Elrington; Secretary, Department of Social Services and (Social services second review)

[2016] AATA 169

Elrington; Secretary, Department of Social Services and (Social services second review) [2016] AATA 169 (22 March 2016)

Division:  GENERAL DIVISION

File Number:  2015/4001

Re:  SECRETARY, DEPARTMENT OF SOCIAL SERVICES

APPLICANT

And:DANIEL ELRINGTON

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  22 March 2016

Place  Melbourne

The Tribunal decides to:

1.set aside the decision of the Social Security Appeals Tribunal dated 30 June 2015; and 

2.substitute a decision affirming the decision made by a delegate of the respondent on 6 January 2015 and affirmed by an Authorised Review Officer on 1 April 2015 that the applicant is not entitled to FTB top up and supplement of $1,159.36 for the 2012/2013 income year.

………[sgd]…………….

Deputy President

CATCHWORDS – SOCIAL SECURITY – FAMILY TAX BENEFIT – respondent’s entitlement to family tax benefit top up and supplement amounts – late lodgement of taxation return – failure of respondent’s accountants to lodge income tax return – whether special circumstances – decision of Social Security Appeals Tribunal set aside.

LEGISLATION
Administrative Appeals Tribunal Act 1975 s 37
Income Tax Assessment Act 1936
Family Assistance and Other Legislation Amendment Act 2013 s 2, Item 9G; Items 22 to 25; Schedule 2B, Item 56(2)
Social Security Act 1991 ss 1168(1) and 1184
Family Assistance and Other Legislation Amendment Bill 2013
Family Assistance (Administration) Act 1999 ss 16, 17, 20, 23, 25, 28(1)(b)(iii), 28(2), 28(3), 32A to 32Q, 32A(2), 32(A)(3), 32B, 32C, 32C(1)(c)(ii), 32C(2) and 32J
A New Tax System (Family Assistance) Act 1999 ss 21, 21(a)(i), 21(b)(i), 21(c), 26, 26(2), 31B(3), 38AA(3), 38AF(3), 58(1), 58A, 60 to 63; Schedule 1, cl 2

CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; (2007) 44 AAR 436; 110 ALD 9

Beadle v Director-General of Social Security (1985) 60 ALR 225; 7 ALD 670

Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541

Re Field and Secretary, Department of Social Services [2015] AATA 903

REASONS FOR DECISION

1. During the 2012/2013 year of income, Mr Elrington received payments of Family Tax Benefit (FBT) by instalments.  Those instalments were paid to him each fortnight by reducing the amount of taxation instalment deductions (TIDs) that would otherwise have been made from moneys owing to him.  At the end of the year of income, the Secretary of the Department of Social Services (Secretary) would normally assess whether a person in Mr Elrington’s circumstances was entitled to top up and supplement amounts of FTB or required to repay FTB.  She would do so by reference to the person’s taxable income as assessed by the Commissioner of Taxation (Commissioner) but neither she nor the Commissioner could undertake their tasks until the person lodged an income tax return.  Mr Elrington was a member of a couple.  As his partner was not required to lodge an income tax return but he was, he was required by s 32C(1)(c)(ii) of the Family Assistance (Administration) Act 1999 (FA Administration Act) to lodge his income tax return by 30 June 2014 unless special circumstances prevented him from doing so.  I have found that, although Mr Elrington’s accountants were at fault in failing to lodge his income tax return on or before 30 June 2014, I find that Mr Elrington took no follow-up action to ensure that they had lodged it as he had requested.  There were no special circumstances preventing him from lodging his taxation return.  Consequently, I have decided to set aside the decision of the Social Security Appeals Tribunal (SSAT) and substitute a decision that Mr Elrington is not entitled to FTB top up and supplement of $1,159.36 for the 2012/2013 income year.

BACKGROUND

1. On 19 June 2012, the Department issued Mr Elrington with a notice about his regular rate of FTB.  It was calculated on the basis of Mr Elrington’s income being $79,491 and his partner’s income being $14,532.  The Department applied that estimate as the basis for calculation of the FTB paid to Mr Elrington between 1 July 2012 and 21 November 2012.  On 21 November 2012, the Department altered the basis on which it assessed Mr Elrington’s rate of FTB.  It estimated that the combined adjustable income of Mr Elrington and his partner was $30,000 comprising $20,000 for him and the remaining $10,000 for his partner.  The Department applied that estimate in assessing the amount of FTB paid to Mr Elrington from 21 November 2012 to 30 June 2013.

1. The Department sent Mr Elrington a notice dated 21 March 2014 stating, in part:

   “… You now only have one year instead of two years to lodge a tax return in order to receive your full Family Tax Benefit entitlements. … To make sure you receive your full Family Tax Benefit entitlement, you and your partner need to lodge a 2012-2013 tax return, or tell us if you and/or your partner are not required to lodge a tax return, by 30 June 2014.  There are benefits to lodging your 2012-2013 tax return or telling us if you are not required to lodge a tax return before 30 June 2014.  These include: Top up payment – if you were underpaid Family Tax Benefit, you may receive any payment owing as a lump sum.  Family Tax supplements – depending on your circumstances, you may be entitled to an additional lump sum Family Tax Benefit supplement after the end of the financial year. 

   … If you and your partner have not lodged a tax return or you have not advised us that you and your partner are not required to lodge tax return/s by 30 June 2014: you will not be eligible for any further Family Tax Benefit, including Family Tax Benefit supplements, for the 2012-2013 financial year you will have to pay back all of the Family Tax Benefit you received for the 2012-2013 financial year, and you will no longer be able to receive Family Tax Benefit payments fortnightly.  What you and your partner need to do  1. Lodge your 2012-2013 return/s with the Australian Taxation Office before 30 June 2014.  The Australian Taxation Office will then advise us of your income.  Please note that supplying details to your accountant or tax agent does not mean that your tax returns have been lodged with the Australian Taxation Office.  OR  2. Tell us that you and/or your partner are not required to lodge a tax return for 2012-13.  You need to tell us and confirm your income before 30 June 2014. …”[1]

   [1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T 11 at 42

2. On 30 May 2014, the Department sent Mr Elrington an SMS telling him:

   “Reminder – lodge your and/or your partner’s 2012-13 tax return/s or tell Centrelink if exempt from lodging by 30 June 2014 to receive your full family assistance entitlements. …”[2]

   [2] T documents; T12 at 45

1. Mr Elrington lodged his income tax return for the 2012/2013 income year with the Australian Taxation Office (ATO) on 12 August 2014.  His taxable income was assessed as $4,289.[3]  On 6 November 2014, Mr Elrington advised Centrelink that his partner was not required to lodge an income tax return.[4]

   [3] T documents; T19 at 116

   [4] T documents; T18 at 78

1. On 6 January 2014, an officer of the Department notified Mr Elrington that a decision had been made that he was not entitled to the FTB supplement and top up of $1,159.36 for the 2012/2013 income year.[5]  The decision was affirmed by an Authorised Review Officer (ARO) in a later decision dated 1 April 2015.  That decision was set aside by the SSAT.

   [5] T documents; T14 at 58

   LEGISLATIVE FRAMEWORK

2. Section 21 of the A New Tax System (Family Assistance) Act 1999 (FA Act) sets out the normal circumstances in which an individual is eligible for family tax benefit (FTB).  Among them is that the individual has at least one FTB child, is an Australian resident and rate of family tax benefit, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 and disregarding s 58A and subclauses 31B(3), 38AA(3) and 38AF(3) of Schedule 1, is greater than nil.[6]  There is no dispute between the parties that Mr Elrington meets those criteria as does his partner.  Under s 26, only one member of a couple may be eligible.  Which member of a couple is eligible is determined by the Secretary by reference to which has primary care of the FTB child and whether the members of the couple have made a written agreement nominating one of them as the person who can make a claim under Part 3 of the FA Administration Act for payment of FTB in respect of the child.[7]

   [6] FA Act; s 21(a)(i) and (b)(i) and (c)

   [7] FA Act; s 26(2)

1. Subject to ss 60 to 63, none of which applies in Mr Elrington’s circumstances, an individual’s annual rate of family tax benefit is calculated in accordance with the Rate Calculator in Schedule 1 to the FA Act.[8]  Clause 1(1) of Schedule 1 provides that an individual’s annual rate of family tax benefit is calculated by adding that individual’s Part A rate calculated under Part 2, Part 3 or 3A of Schedule 1 and Part B rate calculated under Part 4.  The calculations and qualifications are quite detailed and I will outline them in only the broadest terms for the detail is not relevant in this case. 

[8] FA Act; s 58(1)

1. Clause 1(2) specifies two ways in which an individual’s Part A rate is worked out.  Which is the appropriate way for a particular individual depends on whether an individual’s adjusted taxable income exceeds his or her higher income free area, whether or not the individual or his or her partner is receiving a social security pension, a social security benefit, a service pension or income support supplement.  The higher income free area is $73,000.[9]  Part 4 of Schedule 1 sets out the way in which the Part B rate is worked out.  If an individual is a member of a couple, the Part B rate is calculated under cl 29(2) of Schedule 1.  Clause 29(2) requires the individual’s standard rate, FTB Part B supplement and energy supplement are added together to become the individual’s maximum rate.  That maximum rate is reduced by reference to the individual’s adjusted taxable income.

   [9] FA Act; Schedule 1, cl 2

1. Section 20(1) of the FA Administration Act provides that an individual’s eligibility for FTB or rate of FTB may be based on an estimate if information about the amount of an individual’s adjusted taxable income needed for its determination is not available because, for example, his or her taxable income or that of another cannot be known until the completion of the relevant income year.

1. Section 23 of the FA Administration Act requires the Secretary to pay instalments of FTB to a claimant’s bank account when that claimant is entitled to be paid FTB in that manner.  Where a claimant is entitled to be paid FTB by instalment, the claimant must advise of any change of circumstances that would mean that he or she were not eligible for FTB or entitled to receive FTB at a lower rate.  Advice must be given in writing.[10]

   [10] FA Administration Act; s 25

1. Division 1 of Part 3 of the FA Administration Act confers power on the Secretary to vary instalments and past determinations in certain situations that it specifies.  Of relevance in this case is s 28(1)(b)(iii), which applies when a determination is in force under ss 16 or 17 and when:

   “the claimant, or the claimant’s partner at the particular time (if he or she was also the claimant’s partner at some time in the cancellation income year), or both, are required to lodge an income tax return for the cancellation income year but have not done so by the particular time”.

If those circumstances arise, s 28(2) provides that the Secretary must vary the determination so that it has the effect that the claimant is not, and never was, entitled to FTB for the cancellation days. Cancellation days are those before the particular time in respect of which the income tax return has not been lodged by a particular time.

1. If, after the Secretary has varied a determination under, for example, s 28(2), an individual were to lodge an income tax return and an assessment were made under the Income Tax Assessment Act 1936 (ITA36), s 28(3) of the FA Administration Act applies.  In so far as it is relevant to this case, s 28(3) requires the Secretary to again vary the determination if satisfied that the claimant was eligible for an amount (the recalculated amount) of family tax benefit for the cancellation days.  The varied determination must have effect so that, for the cancellation days, the claimant is entitled to be paid:

   “(c)      if each of the taxpayers involved lodged an income tax return with the Commissioner of Taxation:

   (i) before the end of the income year after the cancellation income year; or

   (ii) within such further period as the taxpayer is allowed under Subdivision D of Division 1 of this Part; the recalculated amount; or

   (d) in any other case—the lesser of:

   (i) the recalculated amount; and

   (ii) the amount that the claimant was entitled to be paid before the variation under subsection (2) was made.”

1. “Subdivision D of Division 1 of this Part” is a reference to Subdivision D of Division 1 of Part 3 of the FA Administration Act.  Sections 32A to 32Q comprise the Subdivision.  Section 32A applies to a decision made by the Secretary to make or vary a ss 16 or 17 decision if, as a result of the decision, an individual is entitled to be paid FTB at a particular rate in respect of a period that consists of, or is included in, a particular income year.  In making that decision, the Secretary must disregard certain steps in the method statement set out in Schedule 1 to the FA Act unless and until the individual has satisfied the FTB reconciliation conditions for the same-rate benefit period.[11]  The practical effect of disregarding those steps is that the individual is not entitled to any amounts of FTB payable in addition that received by way of instalments by way of reduction of TIDs during the year of income.

   [11] FA Administration Act; s 32A(2)  This provision does not apply for the purposes of working out the amount of a clean energy advance  or clean energy supplement under Schedule 1 of the FA Act: FA Administration Act ; s 32A(3).

1. Section 32B sets out when FTB reconciliation conditions are satisfied.  Section 32B provides that:

   “For the purposes of this Act, the first individual satisfies the FTB reconciliation conditions for a same-rate benefit period:

   (a) if only one of sections 32C to 32Q applies to the first individual for the same-rate benefit period—at the relevant reconciliation time; or

   (b) if 2 or more of sections 32C to 32Q apply to the first individual for the same-rate benefit period—at whichever of the relevant reconciliation times is the latest.”

1. In Mr Elrington’s circumstances, ss 32J and 32C apply.  Section 32J is concerned with the relevant reconciliation condition when an individual is not required to lodge an income tax return.  That is the situation of Mr Elrington’s partner.  Section 32C is concerned with the situation in which an individual is a member of a couple and required to lodge an income tax return.  That is Mr Elrington’s situation. 

1. Beginning with s 32J, it provides:

   “(1)     This section applies to the first individual for a same-rate benefit period if:

   (a)the first individual; or

   (b)any other individual (other than an FTB child, or regular care child, of the first individual) whose adjusted taxable income is relevant in working out the first individual’s entitlement to, or rate of, family tax benefit for the same-rate benefit period;

   is not required to lodge an income tax return for the relevant income year.

   (2)The relevant reconciliation time is whichever is the earlier of the following times:

   (a)the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual’s adjusted taxable income for the relevant income year;

   (b)the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual’s adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual.”

1. As amended by the Family Assistance and Other Legislation Amendment Act 2013 (FAOLA Act) and in force from 28 June 2013,[12] s 32C of the FA Administration Act provided:

   [12] FAOLA Act; s 2, Item 9G

   “(1)     This section applies to the first individual for a same-rate benefit period if:

   (a)the first individual was a member of a couple throughout the same-rate benefit period; and

   (b)  the first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year; and

   (c)  the first individual continues to be a member of the couple until the end of the latest of the following:

   (i)  the first income year after the relevant income year;

   (ii)  such further period (if any) as the Secretary allows for the first individual to lodge the return, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year;

   (iii)  such further period (if any) as the Secretary allows for the other member of the couple to lodge the return, if the Secretary is satisfied that there are special circumstances that prevented the other member from lodging the return before the end of that first income year.

   (2)  If only one member of the couple was required to lodge an income tax return for the relevant income year, the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the member’s taxable income for the relevant income year, so long as the member’s income tax return for the relevant income year was lodged before the end of:

   (a)  the first income year after the relevant income year; or

   (b)  such further period as the Secretary allows for that member under subparagraph (1)(c)(ii) or (iii), as the case requires.

   (3)  If:

   (a)  both members of the couple were required to lodge an income tax return for the relevant income year; and

   (b)  each member of the couple lodged an income tax return for the relevant income year before the end of:

   (i)  the first income year after the relevant income year; or

   (ii)  such further period as the Secretary allows for that member under subparagraph (1)(c)(ii) or (iii), as the case requires;

   the relevant reconciliation time is whichever is the later of the following:

   (c)  the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year;

   (d)  the time when an assessment is made under the Income Tax Assessment Act 1936 of the other member’s taxable income for the relevant income year.

   (4)  The further period under subparagraph (1)(c)(ii) or (iii) must end no later than the end of the second income year after the relevant income year.”

1. The transition provisions relating to the application of s 32C in its amended form are found in Item 56(2) of Schedule 2B of the FAOLA Act.  It provides that:

   “(1)     The amendments made by items 22 to 36 apply in relation to a relevant income year referred to in subsection 32A(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 that is the 2012-13 income year or a later income year.”

Items 22 to 25 made the relevant amendments to s 32C.

1. I note that s 32C of the FA Administration Act has been amended since those made by the FAOLA Act and before Mr Elrington lodged his income tax return for the 2012/2013 income year and the assessment was made.  In the circumstances of this case, those amendments do not alter the reconciliation condition that Mr Elrington must meet.  As his partner is not required to lodge an income tax return, it is that set out in ss 32C(2) i.e. that he lodged an income tax return in the first income year after the relevant income year, which was the 2012/2013 income year in this case, or that there were special circumstances.

REVIEW OF DECISION

1. As it is clear that Mr Elrington lodged his income tax return after 30 June 2014, I can only make a decision in his favour if I am satisfied that there were special circumstances that prevented him from lodging his income tax return before 30 June 2014.  That date is the end of the first income year after the relevant income year which is, in this case, the 2012/2013 income year.  Only if there are special circumstances will Mr Elrington come within the reconciliation condition set out in s 32C(1)(c)(ii).  That is the only reconciliation condition that is relevant in this case.  The fact that Mr Elrington’s partner did not advise that she was not required to lodge an income tax return until 6 November 2014 is not a relevant consideration.  That follows from the fact that s 32J does not prescribe a time limit within which a person must notify the Department that he or she is not required to lodge an income tax return for the relevant income year.

What are special circumstances?

1. What are “special circumstances”?  In Groth v Secretary, Department of Social Security[13] (Groth), Kiefel J considered the meaning of the expression “special circumstances” in the context of whether Mr Groth’s circumstances met that description so that all or part of a compensation payment he had received could be treated as not having been made. That was the effect of s 1184 of the Social Security Act 1991 (SS Act).  If all or part of the payment could be treated in that way, s 1168(1) of the SS Act did not take effect and Mr Groth would be entitled to be paid a greater amount of disability payment than would otherwise be the case.  Kiefel J said:

   “          The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case ([Beadle v Director-General of Social Security] at ALR 229; ALD 674), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case.  That was, I consider, the only enquiry to be undertaken in this case.  It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.  The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied. … In the context of some discretionary provisions, for example one which provides for a longer period of time to be fixed in ‘special circumstances’ as in Beadle’s case, it may be relevant to look at how a person comes to require the exercise of the discretion and therefore to the events preceding the arbitrary provision coming into effect.  This is not such a case, for all that the background facts tell us is that the Act applies to Mr Groth. … While the means by which persons become qualified to compensation payments, the amount they receive and the legislation pursuant to which they become so entitled will vary, what they will all have in common is that
   

   [13] [1995] FCA 1708; (1995) 40 ALD 541

   [14] [1995] FCA 1708; (1995) 40 ALD 541 at [12]; 545

   s 1168 will then apply to them.  Absent some other feature, the only question which can be said to arise in this case is that posed by the tribunal namely: what then would be the effect of applying s 1168 to a person in Mr Groth’s position?”[14]

1. In the case of Beadle v Director-General of Social Security[15] (Beadle), to which Kiefel J had referred, the Full Court made the general observation that:

   “… We do not think it is possible to lay down precise limits or precise rules.  The matter is one for the Director-General bearing in mind the purpose for which the power is given.  The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.”[16]

   [15] (1985) 60 ALR 225; 7 ALD 670

   [16] (1985) 60 ALR 225; 7 ALD 670 at 228; 674 per Bowen CJ, Fisher and Lockhart JJ

1. In deciding Angelakos v Secretary, Department of Employment and Workplace Relations[17] (Angelakos), Besanko J warned against requiring there to be exceptional circumstances before there may be said to be special circumstances:

   “… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances.  The danger is that the test will be overstated if the word ‘exceptional’ is emphasised.  It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case.  There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised.  Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case.  It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.”[18]

   [17] [2007] FCA 25; (2007) 44 AAR 436; 110 ALD 9

   [18] [2007] FCA 25; (2007) 44 AAR 436; 110 ALD 9 at [33]; 445; 17-18

1. The authorities of Groth, Beadle and Angelakas, to which I have referred, are general statements of principle but they must be understood in the particular statutory context in which the expression “special circumstances” is used.  The particular context is that of the FA Act and the FA Administration Act.  The FA Act was introduced as part of a restructuring of family assistance so that, from 1 July 2000, 12 forms of assistance then available to families were then replaced with three.  These were the Family Tax Benefit A, Family Tax Benefit B and Child Care Payment.  Family tax benefits could be delivered as lump sum at the end of a financial year or by means of a reduction in the TIDs that would otherwise be made from a person’s salary or wages or other payments.  The system of reduction in what would otherwise be a person’s TIDs was related to a new system of Pay As You Go (PAYG) that required persons other than employers to deduct amounts for taxation and extended beyond the then then Pay As You Earn (PAYE) system.  Adjustment of a person’s entitlement to FTB is adjusted at the conclusion of each year of income and, again, the method of adjustment is closely aligned to the taxation system. 

1. The amendments made to the FA Administration Act do not alter the interdependence of the system of delivery of FTB and the taxation system.  That leads me to conclude that a person’s circumstances should be assessed in light of that interdependence before concluding whether or not they may be characterised as “special circumstances”.  The Explanatory Memorandum to the Family Assistance and Other Legislation Amendment Bill 2013 supports my conclusion:

   “If special circumstances prevented the claimant or their partner, or both, lodging their tax returns before the end of the first income year, new paragraph 28(3)(c) allows a top-up to be paid, provided the claimant and their partner have lodged their tax returns within the timeframe that applies to them.”

The change was not addressed in the Minister’s Second Reading Speech when the Bill was introduced in the House of Representatives.[19]

[19] Hansard, House of Representatives, 13 February 2013 at 1118; Ms Collins, Minister for Community Services, Minister for the Status of Women and Minister for Indigenous Employment and Economic Development

Are Mr Elrington’s circumstances special circumstances?

1. I find that Mr Elrington went to his accountants’ offices in early May 2014 with information so that they could prepare his income tax return for the year ended 30 June 2013.  The accountants moved their offices to an adjoining office in the ensuing months and did not lodge his return before 30 June 2014.  I accept that Mr Elrington gave the accountants all of the information they needed and that he told them that the return had to be lodged by 30 June 2014 for FTB purposes.  While I also accept that his accountants’ oversight in lodging his income tax return was due to their moving from one location to another, I do not accept that their failure to lodge it was beyond his control.  Mr Elrington knew that it was crucial that he lodge his income tax return by 30 June 2014.  The Department had sent him a lengthy note emphasising the necessity of doing so.  It had sent that note on 21 March 2014 and followed it up with an SMS dated 30 May 2014.  Mr Elrington has not suggested that he did not receive those notices.[20] 

[20] For the reasons I gave in Re Field and Secretary, Department of Social Services [2015] AATA 903, failure to receive notices from the Department would not lead me to a different conclusion.

1. There is no evidence that Mr Elrington had received notice from his accountants asking him to make a declaration that the information in the income tax return was true and correct and that he had authorised the accountants to lodge the approved income tax return.  Although it may be made by email or in hard copy, a taxpayer cannot give a blanket declaration but must make a fresh one each time an income tax return is lodged by accountants or a tax agent on his or her behalf.  If he had not been asked for a declaration, that should have made him question whether his accountants had lodged his return.  Mr Elrington has not said that he contacted his accountants as 30 June 2014 drew near to enquire about whether they had lodged his income tax return.  Given the notices he had been given by the Department as to the consequences of his not lodging his income tax return by 30 June 2014, Mr Elrington could, I find, be expected to have contacted his accountants to check whether his income tax return had been lodged.  As he did not, I find, there is nothing in Mr Elrington’s circumstances that enable them to be characterised as special circumstances.  Therefore, I find that Mr Elrington has not met the reconciliation condition in s 32C(1)(c)(ii) of the FA Administration Act and he is not entitled to the FTB supplement and top up of FTB for the 2012/2013 year of income.

DECISION

1. For the reasons I have given, I set aside the decision of the SSAT dated 30 June 2015.  In its place, I substitute a decision affirming the decision made by a delegate of the Secretary on 6 January 2015 and affirmed by an ARO on 1 April 2015 that Mr Elrington is not entitled to FTB top up and supplement of $1,159.36 for the 2012/2013 income year.

I certify that the twenty nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ………..............[sgd].........................................

Associate

Date of Hearing on the Papers          1 March 2016

Date of Decision  22 March 2016

ApplicantMr Tim Noonan, departmental advocate

RespondentSelf represented