DGSC and Commissioner of Taxation (Taxation)

The Administrative Appeals Tribunal reviewed a decision by the Commissioner of Taxation to disallow the applicant's objection against the denial of Jobkeeper payments. The applicant, a business participant, had initially given a nomination notice to her employer but subsequently purported to withdraw this notice before applying to the Commissioner for Jobkeeper payments as a business participant. The Commissioner's position was that the applicant was ineligible because she had already provided a nomination notice to her employer, thus failing to meet the requirement that she "has not given" such a notice to another entity at the time of her application to the Commissioner.

The primary legal issue before the Tribunal was whether the applicant's purported withdrawal of the nomination notice given to her employer was effective, thereby allowing her to satisfy the condition under section 12(4)(b)(iii) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020. This section requires that at the time an individual gives a nomination notice to the Commissioner as a business participant, they "has not given any other entity... a nomination notice". The applicant argued that this requirement should be assessed on a fortnight-by-fortnight basis and that her withdrawal meant she had not, in reality, given a notice to her employer at the relevant time. The Commissioner maintained that the nomination notice was an irrevocable election and that the applicant's prior notice to her employer disqualified her.

The Tribunal considered the applicant's submission that the phrase "has not given" should be interpreted in light of the reality of the situation, arguing that if a notice is given and then taken back, it is arguable that it has not been given at the later time. However, the Tribunal found that the statutory requirement under section 12(4)(b)(iii) is tested at the moment the applicant gives her nomination notice to the Commissioner. At that specific point in time, the applicant had undeniably given a nomination notice to her employer. The Tribunal concluded that, unless that notice was set aside or found to be a nullity, the applicant could not satisfy the condition of not having given such a notice. The Tribunal did not find that the circumstances attracted the defence of non est factum, nor did it accept that the notice could be unilaterally withdrawn in a manner that would render it ineffective for the purposes of the statutory test.

The Tribunal affirmed the Commissioner's decision. The applicant's purported withdrawal of the nomination notice to her employer was not effective to satisfy the statutory requirement that she had not given such a notice at the time she applied to the Commissioner as a business participant. Consequently, the applicant was not entitled to Jobkeeper payments for the disputed fortnights.