Chalker and Registrar of the Australian Business Register

[2021] AATA 5291

Chalker and Registrar of the Australian Business Register [2021] AATA 5291 (11 November 2021)

Division:Taxation and Commercial Division

File Number(s):       2021/0395

Re: Greg Chalker

APPLICANT

Registrar of the Australian Business RegisterAnd  

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:11 November 2021

Place:Sydney

1. The applicant does not have standing to review the objection decision in question.

2. This application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

........................................................................

Deputy President Bernard J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – whether decision that is subject of the application is reviewable – whether applicant has standing to bring an application on behalf of a company that has been de-registered – did the registrar give proper notice – the applicant does not have standing – application dismissed

LEGISLATION

A New Tax System (Australian Business Number) Act 1999 (the ABN Act)

Administrative Appeals Tribunal Act 1975

Taxation Administration Act 1953

CASES

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

Watts and Commissioner of Taxation [2021] AATA 758

Click here to enter text.

REASONS FOR DECISION

Deputy President Bernard J McCabe

11 November 2021

1. Mr Greg Chalker wants to contest a decision to cancel the Australian Business Number (ABN) of a company that was deregistered in 2018. Mr Chalker was a director of the company when it was deregistered by the Australian Securities and Investments Commission. He said the Registrar of the Australian Business Numbers Registry failed to give proper notice of the decision to cancel the ABN. Mr Chalker wants the ABN reinstated because he says the deregistered company contracted with another entity to sell assets before deregistration and those transactions cannot be finalised.

2. The respondent has asked that the application for review be dismissed for want of jurisdiction under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Mr Pillay, who appeared for the respondent, argued the Tribunal did not have the power to proceed with the review because:

   ·Mr Chalker did not have standing to bring the application because he is not capable of being regarded as a person who is dissatisfied with the objection decision. Mr Pillay said the effect of s 21 of the A New Tax System (Australian Business Number) Act 1999 (the ABN Act) and Part IVC of the Taxation Administration Act 1953 (the Administration Act) was to limit the right of review before the Tribunal to the entity that held the ABN. Individuals associated with the entity are not entitled to seek review; and

   ·Whether or not the respondent has the ability to engage with Mr Chalker and order reinstatement, there is no valid objection decision on foot (because the Registrar never made one, despite the applicant’s request some years ago) which means the Tribunal cannot do anything in any event. That is so because the Tribunal is limited to reviewing reviewable objection decisions.

3. It became obvious Mr Chalker is upset with the respondent. He points out he did object to the cancellation decision but was told he could not validly do so. He said he had already referred his interactions with the Registrar to the Inspector-General of Taxation who has criticised the respondent over a failure to comply with the obligation in s 18 of the ABN Act to send a written notice of the cancellation. Mr Chalker says the matter can be resolved if the respondent simply agrees to reinstate the ABN in the short term so the transaction between the third party and the deregistered company can be finalised.

   BACKGROUND TO THE APPLICATION

4. This narrative is based on the respondent’s submissions dated 6 April 2021. I understand there is no dispute about the essential facts.

5. Mr Chalker was the sole director and shareholder of a company called G00r Pty Ltd which held an ABN. That company’s GST registration was cancelled by the Commissioner of Taxation on 14 October 2017. The company was deregistered by ASIC on 11 November 2018. When a company is deregistered, it ceases to exist as an entity. Deregistration is the corporate equivalent of the death of a natural person. On 23 November 2020 – that is, after the company was deregistered and ceased to exist – the company’s ABN was cancelled by the respondent. I was not provided with a copy of that decision. I infer the decision was made under s 18 of the ABN Act on the basis the company had ceased to exist and was no longer entitled to hold the ABN. That decision was, on its face, inevitable. An ABN must be held by someone.

6. The registrar is required under s 18 of the ABN Act to inform the holder of an ABN that its ABN was cancelled. The notice is presumably directed to the address recorded in the register. Mr Chalker said he had provided an updated email address to an officer of the Australian Taxation Office (which administers the register) but the notice was not sent to that address. Mr Chalker said this was a breach of the law. Mr Pillay was not aware of the specific details of what had occurred in relation to the notice but he pointed out the obligation to notify the company was probably otiose in circumstances where the decision was made after (and as a consequence of) the company being deregistered. Mr Pillay argued, in effect, there was no practical obligation to inform what was, by then, a non-existent company (let alone the applicant, who by that point was no longer a director of the non-existent company) of a decision the registrar was required to make.

7. Mr Chalker also referred to an obligation to notify the company that arose under s 25.55 of the A New Tax System (Goods and Services Tax) Act 1999 (the GST Act). The reference is unhelpful for present purposes: that provision of the GST Act deals with cancellation of an entity’s registration for GST. While the company’s registration for GST was cancelled and the Commissioner of Taxation was obliged to notify the company of that fact, the decision to cancel the GST registration is not before me in these proceedings. We are dealing with the registrar’s decision to cancel the ABN, not the Commissioner’s decision to cancel the GST registration.

   WHAT SHOULD I DO WITH THE CURRENT APPLICATION?

8. One answer to Mr Chalker’s point about any procedural irregularities attending the notification process is that those irregularities do not invalidate the underlying decision to cancel the ABN. Moreover, it is unclear how a failure to provide notice – if that is what occurred – would lead to reinstatement of the ABN given G00r remains deregistered. It is also unclear how reinstatement of the ABN would make any difference to the predicament of a third party that had dealt with G00r before it was deregistered.

9. I do not need to reach a concluded view on these perplexing issues. The fact remains I do not have a reviewable objection decision before me. I cannot wade into what appears to be a long-running and acrimonious dispute between the applicant and the respondent which boils down to allegations of maladministration. The Tribunal’s role in Australia’s system of administrative law is confined to reviewing decisions, not administrators.

10. The Tribunal is a creature of statute. As the High Court made clear in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, we ordinarily step into the shoes of the original decision-maker and remake the decision under review. In doing so, we exercise the same powers and are subject to the same constraints as the original decision-maker. Our review is regulated by provisions in the AAT Act and other enactments which require us to go about the review in particular ways. In this case, we are required to observe the requirements imposed by the ABN Act and Part IVC of the Administration Act. Those provisions narrow the range of people who have standing to seek review of taxation decisions in the Tribunal. Whereas s 27 of the AAT Act permits “any person or persons….whose interests are affected by the decision” to seek review, the operation of s 27 is modified by s 14ZZB of the Administration Act in relation to taxation decisions that are dealt with in that scheme.

11. As I explained in my decision in Watts and Commissioner of Taxation [2021] AATA 758, only an individual who is entitled to object may seek review of an objection decision in the Tribunal. That analysis suggests Mr Chalker does not have any entitlement to object because he was not the holder of the ABN (the equivalent of the taxpayer in Watts) in the first place. It follows Mr Chalker cannot bring an application for review. Mr Chalker thinks that is a strange rule, but the fact remains he has not lodged a valid objection that prompted an objection decision. I accept he may have tried to object, but he was rebuffed. The proper course was for him to seek a review of that decision at the time, most obviously in the Federal Court, which might have reached a different view as to his standing to challenge the primary decision through the objection process. But that has not occurred.

    CONCLUSION

12. Mr Chalker is perplexed by the process. He suspects the registrar and officers from the Australian Taxation Office have mishandled the ABN cancellation process. He says that has impacted on his affairs. He says the Inspector-General has acknowledged his complaints.

13. I am not in a position to address the substance of the complaints because the matter is not properly before the Tribunal. There is no reviewable objection decision and it seems the applicant – a director of a deregistered company – has no standing to object or seek review of a decision made in relation to that late company. I would add it is unclear whether the Tribunal could provide any meaningful relief in any event.

14. In the circumstances, I am satisfied the Tribunal has no jurisdiction to entertain the application for review, and it is dismissed pursuant to s 42A(4) of the AAT Act.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of

........................................................................

Associate

Dated:   11 November 2021

Date(s) of hearing:	23 April 2021; 17 August 2021.
Applicant:	Self represented
Respondent:	Self represented