Elcheikh and Commissioner of Taxation (Taxation) - [2023] AATA 859

Elcheikh and Commissioner of Taxation (Taxation) [2023] AATA 859 (21 April 2023)
Division:TAXATION AND COMMERCIAL DIVISION
File Numbers:2021/3022-3028
Re:Ahmed Nasser Elcheikh
APPLICANT

AndCommissioner of Taxation
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:21 April 2023
Place:Brisbane

The Tribunal affirms the decision under review.
......................[SGD]........................
Member D Mitchell
CATCHWORDS
TAXATION – income tax – default amended assessments – whether evasion - unexplained bank deposits – onus to prove assessments were excessive and what taxable income should have been – administrative penalty – whether intentional disregard – whether administrative penalty should be remitted – whether shortfall interest charge should be remitted – decision under review affirmed
LEGISLATION
Income Tax Assessment Act 1936 (Cth)
Income Tax Assessment Act 1997 (Cth)
Taxation Administration Act 1953 (Cth)
CASES
Barripp v Commissioner of Taxation (NSW) (1941) 6 ATD 69
Binetter v Federal Commissioner of Taxation (2016) 249 FCR 534
Bosanac v Commissioner of Taxation (2019) FCR 169; [2019] FCAFC 116
BRK (Bris) Pty Ltd v Commissioner of Taxation (2001) ATC 4111
Case A79 69 ATC 424
Commissioner of Taxation v Rawson Finances Pty Ltd (2012) 89 ATR 357; [2012] FCA 753
Commissioner of Taxation v Ross (2021) 174 ALD 77; [2021] FCA 766
Commissioner of Taxation v White (No 2) (2010) 117 ALD 335; [2010] FCA 942
Danmark Pty Ltd v FCT; Forestwood Pty Ltd v FCT (1944) 7 ATD 333; (1944) 2 AITR 517
Denver Chemical Manufacturing Co v Commissioner of Taxation (NSW) (1949) 79 CLR 296
Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614
Federal Commissioner of Taxation v R & D Holdings Pty Ltd (2007) 160 FCR 248; [2007] FCAFC 107
Federal Commissioner of Taxation v Rigoli (2013) ATC 20-407; [2013] FCA 784
Gashi v Commissioner of Taxation (2013) 209 FCR 301; [2013] FCAFC 30
George v Federal Commissioner of Taxation (1952) 86 CLR 183
Hart v Commissioner of Taxation (2003) 131 FCR 203; [2003] FCAFC 105
HFTS and Commissioner of Taxation [2019] AATA 5164
Hourigan and Commissioner of Taxation [2018] AATA 3369
Imperial Bottle shops Pty Ltd and William John King Egerton v Federal Commissioner of Taxation (1991) 22 ATR 148
Kajewski v Federal Commissioner of Taxation (2003) 52 ATR 455; [2003] FCA 258
Ma v Commissioner of Taxation (1992) 37 FCR 225; [1992] FCA 359
McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284
Millar v Commissioner of Taxation [2015] FCA 1104
Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 66 ATR 1; [2007] FCA 345
Queensland Maintenance Services Pty Ltd (In Liquidation) and Commissioner of Taxation [2018] AATA 4525
Re LDGL and Commissioner of Taxation [2017] AATA 2779
Rigoli v Federal Commissioner of Taxation (2014) 141 ALD 529; (2014) ATC 20-446
Rowntree v Commissioner of Taxation (2018) 125 ACSR 318
Russell v Commissioner of Taxation (2009) 74 ATR 466; [2009] FCA 1224
Sanctuary Lakes v Federal Commissioner of Taxation (2013) 212 FCR 483
Southern Global Group Pty Ltd and Commissioner of Taxation [2021] AATA 3968
Stewart and Commissioner of Taxation (2013) 97 ATR 963; [2013] AATA 845
Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63
SECONDARY MATERIALS
PS LA 2012/5 – Administration of the false or misleading statement penalty – where there is a shortfall amount
PS LA 2006/8 – Remission of shortfall interest charge and general interest charge for shortfall periods
PS LA 2008/6 – Fraud or Evasion
REASONS FOR DECISION
Member D Mitchell
21 April 2023
INTRODUCTION

Mr Ahmed Elcheikh (the Applicant) is seeking review of an Objection Decision of the Commissioner of Taxation (the Respondent) dated 24 September 2020 in relation to default amended assessments for the income tax years ended 30 June 2010 to 30 June 2016 (the years in dispute).[1]
[1] Exhibit 1, T Documents, T55, pages 556-557, Notice of Objection Decision.
The reviewable Objection Decision: [2]
[2] Exhibit 1, T Documents, T55, pages 556-557, Notice of Objection Decision.
(a)
disallowed the objection in relation to the income years ended 30 June 2010 to

30 June 2011;
(b)
allowed the objection in part for income tax for the income years ended

30 June 2012 to 30 June 2016;
(c)disallowed the objection in relation to the associated administrative penalties imposed for the years in dispute; and
(d)disallowed the objection in relation to the associated shortfall interest charges (SIC) for the income tax years ended 30 June 2010 to 30 June 2013.
PATHWAY TO HEARING
The Respondent conducted an audit of the Applicant’s income tax affairs for the years in dispute using the Asset Betterment method. This method is based on the principle that if a taxpayer’s net assets (assets less liabilities) as at 30 June of a particular year are compared to their assets as at 30 June of the previous year, the increase (or betterment) will represent their correct taxable income for that particular year, after adjustments have been made for items which may have affected the increase (for example, private expenditure, non-taxable receipts, capital gains and losses etc).[3]
[3] Exhibit 1, T Documents, T18, pages 171-174, Audit Reasons for Decision.
Having analysed information obtained from the Applicant’s financial institutions and other information on hand, the Respondent determined that the Applicant had under-reported his income for the years in dispute[4] and:
(a)formed the opinion that the Applicant, in failing to declare such income, engaged in acts that constituted evasion;[5]
(b)issued default amended assessments for the years in dispute;[6]
(c)imposed an administrative penalty at the rate of 75% on the basis that the Applicant had intentionally disregarded a taxation law,[7] which was increased by 20% in relation to the income tax years ended 30 June 2011 to 30 June 2016 by virtue of statute;[8] and
(d)imposed a shortfall interest charge.[9]
[4]     Exhibit 1, T Documents, T17, pages 159-161 Audit finalisation letter and T18, pages 162-194, Audit finalisation letter and Reasons for Decision.
[5]     Exhibit 1, T Documents, T18, pages 183-186, Audit Reasons for Decision.
[6]
[7]     Exhibit 1, T Documents, T18, 186-191, Audit Reasons for Decision.
[8]     Exhibit 1, T Documents,T18, page 189, Audit Reasons for Decision.
[9]     Exhibit 1, T Documents, T18, pages 191-192, Audit Reasons for Decision.
The overall effect of the amended assessments resulting from the Respondent’s audit was that the Applicant’s total taxable income for the years in dispute was increased to $590,217.00, resulting in a tax shortfall amount of $254,202.31.[10]
[10] Exhibit 1, T Documents, T18, page 168, Audit Reasons for Decision.
An informal review was conducted by the Respondent, at the request[11] of the Applicant’s lawyers[12] in relation to the income year ended 30 June 2014. Consequently, on

14 May 2019, the Respondent reduced the Applicant’s taxable income for that year by $30,683.00 and the penalties and SIC were recalculated.[13] A further notice of amended assessment for the income tax year ended 30 June 2014 was issued on the same date.[14]
[11]    Exhibit 1, T Documents, T33-39, pages 368-381, Notices of assessment of shortfall penalty for the financial years ended 2010-2016.
[12]    At the time of audit, the Applicant was represented by Bartels Lawyers.
[13]
[14]
Through newly engaged lawyers, the Applicant lodged an objection to the amended assessments of the years in dispute and provided submissions to address the findings of the audit.[15] The Applicant’s objection submissions relevantly contended that:[16]
[15] Exhibit 1, T Documents, T49-T54, pages 443-555, Objection application documents.
[16] Exhibit 1, T Documents, T49-T54, pages 443-555, Objection application documents.
·A significant amount of the money expended by the Applicant throughout the years in dispute were funds that were advanced to him by his father by way of a loan and that there should be corresponding reductions in the Asset Betterment table to reflect this.
·
The Statutory Declaration of Nasser Elcheikh (being the Applicant’s father) dated

29 August 2019 should be accepted as evidence showing the extent of the assistance he provided the Applicant.
·The Loan Agreement between the Applicant and his father dated 14 October 2013 supports that the advances made after this date should properly be characterised as loans and a corresponding reduction in taxable income for those years should therefore be made.
·The loans and fund transfers had no nexus with the Applicant’s income earning activities and were made by a father to provide financial accommodation to his son.
·If it is not accepted that, on the balance of probabilities, the monies provided to the Applicant by his father were by way of loan advance, then they should be considered as gifts.
·
Further information was sought with regards to the income tax years ended

30 June 2010 to 30 June 2013 to establish the amounts of money provided to the Applicant by his father.
·The Respondent’s adjustments to the Applicant’s taxable income for the income years ended 30 June 2014 to 30 June 2016 should be adjusted by the amounts set out in his father’s Statutory Declaration as loans.
·Administrative penalties should not be imposed as there is no tax shortfall amount, or if there is a tax shortfall amount, a lesser penalty should be imposed as there was no intentional disregard with respect of the false or misleading statements.
·The SIC should be remitted in full or in part.
The Statutory Declaration provided by Mr Nasser Elcheikh (Mr Elcheikh) stated:[17]
1. This Statutory Declaration relates to funds that have been paid between myself (including through entities of which I control) and my son by way of loans. I identify the bank account transactions pursuant to which those loans were advance and received throughout this declaration. To the extent that I have advance funds to my son by way of loan, I expect, and always have expected them, to be repaid.
[17] Exhibit 1, T Documents, T49, pages 468, Statutory Declaration of Mr Nasser Elcheikh.
Mr Elcheikh provided details in relation to how a compensation payment received by the Applicant was applied and outlined amounts he said he loaned to the Applicant in the income years ended 30 June 2014 to 30 June 2016 from either his personal account or from his business accounts.[18]
[18] Exhibit 1, T Documents, T49, pages 468-471, Statutory Declaration of Mr Nasser Elcheikh.
The loan agreement between Mr Elcheikh and the Applicant dated 14 October 2013 provides that an unspecified amount for a house deposit and loan repayments was to be paid by the lender to the applicant. No repayment date was set and no terms of repayment or imposition of interest was provided.[19]
[19] Exhibit 1, T Documents, T49, pages 487-493, Loan Agreement.
As a result, having taken into consideration the information that had been provided by the Applicant, the Respondent:[20]
[20]    Exhibit 1, T Documents, T55, pages 556-557, Notice of objection decision.
(a)
disallowed the objection in relation to the income tax years ended 30 June 2010 to

30 June 2011;
(b)
allowed the objection in part for income tax for the income tax years ended

30 June 2012 to 30 June 2016 by:
(i)reducing the taxable income for the income tax years ended 30 June 2012 and 30 June 2013 by the amounts identified in the Applicant’s bank accounts that were consistent with those detailed in the later years in relation to the amounts loaned to him from his father;
(ii)reducing the taxable income for the income tax year ended 30 June 2014[21] by the amounts outlined in Mr Elcheikh’s Statutory Declaration as having been loaned to the Applicant from his personal bank account and an amount for stamp duty paid on his property purchase; however did not accept that the payments made from Evolving Business Services Pty Ltd and Reliance Business Investments Pty Ltd were loans rather than income, on the basis that the loan agreement was between the Applicant and his father, not the businesses, noting that some of the descriptions of the payments made by Reliance Business Investments Pty Ltd referenced wages; and
(iii)reducing the taxable income for the income tax years ended 30 June 2015 and 30 June 2016 by the amounts outlined in Mr Elcheikh’s Statutory Declaration as having been loaned to the Applicant from his personal bank account; however did not accept that the payments made from Reliance Business Investments Pty Ltd were loans rather than income, on the basis that the loan agreement was between the Applicant and his father only.
(c)disallowed the objection in relation to the associated administrative penalties imposed for the years in dispute; and
(d)disallowed the objection in relation to the associated SIC the income tax years ended 30 June 2010 to 30 June 2013.[22]
[21]    The Tribunal sought submissions from the Respondent in relation to which notice of assessment the Objection Decision considered. The Respondent confirmed in his Further Submissions dated 27 May 2022 that the Objection Decision considered the notice of amended assessment issued at the audit phase. The Respondent further contended that the Tribunal should consider that the Objection decision took into account the amendments made as a result of the informal review and that those amendments in effect formed part of the further amended assessment that was issued after the Objection Decision. The Tribunal accepts those submissions in line with the reasoning set out in Southern Global Group Pty Ltd and Commissioner of Taxation [2021] AATA 3968.
[22]    Noting that a taxpayer cannot object to SIC that are less than 20% of the shortfall amount as such the objection to the SIC charge for the 2014, 2015 and 2016 income tax years is not valid.
Following the Objection Decision, the Respondent issued an amended assessment for the income tax years ended 30 June 2012 to 30 June 2016.[23]
[23] Exhibit 1, T Documents, T61-T65, pages 575-594, Notices of Amended Assessment for the financial years ended 30 June 2012 to 30 June 2016.
The overall effect of the Objection Decision was that the Applicant’s total taxable income for the years in dispute at objection was reduced to an increase of $377,667.12, resulting in a tax shortfall of $159,038.81 with administrative penalties of $142,941.07 and shortfall interest charge of $30,340.10.[24]
[24] Exhibit 3, Respondent’s Submissions, page 10, paragraph 29.
Following the Objection Decision (which took into account the informal review), the Applicant’s tax assessments, administrative penalties and SIC are summarised as follows:[25]
[25] Exhibit 3, Respondent’s Submissions, page 10, paragraph 29.
The Applicant subsequently applied to the Tribunal for review of the Objection Decision, providing a number of supporting documents.[26]
[26] Exhibit 1, T Documents, T1, pages 1-99, Application for Review and attachments.
A Hearing was conducted on 12 May 2022. At the Hearing, the Applicant was self-represented, appeared in person and gave evidence under affirmation. The Respondent was represented by Mr Joshua Sproule of Counsel.
Following the Hearing, the Respondent provided written submissions dated 27 May 2022 addressing matters raised by the Tribunal with regard to the status of the decision made at the informal review and the formation of his opinion on evasion. The Applicant provided written submissions in response on 9 June 2022.
LEGISLATIVE FRAMEWORK AND PRINCIPLES
The relevant law in this matter includes the Income Tax Assessment Act 1936 (Cth) (ITAA 1936), Income Tax Assessment Act 1997 (Cth) (ITAA 1997) and the Taxation Administration Act 1953 (Cth) (TAA 1953).
Income Tax Assessments
Section 166 of the ITAA 1936 requires that the Respondent, from the returns and any other information in his possession, make an assessment of: the taxable income of a person; the tax payable thereon; and any tax offset refunds. This section effectively deals with situations where a taxpayer lodges an income tax return which, in this case, is what the Applicant did for each of the years in dispute.
However, where the Respondent is not satisfied with the return that has been furnished by a taxpayer, he or she may, pursuant to section 167(b) of the ITAA 1936, make an assessment of the amount upon which in his or her judgement, income tax ought to be levied, and that amount shall be the taxable income of that taxpayer for the purpose of section 166. In such circumstances, the Respondent may issue a default amended assessment of which an assessment is made in relation to an estimate of the amount of taxable income the Respondent considers the taxpayer should have been taxed on. The default assessment relates to a single amount of taxable income rather than a calculation of assessable income less allowable deductions to reach an amount of taxable income.[27]
[27] Definition of taxable income – section 4-15 of the ITAA 1997 and section 6(1) of the ITAA 1936.
In the present matter, the Applicant’s taxable income was largely determined by reference to the Asset Betterment equation and analysis that reflected increases in his expenditure for the years in dispute could not be supported by his declared assessable income.
Ordinarily, individual taxpayer’s assessments can only be amended by the Respondent for a year of income within 2 or 4 years (whichever applies) of the day on which the Respondent gives notice of the assessment to the taxpayer.[28] However, pursuant to item 5 of section 170(1) of the ITAA 1936, the Respondent may amend an individual taxpayer’s assessment at any time if the opinion is formed that the taxpayer has avoided tax due to fraud or evasion.
[28] Section 170(1) of the ITAA 1936.
The taxpayer bears the onus of satisfying the Tribunal that the Respondent could not validly form the opinion that there was fraud or evasion in the relevant income years. If the taxpayer is able to do so, then the statutory condition for the power to amend is not satisfied.[29]
[29] See Millar v Commissioner of Taxation [2015] FCA 1104 which was confirmed by the Full Federal Court in Binetter v Federal Commissioner of Taxation (2016) 249 FCR 534.
The consideration of evasion cannot be made in isolation of the circumstances that led to the amended assessment being issued for each income year.
Dixon J in Denver Chemical Manufacturing Company v Commissioner of Taxation(NSW) (1949) 79 CLR 296 at 313 considered the term ‘evasion’ to mean:
…. More than avoid and also more than a mere withholding of information or the mere furnishing of misleading information. It is probably safe to say that some blameworthy act or omission on the part of the taxpayer or those for whom he is responsible is contemplated.
Intentional omission of income without adequate explanation was held to be able to amount to evasion by McTiernan J in Barripp v Commissioner of Taxation (NSW) (1941) 6 ATD 69 at 71, who stated:
[b]ut the question whether the excuse offered could change the complexion of the facts proved is only an abstract one because the reality of the excuse was not established. The case therefore stands in this situation. The appellant intentionally omitted the income from the return and there is no credible explanation before the Court why he did so. His conduct in my opinion answers to the description of an avoidance of taxation at any rate by evasion.
In this matter, the Respondent formed an opinion that the Applicant had avoided tax by evasion and as such, amended the Applicant’s assessments for the income tax years ended 30 June 2010, 30 June 2011 and 30 June 2014 even though the two-year window in which to do so had ordinarily expired.[30]
[30] Exhibit 1, T Documents, T2, page 101, paragraphs 27-33, Reasons for Objection decision.

In line with the decision of the Full Federal Court in Binetter v Commissioner of Taxation (2016) 249 FCR 534, the onus lies with the Applicant to satisfy the Tribunal that the Respondent could not validly form that opinion for those income tax years. In the Binetter case, Perram and Davies JJ, with whom Siopis J agreed, provided:
93. ….. Although the Tribunal re-examines whether, on the evidence before it, there was an avoidance of tax due to fraud or evasion, and is able to substitute its opinion for that of the Commissioner, the issue for the Tribunal is whether the taxpayer has discharged the onus of showing that the opinion that there was fraud or evasion should not have been formed, and therefore, that the statutory condition for the power to amend is not satisfied. Unless the taxpayer discharges that onus, the assessments are not shown to be excessive and the effect of s 14ZZK is that the Tribunal must affirm the amened assessments, such assessments having been made by the Commissioner in compliance with the statutory requirements: McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284 at 303; Millar v Commissioner of Taxation (2015) 67 AAR 490. In Millar Griffiths J correctly held that on a merits review before the Tribunal, the onus of proof imposed by s14ZZK places on the taxpayer the burden of disproving fraud or evasion.
In Re LDGL and Commissioner of Taxation [2017] AATA 2779 at [50]-[54], Deputy President O’Loughlin further considered an Applicant’s burden of disproving fraud or evasion, stating:
50.      The Respondent says that the Applicant bears the onus of providing evidence that satisfies the Tribunal as to the cause of the tax shortfall, and that cause did not constitute fraud or evasion. Further, the Respondent contends that that has not been done.
51.      The decision in Bai is relevant in these circumstances. That decision was the subject of the appeal decision in Binneter & Ors. Perram and Davies JJ begin their decision to the effect that a taxpayer carries the onus of showing that there was no fraud or evasion or that the Respondent had not formed the requisite opinion, and explain that there is no onus on the Respondent to show that the assessment was correctly made; and that while this Tribunal can re-examine whether, on the evidence before it, there was fraud or evasion, and can substitute its opinion for the Respondent's, the issue for this Tribunal is whether the taxpayer has discharged the onus of showing that the fraud or evasion opinion should not have been formed. If a taxpayer does not do that, the amended assessments stand.
52.      The manner in which a taxpayer would achieve such a goal in an income case depends on the particular circumstances. A taxpayer could demonstrate there was no omission of income and therefore no avoidance of tax. Alternatively, a taxpayer could demonstrate that the amounts, while assessable, were not included in assessable income returned for a reason that shows that while there was a shortcoming, it was a shortcoming that fell short of a blameworthy act in the Denver Chemical sense.
53.      Provided the Respondent has formed the requisite opinion, in an income case, the effect of the Binneter decision, and those on which it is based, may well be to make a fraud or evasion finding unchallengeable independently of the challenge to the assessability of the relevant amount. If that is so, that is not a matter that the Tribunal can alter. Thus the Applicant's contentions at paragraph [48] above, in the present circumstances. cannot be accepted
54.      Where the character of an amount remains unestablished and the taxpayer has not proven the amount is not assessable, it is difficult, if not impossible to:
·(a) form any view as to the level of shortcoming, if there be one;
·(b) form a view as to whether there has been an innocent mistake or a blameworthy act; and
·(c) say that the taxpayer has demonstrated that there was not fraud or evasion.
Avenues for review and onus of proof
Where a person disagrees with an amended assessment issued by the Respondent, they can object to that decision. Following a review of the objection, an objection decision is made by the Respondent.[31]
[31] Section 14ZY of the TAA 1953.
Where a taxpayer is dissatisfied with an objection decision made by the Respondent, they may apply to the Tribunal for a review of the decision or appeal to the Federal Court against it.[32]
[32] Section 14ZZ of the TAA 1953.
The Applicant, in exercising his right to seek review of the Respondent’s objection decision, by virtue of section 14ZZK(b)(i) of the TAA 1936, has the burden of proving that the assessments for the years in dispute are excessive or otherwise incorrect and what those assessments should have been.[33]
[33] The Tribunal notes that this burden of proof applies equally across the years in dispute despite the legislative changes that have been made to section 14ZZK of the TAA 1953 during that time: see Commissioner of Taxation v Ross [2021] FCA 766 at [41]-[45].
In relation to default assessments, of which this matter relates, case law authority has established that it is not sufficient for an Applicant to point to an error in the methodology applied by the Respondent in making the assessment, rather the Applicant must demonstrate what the actual amount should be. The applicable principles were explained by Pagone J in Federal Commissioner of Taxation v Rigoli (2013) ATC 20-407; [2013] FCA 784 as follows:[34]
[8]… In Gashi,[35] the court had held that a taxpayer wanting to challenge an assessment made under s 167 upon the asset betterment method of calculation could only do so by establishing the actual taxable income for the period in dispute saying at [63]:
A taxpayer who seeks to establish that a s 167 assessment based on the asset betterment method of calculation is excessive must positively prove his or her “actual taxable income” and, in doing so, must show that the amount of money for which tax is levied by the assessment exceeds the actual substantive liability of the taxpayer: Dalco[36] at 623-5 and Trautwein[37] at 88. The taxpayer must show that the unexplained accumulated wealth was from non-income sources. The manner in which a taxpayer discharges that burden is not defined or specified – it varies with the circumstances: Dalco at 624.
The reason for this conclusion lay in the difference between assessments made under s 166 and those made under s 167 which at [53]-[55] the court had explained:
The s 167 power is necessarily different to that in s 166. Under s 166, the power is to “make an assessment of the amount of the taxable income”. The phrase “taxable income” is defined to mean “assessable income” minus “deductions”: s 4-15 of the 1997 Act and s 6(1) of the 1936 Act. Under s 167, that process of calculating taxable income as assessable income minus deductions is not possible (in whole or in part) because of one of the preconditions to the exercise of the power in sub-paras (a) to (c) of s 167 – a failure by a person to lodge a tax return, the tax return is deficient or the Commissioner has reason to believe that a person who has not lodged a return has derived taxable income. It is for those reasons that the balance of s 167 empowers the Commissioner to make an assessment of the amount upon which income tax ought to be levied and for that amount to be deemed to be the taxpayer’s taxable income for the purposes of s 166.
The third part of the section – the deeming provision – would be futile if it was necessary for the Commissioner to undertake a process of the kind referred to in s 166. As the Commissioner submitted, the assessment of the “amount” in s 167 is not constrained by a process of subtracting “deductions” from “assessable income”. Instead, in making his judgment of the “amount” that becomes taxable, the Commissioner may use what is known as the “asset betterment” method: Trautwein at 87, 99-100 and 105.
The asset betterment method, and the resulting assessment, is necessarily a guess to some extent and “almost certainly inaccurate in fact”: Trautwein at 87. It is therefore “no part of the duty of the commissioner to establish affirmatively what judgment he formed [under s 167 of the 1936 Act], much less the grounds of it, and even less still the truth of the facts affording the grounds”: George v Federal Commissioner of Taxation at 204.[38]
The need, therefore, for a taxpayer to prove the “actual taxable income” in order to establish the excessiveness of an assessment made under s 167 was not so much that the assessment in Gashi was based upon the asset betterment basis of calculation as that it was made under s 167 where the “process of calculating taxable income as assessable income minus deductions is not possible (in whole or in part)”. The figure arrived at by the Commissioner under s 167 may in any given case be based upon calculations similar to those where the taxpayer has furnished a return under s 166, but an assessment under s 167 is fundamentally different from one under s 166. A taxpayer seeking to establish that an assessment under s 167 is excessive needs to establish not that some element in the assessment is wrong but that “the amount upon which in [the Commissioner’s judgment] income tax ought to be levied” was the taxpayer’s actual taxable income. The primary obligation of a taxpayer is to furnish a return of income under s 166 and an assessment under s 167 does not provide a means by which taxpayers may be relieved of their obligation to establish their actual taxable income. It is, rather, a means by which the Commissioner may impose a liability where the taxpayer has failed to furnish a return.
[34]    Commissioner of Taxation v Rigoli [2013] FCA 784 at [8]. Pagone J’s reasoning was held to be “correct” on appeal to the Full Federal Court: see Rigoli v Federal Commissioner of Taxation (2014) ATC 20-446; [2014] FCAFC 29.
[35]    Gashi v Commissioner of Taxation (2013) 209 FCR 301; [2013] FCAFC 30.
[36]    Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614.
[37]    Trautwein v Federal Commissioner of Taxation (1936) 56 CLR 63.
[38]    George v Federal Commissioner of Taxation (1952) 86 CLR 183.
The Full Federal Court in Gashi v Commissioner of Taxation [2013] FCAFC 30 further provided at [63] to [66]:
[63] A taxpayer who seeks to establish that a s 167 assessment based on the asset betterment method of calculation is excessive must positively prove his or her “actual taxable income” and, in doing so, must show that the amount of money for which tax is levied by the assessment exceeds the actual substantive liability of the taxpayer: Dalco at 623-5 and Trautwein at 88. The taxpayer must show that the unexplained accumulated wealth was from non-income sources. The manner in which a taxpayer discharges that burden is not defined or specified – it varies with the circumstances: Dalco at 624.
[64] So, for example, in Ma v Commissioner of Taxation [1992] FCA 359; (1992) 37 FCR 225 at 230, Burchett J said that, in seeking to establish that an assessment under s 167 was excessive, that burden may be discharged:
... [I]f a taxpayer denies any undisclosed source of income, provides acceptable evidence of how he spends his time, and demonstrates a reasonable explanation for any appearance of the possession of assets, he will generally discharge his burden of proof unless some positive reason is shown why he is to be disbelieved. ...
[65]Justice Burchett identified a number of steps – identification of sources of income, explanation of a taxpayer’s activities and an explanation of the source or sources of a taxpayer’s assets. The steps identified by Burchett J are not surprising. In addressing a s 167 assessment based upon an asset betterment statement, a taxpayer must account for an unexplained increase in assets. The taxpayer must explain the source or sources of those assets and then identify whether that source, or those sources, are taxable. Put another way, if the disclosed “actual” taxable income does not explain the increase in assets, then the taxpayer is unlikely to have discharged the burden of establishing the assessment is excessive. And, of course, that unexplained increase in assets cannot be viewed in isolation – it must also take into account the expenditure during that period.
[66]Consistent with that view, even if a taxpayer was able to prove that an item in the asset betterment statement was wrong or should not have been included, but did not adequately explain the source or sources for the otherwise unexplained increase in wealth, the taxpayer would not discharge the onus under s 14ZZO of the TAA.
These principles have recently been adopted by the Federal Court in Commissioner of Taxation v Ross [2021] FCA 766, where Derrington J provided at [46]:
….. It follows that there is no undue harshness in requiring a taxpayer, who has failed to lodge a return or whose return is not compliant with the taxation legislation, to bear the onus of establishing their true taxable income for the relevant income year.
The Tribunal considers that the case authority in relation to section 167 default assessments based on the Asset Betterment method makes it clear that without a taxpayer establishing what their taxable income was for the period in question, the Tribunal is unable to be satisfied that the default assessments were excessive or what the actual tax position is.
The Applicant must, in this case, establish what his taxable income was for the years in dispute. It means that he will need to demonstrate what his assessable income and allowable deductions for the years in dispute were to establish what he says his taxable income should have been for the years in dispute. The Applicant “will have to demonstrate by evidence both sides of the equation because the assessment involves the exercise of a power to make a lump sum assessment of the taxable income based on the information available to the [Respondent]”.[39]
[39] Bosanac v Commissioner of Taxation [2019] FCAFC 116 at [57] per Greenwood, Burley and Colvin JJ.
It is up to the Applicant to establish the facts he relies upon to displace the amended assessments. Latham J, in Danmark Pty Ltd v FCT; Forestwood Pty Ltd v FCT (1944) 7 ATD 333 at 337; (1944) 2 AITR 517 at 586 stated that:
… upon an appeal the onus rests upon the taxpayer of establishing the facts upon which he relies and if it is necessary for him to establish a particular fact in order to displace the assessment he must satisfy the Court with respect to that fact.
As such, to be successful in this matter, the onus falls on the Applicant to prove that the amended assessments were incorrect and what his taxable income actually was for the years in dispute.
Penalties
Administrative penalties may be imposed in a number of circumstances. Relevant to the present matter, section 284-75(1) of Schedule 1 to the TAA 1953 provides that administrative penalties may be imposed where:
284-75 Liability to Penalty
(1)you are liable to an administrative penalty if:
(a) you make a statement to the Commissioner or to an entity that is exercising powers or performing functions under a taxation law; and
(b) the statement is false or misleading in a material particular, whether because of things in it or omitted from it.
Section 284-85 of Schedule 1 to the TAA 1953 outlines how the amount of penalty is to be calculated.
For current purposes, section 284-90 of Schedule 1 to the TAA 1953 provides that the base rate penalty amount:
(a)is 50% of the shortfall amount or part of the amount that resulted from recklessness by the taxpayer or their agent as to the operation of a taxation law; or
(b)is 75% of the shortfall amount or part of the amount that resulted from intentional disregard by the taxpayer or their agent as to the operation of a taxation law.
The meaning of intentional disregard was described by the Tribunal in Queensland Maintenance Services Pty Ltd (In Liquidation) and Commissioner of Taxation [2018] AATA 4525 at [100] as:
Intentional disregard of a taxation law includes deliberately omitting an amount form assessable income knowing it is assessable or claiming a deduction knowing it is not allowable. The authorities referred to by QMS support the view that intentional disregard requires actual knowledge that a statement is false.[40]
[40] Russell v Commissioner of Taxation [2009] FCA 1224; Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCA 345; (2007) 66 ATR 1 at [43].
The meaning of recklessness was described by the Tribunal in HFTS and Commissioner of Taxation [2019] AATA 5164 at [144]:
[144]The “recklessness” criterion referred to in TAA Schedule s 284-90(1) has been regarded as involving “gross carelessness” to the extent of indifference to, or actual disregard, of a risk that would be foreseeable to a reasonable person. This is the view that has been consistently taken of the concept in the taxation context:- see Federal Commissioner of Taxation v R & D Holdings Pty Ltd [2007] FCAFC 107; (2007) 160 FCR 248 at [70]. In Hart v FC of T [2003] FCAFC 105; (2003) 131 FCR 203 Hill and Hely JJ said this about the concept:
[43] Recklessness is a concept well known to the law, particularly in the fields of tort and criminal law. In those fields, recklessness will usually be found to have been established if the person’s conduct shows disregard of, or indifference to, consequences foreseeable by a reasonable person. In some contexts a subjective test is applied, but in others the test is objective. In BRK (Bris) Pty Ltd v Commissioner of Taxation (2001) ATC 4111 at 4129 Cooper J made the following observations in relation to recklessness in the context of s226H;
‘Recklessness in this context means to include in a tax statement material upon which the Act or regulations are to operate, knowing that there is a real, as opposed to a fanciful risk, that the material may be incorrect, or be grossly indifferent as to whether or not the material is true and correct, and that a reasonable person in the position of the statement-maker would see there was a real risk that the Act and regulations may not operate correctly to lead to the assessment of the proper tax payable because of the content of the tax statement. So understood, the proscribed conduct is more than mere negligence and must amount to gross carelessness.’
In this case, for the Applicant to be able to discharge his onus to prove that both he and his tax agent were not reckless or showed an intentional disregard to a taxation law, he must do so on the balance of probabilities.[41]
[41] Commissioner of Taxation v White (No 2) [2010] FCA 942 at [18].
Section 284-220(1)(c) of Schedule 1 to the TAA 1953 provides that the percentage of the base penalty amount automatically increases by 20% where a penalty has been imposed in relation to prior income years on the basis of recklessness. As such, in the Applicant’s case, the percentage of the base penalty amount automatically increased for the income tax years ended 30 June 2011 to 30 June 2016 income years as a penalty was imposed in the income tax year ended 30 June 2010.
Section 298-20 of Schedule 1 to the TAA 1953 provides that the Commissioner, and therefore the Tribunal, has the power to remit all or a part of the penalty. Although the power to remit all or part of the penalty is unfettered, the discretion must be exercised for a proper purpose and in accordance with the objects of the TAA 1953 and according to law.[42]
[42] Sanctuary Lakes v Federal Commissioner of Taxation (2013) 212 FCR 483 at 521.
Section 280-100 of Schedule 1 to the TAA 1953 provides that a taxpayer is liable to pay shortfall interest charge on an additional amount of income tax that they are liable to pay as a consequence of the Respondent amending their assessment for an income year.

Section 280-160(1) of Schedule 1 to the TAA 1953 provides that the Commissioner, and therefore the Tribunal, has the power to remit all or part of an amount of shortfall interest charge where it is fair and reasonable to do so. A taxpayer can only object against a remission decision regarding shortfall interest charge if the amount of the charge that was not remitted is more than 20% of the additional amount.[43] In this matter, the shortfall interest charge imposed in relation to the income tax years ended 30 June 2013 to 30 June 2016 income tax years was not more than 20% of the additional amount of income tax and as such, the Applicant has no objection right in respect of the shortfall interest charge for those years.
[43] Section 280-170 of Schedule 1 to the TAA 1953.
ISSUES
The issues before the Tribunal are whether the Applicant has discharged his onus to prove:
(a)the opinion formed in relation to evasion should not have been formed for the income tax years ended 30 June 2010, 30 June 2011 and 30 June 2014;
(b)the amended income tax assessments for each of the years in dispute are excessive or otherwise incorrect and what his correct taxable income for the years in dispute should have been;
(c)
that he should not be liable for administrative penalties imposed under section

284-75(3) of Schedule 1 to the TAA 1953 for the years in dispute, including the increased base penalty amount imposed under section 284-220(1) of Schedule 1 to the TAA 1953;
(d)that should he be liable for administrative penalties, the discretion to remit under section 298-20(1) of Schedule 1 to the TAA 1953 ought to be exercised in his favour;
(e)
that he should not be liable for shortfall interest charge imposed under section

280-100 of Schedule 1 to the TAA 1953 for the income tax years ended 30 June 2010 to 30 June 2013; and
(f)that should he be liable for shortfall interest charge, the discretion to remit the shortfall interest charge under section 280-160 of Schedule 1 to the TAA 1953 for the years in dispute ought to be exercised in his favour.
EVIDENCE AND CONTENTIONS
The crux of the Applicant’s contentions was that he signed his tax returns for the years in dispute, however, did not know what was in them. He believes they were correct and that the money that has come into his bank account was from his father or his father’s businesses to help him live and pay his bills or was to reimburse him for invoices or expenses he paid in relation to his father’s yoghurt shop, while he worked there.
In his application for review of the Respondent’s Objection Decision, the Applicant provided the following in response to why he claims the decision is wrong:[44]
I believe this decision being made against me is wrong because I was unaware that my Father was putting his financial support as wages in the bank transfers when all he was doing was supporting me. I was not working for a majority of that time because of an injury
I sustained in 2010 when i had injured my self at work. I was on work cover until i was paid out a sum of money which was then transferred to my fathers account, I then bought a house and he had transferred the money i had received for my injury in order to pay the deposit for the house. From 2010 till present I have struggled to keep a job because of the injury I sustained at work falling from a ladder and fracturing my neck. The money the ATO is claiming that is taxable income was money my father was depositing into my account to support my everyday needs on a weekly basis. Statements have been provided from both mine and his accounts for proof of this but the ATO insist that i have been evading tax. I personally have never dealt with my tax. Working for the family business they always just told me to sign at tax time. I have never spoken to an accountant about what i have earned and what support i was receiving. I have never received a tax return in the last few years. I believe the last time I had spoken to the ATO about a sum of money they said they wont be releasing my tax return until this situation is dealt with. It has caused me many mental health problems and family issues. I have never evaded tax, I simply put my trust into my family to support me. I'm not sure as to why he was transferring the money under wages but i had not been working for him then. In conclusion the decision is wrong because my father was sending me money as financial support not because I was working for him. MOney was sent to me to pay of debts that I'm in and to survive daily. Rather than being on centerlink i had my fathers support financially
[44] Exhibit 1, T Documents, T1, page 3, Application for Review.
The Applicant provided an undated written statement to the Tribunal in August 2021[45] of which his evidence at the Hearing was consistent. At the Hearing, the Applicant told the Tribunal that:[46]
[45] Exhibit 2, Joint Hearing Book, A43, Statement of the Applicant, pages 19-20.
[46] Transcript, pages 9-20 and 30.
·He thinks the decision is wrong because the money that has been sent through his account was sent from his father’s personal or business account.
·“I’ve worked for him for a number of years. I also haven’t worked for him and when I didn’t work for him he supported me. But I understand – I could see in the statements where he had sent me money and it would be under wages but that was on his end and it was just the way that he had put it in his transfer online.”
·The frozen yoghurt shop opened on Valentine’s Day in 2014 and he ran it as the manager. At the start, things were getting paid through his father and then it was put on him. He was paying things from his credit card and the amounts of money that were coming through were to pay for the invoices paid for on his card.
·The audit was not handled by him. It was handled by his father, uncle and their lawyers.
·He was not involved in this matter until he made the application to the Tribunal. Prior to this, it was his father and uncle that instructed their lawyers to act on his behalf.
·Referring to his father and uncle:
And they’re the ones who have always paid me my wages or supported me. All my accountants have always been through them, so I’ve never – to be honest I’ve never even looked at my tax papers, all I’ve ever done is signed them. Everything that I have signed that the accountants had done is legitimate but what the audit is saying is pretty much adding on the financial support and whatever money my dad sent me on top of it.
·He signed his tax returns, but he was not concerned with any of the details as he did not think he had to be.
·The additional amounts that have been included in his assessable income is money that his father provided him for rent, food, car repayments, etc.
·When he owned the house, he had a contract with his father where his father was paying the mortgage and once he sold the house, he would pay his father back. The house is sold now and he paid his father back, not everything but the majority of it.
·That his submissions in relation to him paying invoices and amounts for the yoghurt shop and the associated documents were not raised until the Tribunal process as he was not involved in the matter prior to then.
·In relation to why the invoice amounts that he says he paid cannot be reconciled with his bank statements, that the amounts sent into his credit card were bigger than the invoices and receipts to pay more off the credit card.
·He understands that each individual is responsible for their own taxation affairs.
The Tribunal asked the Applicant at the Hearing what he says his taxable income was for the years in dispute, noting that the submissions filed on his behalf at objection had conceded that the amounts declared in the income tax returns filed were incorrect and should be adjusted, however to a lesser extent (being consistent with the statement made by the Applicant’s father) to that of the adjustments made by the Respondent at audit. The Applicant told the Tribunal that he says his taxable income was the original amounts sent through by the accountants. He said that he did not agree with the submissions filed at objection.[47]
[47] Transcript pages 12-13.
The Applicant went on to tell the Tribunal that he did not know for the years in dispute whether he got a refund or had to pay tax. He said that everything was dealt with through his father and uncle and they controlled the money. The Applicant told the Tribunal that if he had a question, he would ask them, but he would be brushed off and never get an answer.[48]
[48] Transcript, pages 13-14.
The Tribunal asked the Applicant whether there was an arrangement in place for him to repay the money he said his father gave him to support himself throughout the years in dispute. The Applicant said there was an agreement, but there was never a timeframe. It was “just when you get on your feet, when you do something.” The Applicant told the Tribunal he could not say how much he actually owes his father.[49]
[49] Transcript, page 14.
The Tribunal asked the Applicant whether he had to pay interest on the amounts he says have to be repaid to his father. He said that he just pays it back when he can really.[50]
[50] Transcript, page 15.
When referred to the loan agreement between his father and himself dated 14 October 2013 and asked to provide context as it did not outline loan amounts or when they would be provided or how much or when it needed to be paid back, the Applicant said:[51]
I know, I can understand what you’re saying but again, he just said to me sign this in case anything happens with you and your partner. So I’ve signed it and then plus, he did say that, you know, because he was paying the mortgage that I was to pay him but there was nothing – yes, again there’s nothing to say what the final amount was or if there was with interest or not.
It was more just a thing between me and him.
[51] Transcript, page 15
The Tribunal asked the Applicant whether he wanted to make any submissions in relation to the penalties and SIC that had been imposed. The Applicant told the Tribunal:[52]
Just, like I said, like it’s never really been in my hands, what’s really happened with my tax, even though I have signed it. I have pretty much been blindfolded with – or whether there’s some questions you can ask me, I probably can’t even answer because I’ve never dealt with it myself.
[52] Transcript, page 19.
The Tribunal asked the Applicant if there was a reason that he had not called his father to give evidence at the Hearing, he said:[53]
He beats around the bush.
I know every time I’ve asked him he tells me: “I’ve given them everything they need, what more do they want?” That’s why I said it’s taken them two years to just do something, and I just said I will just do it.
[53] Transcript, page 20.
The Respondent’s overarching contentions as set out in his Outline of Submission are that the Applicant has not discharged his burden of proving that the amended assessments are excessive or what his actual taxable income in fact was for the years in dispute. The Respondent contended that the Applicant cannot simply “chip away” at the assessments, rather he must provide from the ground up what his taxable income is and he has not engaged in that task and as such, has not discharged his burden of proof.[54]
[54] Exhibit 3, Respondent’s Submissions, pages 13, paragraphs 42-43.
The Respondent addressed each of the years in dispute. In summary, in relation to the income tax years ended 30 June 2010 to 30 June 2013, the Respondent sought to rely on the reasons provided in making the Objection Decision and further contended that:[55]
[55] Exhibit 3, Respondent’s Submissions, pages 16-21, paragraphs 56 and 57 and consistently at paragraphs 63, 69 and 76.
56.The Applicant has not explained, in the degree of detail necessary to discharge his burden of proof, why the taxable income identified by the Commissioner’s asset betterment is excessive.
57.In particular, and without limiting what the Applicant must do to discharge his burden of proof:
57.1in his statutory declaration, the Applicant’s father says that he recalls advancing “loan” amounts to the Applicant for the 2010, 2011, 2012 and 2013 income years;
57.2the amounts paid by the Applicant’s father to him are not identified or quantified, nor the source of the funds corroborated by documentary evidence (eg bank statements); his father says he is unable to verify amounts as he is unable to access his bank records for the period;
57.3there is no documentary evidence supporting the existence of the ‘loans’, nor any evidence as to the terms of the loans, including any obligation to repay (and no evidence of repayment); and absent an obligation to repay a transfer of money is “something else”;
57.4on the Applicant’s own account, at least some of the Applicant’s father’s payments to him were on account of the Applicant working during this period;
57.5at objection, the Applicant contended that the disputed amounts were ‘loans’ but now does not, instead describing them as ‘financial help’ (on one view, this is inconsistent);
57.6the alleged donor’s intention is relevant to ascertaining the existence of a gift and the Applicant’s father’s description of the amounts as “loans” is inconsistent with the (unquantified) money being a gift; and
57.7it is up to the Applicant to demonstrate that the source of his assets are not taxable; this includes showing that the (unquantified) money was a gift and is not a taxable gift.
Footnotes omitted
In relation to the income tax years ended 30 June 2014 and 30 June 2015, the Respondent sought to rely on the reasons provided in making the Objection Decision and further contended that the Applicant had not discharged his burden to prove that the unidentified and unquantified amounts financial help he alleges his father gave to him as:[56]
85.1.on the Applicant’s own account, at least some of the Applicant’s father’s payments to him in this financial year were on account of the Applicant working. He was also intimately involved in running various businesses with his father and in that regard, the payments may be related to business profits;
85.2. the source of the funds is not corroborated by documentary evidence (eg bank statements);
85.3. at objection, the Applicant and his father described similar such amounts as ‘loans’ but the Applicant now does not, instead describing some amounts as ‘financial help’ and others as reimbursements of his father’s business expenses (the issue of reimbursements is addressed below);
85.4. it is up to the Applicant to demonstrate that the source of his assets are not taxable; this includes showing that the (unquantified) money was a gift and not a taxable gift.
Footnotes omitted
[56] Exhibit 3, Respondent’s Submissions, pages 22-23 and 28, paragraph 85 and consistently with paragraph 101.
The Respondent contended that the Applicant’s contentions that in the income tax years ended 30 June 2014 and 30 June 2015 that certain amounts he received comprising of reimbursements of expenditure incurred on behalf of Reliance Business Investment Pty Ltd while he was employed in the Yoghurt shop were not grounds stated in his objection and as such, without leave from the Tribunal, he is limited in this review to the grounds stated in his objection.[57]
[57] Exhibit 2, Joint Hearing Book, R1, Respondent’s Amended Statement of Facts, Issues and Contentions, page 29, paragraph 30.
The Respondent did not submit a strong view as to whether or not the Tribunal should grant the Applicant leave to extend the grounds of his objection.
In relation to the Applicant’s contentions regarding reimbursement of expenses, the Respondent contended in summary that the Applicant had not explained, in the degree of detail necessary to discharge his burden of proof as to why the taxable income identified by the Asset Betterment is excessive. The Respondent contended that even if the Tribunal accepted the amounts the Applicant identified, they are less than the amount of his taxable income identified by the Asset Betterment calculation and it is not enough for the Applicant to chip away at the assessments.[58] The Respondent submitted that in addition, no ledger of account as between the Applicant and his father had been produced nor any accounting records from a relevant business(es) demonstrating that the expenditure was for business purposes and repayments were by way of re-imbursement of expended capital.[59]
[58] Exhibit 3, Respondent’s Submissions, pages 27-28, paragraphs 117-138.
[59] Exhibit 3, Respondent’s Submissions, pages 26 and 31, paragraphs 95 and 106.
At the Hearing, the Respondent further contended that in circumstances where the Applicant did not call any witnesses other than himself and in particular, he did not call his father to give evidence, his assertions of receiving financial help from his father are uncorroborated.[60]
[60] Transcript, page 33.
The Respondent contended that Mr Elcheikh’s Statutory Declaration is one that asserts the existence of loans, which is inconsistent with the allegation of financial help or a gift. The Respondent contended that it is a matter for the Applicant to show that his unexplained wealth comes from a non-taxable source and in this case, the amounts of financial help from the Applicant’s father are unquantified and are not corroborated by documentary evidence, as such the Applicant cannot discharge his onus.[61]
[61] Transcript, page 33.
The Respondent submitted that on the Applicant’s own account, he worked sometimes for his father in a family business, in particular the yoghurt business, during periods when he was also receiving financial help and as such, the Tribunal should not accept at face value, the assertion that positive funds are gifts or help and not on account of the Applicant working during the time when he was with the yoghurt shop as the amounts are not delineated between those that are help and those that are on account of work.[62]
[62] Transcript, page 33.
In relation to the income tax year ended 30 June 2016, the Respondent sought to rely on the reasons provided in making the Objection Decision and further contended that the Applicant had not discharged his burden to prove that the unidentified and unquantified amounts of financial help he alleges his father gave to him were a loan and not income.[63]
[63] Exhibit 3, Respondent’s Submissions, pages 32-33, paragraphs 108-116.
At the Hearing, the Respondent contended that as far as certain amounts are said by the Applicant to be loans, it is observed that a loan involves an obligation to repay and that repaying “when I can” in the context of trust between family members does not amount to an obligation of a loan.[64]
[64] Transcript, page 33.
In relation to the Respondent’s findings of evasion in the income tax years ended 30 June 2010, 30 June 2011 and 30 June 2014, the Tribunal sought further information from the Respondent. The Respondent provided submissions after the Hearing dated 27 May 2022 and contended:
10. Evasion is something less than fraud but more than avoidance or mere withholding of information. Generally, it requires a ‘blameworthy act or omission on the part of the taxpayer’.[65]
[65]    ATO Law Administration Practice Statement (PS LA 2008/6) Fraud or Evasion, page 1 and Denver Chemical Manufacturing Co v Commissioner of Taxation (NSW) (1949) 79 CLR 296 at 313.
11.The Applicant testified that he signed income tax returns prepared by his registered tax agent but did not know or understand the contents of those documents.[66]
[66]    Transcript, pages 19-20 and 26-29.
12.The Commissioner submits that even if this evidence were to be accepted, then that carelessness alone would sustain findings of evasion.[67] Support for this is found in the Board of Review decision in Case A79 69 ATC 424 where the Chairman, Mr Dubout, observed at [10]:
There is no suggestion that the taxpayer detected the omissions from the returns and wilfully withheld the information from her agents. Upon the evidence it seems to me that the taxpayer simply approached the task of signing her returns with a lack of care that amounted virtually to indifference to their correctness. If they were understated (as indeed they proved to be), I do not think that the taxpayer can reasonably raise her own carelessness as an excuse. Such neglect must surely be blameworthy, and sufficient to justify the opinion that the avoidance of tax was due to evasion.
13.Furthermore, the Commissioner submits that the Applicant knew or ought to have known that the expenditure and bank deposits on which he was assessed were funded out of undeclared amounts. The Applicant had control over expenditure on the credit cards and access to the bank statements identified by the Commissioner and was in a position to obtain and review those records.
14.The Commissioner submits a reasonable person would have or ought to have reviewed the income tax returns prepared by their registered tax agent before signing them. Additionally, a reasonable person would have or ought to have brought discrepancies between amounts that they ought to have understood to be income, or potentially to have been income, and the amounts included on their income tax returns to their registered tax agent’s attention.
15.The Applicant has not adduced any evidence that his registered tax agent acted negligently or inappropriately. In any event, the Commissioner submits taxpayers are responsible for the acts of their agents in common law, even if the agent’s wrongful behaviour is not known or authorised by the principal. This extends to taxpayers and their tax agents. The power to amend an assessment for fraud or evasion is not limited to circumstances where the fraud or evasion is by the taxpayer personally, but extends to where it is by the tax agent. The Commissioner only has to be of the opinion that there has been fraud or evasion, not by whom. This was accepted in Kajewski v Federal Commissioner of Taxation [2003] FCA 258 at [114] per Drummond J.[68]
16.The Commissioner submits the Tribunal’s task, on merits review, is to consider whether, on the evidence before it, the taxpayer has discharged the onus of showing that the opinion that there was fraud or evasion should not have been formed.[69]
17.The Commissioner submits the Applicant has not discharged the onus of showing the assessments are excessive and, in this circumstance, also not discharged the onus of showing that the opinions of evasion should not have been formed.
[67]    In addition to the matters referred to (1) at T2, page 102, paragraphs 27-32 and 102 (while mentioned in the context of penalty, they are also relevant to evasion), and (2) by counsel for the Commissioner in his submissions at the hearing: see Transcript, pages 35-37.
[68] Under former section 170(2)(a) of the ITAA 1936, which is relevantly the same as item 5 of table in subsection 170(1) of the ITAA 1936.
[69]    Binetter v Commissioner of Taxation (2016) 249 FCR 534 at 552 at [93].

In response to the Respondent’s submissions, the Applicant provided a statement dated

8 June 2022. The Applicant relevantly provided:
3. From June 2019 I had signed authority to my uncle Talal Elcheikh who had submitted evidence and submissions with the help of Jonathan O’Loughlin. It wasn’t until March of 2021 that I had personally taken control of this case and had applied with The Administrative Appeals Tribunal
4. In respect to the cases sent in by the respondent to compare to my case are out of line and a waste of time. I say this because I literally had no control over any tax.
….
7. Until this year I have never dealt with my tax personally. My family has always dealt with my tax. The respondent states that I haven’t submitted evidence that the tax agents were doing wrong. I didn’t deal with the tax agents myself. I only ever received emails asking me to sign papers and to send them back.
8. The commissioner again claims that I had” known or had ought to have known that the expenditure and bank deposits on which he was assessed were funded out of undeclared amounts. The Applicant had control over expenditure on the credit cards and access to the bank statements identified by the Commissioner and was in a position to obtain and review those records.” I had no idea what was going on, what was right or what was wrong. I worked for my father and paid invoices as I was told to. Yes, I paid them on credit cards, my credit cards that I had debt on until 2021 when I had finally paid them off. The credit cards were maxed from the business I worked for. If I had the income The Commissioner claims I wouldn’t have had the debt I had.
9. I agree a reasonable person would have known about their tax and accountants and not known to pay a company’s bills on their personal credit card. Unfortunately, I put my trust where I shouldn’t have. I have had a controlled life. A life that was full of lies and manipulation. If I had done something to evade tax or to commit fraud, I would not be handling this case now on my own. I know I can no longer leave this case in control of any lawyer or accountant to do with my family, hence why I have taken this matter into my own hands to attempt to clear my name. I no longer want to be left in the dark.
The Respondent contended that the Applicant is liable to the administrative penalties and SIC imposed because he under-reported his taxable income in the income tax returns lodged for the years in dispute.[70] The Respondent sought to rely on the reasons provided in making the Objection Decision for the imposition of administrative penalties and SIC and the decision not to remit them in part or in full. The Respondent further contended that this is appropriate in circumstances where:[71]
[70] Exhibit 3, Respondent’s Submissions, pages 33-37, paragraphs 117-138.
[71] Exhibit 3, Respondent’s Submissions, pages 33-37, paragraphs 117-138.
·the Applicant has not provided any evidence that he has an inability to manage his own financial affairs;
·the penalties and SIC arise from default assessments which show that the Applicant has significantly under-reported his taxable income;
·the administrative penalties arise because the Applicant has intentionally disregarded a taxation law;
·
there has been evasion in respect of the income tax years ended 30 June 2010,

30 June 2011 and 30 June 2014; and
·the Applicant has failed to discharge his burden under section 14ZZK of the TAA 1953 in relation to his primary tax liability.
CONSIDERATION
In light of the documentary evidence before it, the submissions made and evidence given at the Hearing, the Tribunal finds itself in a situation where it remains in the dark as to what the Applicant’s true taxation position was for the years in dispute.
In effect, the Applicant ran his case by contending that he had not had any involvement in his taxation affairs in relation to the years in dispute, however stated that the original returns submitted, in fact, reflect his correct taxation position. Those returns were submitted by accountants in circumstances where the Applicant says they were his father’s accountants of whom he said he had never personally provided any instructions to. The Applicant’s evidence, in essence, was that his father was providing him with financial support of which had to be paid back at some stage, however no records of the amount owed had been kept.
In effect, the Tribunal understands the Applicant’s contention to be that the funds he had and used during the years in dispute above those that were returned in his income tax return, were not income, rather they were loans from his father, or to a smaller extent, related to a personal injury payout he received, or business expense reimbursements.
The Applicant’s evidence was that sometimes he worked for his father, sometimes he did not and when he did not work for his father, his father supported him. It was not, however, clear to the Tribunal when it was that the Applicant worked for his father or what his wages were at that time and who paid them.
Further, in this instance, where the main evidence before the Tribunal in relation to the Applicant’s taxation and financial position has come from the Applicant, the Tribunal is mindful that such evidence should be considered carefully. The Tribunal notes that in Rowntree v Commissioner of Taxation (2018) 125 ACSR 318 at [49], Rares J observed:
There is no inherent reason to accept or reject a party’s evidence about a past event merely because that evidence tends to be self-serving. But, in cases involving the party-witness’ state of mind about a historical event affecting his or her financial or legal interests, tribunals of fact (including courts) will often approach the assessment of that evidence with caution for the very reason that it is likely to portray a version that will advance the case of the party-witness who testifies about it …
This is particularly the case where the Applicant has failed to keep or produce relevant records.[72]
[72] Imperial Bottle shops Pty Ltd and William John King Egerton v Federal Commissioner of Taxation (1991) 22 ATR 148 at 155.
The Applicant in no way tried to establish what his taxable income was for the years in dispute. The Applicant provided no evidence of what his income or deductions were for the years in dispute. In fact, when the Tribunal asked him about the years in which he received trust distributions, he said he did not know what that was about. The Applicant did, however, agree that he signed each of his income tax returns. The Applicant also agreed that he signed consent forms to allow solicitors to be engaged on his behalf at objection, however then gave evidence that he did not agree with the contentions made on his behalf at objection.
The Applicant has not presented any corroborating evidence to show that the monies identified in Mr Elcheikh’s Statutory Declaration as having been made by Reliance Business Investments Pty Ltd and Evolving Business Services Pty Ltd were loans rather than wages. The Applicant did not call Mr Elcheikh to give evidence at the Hearing and in fact, indicated that to do so would be unhelpful.
In the absence of Mr Elcheikh being made available at the Hearing for cross-examination by the Respondent or to assist the Tribunal, the Tribunal places little weight on his Statutory Declaration, particularly in relation to the amounts he stated were loans made by Reliance Business Investments Pty Ltd and Evolving Business Services Pty Ltd to the Applicant. The loan agreement before the Tribunal is between Mr Elcheikh and the Applicant, it does not extend to Reliance Business Investments Pty Ltd and Evolving Business Services Pty Ltd. Despite Mr Elcheikh’s involvement and potential control of those businesses, they are separate legal entities and at times, the Applicant said he was employed by them.
Further, what constitutes a loan was explained by Edmonds J in Commissioner of Taxation v Rawson Finances Pty Ltd [2012] FCA 753 at [20] as:
The essence of a loan of money from A to B is a corresponding contemporaneous obligation on the part of B to repay the money transferred from A to B: Commissioner of Taxation v Radilo Enterprises Pty Ltd [1997] FCA 22; (1997) 72 FCR 300 at 313 per Sackville and Lehane JJ; Commissioner of Taxation v Firth (2002) 120 FCR 450 at [73] per Sackville and Finn JJ. Absent that obligation, the transfer of the money from A to B is something else — a gift, a payment by direction, a payment or repayment of an anterior obligation — but it is not a loan. The obligation of repayment is not proved by subsequent payment of the same amount, let alone a different amount, from B to A; that may be explicable by reference to another obligation or circumstance having nothing to do with the original payment from A to B. Rather, the obligation of repayment is proved by the terms of the contract under which the money was transferred from A to B.
Overall, in the Tribunal’s views, none of the transactions identified in Mr Elcheikh’s Statutory Declaration fully met what is commonly understood to be a loan and that is particularly the case in the absence of a loan agreement between the Applicant and Reliance Business Investments Pty Ltd or Evolving Business Services Pty Ltd.
The evidence before the Tribunal describes the provision of funds to the Applicant by

Mr Elcheikh in different lights. Be that “financial assistance” or a “loan” for mortgage repayments, payment of bills and general living costs. As such, the Tribunal does not consider that any such amount could be seen to be a gift, especially in circumstances where neither the Applicant’s nor Mr Elcheikh’s evidence support them as being gifts.
In relation to the income tax years ended 30 June 2014 and 30 June 2015, the Applicant raised new contentions that some of the activity in his bank accounts related to him having paid business expenses of the yoghurt shop on his credit card and then received amounts as reimbursements.
There are issues in relation to whether or not the Tribunal should extend the grounds of the Applicant’s objection to allow those contentions to be considered. In the present circumstances where the Respondent will not be disadvantaged if such an extension was granted, given that the Respondent addressed those contentions both at the Hearing and in submissions prior to Hearing, the Tribunal grants the extension to the grounds of the appeal pursuant to section 14ZZK(a) of the TAA 1963.
The Applicant did not, in large, present sufficient evidence of how the business expenses of the yoghurt shop he said he paid related to amounts paid from his credit card or what amounts then corresponded as repayments.
The Tribunal notes that Deputy President Hanger KC, in Hourigan and Commissioner of Taxation [2018] AATA 3369 at [11]-[13], stated that an attempt to ‘chip away’ at amended default assessments will not discharge the Applicant’s onus:
[11]    … The onus is not discharged by identifying a mere error by the Commissioner, by ‘chipping away’ at an asset betterment assessment or by showing only that some moneys treated as income are not in fact income.
[12]     Even when the Applicant cannot discharge the onus to disprove the existence of tax fraud or evasion, the Tribunal will still consider whether the assessment made is excessive: Bai v Commissioner of Taxation [2015] FCA 973 at [34] and [35]. I do not understand the decision in Binetter or Dalco to be at odds with this proposition. The Applicant has not proven, on the balance of probabilities, his actual income in any of the subject years to my satisfaction but the Respondent has identified specific deposits which make up the great bulk of the asset betterment statements. I proceed on the basis that the asset betterment statements are correct and the Applicant has the onus of establishing they are wrong. To do that, he must at least deal with the items identified by the Respondent.
[13]     Where, as in this case, an assessment has been made on the basis of an asset betterment method of calculation, and the Commissioner has identified specific deposits into a taxpayers account which it has treated as income, the taxpayer must prove, on the balance of probabilities, that it is not income and that can best be achieved by demonstrating its source. Such an exercise will ordinarily entail the “identification of sources of income, explanation of a taxpayer’s activities and an explanation of the source or sources of a taxpayer’s assets.
Consequently, the Tribunal is not satisfied with the Applicant’s explanation in relation to the nature of the change in his financial position pursuant to the Asset Betterment Analysis produced as part of the Objection Decision. As such, the Tribunal could not be satisfied of what the Applicant’s true taxable income was for the years in dispute. As said by Latham J in Danmark Pty Ltd v FCT; Forestwood Pty Ltd (1944) 7 ATD 33 at 337; (1944) 2 AITR 517 at 586:
…. Upon an appeal the onus rests upon the taxpayer of establishing the facts upon which he relies and if it is necessary for him to establish a particular fact in order to displace the assessment he must satisfy the Court with respect to that fact.
The Tribunal finds that the Applicant did not discharge his onus to prove that the default amended assessments for the years in dispute were excessive or otherwise incorrect and what the assessments should have been. The Applicant has not, to the satisfaction of the Tribunal, established what his assessments should have been for the years in dispute.
In accordance with the case authority set out above, as the amended assessments for the years in dispute were made pursuant to section 167 of ITAA 1936, the Applicant needed not to just point to an error in the methodology applied by the Respondent in making the assessments, rather he needed to demonstrate what the actual taxable income amounts should be for each of the years in dispute. This required the Applicant to demonstrate what his assessable income and deductions were in order to establish his taxable income, consistent with the requirements of section 4-15 of the ITAA 1997 and section 6-1 of the ITAA 1936, not just to chip away at the amended assessments or to seek to rely on the original returns lodged, of which based on his own evidence, he had no involvement in compiling and no knowledge of the details contained in them prior to the Tribunal process or subsequent understanding of the details. The Tribunal also notes that the Applicant sought to step away from the contentions made on his behalf at objection, further clouding what the true assessments should have been.
Consequently, the Tribunal does not consider it to be necessary or expeditious to step one by one through each of the income years in dispute as the Tribunal considered the evidence and contentions in relation to each year in dispute and finds that as a whole, there was a lack of cogent corroborating evidence in relation to the Applicant’s contentions.
The Tribunal finds that based on the evidence before it, the Applicant did not satisfy his onus to prove that the default amended income tax assessments for the years in dispute were excessive.
While the Tribunal accepts that in family circumstances, there can be a hierarchy that sits between parents, grandparents and other extended members of the family and children, it finds it concerning that in this instance where the Applicant acknowledges that each person is responsible for their own taxation affairs, his evidence however was that he abdicated that responsibility to his father and uncle. The Applicant told the Tribunal he had concerns and asked questions in relation to his taxes at various times, however continued to sign the tax returns presented to him.
In relation to the issue of the Respondent’s power to make amended assessments for the income tax years ended 30 June 2010, 30 June 2011 and 30 June 2014, the Tribunal considers that the Applicant has not discharged his onus to prove that the Respondent could not validly form the opinion that there was evasion in those years.
The Applicant’s submissions in relation to this point were limited other than to reiterate that he had not himself been involved with his income tax return for the years in dispute outside of signing them. In his response to the Respondent’s post hearing submission, the Applicant said he placed everything into his uncle and father’s hands and effectively did as he was told. He said that he had not made submissions and that the accountants had done the wrong thing as he had not dealt with them. The Applicant himself agreed that a reasonable person would have known about their tax and what the accountants had provided to them and known not to pay a company’s bills on their personal credit card, however he had put his trust where he now considers he should not have.
The Respondent contended that even if the Tribunal accepted the evidence of the Applicant, carelessness alone would sustain findings of evasion.
In signing his income tax returns for the years in dispute without having read them or having provided any instructions to the relevant accountant or tax agent, the Tribunal considers that the Applicant showed a disregard for his taxation obligations. In signing the returns, the Applicant was declaring that what was contained in those returns was true and correct.
In circumstances where there is no evidence before the Tribunal that the Applicant was under undue pressure to sign the income tax returns or to have them completed by the accountants or tax agents in question, the Tribunal agrees with the Respondent’s contentions that a reasonable person would have or ought to have reviewed the income tax returns prepared by their registered tax agent before signing them. Further, a reasonable person would have or ought to have brought discrepancies between amounts that they ought to have understood to be income, or potentially to have been income, and the amounts included on their income tax returns to their registered tax agent’s attention.
Such a finding is not inconsistent with the view of the Applicant.
The Tribunal finds that the Applicant’s failure to engage with his taxation affairs constitutes a blameworthy act as he understood that he was responsible for his own taxation affairs. The Applicant has enjoyed the fruits of what his father has provided to him, however, seeks to deny any responsibility for any resulting taxation issues that have arisen as a consequence of their arrangement.
Further for completeness, although the Applicant has not contended that the tax shortfalls for the years in dispute were a result of the conduct of the accountants or tax agents in question, the Tribunal accepts the proposition that the power to amend an assessment for fraud or evasion is not limited to circumstances where the fraud or evasion is by the taxpayer personally but extends to where it is by the tax agent.[73]
[73] Kajewski v Federal Commissioner of Taxation [2003] FCA 258 at [114].
As such, on this basis, in line with the precedents set out above and given the Tribunal has found that there was tax shortfall in the years in dispute and that the Applicant has not satisfied the Tribunal that the shortfalls were a result of an innocent mistake, the Tribunal finds that the Applicant has not discharged his onus to satisfy it that the cause of the tax shortfalls did not constitute evasion.
As such, the Tribunal finds that the amended income tax assessments made for the income tax years ended 30 June 2010, 30 June 2011 and 30 June 2014 were properly made within power.
As the Tribunal has found that the tax shortfalls identified in the Objection Decision have been properly imposed, the issue of imposition of penalties and any subsequent remission must be considered.
The Applicant bears the burden of showing that the administrative penalty assessment was excessive.[74]
[74] Commissioner of Taxation v White (No. 2) [2010] FCA 942, [18]-[19]

The Tribunal notes that the Applicant did not, at the Hearing or in post Hearing submissions, make any specific contentions with regards to the imposition or reduction of penalties but rather, his contentions appeared to be directed at both the issue of evasion and penalties together. The Applicant’s overall contention as outlined above was that there was no tax shortfall as the original income tax returns lodged for the years in dispute were correct. Further, the Applicant did not make any submissions in relation to the remission of penalties.
Based on the above findings, the Tribunal finds that the Applicant is liable to an administrative penalty as the tax shortfalls for the years in dispute result from statements that were false or misleading as income was omitted from his income tax returns.
The Respondent imposed administrative penalties on the Applicant at the base rate of 75% of the shortfall amount for intentional disregard. The Tribunal is conscious that it has been accepted that intentional disregard involves deliberate conduct and an appreciation that the conduct would flout tax legislation.
Having made a finding that the Applicant has not discharged his onus to prove that the opinion formed by the Respondent that his conduct amounted to evasion should not have been made on the basis that the Applicant had a disregard for taxation laws in circumstances where he failed to engage with his income tax returns, the Tribunal finds that the Applicant’s behaviour in relation to the years in dispute amounted to intentional disregard to taxation laws. The Tribunal makes this finding in circumstances where the Applicant himself said a reasonable person would have taken an interest in their taxation affairs and engaged with their accounting. The Applicant understood that he was personally responsible for his taxation affairs despite his alleged lack of engagement.
In the Applicant’s case, his evidence was that his father’s accountant undertook the preparation of his tax returns without him providing any instructions. If that evidence is accepted, the Tribunal cannot be satisfied that the actions of the tax agent did not amount to intentional disregard to taxation laws in circumstances where inquiries were not made of the Applicant in relation to his income and deductions during the years in dispute.
The Tribunal finds that the Applicant has not discharged his onus to prove that the penalty assessment was excessive. Further, based on the evidence before it, the Tribunal considers that the administrative penalty was correctly applied under sections 284-75(1) and 284-90 of Schedule 1 to the TAA 1953 in relation to false and misleading statements at the base rate of 75% as the shortfall amount resulted from intentional disregard of a taxation law by the Applicant or his tax agent.
Section 284-220(1)(c) of Schedule 1 to the TAA 1953 provides that the percentage of the base rate penalty is automatically increased by 20% where a penalty has been imposed in relation to prior income years as a result of recklessness. As such, given the Applicant has had an administrative penalty imposed in the income tax year ended 30 June 2010 for intentional disregard, it follows that the percentage of the base rate of penalty for all following years is automatically increased by 20%.
The imposition of shortfall interest charge is a statutory outcome of section 280-100 of Schedule 1 to the TAA 1953. As such, the Tribunal finds that in this case, the shortfall interest charge for the income tax years ended 30 June 2010 to 30 June 2013 has been correctly applied.[75]
[75] Noting that the SIC amounts in the years ended 30 June 2014 to 30 June 2016 are not greater than 20% of the shortfall amount, the Applicant could not appeal the SIC for those years.
The Applicant did not make any submissions in relation to whether the penalties should be remitted. PS LA 2012/5 – Administration of the false or misleading statement penalty – where there is a shortfall amount[76] sets out guidelines as to how the discretion to remit penalties should be exercised. Relevantly, the guidelines state at [16F]:
Relevant matters to consider in making a remission decision include:
·that the purpose of the penalty provision is to encourage entities to take reasonable are in complying with their tax obligations
·that the penalty regime also aims to promote consistent and equitable treatment by reference to specified rates of penalty; this objective would be compromised if the penalties imposed at the rates specified in the law were remitted without just cause, arbitrarily or as a matter of course, and
·that the amount of the penalty rate alone is not a valid reason for remission, in the absence of specific reason why it would be unjust in the taxpayer’s particular circumstances.
[76] Noting that similar principles are outlined in relation to SIC in PS LA 2006/8 – Remission of shortfall interest charge and general interest charge for shortfall periods.
In whole, the Applicant failed to adequately address the issue of penalties and the shortfall interest charge imposition or remission, which in conjunction with the Tribunal’s findings set out above in relation to the Applicant’s taxable income, the Tribunal affirms the Objection Decision in these regards. The Applicant, despite having had the benefit of having legal representation at objection, stepped away from that advice. He was given the opportunity throughout the Tribunal process, at the Hearing and in post Hearing submissions to address the issue of penalties and provide submissions with regards to remission. The Applicant chose to maintain his position that no tax shortfall existed. The Tribunal finds that there is no evidence before it that the refusal to remit the administrative penalties will result in an outcome that is harsh or produces an unjust, inappropriate or unreasonable outcome[77] or that it would be fair and reasonable in the present circumstances to remit the shortfall interest charge.
[77] Sanctuary Lakes Pty Ltd v Commissioner of Taxation (2013) 212 FCR 483, Griffiths J with whom Edmonds J agreed at [248]-[249]; Stewart and Commissioner of Taxation [2013] AATA 845, per Middleton J and Senior Member O’Loughlin at [104].
CONCLUSION
For the reasons set out above, the Tribunal has been left with an incomplete picture of the Applicant’s taxation affairs and potential sources of income. The Tribunal finds that the Applicant has not provided sufficiently clear and reliable evidence to allow it to make findings of fact in his favour.
The Tribunal finds that the Applicant has not discharged his onus to prove that the Respondent’s opinion formed in relation to evasion should not have been formed for the income tax years ended 30 June 2010, 30 June 2011 and 30 June 2014. Consequently, the Tribunal finds that the default amended assessments made in relation to those years were within power.
The Tribunal finds that the:
(a)Applicant has not discharged his onus to prove that the amended income tax assessments for the years ended 30 June 2010 to 30 June 2016 were excessive or otherwise incorrect and what those assessment should have been;
(b)administrative penalties imposed pursuant to sections 284-75(1) and 284-220 of Schedule 1 to the TAA 1953 were correctly imposed;
(c)Applicant has not persuaded the Tribunal that the discretion in section 298-20 of Schedule 1 to the TAA 1953 in relation to the remission of the administrative penalty should be exercised;
(d)shortfall interest charges imposed pursuant to section 280-100 of Schedule 1 to the TAA 1953 were correctly imposed; and
(e)Applicant has not persuaded the Tribunal that the discretion in section 280-160 of Schedule 1 to the TAA 1953 in relation to the remission of the shortfall interest charge should be exercised.
Accordingly, the Objection Decision under review is affirmed.

I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..............................[SGD]...................................
Associate
Dated: 21 April 2023

Date of hearing:

Date of last submission:

12 May 2022

9 June 2022

Applicant:
Mr Ahmed Nasser Elcheikh

Counsel for the Respondent: Mr Joshua Sproule

Solicitors for the Respondent: McInnes Wilson Lawyers

Exhibit 1, T Documents, T26-32, pages 340-367, Notices of amended assessment for the years ended

30 June 2010 to 30 June 2016.

Exhibit 1, T Documents, T45, page 415, Finalisation of informal review for financial year ended

30 June 2014.

Exhibit 1, T Documents, T48, pages 439-442, Notice of amened assessment for the financial year ended

30 June 2014.

Date of hearing: Date of last submission:	12 May 2022 9 June 2022
Applicant:	Mr Ahmed Nasser Elcheikh
Counsel for the Respondent:	Mr Joshua Sproule
Solicitors for the Respondent:	McInnes Wilson Lawyers