Fidge and Commissioner of Taxation (Taxation)

This matter concerned an appeal by Mr Fidge against a decision of the Commissioner of Taxation. The dispute arose from Mr Fidge's involuntary transfer from the Australian Regular Army to the Army Reserves. The Administrative Appeals Tribunal was required to determine whether Mr Fidge's transfer constituted a dismissal due to genuine redundancy of his position, which would entitle him to certain tax benefits.

The primary legal issue before the Tribunal was the application of section 83-175(1) of the relevant tax legislation. This section provides a tax concession if a person is dismissed from their employment or office because their position is genuinely redundant. The Tribunal had to ascertain what constituted Mr Fidge's "position" for the purposes of this section. The Commissioner argued that the relevant position was Mr Fidge's former posting as Defence Attaché-Ankara, which was not redundant as it was filled by another officer. Mr Fidge contended that his position as a member of the Permanent Forces was the relevant one, and this position ceased to exist for him upon his transfer to the Reserves.

The Tribunal rejected the Commissioner's submission that the Defence Attaché-Ankara position was the relevant one. It reasoned that the decision to transfer Mr Fidge to the Reserves was not made until the Chief of Army issued the "Dismissal Letter," by which time Mr Fidge had been posted to a "senior officer awaiting posting" role. The Tribunal accepted Mr Fidge's argument that his office as a member of the Permanent Forces was the appropriate focus for the redundancy inquiry under section 83-175(1), as this was the "gateway" into the provision for individuals not technically employees. The Tribunal found that Mr Fidge had discharged the burden of proving that his position as a member of the Permanent Forces was genuinely redundant.

Consequently, the Tribunal set aside the Commissioner's objection decision and substituted it with a decision allowing the objection in full, finding Mr Fidge entitled to the tax concession. The Tribunal also concluded that Mr Fidge was not protected by reliance on a public ruling, TR 2009/2.