Fortunatow and Commissioner of Taxation (Taxation)

In the matter of *Fortunatow and Commissioner of Taxation*, the Administrative Appeals Tribunal (AAT) considered an objection to a summons issued by the Commissioner of Taxation requiring the production of documents. The applicant sought documents created between 1 July 2013 and 31 December 2017, relating to a fraud or evasion opinion issued by an authorised officer prior to the amendment of assessments.

The primary legal issue before the Tribunal was whether the summons should be set aside. This involved considering the implied power of the AAT to set aside a summons issued under section 40A of the *Administrative Appeals Tribunal Act 1975*, drawing on principles applicable to court subpoenas, including grounds of oppression, fishing expeditions, and relevance. The applicant's concerns stemmed from a previous matter where the respondent had admitted to altering documents, and discrepancies noted in the metadata of documents provided in response to a Freedom of Information request and a section 37 response.

The Tribunal noted that while the AAT Act does not expressly provide for setting aside a summons, an implied power exists, and general principles for subpoenas apply. The Commissioner explained that an omission of a fraud or evasion opinion from the initial section 37 response was an error, and an electronic copy had been provided to the applicant, with the opinion and submissions now filed in supplementary documents, predating the amended assessments. The Tribunal was satisfied that these explanations and the provision of the documents were sufficient to address the applicant's concerns regarding the timing of the fraud or evasion opinion.

Consequently, the Tribunal set aside the summons issued on 11 April 2018. The Tribunal indicated that if the applicant continued to assert that the Commissioner lacked the power to issue the amended assessment, such a challenge would fall outside the Tribunal's jurisdiction and would require an application under section 39B of the *Judiciary Act 1903* or the *Administrative Decisions (Judicial Review) Act 1977*.