Garrett and Commissioner of Taxation

[2008] AATA 749

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 749

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2197

TAXATION APPEALS DIVISION		)
Re		ANDREW GARRETT

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date25 August 2008

PlacePerth

Decision The Tribunal dismisses the applicant's application for an extension of time to lodge an application for review on the grounds that the Tribunal has no jurisdiction in this matter

.....(sgd) Mr A Sweidan...................

Senior Member

CATCHWORDS

Income tax - GST - Practice and Procedure - Tribunal's jurisdiction - no jurisdiction where no reviewable objection decision

LEGISLATION

Taxation Administration Act 1953 - A New Tax System (Goods and Services Tax) Act 1999

CASES

McCallum v Commissioner of Taxation [1997] FCA 533

Robertson v Commissioner of Taxation [2004] FCAFC 46  

REASONS FOR DECISION

25 August 2008 Mr A Sweidan, Senior Member    

BACKGROUND

1.      The applicant applied on 16 May 2008 for an extension of time to lodge an application for review of a decision of the respondent.  The respondent contends that the Tribunal has no jurisdiction in this matter.

2.      The application dated 16 May 2008 identified the relevant decision as the ‘refusal to review Tax Assessment as set out in letter dated 19 February’.  The reference is to a letter from the respondent dated 19 February 2008 stating that the respondent does not intend to take further action in respect of a “complaint dated 21 December 2007” made by the applicant, apparently relating to the tax liability of the Andrew Garrett Family Trust.

3.      It appears that the complaint made by the applicant referred to in the respondent’s letter dated 19 February 2008, was oral, and was made on the telephone.

4.       In response to a letter from the Tribunal dated 18 June 2008, the applicant provided further explanation of his application in a letter dated 28 June 2008, annexing as “BD 36” a statement of account from the respondent in respect of the Andrew Garrett Family Trust.

5.      The Tribunal notes  the following from the applicant’s letter dated 28 June 2008:

·     It confirms that the decision in respect of which review is sought by the Tribunal is the ‘response [to the complaint] contained in the letter dated 19^th February 2008’.

·     In making the complaint, the applicant was purporting to act in his capacity as sole trustee of the Andrew Garrett Family Trust.

·     The matter the subject of the complaint is said to be ‘a Tax Assessment made against the Andrew Garrett Family Trust’, which apparently refers to the liabilities set out in the statement of account “BD 36”.  There is also a reference to ‘an objection filed by the sole incumbent Trustee of AGFT pursuant to the Tax Administration Act (1953) at division 3’, which apparently refers to the complaint.

·     The statement of account is clearly not a tax assessment as asserted by the applicant.

6.       The statement of account “BD 36” contains details of transactions processed by the Australian Taxation Office during the period 1 July 2000 to 30 November 2005.  The debits to the account relate to self-assessed amount(s) for goods and services tax, general interest charge (GIC) and penalties for failure to lodge activity statements (imposed pursuant to subsection 286-75(1) of the Taxation Administration Act 1953 (TAA)).

JURISDICTION

Taxation objections and Tribunal review of objection decisions

7. Taxation objections, reviews and appeals are dealt with in Part IVC of the TAA. Subsection 14ZL(1) provides as follows:

This Part applies if a provision of an Act or of regulations (including the provision as applied by another Act) provides that a person, who is dissatisfied with an assessment, determination, notice or decision, or with a failure to make a private ruling, may object against it in the manner set out in this Part.

8.       Pursuant to subsection 14ZL (2), such an objection is called a ‘taxation objection’.

9.      Some examples of provisions of Acts that can give rise to a right to lodge a taxation objection are:

·Section 175A of the Income Tax Assessment Act 1936 (ITAA) - dissatisfaction with an ‘assessment’ as defined in the ITAA.

·Subsection 105-40(1) in Schedule 1 to the TAA - dissatisfaction with a ‘reviewable indirect tax decision’. The expression ‘reviewable indirect tax decision’ is defined in subsection 105-40(2) to include an assessment of a ‘net amount’. The expression ‘net amount’ is defined in subsection 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (the GST Act), and relates to GST.

·Subsection 298-20(3) in Schedule 1 to the TAA – refusal by the Commissioner to remit certain penalties (including a penalty under subsection 286-75(1)).

10. The Tribunal notes that an analysis of the liabilities referred to in the statement of account shows that only the penalties could be the subject of an objection. The self-assessed GST amounts cannot be the subject of an objection (although section 105-10 in Schedule 1 to the TAA provides for a taxpayer to request an “assessment of net amount” and such an assessment would be a ‘reviewable indirect tax decision’. However there is nothing to indicate that any such request or assessment has been made here). Similarly general interest charges cannot be the subject of an objection.

11. Sections 14ZU to 14ZZ of the TAA deal with ‘taxation objections’, including how objections are to be made (section 14ZU) and when they are to be made (section 14ZW). Pursuant to section 14ZY, if a taxation objection is lodged with the Commissioner then he must make an ‘objection decision’ and serve written notice of the decision on the taxpayer. Pursuant to section 14ZZ a person dissatisfied with the Commissioner’s objection decision may apply to the Tribunal for a review of the decision.

The applicant’s right to object and request a review – TRIBUNAL’S FINDINGS

12.      It appears that what the applicant calls a ‘tax assessment’ which is what his complaint relates to refers to the liabilities of the Andrew Garrett Family Trust detailed in the statement of account.  As set out above, only the penalties for failure to lodge Business Activity Statements could give rise to a right to lodge an objection under section 14ZL.

13.      As noted above, the applicant’s original complaint was not in writing but was made orally by telephone.  There is no indication in any of the documents before the Tribunal that it purported to be an objection against the penalties (pursuant to section 14ZU it would need state fully and in detail the grounds relied on).  In any event it was not treated as an objection by the respondent and the respondent’s letter dated 19 February 2008 is clearly not an objection decision under section 14ZY. 

14. It follows in the Tribunal’s view that there is no right under section 14ZZ or any other relevant provision of the TAA to apply to the Tribunal for a review of any matter set out in the respondent’s letter dated 19 February 2008.

Bankruptcy of the applicant

15.      The applicant is an undischarged bankrupt.  It is the respondent’s contention that even had there been a reviewable objection decision by the respondent, the applicant has no standing to bring or pursue this application as he would not be a person ‘dissatisfied’ with an objection decision under section 14ZZ, that standing having vested in his trustee in bankruptcy (see the Full Federal Court decisions in McCallum v Commissioner of Taxation [1997] FCA 533 and Robertson v Commissioner of Taxation [2004] FCAFC 46).

16.     The applicant disputes the respondent’s contentions in this regard.  The Tribunal does not find it necessary to make any findings on this issue.

DECISION

17.     The Tribunal finds that it has no jurisdiction in respect of this matter and the application is accordingly dismissed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:  (sgd) T Freeman............
  Associate

Date of Hearing  8 August 2008
Date of Decision  25 August 2008
Applicant  Self Represented
Counsel for the Respondent     Mr M Vincent
Solicitor for the Respondent     ATO Legal Services