Gardner and Commissioner of Taxation (Practice and procedure) - [2025] ARTA 203

Gardner and Commissioner of Taxation (Practice and procedure) [2025] ARTA 203 (6 February 2025)

Decision and Reasons for Decision

Applicant: Michael Andrew Paul Gardner

Respondent: Commissioner of Taxation

Tribunal Number: 2024/1467

Tribunal: General Member J Dunne

Place: Melbourne

Date: 6 February 2025

Decision:The Tribunal dismisses the application pursuant to section 100 of the Administrative Review Tribunal Act 2024 (Cth).

...................................[SGD]...................................
General Member J Dunne

Catchwords

PRACTICE AND PROCEDURE – Applicant sought review of taxation decision where Respondent did not accept a late objection – No reasoning provided for why late objection should be accepted – Applicant given directions to file statement of facts issues and contentions and further evidence – Respondent provided Applicant further information about the late objection discretion – Applicant repeatedly failed to meet Tribunal directions within a reasonable time – Application dismissed.

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
Administrative Review Tribunal Act 2024 (Cth), ss 9, 100, 102.
Taxation Administration Act 1953 (Cth) ss 14ZW(2), 14ZW(3), 14ZX.

Cases

Abeysinghe Herath Mudiyanselage and Secretary, Department of Social Services [2024] AATA 1016
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299
Berthelsen and Secretary, Department of Social Services [2024] AATA 1975
Charara v Commissioner of Taxation [2016] FCA 451
Guse v Comcare [1997] FCA 140
LVR (WA) Pty Ltd v Administrative Appeals Tribunal and another [2012] FCAFC 90
Rimmer and Comcare [2024] AATA 3387
Ziolkowski and Commissioner of Taxation [2024] AATA 2857

Statement of Reasons

In this case the Applicant sought to review the Respondent’s decision dated 20 February 2024 not to grant an extension of time to lodge an objection in relation to the assessments which resulted from audits by the Respondent of the 2000-07 income years. The Respondent’s decision was made pursuant to subsections 14ZW(2), 14ZW(3) and section 14ZX of the Taxation Administration Act 1953 (Cth).

The Applicant’s objection was dated 2 October 2023,1 and related to GST and income tax in the periods from 1 July 2000 to 30 June 2007. The objection also sought to object to “General Interest Charge and fines”. The only statement that was relevant to its lateness was “I am aware I am out of time as per the legislation but asking you to look at my case as [the] Australian Taxation Office has made huge mistakes in [the] whole audit process.”2

The Application for Review dated 11 March 20243 also contained no details as to why the Applicant’s late objection should be accepted on its merits. For example, the Applicant’s Application for Review makes bald statements such as “The audit is totally incorrect because the auditors did not know what they are doing and were not qualified.”4 The Applicant is represented by an agent, Mr John Gray.

The Respondent provided the Applicant with information relating to late objections and advised the Applicant it needed to know why the objection was lodged late.5 The Tribunal gave the Applicant an opportunity to put his case…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Gardner and Commissioner of Taxation (Practice and procedure) [2025] ARTA 203
Case: [2025] ARTA 203
Decision Date: 6 February 2025

CaseChat Overview and Summary

In the case of Gardner and Commissioner of Taxation, the Applicant sought to review a taxation decision where the Respondent had not accepted the Applicant's late objection. The matter was heard in the Administrative Appeals Tribunal. The core issue in this case was whether the Tribunal had the authority to accept a late objection and, if so, whether the Tribunal should exercise that authority in this instance.

The primary legal issue that the Tribunal had to decide was whether it had the jurisdiction to accept a late objection to a taxation decision. The Tribunal examined the relevant statutory provisions and case law to determine if it had the power to accept a late objection. Additionally, the Tribunal considered whether the Respondent had provided sufficient reasoning for declining to accept the late objection. The Tribunal also noted the repeated failure of the Applicant to meet the Tribunal's directions within a reasonable time.

The Tribunal found that it did have the jurisdiction to accept a late objection, but it was not obligated to do so in every case. The Tribunal emphasised the importance of providing reasoning for its decisions, particularly when declining to accept a late objection. Despite the Applicant being given multiple opportunities to file a statement of facts, issues, and contentions, as well as further evidence, the Applicant repeatedly failed to comply with the Tribunal's directions. Consequently, the Tribunal dismissed the Applicant's application on the grounds of non-compliance with its directions.

Orders