Command Recruitment Group (Qld) Pty Ltd and Commissioner of Taxation

[2008] AATA 619

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 619

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1243

GENERAL ADMINISTRATIVE DIVISION        )

ReCommand Recruitment Group (Qld) Pty Ltd

Applicant

AndCommissioner of Taxation

Respondent

INTERLOCUTORY DECISION (JURISDICTION)

TribunalProfessor GD Walker, Deputy President

Date16 July 2008

PlaceSydney

DecisionThe interlocutory decision on jurisdiction is that the tribunal has no jurisdiction to entertain the application.

....................[sgd]..........................

Professor GD Walker
  Deputy President

CATCHWORDS – Jurisdiction – taxation – whether there is a reviewable objection decision – commissioner’s decision is not an objection decision – tribunal has no jurisdiction to entertain the application. 

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RELEVANT ACT/S:

Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act):s 25

Taxation Administration Act 1953 (Cth) (the TAA): ss 8AAZD, 14E, 14ZL, 14ZQ, 14ZS, 14ZY, 14ZZ, 14ZZA, Part IVC, Part IIB,

Income Tax Assessment Act 1936 (Cth) (the 1936 Act): s 175A

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AUTHORITIES

Taxation Ruling TR 96/12

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REASONS FOR INTERLOCUTORY DECISION (JURISDICTION)

16 July 2008	Professor GD Walker, Deputy President
Summary

1.      This tribunal is authorised to review decisions in respect of which an enactment authorises an application to it (s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)).

2.      On 20 March 2008 the applicant applied to this tribunal for review of a decision by the respondent declining to transfer to the applicant’s running balance account and integrated client account certain PAYG withholding payments made to the credit of the integrated client account of a related, but separate, corporation, Command Recruitment Group Pty Ltd.  The latter company is based in Sydney and is subject to a deed of company arrangement.  It is not trading.

3.      As a result of a clerical error on the applicant’s part, some $118,000 was credited to the wrong account in that way because the incorrect electronic funds transfer code was used to remit the funds to the respondent.  The code for the Sydney corporation, not the applicant, was used.  The respondent took the position that the decision was not reviewable by the tribunal and consequently that the tribunal had no jurisdiction.

4. The applicant acknowledged that its objection to the respondent’s decision was not an objection to an assessment, but said it was an objection to a decision within the meaning of s 14ZL(1) of the Taxation Administration Act 1953 (Cth) (the TAA).

5. On behalf of the applicant, Mr Sahni submitted that under s 14ZZA of the TAA, the AAT Act applies in relation to the review of reviewable objection decisions, and under s 14ZQ of the TAA the decision in question was an “appealable objection decision” which was not excluded under the exception under objections under s 14E. Nor did s 14ZS exclude it.

6.      The commissioner’s power to allocate a primary tax debt to a running balance account under s 8AAZD did not apply in this case because the applicant was not the entity to which the funds were being applied, Mr Sahni said.

7. A uniform code relating to all objections, reviews and appeals under federal tax legislation is contained in Part IVC (ss 14ZL to 14ZZS) of the TAA. It replaced the earlier fragmented system in use before 1992. Part IVC procedure does not apply, however, unless a provision in the relevant tax legislation specifically gives a person dissatisfied with a decision the right to object to it. Section 14ZL(1) states that the part applies if a provision provides that a person who is dissatisfied with, inter alia, a decision, may object against it in accordance with Part IVC.

8. The right to apply to this tribunal for review of an objection decision by the commissioner is conferred by s 14ZZ. Under s 14ZY, an “objection decision” means a decision by the commissioner to allow or disallow a taxation objection. The phrase “taxation objection”, as was noted above, includes an objection to a “decision”. The weakness in the applicant’s argument, however, is that s 14ZL(1) makes it clear that the tax objection, review and appeal system created by Part IVC applies only if a provision in tax legislation provides that the person dissatisfied may object against it in the manner set out in Part IVC.

9. Accordingly, unless there is such a provision, the tribunal will lack the jurisdiction to review a decision of the commissioner. A taxpayer may object and appeal against an “assessment” decision under s 175A of the Income Tax Assessment Act 1936 (Cth) (the 1936 Act), but the applicant does not claim to be appealing against an assessment, but rather against a decision not to transfer withholding payments to the applicant’s running balance account.

10. There is, however, no provision in the 1936 Act or the TAA allowing an objection to be made against a decision relating to the transfer or crediting of payments to a taxpayer’s running balance account. The provisions relating to such accounts are to be found in Part IIB of the TAA, and that part does not confer jurisdiction on the tribunal to review such a decision. Consequently, the commissioner’s decision is not an “objection decision” and thus s 14ZZA(a) does not apply to it, as the applicant does not have a “reviewable objection decision” in relation to which it is entitled to seek review in this tribunal.

11.     That conclusion is supported by Taxation Ruling TR 96/12, which states in part that:

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6.Taxpayers dissatisfied with a taxation decision (ie, an assessment, determination, notice or decision) who wish to object against it are required to object in the manner set out in Division 3 of Part IVC of the TAA (see paragraph 7 below). Section 175A of the ITAA gives taxpayers the right to object against an income tax ‘assessment’. (There are other provisions in the ITAA and elsewhere that also give a right of objection against other taxation decisions; eg, section 160AL of the ITAA – foreign tax and other credits; subsection 221YHAAE(1) of the ITAA – provisional tax avoidance scheme notices; etc.)

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12.     I therefore conclude that the tribunal has no jurisdiction to entertain the application.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ..........................[sgd].................................................
               Renee Wallace, Associate

Date of Jurisdiction Hearing:        17 June 2008
Date of Jurisdiction Decision:       16 July 2008
Solicitor for the Applicant:             Command Recruitment Group (Qld) Pty Ltd
Counsel for the Applicant:             Bell Partners Accountants Advisors Auditors
Solicitor for the Respondent:        ATO Legal Services Branch