Farrelly and Other

[2020] AATA 704

Farrelly and Other [2020] AATA 704 (1 April 2020)

Division:GENERAL DIVISION

File Number(s):     2020/1550

Re:Jarrod Farrelly

APPLICANT

AndOther

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:1 April 2020

Date of written reasons:     3 April 2020

Place:Canberra

The Tribunal dismisses the application pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975.

........................................................................

Member W Frost

Catchwords

PRACTICE AND PROCEDURE – dismissal for lack of jurisdiction – decision not reviewable under Fringe Benefits Tax Assessment Act 1986 – decision not reviewable by the Tribunal - application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 ss 25, 42A(4)
Fringe Tax Benefits Assessment Act 1986

Taxation Administration Act 1953

Secondary Materials

Pearce, Dennis, Administrative Appeals Tribunal (LexisNexis Butterworths, 4^th ed, 2015)

REASONS FOR DECISION

Member W Frost

BACKGROUND

1. The Applicant, Mr Jarrod Farrelly, made an application on 17 March 2020 to the Administrative Appeals Tribunal for review of a decision.

2. The decision, made by ACT Health in May 2019, determined that Mr Farrelly was ineligible to participate in ‘Eligible Public Hospital and Ambulance salary packaging arrangements’ as described in the Tax Determination 2015/12 issued by the Australian Taxation Office (ATO).

3. On 18 March 2020, the Tribunal wrote to Mr Farrelly advising him that it can only review decisions where a Commonwealth Act, Regulation or other legislative instrument specifies that the decision is reviewable by the Tribunal.

4. On 25 March 2020, Mr Farrelly wrote to the Tribunal stating that he believed the decision was reviewable under the Fringe Benefits Tax Assessment Act 1986 (Fringe Benefits TaxAct).

5. On 1 April 2020, the Tribunal dismissed the application because the decision of ACT Health was not reviewable by the Tribunal. Mr Farrelly requested reasons for the Tribunal’s decision and these are set out as follows.

   ISSUE

6. The issue before the Tribunal was whether the decision of ACT Health the subject of Mr Farrelly’s application was reviewable by the Tribunal.

   LEGISLATION

7. Section 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) relevantly states that:

   (1)   An enactment may provide that applications may be made to the Tribunal:

   (a) for review of decisions made in the exercise of powers conferred by that enactment; or

   (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

   …

   (4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.  

8. Subsection 42A(4) of the AAT Act provides that the Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

   CONSIDERATION

9. The Tribunal has no general power or jurisdiction to review decisions. The effect of subsection 25(1) of the AAT Act is that the Tribunal can only review decisions if an enactment, being an Act of Parliament or other legislative instrument, specifically provides the Tribunal with jurisdiction. In determining jurisdiction, the Tribunal must consider whether an enactment confers jurisdiction; whether a ‘decision’ has been taken and whether that decision has been taken under the enactment conferring jurisdiction.[1]

   [1] Pearce, D., Administrative Appeals Tribunal, 4^th edition, LexisNexis Butterworths, 2015, p. 20.

10. The ‘AAT Reviewable Decisions List’ as at 31 May 2019, sets out those Acts of Parliament or other legislative instruments that provide for certain decisions made pursuant to those instruments to be reviewable by the Tribunal.[2] One of those Acts is the Fringe Benefits Tax Act. Section 14ZZ of the Taxation Administration Act 1953 is the legislative provision providing the AAT jurisdiction to review a decision under certain sections of the Fringe Benefits Tax Act. For completeness, and in circumstances where Mr Farrelly relied on them to dispute the Tribunal’s position on its jurisdiction, the below excerpts from the Tribunal’s Reviewable Decisions List document are set out in full, as follows:[3]

    [2] accessed on 2 April 2020.

    [3] ibid., pages 167-168 and 388.

    Fringe Benefits Tax Assessment Act 1986

    Section 14ZZ of the Taxation Administration Act 1953 (34 of 1997)

Section 14ZY(1) of the Taxation Administration Act 1953

The following decisions of the Commissioner of Taxation in relation to which an objection has been allowed, wholly or in part, or disallowed by the Commissioner under Part IVC of the
Taxation Administration Act 1953:

- to determine under s 67(1)(d) that appropriate adjustments be made to the aggregate fringe benefits amount of the eligible employer in respect of another year of tax or of another employer in respect of any year of tax where the employer has made a request under s 67(4);

- to make an assessment of the fringe benefits taxable amount of an employer and the amount of tax payable on that fringe benefits taxable amount under s 72 or 73.

[Notes:

1. Sections 67(6) and 78A of this Act provide that a person may object against the decisions specified in the right-hand column above in the manner set out in Part IVC of the Taxation Administration Act 1953. The following Acts have introduced, amended or repealed provisions in relation to the operation of Part IVC of the Taxation Administration Act 1953: 216 of 1991 and 179 of 1999.

2. A person dissatisfied with any of the above decisions may object against them in the manner set out in Part IVC of the Taxation Administration Act 1953. The Commissioner will then make an objection decision from which a person can apply for review to the Tribunal.

3. An objection in relation to a demand to pay duty which the owner of the goods has deposited under s 154 of the Act must be made within 6 months after the date of the deposit: s 162C(3) of the Act.

4. An application for review of an objection decision must be lodged with the AAT within 60 days after the person making the application is served with notice of the decision: s 14ZZC of the Taxation Administration Act 1953.

5. If the Commissioner fails to make a decision on a taxation objection within 60 days after being given a written notice requiring the making of the objection decision, the Commissioner is deemed to have made a decision under s 14ZY(1) to disallow the objection: s 14ZYA(3) of the Taxation Administration Act 1953.]

…

Decisions which a review application may be made directly to the Tribunal under the Taxation Administration Act 1953

Sections 14Y and 14ZX(4) (216 of 1991)

11.     Sections
14T
14U 14ZX(1)

12.     The following decisions of the Commissioner of Taxation:

13.     - to refuse to vary or revoke a departure prohibition order under s 14T;

14.     - to issue, or refuse to issue, a certificate authorizing the person to depart from Australia for a foreign country on or before the seventh day after a day specified in the certificate under s 14U;

- to refuse under s 14ZX(1) to deal with an objection as if it had been lodged within the time limit.

[Notes:

1. An application for review of any of these decisions must be lodged with the Tribunal within 28 days after the decision is given to a person.

2. This Act governs merits review of most decisions of the Commissioner of Taxation under other Commonwealth taxation laws.

The below legislation provide that if a person is dissatisfied with particular decisions, he/she may object against those decisions in the manner set out in Pt IVC of the Taxation Administration Act 1953. An application may be made to the Tribunal under s 14ZZ of the Taxation Administration Act 1953 for review of a decision to allow, wholly or in part, or to disallow a taxation objection under s 14ZY(1).

• A New Tax System (Australian Business Number) Act 1999

• A New Tax System (Bonuses for Older Australians) Act 1999

• A New Tax System (Goods and Services Tax) Act 1999

• A New Tax System (Goods and Services Tax) Regulations 1999

• A New Tax System (Wine Equalisation Tax) Act 1999

• Customs (Prohibited Imports) Regulations 1956

• Excise Act 1901

• Excise Regulations 1925

• Fringe Benefits Tax Assessment Act 1986

• Income Tax Assessment Act 1936

• Income Tax Assessment Act 1997

• Income Tax (Transitional Provisions) Act 1997

• Minerals Resource Rent Tax Act 2012

• Petroleum Resource Rent Tax Assessment Act 1987

• Product Grants and Benefits Administration Act 2000

• Superannuation Contributions Tax (Assessment and Collection) Act 1997

• Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997

• Superannuation Guarantee (Administration) Act 1992

• Superannuation (Unclaimed Money and Lost Members) Act 1999

• Termination Payments Tax (Assessment and Collection) Act 1997

• Trust Recoupment Tax Assessment Act 1985

Please refer to entries for the above enactments for a list of the reviewable decisions.  [Emphasis added]

1. As set out above in relation to the Fringe Benefits Tax Act, reviewable decisions only emanate from those decisions made pursuant to subsection 67(6) and section 78A, which respectively provide as follows:

   If the employer is dissatisfied with the Commissioner’s decision on the request, the employer may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953 (subsection 67(6)).

   An employer who is dissatisfied with an assessment may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953 (section 78A).

   [emphasis added]

2. As set out in the above provisions of the Fringe Benefits Tax Act, an employer can object to a decision made by the ATO Commissioner by applying for its review by the Tribunal. Mr Farrelly is not an employer and the decision the subject of his application to the Tribunal was made by ACT Health, not the ATO Commissioner. No other provisions in the Fringe Benefits Tax Act provide a mechanism for review by the Tribunal. For the avoidance of doubt, the Tribunal notes that the listing of the Fringe Benefits Tax Act in the Tribunal’s Reviewable Decisions List does not mean any decision regarding fringe benefits is reviewable by the Tribunal; jurisdiction of the Tribunal is limited to those two specific provisions listed, which are not applicable to Mr Farrelly’s dispute with his employer, ACT Health and its fringe benefit arrangements. Mr Farrelly’s application seeking a review of ACT Health’s decision in relation to his claim regarding fringe benefits is therefore not reviewable by the Tribunal.

3. The Tribunal also notes that under subsection 29(2) of the AAT Act, an application must be made to the Tribunal within twenty eight days after the decision is given to the applicant. The Taxation Administration Act 1953 provides that applications to the Tribunal must be made within 60 days of receipt of a decision made under that Act. The decision the subject of Mr Farrelly’s application to the Tribunal was made by ACT Health in May 2019. Mr Farrelly disputed that decision with ACT Health in May 2019 and is therefore understood to have received it around that time. Mr Farrelly did not apply to the Tribunal until ten months later, in March 2020, to review the ACT Health decision. Accordingly, Mr Farrelly’s application was also not made within the prescribed time under the AAT Act and would have, if not for the fact that the decision was not reviewable, required the Tribunal to exercise its discretion to extend the time to make any such application if it was satisfied in all the circumstances that it was reasonable to do so.

   DECISION

4. The Tribunal dismisses the application pursuant to subsection 42A(4) of the AAT Act.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 3 April 2020