Catanzariti and Secretary, Department of Social Services (Social services second review)
[2017] AATA 268
•1 March 2017
Catanzariti and Secretary, Department of Social Services (Social services second review) [2017] AATA 268 (1 March 2017)
Division:GENERAL DIVISION
File Number(s): 2015/5269
2015/5271
Re:Sam Catanzariti
Carolyn Catanzariti
APPLICANTS
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Britten-Jones
Date:1 March 2017
Place:Adelaide
The decision of the Tribunal is to set aside the decision under review and remit the matter for reconsideration by Centrelink who is to recalculate each of the various debts by:
(a)treating as income for Centrelink purposes one tenth of the net amount paid into the TattsBet accounts of Mr Catanzariti numbered ….435 and ….226 where the dividend exceeds the amount of the bet made and the net amount is the dividend less the amount of the bet made;
(b)excluding as income for Centrelink purposes all cash deposits made into those accounts; and
(c)excluding as income for Centrelink purposes the specific deposits into the Credit Union accounts of Mr Catanzariti and Mrs Catanzariti which were identified in the reasons for decision of the Social Security Appeals Tribunal under review at paragraphs 44 onwards.
......................[Sgd]..........................................
Senior Member Britten-Jones
CATCHWORDS
Social Security – Benefits – Whether gambling receipts “income” for Social Security Act 1991 (Cth) – definition of “income amount” in s 8(1) Social Security Act and the meaning of “profits” – definition of “ordinary income: for s 1072 of Social Security Act - not all dividends received from gambling considered to be income – matter to be remitted for recalculation of debts.
LEGISLATION
Social Security Act 1991 (Cth), ss 8, 1072, 1075
CASES
Harris v Director-General of Social Security (1985) 59 ALJR 194, 7 ALD 277
Haldane-Stevenson v Director-General of Social Security (1985) 7 ALD 467
Read v Commonwealth (1989) 167 CLR 57
Secretary-Department of Social Security v Garvey (1989) 22 FCR 132
Secretary, Department of Social Security v McLaughlin (1997) 48 ALD 536
Secretary, Department of Social Security v Ekis (1998) 52 ALD 246
Watson v Secretary, Department of Family and Community Services (2003) 74 ALD 77
Secretary, Department of Employment and Workplace Relations and Ruan (2007) 97 ALD 229
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nguyen [2007] AATA 2075
Secretary, Department of Employment and Workplace Relations v Richards [2007] FCA 1710; (2007) 98 ALD 310
Secretary, Department of Employment and Workplace Relations v Richards [2008] FCAFC 97; (2008) 102 ALD 74Loizou v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 224
REASONS FOR DECISION
Senior Member Britten-Jones
1 March 2017
INTRODUCTION
The applicant, Sam Catanzariti, liked to bet. Between 29 January 2005 and 18 November 2013 Mr Catanzariti was part of a gambling syndicate that comprised 10 people who made bets from a TattsBet telephone betting account held in the name of Mr Catanzariti. Each of the bets made by the syndicate was recorded in one of two statements of the TattsBet account held by Mr Catanzariti. Those statements record the date and time and amount of each individual bet and any dividend or win resulting from the bet.
Whilst undertaking these gambling activities Mr and Mrs Catanzariti were receiving various social security payments. The respondent has determined that Mr and Mrs Catanzariti were overpaid due to a finding that there was undisclosed income arising from the gambling activities of Mr Catanzariti. Mr Catanzariti accepts that the income from his gambling activities should be taken into account with the result that he and his wife will have to repay some amounts received as a debt to the Commonwealth. What is in dispute is the quantum of the debt which requires a determination of the level of income for social security purposes attributable to the gambling activities of Mr Catanzariti.
This is not the first time that the Tribunal has had to consider the issue of income being derived from gambling activities for the purposes of determining if there has been an overpayment of social security payments. What is novel about this case is that there is a written record of each bet and its outcome. This is to be distinguished from previous cases where the only available evidence was often the outcome of a betting session (the winning proceeds usually being deposited into a separate account) with no record of individual wins and losses during that session.
The representative for Mr and Mrs Catanzariti contended that the Tribunal should maintain this sessional approach and determine income based upon the amount left in the TattsBet account at the end of each day during which bets were made. I reject this approach in the circumstances where the individual bets, wins and losses are recorded. However, I am not prepared to accept the respondent’s contention that income should be calculated by simply adding up all of the amounts in the dividend column of the statements without taking into account the amount outlaid on a successful bet. I will develop this further below.
THE DECISION UNDER REVIEW
The decision under review is the decision of the Social Security Appeals Tribunal (SSAT) made on 27 May 2015 to affirm the decision of the authorised review officer (ARO) of the Department of Human Services that Mr and Mrs Catanzariti were overpaid social security payments and owe a debt to the Commonwealth. That decision is set out below:
1The tribunal sets aside the decisions to raise the various debts and sends those matters back to Centrelink for reconsideration with directions that Centrelink recalculate each of the various debts by:
· treating as income for Centrelink purposes 1/10th of all dividends paid into the TattsBet accounts of Mr C numbered ….435 and ….226; (emphasis added)
· excluding as income for Centrelink purposes all cash deposits made into those accounts; and
· excluding as income for Centrelink purposes the specific deposits into the Credit Union accounts of Mr Catanzariti and Mrs Catanzariti which are identified in these reasons for decision at paragraphs 44 onwards below.
2There is no waiver of any of the recalculated debts.
The above means that the applications for review are partly successful.
ISSUES
At a directions hearing on 1 September 2016 the parties agreed that the Tribunal would not deal with issues of quantum but rather would consider only the question as to whether the above decision made by the SSAT was the correct or preferable one. Further, the parties agreed that the Tribunal would not consider the issue of waiver which logically would be better considered after quantum is determined.
The applicants do not take issue with those parts of the directions in paragraph one of the decision relating to the excluding of income. Nor is there any issue that the income attributable to Mr Catanzariti should only be one tenth of whatever income is found to have been derived from the activities of the syndicate.
The only issue raised by the applicants with respect to the SSAT decision is the direction (in bold above) that “all dividends paid into the TattsBet accounts” are to be treated as income. The applicants argue that this overstates the income for Centrelink purposes during the debt period. Accordingly, the issue for determination is what is the level of income arising from the gambling activities of Mr Catanzariti? The calculation of that amount is a matter to be remitted to Centrelink with directions as to how the calculation will be carried out.
FACTS
The material facts are not in dispute. They are set out in the statements of facts, issues and contentions provided by the applicant and the respondent as follows.
The applicants are and were at all material times members of a couple and they have three children.
Mr Catanzariti was granted parenting payment partnered (PPP) from 21 September 1998. He was then granted carer payment (CP) from 21 September 2007 for caring for Mrs Catanzariti. He was granted carer allowance (CDA) for caring for Mrs Catanzariti from September 2009.
Mrs Catanzariti was granted disability support pension from 19 June 2002.
During the debt period (found by the SSAT to be from January 2005 to November 2013) the rates of the various payments, PPP, CP and DSP, paid to each of them took into account either no combined income or minimal income.
Mr Catanzariti was on remand in April 2013 and was in prison from 15 November 2013 to 11 December 2014.
The Department carried out an investigation into whether the applicants had received the correct entitlement to social security payments.
On 21 February 2014 the Department decided to raise and recover from Mr Catanzariti a PPP debt of $24,766.34 for the period 29 January 2005 to 20 September 2007 and a CP debt of $69,275.84 for the period from 21 September 2007 to 18 November 2013.
The Department also decided to raise and recover from Mrs Catanzariti a DSP debt of $27,535.82 for the period 1 January 2005 to 21 September 2007 and a further DSP debt of $81,128.34 for the period from 22 September 2007 to 18 November 2013.
On 21 February 2014 the applicant sought a review of the original decision by an ARO.
On 6 March 2014 an ARO reviewed the original decisions and determined that the original decision was correct.
On 15 December 2014 the applicants requested a first review of the ARO decision by the Tribunal.
On 27 May 2015 the SSAT affirmed the decision under review.
Following the implementation of the SSAT decision, Centrelink recalculated Mr Catanzariti’s debts to be $24,766.34 for the period 29 January 2005 to 20 September 2007 and $69,275.84 for the period 21 September 2007 to 18 November 2013.
On 18 September 2015 Mr Catanzariti and Mrs Catanzariti received notification of the recalculated debts.
On 8 October 2015 Mr Catanzariti and Mrs Catanzariti appealed the debts to the Administrative Appeals Tribunal (AAT).
The most recent calculation in August 2016 for Mr Catanzariti is a debt totalling $66,771.02 and for Mrs Catanzariti a debt totalling $70,180.74.
THE LEGISLATION
The relevant legislation is contained in the Social Security Act 1991 (Cth) (the Act).
The provisions of the Act that relevantly apply to the issues before the Tribunal are as follows:
“8 Income test definitions
(1) In this Act, unless the contrary intention appears:
…
earned, derived or received has the meaning given by subsection (2).
…
exempt lump sum has the meaning given by subsection (11).
…
income, in relation to a person, means:
(a)an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
...
income amount means:
(a) valuable consideration; or
(b) personal earnings; or
(c) moneys; or
(d) profits;
(whether of a capital nature or not).
…
‘ordinary income’ means income that is not maintenance income or an exempt lump sum.
…
Earned, derived or received
(2) A reference in this Act to an income amount earned, derived or received is a reference to:
(a) an income amount earned, derived or received by any means; and
(b)an income amount earned, derived or received from any source (whether within or outside Australia).
…
Excluded amounts—general
(8)The following amounts are not income for the purposes of this Act:
…
(z)a periodical payment by way of gift or allowance, or a periodical benefit by way of gift or allowance, from a parent, child, brother or sister of the other person;
…
(11) An amount received by a person is an exempt lump sum if:
(a)the amount is not a periodic amount (within the meaning of subsection (11A)); and
(b)the amount is not a leave payment within the meaning of points 1067G-H20, 1067L-D16 and 1068-G7AR; and
(c)the amount is not income from remunerative work undertaken by the person; and
(d)the amount is an amount, or class of amounts, determined by the Secretary to be an exempt lump sum.
Note:Some examples of the kinds of lump sums that the Secretary may determine to be exempt lump sums include a lottery win or other windfall, a legacy or bequest, or a gift – if it is a one-off gift.
…
1072General meaning of ordinary income
A reference in this Act to a person’s ordinary income for a period is a reference to the person’s gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.
1075 Permissible reductions of business income [see Note 9]
(1)Subject to subsection (2), if a person carries on a business, the person’s ordinary income from the business is to be reduced by:
(a)losses and outgoings that relate to the business and are allowable deductions for the purposes of section 8-1 of the Income Tax Assessment Act 1997; and
(b)amounts that relate to the business and can be deducted in respect of plant (within the meaning of the Income Tax Assessment Act 1997) under Division 40 of that Act; and
(c)amounts that relate to the business and are allowable deductions under section 290-60 of the Income Tax Assessment Act 1997.
…”
CASE LAW
There have been numerous cases dealing with income for the purpose of social security payments.
In Harris v Director-General of Social Security (1985) 59 ALJR 194 at 197 the majority of the High Court said:
“Income can be derived from various sources, as the definition of ‘income’ in s 18 makes clear. Some items of income may be received at frequent and regular intervals during a year (for example weekly or fortnightly wages paid to an employee), some intermittently (for example profits of a business) and others at lengthy intervals (for example annual dividends on shares). Subject to the exceptions stated in the s 18 definition and subject to the limitations expressed in s 29, no income derived from any source is to be left out of account in ascertaining the annual rate of income.”
The decision of Harris was considered by the Full Court of the Federal Court in Haldane-Stevenson v Director-General of Social Security (1985) 7 ALD 467 where Davies J considered the definition of income in s 18 of the Act as it then was and said at 473:
“However, there is underlying this submission the fallacy that the terms ‘personal earnings’ ‘moneys’, ‘valuable consideration’ and ‘profits’ refer to discrete categories of income. The terms are not used by way of separation or contradistinction but are complementary to each other. The term ‘personal earnings’ is particularly appropriate to the circumstance where a pensioner is in employment and the term “profits’ is appropriate where the income-earning activity is clearly a trade or business. But there will be many circumstances where a pensioner outside an employment situation will receive earnings and yet not engage in a trade or business. The Act does not require any distinction to be drawn between personal earnings and profits. In each case, the Act is concerned with net return.”
In Read v Commonwealth (1988) 167 CLR 57 at 69 Brennan J (although in dissent) considered that the definition of ‘income’ in the Act was couched in the widest terms ‘presumably to ensure that public expenditure is directed to those who stand in actual need of the periodic support which income-related pensions provide’. Further the majority said at 65 – 66 with respect to the meaning of ‘profit’:
“The word ‘profit’ connotes a gain or increase measured by comparison of financial position at different points in time. As Gibbs C.J. observed in Federal Commissioner of Taxation v. Slater Holdings Ltd. … the starting point for determining the meaning of ‘profit’ can be found in the well-known definition provided by Fletcher Moulton L.J. in In re Spanish Prospecting Co. Ltd. … viz:
‘Profits’ implies a comparison between the state of a business at two specific dates usually separated by an interval of a year. The fundamental meaning is the amount of gain made by the business during the year. This can only be ascertained by a comparison of the assets of the business at the two dates.”
As profit is the measure of improved financial position, the question whether or not a profit was made by the appellant cannot be determined merely on the basis of an increase in the number of units held by her, notwithstanding that the increase was in this case referable to an overall increase in the value of the assets of the Trust. The question whether the additional units constituted a ‘profit’ must be assessed in terms of whether they resulted in any consequential financial gain to the appellant.” (footnotes removed)
In Secretary, Department of Social Security v McLaughlin (1997) 48 ALD 536 French J considered whether money received by a milk vendor or distributor as part of a covenant not to carry on business as milk vendors or distributors constituted income for the purposes of the Act. In that context a submission that the Act is concerned with net income or net gain was rejected.
The precursor to the current s 1072 which defines “ordinary income” as “gross ordinary income” was introduced by the Social Security (rewrite) Amendment Bill 1991 (Cth). The explanatory memorandum that accompanied the enactment of the Bill says as follows:
“A new Division 1AA is to be inserted before Division 1 of Part 3.10 of the Principal Act. This will deal with the concept of ordinary income for income assessment purposes. It will make it clear that ordinary income for social security purposes generally means gross income but that certain expenses incurred in deriving income from a business, including adjustments for decreases to the value of stock on hand, can be allowed as ordinary income deductions but only from ordinary income derived from the business concerned and not from any other sources.”
The amendments addressing the distinction between “gross” and “net” income were considered in Secretary, Department of Social Security v Ekis (1998) 52 ALD 246 where, at page 249, Drummond J observed:
“… At one stage, the Social Security Act did not contain any provision corresponding to ss 1072 and 1075 and the wide-reaching definition of ‘income’ in the Act was interpreted as meaning net realised income: see Haldane-Stevenson v Director-General of Social Security (1985) 9 FCR 73 at 75, … and Secretary, Department of Social Security v Garvey (1989) 91 ALR 245 at 249. In 1991, however, new provisions, including ss 1072M and 1072P, which correspond to ss 1072 and 1075, were inserted in the Act by Sch 1 to the Social Security (Rewrite) Amendment Act 1991 (Cth). These amendments changed, in a radical way, the entitlement of a person to an age pension where that person was in receipt of income from other sources. Save only for a few specific classes of outgoing, of which outgoings incurred by the pensioner in carrying on his or her business were one, a person's pension entitlement thereafter had to be reduced by reference to the gross amount, without any reduction, of the pensioner's ordinary income from all sources. The purpose of an income-related pension such as the age pension is to ensure that pensioners in the lower income brackets receive a measure of social security: Read v Commonwealth (1988)167 CLR 57, per Brennan J at 68. It would appear that the assumption underlying this changed approach was that where a pensioner had another source of income, the outgoings incurred in earning that income were, in general, likely to be relatively small in total amount and, for that reason, should be ignored in determining the person's pension entitlement. An exception was made, however, in relation to expenses incurred in earning income from the carrying on of a business; the assumption would appear to be that, in contrast to the position generally obtaining in respect of deriving income from other sources, eg, work as an employee, a person would only derive a gross amount of income from carrying on a business at the cost of having to incur what might be substantial expenses, so that it would be unfair to ignore those expenses in determining such a person's pension entitlement.” [emphasis added]
In Watson v Secretary, Department of Family and Community Services (2003) 74 ALD 77, Finn J also observed at [18]:
“My own view can be put shortly. It is unnecessary for me to outline at any length the effect of ss 1072 and 1075(1) of the SS Act. I would merely note the following. It is well accepted that, as a result of the amendment that introduced the precursors of ss 1072 and 1075 into the SS Act in 1991, ordinary income for social security purposes means gross income save in certain specified cases. One such case is where income is derived from a business in which case certain expenses incurred relating to that business can be deducted from the ordinary income of the business. Those expenses, though, cannot be deducted from income from any other source: see generally, Secretary, Department of Social Security v Ekis (1998) 85 FCR 382, 52 ALD 246; see also Social Security (Rewrite) Amendment Bill 1991, Explanatory Memorandum, p181; Secretary, Department of Family and Community Services v Cantlay (2000) 59 ALD 472, FCA 345.”
In Secretary, Department of Employment and Workplace Relations and Ruan (2007) 97 ALD 229 Senior Member Dunne referred to the Ekis and Watson authorities and concluded at [24] that all of Mr Ruan’s gambling receipts are part of his ‘ordinary income’ for the purposes of the Act. These receipts included numerous lump sum amounts brought back into Australia from gambling trips in New Zealand. Mr Ruan used those receipts for various purposes, including socialising, payment of bills, purchase of a house and further gambling.
The issue of gambling receipts as income was considered again by Senior Member Dunne in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nguyen [2007] AATA 2075 where lump sum amounts of gambling winnings were paid into a separate bank account after gambling sessions at the Adelaide Casino. Those deposits were often used to purchase vehicles which he later sold. Some of the deposits were used for further gambling or to repay loans.
Secretary, Department of Employment and Workplace Relations v Richards (2008) 102 ALD 74 was not a case involving gambling receipts. The Full Court of the Federal Court of Australia considered the term “ordinary income” in the context of an employment agreement pursuant to which a wage was paid but the employee was liable to repay the shortfalls in the till takings at the TAB agency where she worked. These shortfalls would be deducted from her wages. The Full Court found at [43]:
“Given the beneficial intention of the legislation, the construction of the term ‘ordinary income’ does not required the dissection of elements of the remuneration arrangement between employer and employee so that contingent variations in income are not to be taken into account simply because on one view they might be characterised as deductions. The gross income earned, derived or receive by Ms Richards during the relevant period was the amount of the wages specified in the certified agreement less the shortfall. …”
In Loizou v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 224 the Tribunal found that a series of lump sum payments of gambling winnings, deposited in to a bank account, were income for the purposes of the Act. Further, as Mr Loizou was not carrying on a business, the whole of his gambling receipts constituted ‘ordinary income’ within the meaning of s 1072 of the Act. I note that it was accepted by the applicants in this appeal that Mr Catanzariti was also not carrying on a business.
APPLICATION OF THE LAW TO THE FACTS
In the gambling receipt cases referred to above evidence of individual bets was not available. The respondent submitted that if that level of detail is available then the Tribunal should consider each separate bet and the dividend derived therefrom when determining income for the purposes of the Act. I accept that submission but it does not mean that dividends are simply added up so as to determine the level of income over a period.
Income is defined in s 8(1)(a) of the Act to mean an income amount earned, derived or received by the person for the person’s own use or benefit. Income amount is defined exhaustively to mean:
(a)valuable consideration; or
(b)personal earnings;
(c)moneys; or
(d)profits
(whether of a capital nature or not).
The income amount derived from an individual bet does not fit within the meaning of valuable consideration or personal earnings. Rather, the most apt meaning within the definition is profits, which in this case are of a capital nature. The use of the plural ‘profits’ suggests that more than one profit may be included within the income amount. Profit is not defined in the Act. The Macquarie dictionary defines it as “pecuniary gain resulting from the employment of capital in any transaction”. The majority of the High Court in Read v The Commonwealth (1988) 167 CLR 57 at 66 assessed what constituted a profit in terms of whether there was “any consequential financial gain” to the party.
In this case, there is a capital outlay and, if there is a win, there is a dividend paid which represents a return on capital. The amount returned to the punter includes the capital outlaid (ie the amount of the bet) together with the return on that capital (ie the winnings). The question for the Tribunal is what is the income amount earned, derived or received from each bet.
To take an example from the TattsBet account on 7 November 2012 at 3:08pm an amount of $1600 was bet on a horse race. The resulting dividend was $1720. The income generated by that bet is not $1720 in circumstances where the punter is only $120 better off as a result of having made the bet. The income amount associated with the bet is the profit or consequential financial gain of $120. The $1600 component of the so called dividend is not an income amount earned, derived or received by the person for the person’s own use or benefit but is rather a return of the capital outlaid on the bet.
The purpose of the applicable provisions of the Act is to ‘maintain a basic level of income for those who [are] unable to receive sufficient income to provide for themselves’ – Secretary - Department of Social Security v Garvey (1989) 22 FCR 132 at 136. If the income of a person receiving social security benefits is augmented through gambling then it is consistent with the policy for those benefits to be reduced by taking into account the consequential financial gain resulting from each individual bet. On any analysis the punter in my example is only better off by $120 which therefore is the amount that should be taken into account for the purposes of the Act.
It is my view that the correct approach is to only include those bets on which a profit was made (in the sense of the dividend exceeding the initial bet) when determining the level of income for the purposes of the Act. The profits from those individual bets constitute the income amount earned, derived or received and are added up so as to calculate the person’s ordinary income for the relevant period.
I reject the respondent’s contention that there should be no deduction of the amount of the initial bet from a successful outcome when determining income for the purposes of the Act. Further, it is my view that a deduction of that nature does not offend s 1072 because it is not a reduction made pursuant to s 1072. Section 1072 defines a person’s ordinary income as the person’s gross ordinary income without any reduction other than a reduction under division 1A (not relevant here). The reduction of $1600 in the example above is not a reduction made pursuant to s 1072. The gross ordinary income is the amount of the cumulative profits derived from each bet. The determination of profit requires a comparison between the positions before and after the transaction which is calculated by deducting the amount bet from the amount returned. If as a consequence of making the bet a financial gain results then there has been a profit. The resulting profit is the ordinary income referred to in s 1072. This was the approach taken by Collier J in Secretary, Department of Employment and Workplace Relations v Richards [2007] FCA 1710 (affirmed on appeal) who said at [27]:
“… the threshold issue in relation to identifying ordinary income is determining whether it is actually ‘income’ within the meaning of the Act. Once income is identified, ordinary income can be calculated in accordance with s 1072 by reference to the gross income from all sources for the relevant period without reduction other than reduction under Div 1A of the Act. Expressed another way, the adjective ‘gross’ applies to income once it is identified as income. …”
The operation of s 1072 is consistent with there not being any deduction for other failed bets which involved no financial gain when determining the level of income for the purposes of the Act. It was never contended by the applicants that the income generated from gambling receipts should be reduced by the amount of those failed debts and that is the correct approach.
The approach I have taken is consistent with the approach of the Full Court in Secretary, Department of Employment and Workplace Relations v Richards (2008) 102 ALD 74 at [43] which rejected the argument that certain contingent variations in income should not be taken into account “because on one view they might be characterised as deductions.”
I also consider that my approach is consistent with the decisions of Secretary, Department of Employment and Workplace Relations and Ruan (2007) 97 ALD 229; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nguyen [2007] AATA 2075 and Loizou v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 224 where lump sum receipts of moneys derived from gambling activities were found to be income for the purposes of the Act. Those cases are distinguishable because winnings after a session of betting were generally transferred into a separate account and there was no record of individual bets.
I would remit the matter to Centrelink for reconsideration with a direction that Centrelink recalculates each of the various debts by treating as income for Centrelink purposes one tenth of the net amount paid in to the TattsBet accounts where the dividend exceeds the amount of the bet made. So as to be absolutely clear, the amount in the dividend column should not be included where that amount is less than the amount in the cost or “investments withdrawals” column. For example, the dividend of $320 recorded as being paid on 21 March 2005 at 3:05pm would not be included because it does not exceed the amount of the bet made of $400. However, where the amount of the dividend exceeds the bet made then the amount of the dividend is to be included but is to be reduced by the amount of the bet namely the amount in the column headed cost or “investments withdrawals”. Another example is the bet made on 22 March 2005 at 1:37pm of $200 which resulted in a dividend of $820 – the profit amount to be included as income is $620.
DECISION
The decision of the Tribunal is to set aside the decision under review and remit the matter for reconsideration by Centrelink who is to recalculate each of the various debts by:
(a)treating as income for Centrelink purposes one tenth of the net amount paid into the TattsBet accounts of Mr C numbered ….435 and ….226 where the dividend exceeds the amount of the bet made and the net amount is the dividend less the amount of the bet made;
(b)excluding as income for Centrelink purposes all cash deposits made into those accounts; and
(c)excluding as income for Centrelink purposes the specific deposits into the Credit Union accounts of Mr Catanzariti and Mrs Catanzariti which were identified in the reasons for decision of the SSAT under review at paragraphs 44 onwards.
I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones
.........................[Sgd]...............................................
Administrative Assistant
Dated: 1 March 2017
Date(s) of hearing: 3 November 2016 Advocate for the Applicant: Mr M Shepley Solicitors for the Applicant: Welfare Rights Centre (SA) Inc Advocate for the Respondent: Mr A Hay Solicitors for the Respondent: Dept of Human Services
2
10
0