"Confidential" and Industry Research and Development Board - [2006] AATA 387

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 387
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1060

GENERAL ADMINISTRATIVE DIVISION )

Re

“Confidential”

Applicant

And

Industry Research and Development Board

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President
Date4 May 2006
PlaceSydney

Decision
The tribunal does have jurisdiction to review the respondent’s decision of 12 July 2005 in respect of the applicant’s application for registration of its research and development activities for the 2000/2001 income year.

..............................................
Professor GD Walker
Deputy President

9. On 10 April 2002 at a meeting of the Tax Concession Committee of AusIndustry (T33), a decision was made to refuse the company registration under s 39J of the IRD Act in respect of its activities undertaken in respect of “Project Horizon” for the 1999/2000 income year because they did not satisfy the criteria in s 73B(1) of the Tax Act as being innovative or having high levels of technical risk. The Board also determined that the company’s activities for the 1998/1999 income year did not qualify for the same reasons (T34 p328). A determination under s 39J of the IRD Act was subsequently issued in respect of the 1999/2000 income year (T32) and a determination under s 39L was issued in respect of the 1998/1999 income year (T31 p325).
10. On 12 April 2002, AusIndustry notified the company’s then accountants, Michael Johnson & Associates, that registration under s 39J of the IRD Act had been refused in relation to “Project Horizon” for the 1999/2000 income year (T36). On 13 May 2002, the applicant requested a review of that decision and on 30 May 2002, the Board informed it that it agreed to undertake such review.
11. By letter dated 29 May 2002 (T41A p345), the Board wrote to the company acknowledging receipt of its application for registration for the 2000/2001 income years. The letter stated, inter alia:
At this point, no decision has been reached on whether to register the activities described in the application for the R&D Tax Concession.
To assist the Industry Research and Development Board (IR&D Board) in arriving at a decision on whether to accept the registration application, AusIndustry would appreciate your comments and elaboration on the following issues.
…
In view of Board decisions either to issue a certificate or to refuse registration, I would request that you confirm whether the description of R&D activities in the PCM Application for Registration for financial year 2000/01 is for the same activities described in PCM applications for financial year 1998/99 and 1999/00.

12. On approximately 28 April 2003, the applicant lodged an application for registration under s 39J of the IRD Act for research and development associated with “Project Horizon” for the 2001/2002 income years (T46). Approval of registration was notified to the company on 15 May 2003 (T48).
13. On approximately 1 September 2004, the applicant requested the Board conduct a review under s 39S of the IRD Act in relation to its refusal to register the company for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] AATA 387
Decision Date: 4 May 2006

CaseChat Overview and Summary

The case between "Confidential" and the Industry Research and Development Board was adjudicated by the tribunal, focusing on the registration of research and development activities under the Industry Research and Development Act 1986. The primary dispute revolved around whether a decision was made concerning the applicant's registration for the 2000/2001 income year and the implications of the failure to comply with any precondition for internal review. The tribunal was tasked with determining if it had jurisdiction to review the Board's decision and whether the failure to adhere to internal review preconditions affected the tribunal's authority.

The legal issues addressed by the court included the tribunal's jurisdiction to review the respondent's decision, the relevance of internal review preconditions, and whether the tribunal's function extended to assessing the correctness of internal review decisions. The court examined the statutory provisions under the Industry Research and Development Act 1986, particularly sections 39HH, 39J, 39L, 39S, and 39T, and also considered relevant precedents, such as Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission, Clisdell v Commissioner of Police, and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed.

In its reasoning, the court found that the Board had indeed made a factual decision regarding the applicant's registration, and the failure to comply with internal review preconditions did not deprive the tribunal of jurisdiction. The tribunal's role was not to determine whether the internal review decision was correct but to assess if it had the authority to review the decision. The court concluded that the tribunal was not deprived of jurisdiction simply because it was reviewing a decision made by an intermediate appeal body. The tribunal thus had jurisdiction to review the respondent's decision dated 12 July 2005 concerning the applicant's application for registration of its research and development activities for the 2000/2001 income year.

Orders

Orders of the court

The tribunal does have jurisdiction to review the respondent’s decision of 12 July 2005 in respect of the applicant’s application for registration of its research and development activities for the 2000/2001 income year.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		“Confidential”