Gessner v Chief Commissioner of State Revenue

[2006] NSWADT 26

CITATION:	Gessner v Chief Commissioner of State Revenue [2006] NSWADT 26
DIVISION:	Revenue Division
PARTIES:	APPLICANTS Martin Arbter Gessner and Tae Gessner RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	056092
HEARING DATES:	25/01/2006
SUBMISSIONS CLOSED:	01/25/2006
DATE OF DECISION:	01/31/2006
BEFORE:	Block J - ADCJ (Judicial Member)
CATCHWORDS:	Late application to Tribunal
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Duties Act 1997
CASES CITED:	Assimakopoulos v FC of T 98 ATC 2037 Brown v Commissioner of Taxation 1999 FCA 563 Comcare v A'Hearn (1993) 45 FCR 441 Doney v Chief Commissioner of State Revenue [2005 NSWADT 133 Full v Chief Commissioner of State Revenue [2005] NSWADT 190 Hunter Valley Developments v Cohen (1984) 7 ALD 315 Lighthouse Philatelics Pty Limited v FC of T 91 ATC 4942 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2O02] NSWADTAP 9
REPRESENTATION:	APPLICANTS M Gessner on behalf of both Applicants RESPONDENT S Free, Solicitor
ORDERS:	1. The application for an extension of time is granted and the application for review made by the Applicants is to be treated as having been made within time.; 2. The application is listed for directions on Tuesday, 7 February 2006 at 2p.m.

Part A. Introduction, background and general.

1 The decision under review is the refusal by the Respondent of an application for an extension of time within which to seek the review of an assessment of vendor duty arising from the sale by the Applicants of their residence at 35 Hillview Street, Hornsby Heights, NSW (the “Property”) in July 2004. The relevant duty assessment was made on 22 July 2004; the Applicants objected on 3 September 2004 and their objection was disallowed on 29 October 2004. They had the right under section 99 of the Taxation Administration Act 1996 to seek a review of that decision within 60 days, a period which expired towards the end of December 2004. The Applicants sought review some nine months later, on 27 September 2005 and so that the period of delay was approximately 9 months. A written application for an extension of time was made on 7 November 2005. It may be noted that although some of the documentation referred to Martin Gessner alone, an application to join his wife, Tae Gessner, as an Applicant, was made and granted.

2 The Tribunal had before it the documents produced pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 together also with written submissions by the parties.

3 The facts fall within a very narrow compass and moreover there does not appear to be any dispute of fact between the parties.

4 Tab 1 of the section 58 documents indicates that the Property was purchased in March 1998 by the Applicants; there is no dispute as to the fact that it was purchased by them as their principal place of residence. They resided in the Property from March 1998 until July 1998, from July 1999 to January 2000 and from May 2003 to July 2004; in July 2004 contracts for the sale of Property were exchanged. In respect of all other periods since purchase and until sale, the Property was leased to tenants; those periods coincided with postings overseas of Mr Gessner by his employers, to Japan from July 1998 to June 1999, the United States of America from February 2000 until December 2000 and Germany from January 2001 to April 2003. Mr Gessner said that he was required to work overseas during those periods by his employers and that the only sensible course was to lease out the Property and so as not to leave it standing vacant.

5 Vendor duty was payable under section 146 of the Duties 1997 (the “Act”) in respect of the agreement for sale of the Property (which was “land-related property”); in July 2004; pursuant to section 162B (1) of the Act the duty would not have been payable where the principal place of residence exemption applied. At the relevant time sections 162B(3) and (4) of the Act read as follows:

(3) For the purpose of this Chapter, land is not used and occupied as the principal place of residence of a person unless:
(a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes for a period of at least 2 years ending immediately before the date on which, but for this Division, a liability for vendor duty would arise, or

(b) the land has been used and occupied by the person for residential purposes and for no other purposes for a total period of at least 3 years in the 5 years ending immediately before the date on which, but for this Division, a liability for vendor duty would arise and during those 3 years no other land was used and occupied by the person for residential purposes, or

(c) if the vendor became an owner of the land less than 2 years before the date on which, but for this Division, a liability for vendor duty would arise, the Chief Commissioner is satisfied that the land has been used and occupied by the person as the person’s principal place of residence since the vendor became an owner of the land.

(4) Despite any other provision of this Act, the principal place of residence exemption is also taken to apply to any land used and occupied as a principal place of residence if the Chief Commissioner is satisfied that it is fair and reasonable for the exemption to apply in the particular case.

6 The Applicants contended that they are entitled to seek relief under section 162B (4) of the Act which was operative at the date of sale of the Property; it was repealed thereafter.

7 Referring specifically to section 162B (3) of the Act the Applicants could not comply with any of the tests contained in paragraphs (a) (b) and (c) of that section. At the time of sale the period of occupation preceding sale was less than two years and so that paragraph (a) did not apply. Paragraph (c) did not apply because the Property was owned for a period in excess of two years prior to sale. The actual period of occupation during the period of five years prior to sale was approximately 21 months and so that paragraph (b) also was inapplicable.

8 As to the circumstances in which and the background against which the relevant objection was disallowed, it is convenient to draw on the Respondent’s submissions, clauses 2, 3 and 4 of which read as follows:

2. On 15 July 2004, Collins & Thompson Solicitors (being the solicitors who acted for the Gessners in respect of the sale of the property ("vendors' solicitors")) wrote to the Chief Commissioner seeking a ruling that the sale of the property would be exempt from vendor duty.' The vendors' solicitors conceded in that letter that the vendors did not appear to satisfy any of the specific eligibility criteria for the principal place of residence exemption, as set out in s. 162B (3) of the Duties Act. The vendors were therefore apparently seeking confirmation that the Chief Commissioner would exercise his discretion under s. 162B (4) (as it applied at the time) to the effect that the principal place of residence exemption would apply to the property, thus exempting the sale from vendor duty.

3 By letter to the vendors' solicitors dated 22 July 2004, the Chief Commissioner advised that he was not satisfied, for the purposes of s. 162B (4) that it was fair and reasonable for the principal place of residence exemption to apply to the vendors. The letter advised the vendors of their right under s. 86 of the Taxation Administration Act 1996 ("TA Act") to object within 60 days to the Chief Commissioner's decision.

4 By letter to the Chief Commissioner dated 3 September 2004 the vendors' solicitors' lodged a written objection to the Chief Commissioner's ruling, setting out a number of grounds for the objection. By letter to the vendors' solicitors dated 29 October 2004 the Chief Commissioner advised that he had disallowed the objection. For the purposes of the present application, it is helpful to extract the relevant sections of the Chief Commissioner's letter:

"In the present case, the property was owned for a period exceeding 6 years, but the maximum period of continuous use and occupation as a principal place of residence was only some 15 months prior to sale.

Section 162B (4) gives the Chief Commissioner a discretion to exempt a land-related property transaction from the requirement to pay vendor duty where special or extenuating circumstances exist.

The situation, as outlined, does not show any special or extenuating circumstances from other vendors in similar situations. Accordingly, your situation does not warrant the exercise of the discretion.

The Taxation Administration Act 1996 allows you to request the Administrative Decisions Tribunal or the Supreme Court to review our decision within sixty (60) days of the date of this letter. Only the Tribunal or the Court can extend the time for lodgement of your request after the 60-day period has elapsed. Information about the review process is available from either the Registrar of the Tribunal on 9223 4677 or the Registrar of the Court on 9230 8111."

9 Following disallowance of the objection, Mr Thompson, who was the solicitor for the Applicants wrote to the Applicants on 3 November 2004; the second-last and third-last paragraphs of that letter read as follows:-

We note that the last paragraph of such letter states that you can lodge a further objection through the Administrative Decisions Tribunal or the Supreme Court however it is our opinion the outcome of such objection would probably be the same.

Given that the court process is very costly not to mention time-consuming, should you wish us to lodge an appeal on your behalf through the courts we will require the sum of $4000 to be deposited into our trust account prior to legal action commencing. We advise that our fees are based on the value of time necessarily spent in the conduct of the matter. The hourly rate charged would be $330 inclusive of GST (subject to change from time to time) depending on who is doing the work. We adopt a team approach and often different aspects of the matter are done by different people within our office.

10 It will be noted then that the Applicants were advised that the prospects of success were poor (although no reasons for that view were expressed) and that also to take the matter further would be both time-consuming and expensive. Mr Thompson required an amount of $4000 by way of costs in advance. As has been noted previously the amount of vendors duty assessed (and paid) was $11,700.

11 The Applicants did not in the circumstances and in the light of that legal advice seek a review at that time, or within the statutory period referred to previously in these reasons. At the same time, however, that they were unhappy about the situation is indicated in clear terms by correspondence entered into thereafter between the Applicants and their Member of Parliament, Mr B. Hazzard. It is unnecessary for me to deal with the correspondence with Mr Hazzard.

12 On 8 September the Applicants noticed a report in “Business Review Weekly of the decision of this Tribunal in Full v Chief Commissioner of State Revenue [2005] NSWADT 190, a decision by the President of this Tribunal. The Applicants took the view that their own circumstances was similar to those of the applicant in Full’s case and on 27 September 2005 sought the review of the disallowance of their objection

Part B: The law as regards applications for extensions of time.

13 In Assimakopoulos v FC of T 98 ATC 2037 I attempted a detailed review of the law at that time as regards applications of this nature; I refer in particular to the references in that decision to Hunter Valley Developments v Cohen (1984) 7 ALD 315 in the following terms.

In Hunter Valley Developments Pty Limited v Cohen the issue before the Court was an application for an extension of time under Section 11 of the ADJR Act. Wilcox J set out a number of non-exhaustive guiding principles which should be considered in the exercise of discretions in these circumstances. These are reproduced in full.

(a) Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do... Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for an extension show an ``acceptable explanation of the delay'' and that it is ``fair and equitable in the circumstances'' to extend time (Duff at 485; Chapman v Reilly (unreported) Neaves J, 9 December 1982, at 7). (Emphasis added by the Tribunal)

(b) A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision...: per Fisher J in Doyle v Chief of [General] Staff (1982) 42 ALR 283 at 287 and a case where the decision-maker was allowed to believe that the matter was finally concluded.

(c) Any prejudice to the respondent including any prejudice in defending proceedings occasioned by the delay is a material factor militating against the grant of an extension; see Doyle v Chief of General Staff (1982) 42 ALR 283.

(d) However, the mere absence of prejudice is not enough to justify the grant of an extension... In this context public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas at 19) is likely to prove fatal to the application.

(e) The merits of the substantial application are properly to be taken into account in considering whether an extension should be granted (Lucic at 417, Chapman at 6).

(f) Considerations of fairness between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (Wedesweiller at 534-535).

Wilcox J also held that `the adequacy of an explanation for delay is intimately related to the nature of the case. The distinction drawn in Wedesweiller between a case which is merely inter-parties and a case involving elements of public interest in relation to other people, practices or the need for finality is here relevant. The point goes beyond absence of prejudice. An applicant concerned to challenge a decision which has implications for other people or for day to day public administration may properly be regarded as being under a heavier duty to act expeditiously than is an applicant who is aware that his case has no such implications'. He then went on to state that `in contrast to most of the cases which have arisen in the court and which predominantly involve employment or industrial decisions there is here no suggestion that any other person is affected, for good or ill, by the decision which has been made. The only consequence of the decisions to refuse the final certificate is to deny the applicants the taxation benefits which they would otherwise have obtained. The only implications of the case are, therefore, the extent of their taxation liabilities. Although the relevant decision is a ministerial decision made under a statutory authority, this is a case very similar to inter-parties private litigation, involving no other persons'.

14 Subsequently to the decision in Assimakopoulos and in Brown v Commissioner of Taxation 1999 FCA 563 Hill J raised doubts as to the manner in which the Hunter Valley principles had been used; he said in clauses 32 to 41:-

The applicability of Hunter Valley Developments

32 As I have already noted the parties acquiesced in the application of the principles discussed in Hunter Valley Developments to the circumstances of Mr Brown's application. This was, as I have noted, the approach taken in Windshuttle. It was also the approach taken by the Tribunal in Zizza v Commissioner of Taxation (unreported [1999] FCA 37) and adopted by Katz J on appeal in that case. An appeal against that decision has been filed but has not yet been argued. It is difficult to see that the Tribunal erred in law in applying those principles where the parties proceeded upon the basis that it should. While I would not say that to do so would, in any event, amount to an error of law I think that it is important here to say something about them and their applicability to an application for extension of time to object.

33 First, it must be pointed out that Wilcox J in Hunter Valley Developments never suggested that he was laying down a series of principles to be applied in every case, even every case involving an application to the Court to commence proceedings for judicial review outside the time prescribed by the Administrative Decisions (Judicial Review) Act. His Honour was seeking to distil from previous case law factors which would serve as a "guide". Nor did his Honour suggest that the matters which he outlined were exhaustive. Indeed he said the contrary. As I pointed out in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 251:

"The danger that the distillation of matters relevant to discretion might harden into a statement of binding principle was not lost on his Honour. Sometimes, however, his Honour's warning appears to have escaped the attention of those seeking to rely upon what his Honour said."
34 Secondly, the context in which Wilcox J stated his non-exhaustive guidelines differs substantially from that where a taxpayer is seeking an extension of time for filing an objection against an income tax assessment.

35 The Administrative Decisions (Judicial Review) Act prescribes a time in which applications for review under s5 of that Act may be brought in the Court. I leave out of consideration for present purposes provisions which operate where no time is prescribed. It is provided in s 11(1) that the Court may allow a further time in which the application may be filed. There are no criteria specified as matters to which the Court should give attention. This contrasts with s 11 (4) which does specify criteria to be taken into account in a case where no period is prescribed within which an application to the Court must be made.

36 The Administration Act, while likewise stipulating the time in which objections are to be lodged, permits the Commissioner (or the Tribunal standing in the shoes of the Commissioner on a review of the Commissioner's decision) to determine whether to agree to or refuse a taxpayer's application for an extension of time. Although it does not expressly stipulate matters that are to be taken into account the requirement in s 14ZW(3) that the taxpayer's application state fully and in detail the circumstances concerning and the reasons for the failure to lodge the objection in time make it clear that these matters are clearly relevant. This is not to say that these are the only matters which the Commissioner or the Tribunal may take into account and counsel for the Commissioner, properly, did not submit this to be the case.

37 More significantly, however, an application for judicial review of an administrative decision under the Administrative Decisions (Judicial Review) Act is an application which is restricted to a review on quite limited grounds (cf s5of that Act). In essence it is an application seeking to assert a legal error in the decision or a failure in the decision making process, for example, the denial of natural justice. It is not a review on the merits. Absent what may be succinctly described as legal or process error the Court can not intervene to set aside a discretionary decision. An objection against an assessment of income tax is quite different. It is the first step in a process whereby the assessment may be reconsidered by the Commissioner in the light of the objection and if disallowed may be the subject of merits review by an independent tribunal, the Administrative Appeals Tribunal, or by the Court, (although before the Court matters involving the exercise of discretion are the subject of judicial, rather than merits, review). If the disallowance of the objection is reviewed by the Tribunal and a decision adverse to the taxpayer is arrived at there is the possibility of an application to this Court by way of an appeal on a question of law.

38 The historical background to the ability of a taxpayer to seek an extension of time to lodge an objection is in part sketched in Lighthouse Philatelics v Commissioner of Taxation (1991) 32 FCR 148, although that case was concerned with a related question, namely the ability of a taxpayer to seek to rely on grounds other than those on which the original objection was framed. Before the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth) a taxpayer was required to lodge an objection within 60 days and that time was mandatory. Further the taxpayer was bound thereafter by those grounds and could not with or without leave, depart from them. This framework was apt to lead to considerable injustice. It was from time to time the subject of submissions from professional organisations that the legislation be changed to alleviate that injustice. Ultimately Parliament saw fit to amend the law to permit the Commissioner to extend the time for making objections by substituting a new section s 188, substantially in the form of s 14ZW of the Administration Act which later replaced s 188. At the same time s 190(a) was amended to permit a taxpayer, with leave, to rely upon a ground of objection which did not appear in the grounds of objection initially lodged.

39 In Lighthouse Philatelics a Full Court of this Court rejected a submission that the ability to rely on a new ground of objection should be narrowly construed and so as not to permit an amendment which raised entirely new matters. In so doing the Court said at 156:

"The amendment to s 190(a) introduced by the Taxation Bourds of Review (Transfer of Jurisdiction) Act (Cth) was of a remedial kind and thus must be construed in accordance with well-established principles relating to ameliorating legislation. ...

The decision whether to allow an amendment ought to be made on the same considerations of justice upon which such decisions are regularly made in litigation. It was in the past a reproach to the law that the real issues in taxation appeals could be refused a hearing for a defective objection, and Parliament has legislated to remove that reproach; an amendment under s 190 should not be considered with reluctance, but on its merits."

40 I should add that it was in the past a reproach to the law that a taxpayer might well be refused an independent review of a meritorious taxation objection even in circumstances where the failure to object may not have been his or her fault or where the assessment may not even have come to the attention of the taxpayer within the time within which objections were required to be lodged. Parliament has legislated to remove that reproach and an application for approval to lodge an objection out of time should be considered by the Commissioner or the Tribunal on a review not with reluctance but taking into account all circumstances in an endeavour to arrive at a just result.

41 In the comments which follow I propose to examine the matters raised by Wilcox J and their relevance to taxation objections generally and to the present case in particular. In doing so I would repeat that I should not be taken to be suggesting that in the present case the Tribunal erred in law in approaching the matter by reference to Hunter Valley Developments for this was the approach which the parties suggested to the Tribunal. And it must be said that at least some of the factors enunciated as guidelines in Hunter Valley may have relevance, notwithstanding the differing context in which they were formulated. Nor should I be seen to be criticising the comments which the Tribunal made in considering the Hunter Valley guidelines, other than the approach it took to the merits of Mr Brown's case. The Tribunal's comments, however, do serve to demonstrate that a number of the Hunter Valley Developments "guidelines" will often have no relevance to an inquiry such as the present for they are framed by reference to a quite different context. Too slavish an adherence to them should, in my view, be avoided.

15 Specifically in respect of this Tribunal the Respondent referred to a decision of the Appeal Panel of this Tribunal in clause 10 of his submissions in the following terms;

In Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2O02] NSWADTAP 9 the Appeal Panel was concerned with whether leave should be granted under s. 113(3) of the Administrative Decisions Tribunal Act 1997 for an appeal to be made outside the usual 28 day period:

"[5] The section invokes a broad discretion in the Panel to extend the time for the lodgement of the appeal. In that respect, it is on all fours with s 29(7) of the Administrative Appeals Tribunal Act 1975 (Clth) (the AAT Act), albeit that provision refers to the time within which application may be made to the Commonwealth Administrative Appeals Tribunal (the AAT) for a review of an administrative decision. Section 29(7) of the AAT Act has been the subject of a number of AAT decisions, which are helpful in the present context.

[6] In Meschino and Secretary, Department of Family and Community Services [2001] AATA 342 the AAT referred to Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) ALN N77 in reliance upon a number of factors relevant to the exercise of the discretion, which may be re-stated as follows:-

the reason for the failure to lodge the appeal.

the length of the delay in lodging the appeal.

the diligence shown by the Appellant in lodging the appeal after it came to his notice that there were circumstances justifying an appeal.

the nature of the decision below and the consequences of the decision upon the Appellant's rights.

the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and of the Appellant's entitlement to appeal.

the extent of the Appellant's knowledge of the relevant statutory provisions.

the possible prejudice to the Respondent to the appeal.

[7] The AAT also referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 with approval. The principles to be applied in the exercise of the discretion which were summarised by Wilcox in Hunter Valley Developments were also applied in Goldie and Minister for Immigration and Multicultural Affairs [2001] AATA 513. Those principles relevantly are :-
Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.

It is relevant whether the Appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

Any prejudice to the Respondent that would be caused by granting an extension of time is relevant.

The merits of the appeal are relevant.

Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

To the last-mentioned principle may be added general considerations of fairness and equity: Hunter Valley Developments, Maric v Comcare (1993) 40 FCR 244 at 249.

Further to the provision of an explanation for the delay in lodging the appeal, an acceptable explanation will generally be expected in support of an application for extension of time, and a failure to provide such an explanation is also a relevant factor in the exercise of the discretion to extend the time: Comcare v A'Hearn (1993) 45 FCR 441 at 444."

16 The Applicants referred in particular to the decision of this Tribunal in Full. They did not cite the decision of this Tribunal in Doney v Chief Commissioner of State Revenue [2005 NSWADT 133; that letter decision was appealed and the appeal was heard by the Appeal Panel of this Tribunal in late 2005;the decision of the Appeal Panel was reserved and has not as yet been handed down.

17 The Applicants contended, as I have said that their circumstances accord with those of the applicant in Full. Mr Free referred to what he saw as features which might have the effect that Full is distinguishable. In Full, the applicant having become obliged to move to Canberra sold property in New South Wales. Certain difficulties resulted in the delay of that sale. In this case, the Applicants sold the Property at a time when they were living in it in order to move to another property in Sydney. It is neither necessary nor appropriate for me to comment on the decision in Doney given that a decision by the Appeal Panel is pending. Nor is it necessary for me to express a view as to whether the decision in Full is relevantly distinguishable as contended by the Respondent.

18 It is however my view that the Applicants would appear to have an arguable case. The facts in this case are at least comparable with those in Full.

19 It is my view also that the Applicants have furnished an acceptable reason for the delay or at least a part of the delay. The Applicants received advice from their solicitor that their prospects of success were poor. They received advice also that to seek review would be time-consuming and expensive. As to whether that advice was in all respects adequate is not a question which need concern this Tribunal. The Applicants complained that in disallowing the objection the Respondent did not furnish any specific reasons as to why the discretion would not be exercised; the Respondent after referring to the relevant statutory provisions said merely that there were not “special or extenuating circumstances”. (The Tribunal notes that the words “ special or extenuating circumstances” do not appear in the relevant statutory provision) The Respondent was not under any obligation to furnish specific reasons for its disallowance of the objection but the fact remains that the Applicants received little real guidance as to why the discretion contained in section 162B(4) of the Act was not available to them. The Respondent contended that the Applicants could easily have ascertained that they, the Applicants, need not be represented before the Tribunal and moreover that adverse costs orders in this Tribunal are rare. At the same time it is not unreasonable that the Applicants were deterred by the request of their own solicitor for an amount of $4000 and in advance, coupled with advice that they were unlikely to succeed. The Tribunal should in my view take into account the fact that the Applicants were lay persons receiving advice from their solicitor and to which they were entitled to have regard.

20 I do not think that it can be said that the Applicants rested on their rights. They were not, after receiving the legal advice to which I have referred inactive, in that they sought assistance from their Member of Parliament. There was, it is true, a period after that contact during which they did nothing presumably because they did not feel that there was anything they could do, and until they became aware of the decision in Full.

21 To grant an extension will not in my view result in prejudice to the Respondent; nor in my view would it create any inequity in relation to other taxpayers similarly placed. Although finality in respect of litigation is always desirable and although matters such as these should not in general terms be capable of being reopened at any time, the vendor duty provisions applied for a comparatively short period of time only, were amended during that time, before they were repealed, and gave rise to difficulties of interpretation.

22 It must be remembered also that a statutory provision in respect of the grant of an extension of time is a remediable provision which should not lightly be refused more particularly, as is the case here, where the Applicants have an arguable case. Lighthouse Philatelics Pty Limited v FC of T 91 ATC 4942 is authority for the proposition that a provision of this nature should be interpreted remedially and beneficially. Considering all of the relevant factors the Tribunal considers that it is fair that the Applicants have an opportunity to present their case.

23 In all the circumstances, the Tribunal grants an extension of time such that the application by the Applicants for review is to be treated as if it had been made within the statutory time period. The application is listed for directions on Tuesday, 7 February 2006 at 2p.m.