions in respect of the relevant financial years should be varied to give effect to the Commissioner’s concession.
First three positions in dispute referred to in paragraph 17 above – General Manager, Contracts and General Manager, Operations: Mr Bridge was appointed to the first position by the Chief Executive Officer of the Department of Information Industries pursuant to s 33 of the Public Sector Management Act 1995 (SA) on 3 June 1996. He was assigned to the position of General Manager, Operations from 16 September 1996 to early 1998[12]. The “Job Specification” for his position as General Manager, Contracts appears as a schedule to his contract of employment, and states in part:
The General Manager, Contracts is accountable to the Chief Executive Officer for negotiating the requirements and managing the performance of major information technology (IT) contracts associated with the contracting-out of South Australian Government’s (SAG) IT activities, including Industry Development requirements, consistent with the Government’s IT Reform objectives. The General Manager is responsible for undertaking, on behalf of SAG, the duties of Principal Contract Administrator (PCA) for all IT contracting-out including the day to day management of matters related to price variations; rise and fall clauses; industry development; in compliance with contract terms and conditions. The position is also responsible for directing the activities of the contract management group comprising a number of specialist teams organised as business units to centrally administer contracts.[13]
[12] Exhibit A1, page 3 and Exhibit R1, pages 76-92, and Exhibit A4.
[13] Exhibit R1, T15, page 93.
The job specification further provided, under the heading “Reporting/Working Relationships” as follows:
The General Manager, Contracts is one of a number of General Manager positions reporting to the Chief Executive Officer. This position is a member of the Executive of the Office and is responsible for the management of Contract Managers and the outcomes of their respective contract administration Units. In performing the duties of PCA the General Manager reports direct to the Cabinet IT Sub-Committee and the Chief Executive Officer. In fulfilling the duties, the General Manager has substantial flexibility and makes key decisions.[14]
Mr Bridge said that as he recalled, his reporting obligations covered progress with implementation, economic development initiatives and any significant matters of disagreement between companies such as EDS and the government. He also attended and participated in Estimates Committee hearings at Parliament[15].
[14] Exhibit R1, T15, page 94.
[15] Exhibit A1, page 5.
Mr Bridge was also appointed as Acting Chief Executive Officer of the Department of Information Industries for the periods 27 February to 8 March 1996[16], 15 to 26 July 1996[17], 21 December 1996 to 2 February 1997[18], and 12 June to 19 July 1997[19]. The first and second periods were prior to the date when superannuation contributions were liable to surcharge, and accordingly are not relevant. The Commissioner allowed Mr Bridge’s objection in relation to the period from 21 December 1996 to 2 February 1997, and it appears that the Commissioner was unaware that Mr Bridge had acted as Chief Executive Officer during the two further periods in the financial year ended 30 June 1997. Neither side addressed any argument in relation to Mr Bridge’s position during those periods. It appears that he was appointed to this acting position during the absence on leave of the Chief Executive Officer of the Department. The periods in question were quite short, but Mr Bridge was required to carry out the duties of the Chief Executive Officer and his remuneration was increased to reflect his additional duties. I have concluded that the Surcharge Acts did not validly apply to Mr Bridge during the last period referred to above, and that the objection decisions in relation to the years ended 30 June 1997 and 1998 should be varied accordingly.
[16] Exhibit A2, page 5.
[17] Exhibit A2, page 6.
[18] Exhibit R1, T17, page 100.
[19] Exhibit A2, page 7.
Fourth position in dispute – Director of Year 2000 SA: Mr Bridge held this position for about two months before being appointed as Director, Officer for Year 2000 Compliance[20]. In this position he began preparing the plans for dealing with the Year 2000 issue, not just for the public sector, but also for the business and broader community. He reported to the Chief Executive Officer of the Department of Administrative and Information Services. He described the project as a “unique, sensitive and high level one requiring completion before an immoveable deadline”[21].
[20] I referred to this later position in paragraph 19 above.
[21] Exhibit A1, page 3.
Fifth position in dispute – Team Leader, Procurement Reform Project: Mr Bridge said that prior to his secondment in 1994 to the Office of Information Technology to lead the parallel negotiations with EDS and IBM he had successfully led the negotiations for the IT replacement program for the Engineering and Water Supply Department. In this role and in his subsequent roles he had established extensive procurement and project management skills, and after he had completed the Year 2000 project in January 2000, he was invited to lead a procurement reform project at SA Water Corporation (SA Water)[22]. He provided documents which outlined a procurement reform project by SA Water, which showed that it spent over $200 million annually on goods and services and capital projects, and that the object of the reform was to achieve the best value from procurement by arranging for the activity to be conducted in a co-ordinated, professional manner across the corporation. The project entailed appointing a new position of Head of Procurement, reporting to the Chief Executive of SA Water[23]. Mr Bridge had made it clear that he did not intend to apply for the new role of Head of Procurement so that he would have no conflict of interest in conducting the review of the procurement practices of SA Water. However, he maintained his level of seniority because he was appointed at the EL-3 level, and his salary did not decrease from his then recently vacated position as Director, Office for Year 2000 Compliance. He pointed out that pending the appointment of the Head of Procurement, the Chief Executive of SA Water had directed that he (Mr Bridge) was to be included in all strategic decisions which had significant procurement implications, for example, value management meetings at executive level. In a letter filed with the tribunal, he said that he believed that he fulfilled high level responsibilities relating to the charter for SA Water, which was itself and remains a key essential service provider for the South Australian government. He submitted that his function was unique or exercised by a small class of persons, and centrally important to the functions of government, required care and skill of the highest level, and was non-routine and related to complex matters[24].
[22] Exhibit A3, page 2.
[23] Exhibit A3, page 4.
[24] Exhibit A3, page 2.
CONSIDERATION
In paragraphs 58-65 of my reasons in Walsh, I reviewed various “points” or factors relevant to the implied constitutional limitation as explained by the High Court in Clarke, and in paragraphs 66-68 I observed that a number of those “points” or factors are directly applicable to the present proceedings, and support the contention by Mr Bridge and the other applicants that the Surcharge Acts were invalid in their application to them. However, as I also explained in Walsh, it remains necessary to consider the position which each applicant occupied in the various office(s) that he held in the State government, and his role and functions in the office(s), and to evaluate the degree to which the exercise of, or the capacity for the exercise of, the constitutional powers and functions of the State would be impaired, curtailed or weakened by the application to him of the Surcharge Acts. I set out my views as to the nature of the inquiry to be made and the importance of two further factors to be taken into account when considering the executive arm of government in paragraphs 69-80 of my reasons in Walsh. I adopt those matters for the purpose of the present decision.
As well as relying on Austin in support of his objections, as mentioned in my reasons in Walsh, Mr Bridge also submitted that all of the persons subjected to the superannuation contributions surcharge who were employed by the State government should be regarded as employees in offices “at the higher levels of government” because the applicable threshold fixed by the Surcharge Acts meant that the surcharge only applied to high-income members of constitutionally protected superannuation funds, and so they should all receive the benefit of the implied limitation[25]. The passage in Austin that Mr Bridge relied upon appears in the judgment of Gaudron, Gummow and Hayne JJ[26], where their Honours explained the structure and application of the Surcharge Acts in the case of defined benefit superannuation schemes, where the persons subjected to the surcharge were a particular group of state employees and officers. Their Honours then continued:
Their selection for attention by the federal legislature as ‘high-income members’ of the non-contributory unfunded schemes in question suggests that, for the purposes of the Melbourne Corporation doctrine, they are those employees and officers ‘at the higher levels of government’ spoken of in Australian Education Union.
[25] See Walsh at [39].
[26] (2003) 215 CLR 185 at [162].
Read literally, the above passage might appear to give some support to the proposition for which Mr Bridge contended. However, their Honours then proceeded to discuss the extent of the implied limitation, and it is apparent from their analysis that they did not conclude that the Surcharge Acts were invalid in their application to all members of constitutionally protected superannuation funds to whom the superannuation surcharge contributions tax applied. If their Honours had been of that view, they would have declared the Surcharge Acts to be wholly invalid, and it would have been unnecessary for them to have proceeded to consider the particular circumstances relevant to the plaintiff in that case.
It is clear that the positions occupied by Mr Bridge were very senior positions within the State government, and that he fulfilled important roles and had skills and experience which were very important to the efficient functioning of government. However, having regard to my analysis of the implied constitutional limitation as explained in my reasons in Walsh, and taking into account the constitutional structure of the government, I do consider that when Mr Bridge occupied the positions where the assessments remain in dispute, it could not be said that he was “within that class of persons ‘at the higher levels of governments’ in respect of whom it (was) critical to the State’s capacity to function as a government” that it retained the ability to fix his terms and conditions of remuneration[27].
[27] See Clarke (2009) 240 CLR 227 at [62].
I referred to the impact of the Surcharge Acts on Mr Bridge in paragraph 18 above. In paragraph 78 of my reasons in Walsh I discussed the effect of the Surcharge Acts on the plaintiff’s entitlements in Austin, and to the Court’s conclusion in that case that the Surcharge Acts would interfere with the ability of the State to attract and retain competent persons to serve as judges. I also referred to the lack of evidence that the Surcharge Acts would have made it more difficult for the State to attract or retain persons in senior positions in the public service, and the relevance of that aspect. The considerations there discussed are also applicable to the present proceedings.
After carefully weighing the various factors and considerations to which I have referred above and in my reasons in Walsh, I have concluded that the effect of the Surcharge Acts on Mr Bridge in any of the five positions in issue did not significantly burden, curtail or weaken either the capacity of the State of South Australia to carry out its proper constitutional functions, or its exercise of those functions, and that accordingly, those Acts were not invalid in their application to him. However, the surcharge assessments should be set aside in relation to notional contributions attributed to Mr Bridge during periods when he was acting as the Chief Executive Officer of the Department of Information Industries.
DECISION
In matter number 2012/0726, the tribunal sets aside the objection decision in respect of the superannuation contributions surcharge assessment for the year ended 30 June 1997 insofar as it included a surcharge on the notional contributions attributed to the applicant during the periods from 12 June 1997 to 30 June 1997, when he was an acting chief executive, but otherwise affirms the objection decision in relation to that year.
In matter number 2012/0727, the tribunal sets aside the objection decision in respect of the superannuation contributions surcharge assessment for the year ended 30 June 1998 insofar as it included a surcharge on the notional contributions attributed to the applicant during the periods from 1 to 19 July 1997, when he was an acting chief executive, but otherwise affirms the surcharge assessment.
In matter number 2012/0728, the tribunal sets aside the objection decision in respect of the superannuation contributions surcharge assessment for the year ended 30 June 1999 insofar as it included a surcharge on the notional contributions attributed to the applicant during the periods from 1 October 1998 to 30 June 1999, when he was Director, Office of Year 2000 Compliance, but otherwise affirms the surcharge assessment.
In matter number 2012/0279, the tribunal sets aside the objection decision in respect of the superannuation contributions surcharge assessment for the year ended 30 June 2000 insofar as it included a surcharge on the notional contributions attributed to the applicant during the periods from 1 July 1999 to 31 January 2000, when he was Director, Office of Year 2000 Compliance, but otherwise affirms the surcharge assessments.
In respect of each of the above reduced assessments, the amount of statutory interest payable on the amended surcharge assessment is to be reduced to apply to the amended surcharge assessment.
The tribunal remits each of the above matters to the respondent to amend the contributions surcharge assessment in accordance with the above decisions.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis ..... [Signed] ......
AssociateDated 18 July 2012
Date(s) of hearing 13 and 14 June 2012 Applicant In person Counsel for the Respondent Dr M Perry QC
Mr J VaughanSolicitors for the Respondent Australian Government Solicitor
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