HAGAN & the COMMISSIONER for AUSTRALIAN CAPITAL REVENUE (Administrative Review)

[2011] ACAT 4

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DAVID AND JANE HAGAN v THE COMMISSIONER FOR AUSTRALIAN

CAPITAL REVENUE (Administrative Review) [2010] ACAT 4

AT 4 of 2010

Catchwords:             ADMINISTRATIVE REVIEW– stamp duty – Home Buyer Concession (HBC) scheme – time limit for making HBC application – discretion to extend the time limit for making HBC application – is a HBC application a “return” within the meaning of s40 of the Taxation Administration Act 1999 (TAA) – meaning of “unduly onerous” under s40 of the TAA – could conversation with an officer be representation by the Revenue Office? – estoppel by representation – is the Commissioner’s determination reviewable by the ACAT (i.e a determination of an objection to “assessment”) or not reviewable ( i.e. a decision to vary the time period for making a return) – standard of proof in relation to failure to meet deadline.

List of legislation:     ACT Civil and Administrative Tribunal Act 2008, s.68

Duties Act 1999, ss.11 and 16

Taxation Administration Act 1999, ss.40, 107A and 108A, Pt3, Pt 6 and Schedules 1 and 2

List of Regulations:  Taxation Administration (Amounts Payable—Eligibility—Homebuyer Concession Scheme) Determination 2008 (No. 2) (Disallowable instrument DI2008—286), ss.4 and 7

Revenue Circular DAA012 dated 6 May 2010 issued by the Commissioner for ACT Revenue
[ align="left">List of cases:             A-G (NSW) v Quin (1990) 170 CLR 1

Byrne v Commissioner of ACT Revenue (2010) ACAT 9

Fitzpatrick and Commissioner ACT Revenue

[2008] ACATAAT 21

Minister of Immigration v Kurtovic (1990) 92 ALR 93

Tribunal:                  Professor Peta Spender, Presidential Member

Date of Order:  28 February 2011
Date of Reasons for Decision:         28 February 2011

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 4 of 2010

BETWEEN:

DAVID AND JANE HAGAN

Applicants

AND:

THE COMMISSIONER FOR AUSTRALIAN CAPITAL REVENUE

Respondent

TRIBUNAL:            Professor Peta Spender
  Presidential Member

DATE:  28 February 2011

ORDER

1. The decision of the Respondent of 5 January 2010 is set aside.

1. The matter is remitted to the Respondent for reconsideration by the Commissioner for Australian Capital Territory Revenue in accordance with section 40(3) of the Taxation Administration Act 1999 (ACT).

………………………………..

Professor Peta Spender

Presidential Member

REASONS FOR DECISION

THE APPLICATION

1. Jane and David Hagan ("the Applicants") have sought review of a decision made by the ACT Revenue Office ("the Respondent") on 5 January 2010 to disallow the objection made by the Applicants on 30 October 2009, thereby obliging them to pay $4800 stamp duty on the transfer of an interest in the property situated at Block 3 Section 207 Wanniassa.  The Respondent had disallowed an application made by the Applicants for a Home Buyer Concession ("HBC") filed with the Respondent on 27 July 2009.

BACKGROUND TO THE PROCEEDINGS

2. On 10 February 2009 the Applicant Mrs Jane Hagan and her sister were beneficiaries of their mother’s estate and were each awarded a 50% share of property situated at Block 3 Section 207 Wanniassa.  It was agreed by the Applicants that they would enter into a contract to buy Mrs Hagan's sister’s 50% share of the property and a Deed of Family Arrangement to effect this transfer was executed on 24 April 2009.

3. The Respondent issued a notice of assessment on 18 June 2009.  This was sent to the Applicants' solicitor, Slater & Gordon, and stated that the Applicants were to pay duty in the amount of $4800.  Thereafter, the Applicants signed and lodged an HBC application with the Respondent on 27 July 2009.  The Respondent replied to the Applicants' HBC application on 10 August 2009, advising that the application was not allowed as it had been received outside the permitted time limit of 90 days.[1]  This letter states as follows:

[1] T 48

Unfortunately, there is no power to provide a duty concession under the Home Buyer Concession Scheme as you have failed to meet the time for application and there is no discretion in the legislation to extend this time period.  I am returning your application as it cannot be processed.[2]

[2] T 48

4. It was asserted by the Respondent that the permitted time period expired on
   23 July 2009 and therefore the application was 2 working days late.  On
   15 September 2009, the Respondent received a letter from the Applicants' solicitor requesting an extension of time to lodge the HBC application but the Respondent indicated in its reply of 29 October 2009 that the application could not be accepted because it was out of time and there is no discretion in the legislation to allow a late application for an HBC.  In particular, this letter from the Respondent stated as follows:

I can only reiterate that there is no discretion in the legislation to accept a late application. This applies to all late lodgements, no matter how soon after the cut off date it is lodged, and there is no power to accept a late application. This is fully supported by the Administrative Appeals Tribunal decision in Fitzpatrick and Commissioner for ACT Revenue [2008] ACTAAT 21 (12 August 2008).[3]

[3] T 50

5. On 30 October 2009, the Applicants objected to the notice of assessment and in particular objected to the rejection of the HBC application.[4]  The objection was disallowed by the Respondent on the basis that the Applicants' HBC application was received outside the maximum 90 days as required by the relevant instrument.  On 5 January 2010, the disallowance of the objection was communicated to the Applicants[5] and a Reasons Statement[6] (“the Reasons Statement”) was provided.  After the Applicants requested a reasons statement by email on 31 January 2010,[7] a further copy of the Reasons Statement was provided by the Respondent to the Applicants on 1 February 2010.[8]  On page 5 of the Reasons Statement, the Respondent stated as follows:

[4] T 51

[5] T 55

[6] T 2 (T 17-T 22)

[7] T 57 – T 58

[8] T 10 - T 22

Unfortunately, the Commissioner has no discretionary power to extend the time period allowed to apply for HBC, under the Instrument.[9]

[9] T 25

6. On 16 March 2010, the ACT Civil and Administrative Tribunal ("ACAT") handed down its decision Byrne v Commissioner of ACT Revenue[10] ("Byrne”), which found that an HBC application constitutes a “return” under Part 6 of the Taxation Administration Act 1999 (“TAA”). As a consequence of this interpretation of the word "return", the Respondent has power under section 40(3) of the TAA to vary the period in relation to which an applicant is to lodge a return, if satisfied that it would be unduly onerous for the person to lodge a return in accordance with a tax law.

[10] (2010) ACAT 9

7. As stated above, the Respondent did not contemplate this interpretation of "return", nor did the Respondent turn its mind to the application of section 40(3) of the TAA. The consequences of this will be elaborated below.

THE PARTIES’ CONTENTIONS

The Applicants’ Contentions

1. The Applicants contended that the Applicant Mrs Hagan had a conversation with an officer of the Respondent in April or May 2009.  This conversation, which was described by the Applicants as confusing and unclear, left Mrs Hagan with the understanding that the Applicants had 90 days from the date of settlement (26 June 2009)[11] rather than the date of the Deed of Family Arrangement (24 April 2009) within which the HBC application could be lodged.  The Applicants also argued that they relied to some extent on the solicitors that were acting for them on the administration of the estate and there were complications with the process, such as lost title deeds.  On their understanding of the timeframe, they believed that they were almost 2 months ahead of the cut off date when the HBC application was lodged on 27 July 2009.  The Applicants also considered that the intent of the HBC scheme was to assist low income earners in the purchase of a home and fairness dictated that the Respondent take their circumstances into account.

   [11] T 27

The Respondent’s Contentions

9. In its Facts and Contentions filed on 1 July 2010, the Respondent argued that pursuant to section 68(2) of the ACT Civil and Administrative Tribunal Act 2008 ("the ACAT Act"), ACAT has discretion to extend time for lodgement of an application for the HBC pursuant to section 40(3) of the TAA. This discretion dependent upon whether or not ACAT was satisfied that it would be "unduly onerous" for the taxpayer to have to comply with the relevant time period allowed for lodgement of an HBC application, in this case 90 days from the date of the Deed of Family Arrangement. The Respondent argued that the facts established that it was not unduly onerous for the Applicants to comply with a 90 day time frame. The Respondent contended that the relevant facts establishing that it was not unduly onerous for the Applicants to lodge the HBC application within 90 days of 24 April 2009 were, inter alia, that the Respondent's website contains a statement about the correct time period for the lodging a HBC application[12]and that the Applicants had access to legal advice from solicitors who were acting for them in relation to a share of the property left by a deceased relative.

[12] T 12

10. The Respondent argued that it was inappropriate for the Applicants to rely upon the "impression" gained from a conversation that had been described as "confusing and unclear" about the time period for HBC applications.  Although the Respondent did not concede that a representation about the time period for lodgement of the HBC applications had been made in the telephone conversation, it noted the general principle that an estoppel by representation cannot fetter or compel the exercise of a statutory discretion.[13]

[13] A-G (NSW) v Quin (1990) 170 CLR 1, 17; Minister of Immigration v Kurtovic (1990) 92 ALR 93, 111

11. The Respondent argued that the Tribunal, standing in the shoes of the decision maker, could exercise the power under section 40(3) of the TAA to vary the time limit but it must be satisfied that lodging an HBC application within the 90 day time period would have been "unduly onerous" and in doing so, the Tribunal was obliged to consider the statement of policy in relation to extensions of time period set out in Revenue Circular DAA012 ("the circular"). As will be discussed below, the circular requires that any incorrect advice that is alleged to have been relied upon by a taxpayer must be in writing before it can be taken into account as part of the "unduly onerous" criterion.

The Hearing

12. The parties attended to various interlocutory steps in relation to this matter.  The matter was originally set down to hearing on 24 June 2010 but this was rescheduled to 30 July 2010 after the parties had, by consent, adjourned a mediation.  At the final directions hearing on 15 July 2010, the Tribunal raised a question about a jurisdictional issue.  This will be discussed below.  It was determined that the hearing on 30 July 2010 would be an interlocutory hearing to decide jurisdiction and if the Tribunal found that it had jurisdiction, a final hearing could be rescheduled in consultation with all parties concerned.

13. At the hearing on 30 July 2010, the Tribunal had before it the tribunal documents filed by the Respondent on 22 February 2010, facts and contentions filed by the Applicants and Respondent on the substantive issues dated 11 June 2010 and 1 July 2010 respectively and the Applicants' and Respondent's facts and contentions on the jurisdictional issue filed on 21 July 2010 and 26 July 2010 respectively.  At the hearing, the Applicants were represented by Mr David Hagan and the Respondent was represented by Dr Jarvis of counsel.

CONSIDERATION OF THE ISSUES

The Legal Framework

14. The Homebuyer Concession Scheme ("HBCS") was established by the Taxation Administration (Amounts Payable—Eligibility—Homebuyer Concession Scheme) Determination 2008 (No. 2) ("the Determination")[14].  Section 7 of the Determination states as follows:

[14] Disallowable instrument DI2008—286

7 Time Limit for Application

(1) An application for concessional duty under the Home Buyer Concession Scheme must be received by the Commissioner by the date the duty must be paid or within 1 year, whichever is earlier.

(2) An application must be received by the Commissioner within 90 days of the grant, transfer or agreement for transfer of a lease, whichever is earlier.

15.The time limit is emphasised by section 4(4) of the Determination, as stated hereafter:

4 Definitions

In this instrument: …

(4) Date the duty must be paid is within:

(a) a period of 90 days after the liability to pay the duty arises (section 16 of the Act); or

(b) for an Off the Plan Purchase Agreement—a period of up to 1 year plus 14 days; or

(c) for a Declared Affordable House and Land Package (section 16A of the Act)—a period of up to 2 years plus 14 days.

16.In the present case, the time limit is 90 days due to the operation of sections 11 and 16 of the Duties Act 1999 ("the Duties Act").  Dealing with section 16 first, it states:

16 When must duty be paid?

A tax default does not happen for the Taxation Administration Act if duty is paid within 90 days after the liability to pay it arises.

17. Whereas section 11 of the Duties Act provides that:

11 When does a liability for duty arise?

(1) A liability for duty charged by this chapter arises when a transfer of dutiable property occurs.

(2) However, if a transfer of dutiable property is effected by an instrument, liability for duty charged by this chapter arises when the instrument is first executed.

18. Section 243 of the Duties Act nominates the time that an instrument is first executed as "the first time that it is signed and sealed, or signed (as the case may be) by any party to it."

19. The legislative provisions set out above establish that the HBC application must be lodged within the time that the duty is payable and the duty was payable in this case within 90 days of the execution of the Deed of Family Arrangement on 24 April 2009.  Consequently, the HBC application needed to be lodged by 23 July 2009 to fall within the time limits required under the Determination.

20. At the time that the Respondent made the reviewable decision, the prevailing view was that there was no discretion in the Respondent to extend time within which the HBC application could be lodged because there was no express statutory permission to do so.  This view was expressed by President Peedom in Fitzpatrick and Commissioner ACT Revenue.[15] However, it was held by Senior Member O'Neil in Byrne[16] that section 40(3) of the TAA operates to confer a discretion upon the commissioner to vary the period within which an HBC application may be lodged because an HBC application comes within the meaning of the term “return” in the dictionary of the TAA. Therefore, an HBC application falls within the reference to "return" in section 40(3) of the TAA.

[15] [2008] ACATAAT 21

[16] [2010] ACAT 9

21. For ease of reference, the definition of “return” in the Dictionary of the TAA is set out below:

return means a return, statement, application, report or other record that—

(a) is required or authorised under a tax law to be lodged by a person with the commissioner or a specified person; and

(b) is liable to tax or records matters in relation to which there is or may be a tax liability

22. Further, section 40 of the TAA states in part:

40 Variation of time for lodgment of return or of period covered by return

(1) A person may apply to the commissioner to—

(a) extend the time by which a return must be lodged; or

(b) vary the period to which the return is to relate.

(2) An application shall—

(a) be in writing, addressed to the commissioner; and

(b) specify—

(i) the name and address of the applicant; and

(ii) the grounds on which the variation is sought.

(3) If the commissioner is satisfied that it would be unduly onerous for a person to lodge a return in accordance with a tax law, the commissioner may, by written notice addressed to the applicant, vary the period in relation to which, or the time within which, the applicant is to lodge the return.

Does the Tribunal have jurisdiction?

23. Section 108A of the TAA states that the taxpayer to whom a reviewable decision is made may apply to the ACAT for a review of the decision. The meaning of "reviewable decision" is expanded by section 107A of the TAA. This section provides:

107A Meaning of reviewable decision etc—div 10.2

(1) For this division, a reviewable decision is a determination by the commissioner of an objection by the taxpayer to—

(a) an assessment; or

(b) a decision mentioned in schedule 1, section 1.2; or

(c) a decision under a tax law that is prescribed under the law for this section.

(2) For the ACT Civil and Administrative Tribunal Act 2008, section 9

(Applications under authorising laws), the tax laws are taken to be a

single authorising law.

24.In this case, section 107A of the TAA gives rise to two independent sources of the power to engage in merits review i.e. where there has been a reviewable decision in the form of a determination by the commissioner of an objection of the taxpayer to an assessment (section 107A(1)(a)) and, separately, where there has been a determination by the commissioner of an objection to a decision mentioned in schedule 1, section 1.2 (section 107A(1)(b)). Importantly, a decision under section 40(3)–where there has been a refusal to vary the periods to which a return relates–does not fall within section 107A(1)(b) because it is not listed in schedule 1 section 1.2. Rather it is a decision which is reviewable by the commissioner only and therefore listed under schedule 2, section 2.2. Prima facie, this would mean that ACAT has no jurisdiction to review a decision to refuse to vary the periods to which a return relates under section 40(3) of the TAA.

25.However, a proper inquiry into ACAT’s jurisdiction would also examine whether the decision of the Respondent in this case falls within section 107A(1)(a) where there has been a determination by the commissioner of an objection of the taxpayer to an assessment. In the Dictionary of the TAA, "assessment" means—

(a) an assessment, reassessment or compromise assessment of the tax liability of a person under a tax law, made by the commissioner under part 3; or

(b) an assessment substituted by the ACAT on review under part 10.          

26.The original assessment of the Applicants’ liability to pay stamp duty was made by the commissioner under part 3 of the TAA on 18 June 2009.[17] This falls within the definition of “assessment” in the Dictionary of the TAA.

[17] T 25

27. The next question is whether the Applicants objected to the assessment.  It was argued by the Respondent at the hearing that the Tribunal must be satisfied as a matter of fact that the Applicants had filed an objection to the commissioner’s assessment referred to above.  The Tribunal finds that the Applicants did make an objection to the assessment.  This is evidenced by various communications between the Applicants and the Respondent, for example the notice of assessment dated 18 June 2009,[18] the letter from the Respondent dated 10 August 2009 which returned the Applicants’ application on the ground that it "cannot be processed";[19] the letter from solicitors acting for the Applicants dated 14 September 2009 requesting an extension of time; [20] the letter of the Respondent to the solicitors acting for the Applicants dated 29 October 2009 stating that there is no discretion of the legislation to accept a late application[21] and the letter from the Applicants to the Respondent dated 29 October 2009 where the Applicants state in the first sentence:

[18] T 25

[19] T 48

[20] T 49

[21] T 50

"We hereby lodge a formal objection to the rejection of our refund application".[22]

[22] T 51 - T 52

28.The latter-mentioned letter states the reference of L76154 A258509,[23] which is the same reference used in the notice of assessment.[24]  This letter contains a notation that appears to have been made by the Respondent, as follows:

[23] T 51

[24] T 25

OBJ

RECEIVED

30 OCT 2009

, which is further evidence of the letter of being treated by the Respondent as an objection to the assessment of stamp duty.  This is substantiated by receipt number 00255235, which states that $64 was received from HAGAN “being SD&T Objection”.[25]  Similarly, a letter from the Respondent dated 30 October 2009 refers to the Applicants' "objection" and has the following notation at the top of the letter:

[25] T 53

HBC /OBJ 2531[26]

[26] T 54

29. The Tribunal concludes that it has jurisdiction to review the reviewable decision made by the Respondent and communicated by letter on 5 January 2010. The reviewable decision was a determination of the commissioner to disallow the Applicants’ objection to an assessment pursuant to section 107A(1)(a)), rather than a refusal to vary time under section 40(3) of the TAA.

30.The identification of the reviewable decision as a determination of an objection to assessment rather than a refusal to vary time is also evidenced by the communications of the Respondent. For example, there are no references to section 40 of the TAA in the Respondent's letters or Statements of Reasons and, as discussed above, the Respondent stated on several occasions that it did not have discretion to vary the period within which the HBC application was required to be lodged. Similarly, until the decision in Byrne there was no reference in the Respondent's reasoning to the "unduly onerous" test in section 40(3) of the TAA.

31. For the reasons given above, the Tribunal concludes it has jurisdiction in this matter pursuant to section 107A(1)(a) of the TAA.

32.It was further argued by Dr Jarvis on behalf of the Respondent at the hearing that the combination of section 107A(1)(a) of the TAA and section 68(2) of the ACAT Act could confer upon the Tribunal the power to vary the time under section 40(3) of the TAA. Dr Jarvis argued that pursuant to section 68(2) of the ACAT Act, the Tribunal could stand in the shoes of the commissioner and exercise the commissioner's discretion under section 40 (3) of the TAA to decide whether it be unduly onerous for the Applicants to have lodged the HBC application in accordance with the tax laws. Section 68(2) states that:

[t]he tribunal may exercise any function given by an Act to the entity for making the decision.

33. This strategy was referred to as an "indirect route" by which the Tribunal might have power to extend time within which an HBC application could be lodged.

34.As elaborated above, in its facts and contentions and at the hearing, the Respondent argued that it was clear from material provided by the Applicants that it would not have been unduly onerous for them to have lodged the HBC application within time.

35.The Tribunal has carefully considered the submissions made by the Respondent regarding the operation of section 68(2) of the ACAT Act and recognises that there may be some practical utility in taking an expansive interpretation of section 68(2) of the ACAT Act in order to deal with this matter expeditiously. However to do so in this case may subvert the clear intention expressed by the legislature in schedules 1 and 2 of the TAA that certain reviewable decisions are reviewable by ACAT and others are reviewable by the Commissioner alone. Adopting this approach may amount to a de facto exercise of the powers to review a reviewable decision made under section 40(3) of the TAA, when other provisions (particularly section 107A, schedules 1 and 2 of the TAA) make it clear that this jurisdiction is exercisable by the commissioner only. As stated by Senior Member O'Neil in Byrne "a decision under section 40(3) is not reviewable by the Tribunal."[27]

[27] Byrne v Commissioner of ACT Revenue [2010] ACAT 9 at [18]

36. The Tribunal prefers an approach which remits the application for review for reconsideration by the Commissioner pursuant to section 68 (2)(c)(ii).  Such an approach allows for reconsideration by the decision maker who clearly has authority to review the decision under the legislation.

37.During the hearing, Dr Jarvis agreed that this may be an appropriate case to remit a matter for reconsideration because it may be regarded as falling within the category where matters are remitted because there has been a mistake of law by the original decision-maker. It is unnecessary for the Tribunal to conclude that mistake of law has been made this case. The Tribunal prefers an interpretation that will allow the Respondent to exercise its powers under section 40(3) of the TAA in the light of the Byrne decision.  It will also allow the Respondent to engage in any further fact-finding that may be necessary to make the determination as to whether it would have been "unduly onerous" to the Applicants to have lodged the HBC application within time.

38.At this stage, it is not necessary for the Tribunal to consider the Applicants' contentions about the alleged incorrect advice given to Mrs Hagan by an officer of the Respondent during the telephone conversations of April or May 2009.  However it is clear that any wrong advice from a staff member of the Respondent is unlikely give rise to an estoppel against the clear terms of the legislation.[28]

[28] Minister for Immigration v Kurtovic (1990) 92 ALR 93

39.It is to be noted that the orders made on 15 July 2010 contemplated that the Tribunal would hold a final hearing if it found it had jurisdiction. The reasoning above indicates that the Tribunal found that it has jurisdiction, but it has chosen to exercise the jurisdiction and the power conferred upon it under section 68(3)(c) of the ACAT Act to set aside the decision and remit the matter for reconsideration by the decision-maker. Due to the nature of these orders, there is no practical utility in holding a further final hearing. This outcome was raised with the parties during the hearing held on 30 July 2010.

Order and recommendation

40.As discussed above, the appropriate course is to remit the matter for reconsideration to the Respondent to exercise its discretion under section 40(3) of the TAA. In doing so, the Tribunal recommends, pursuant to section 68 (3)(c)(ii) of the ACAT Act, that the Respondent re-examine part of the table in paragraph 15 on page 2 of the circular The relevant portion of the circular states as follows (italicised emphasis added):

“15.     The following table is indicative of what circumstances may or may not be considered unduly onerous for the taxpayer to meet the statutory or required application period:

May be unduly onerous – must be documented

Not unduly onerous

Exceptional circumstances existed in the time period that the application was required to be lodged;  things out of the taxpayer’s control, that prevented the taxpayer from reasonably being able to comply with the application period:

-   grave personal tragedy (eg death in the family)

-   severe illness, injury or harm to taxpayer or immediate family

-   severe disaster (personal/natural)

Where the taxpayer (or its agent) took all possible measures that it could reasonably be expected to take in the circumstances in order to meet the application period, but it failed to meet the deadline nonetheless (i.e. there is nothing else that could have been done to meet the deadline).

The taxpayer proves, beyond reasonable doubt, that it failed to meet the deadline because it received incorrect advice in writing from the ACT Revenue Office.

The taxpayer (or its agent):

-   was not aware the application period existed, or didn’t understand the law;

-   made no apparent effort or attempt to comply with the application period;

-   provides/has no reason for not meeting the application period, or doesn’t provide sufficient proof of its reasons; 

-   could have reasonably been expected to comply with the application period;

-   was waiting to obtain supporting documentation (taxpayer must lodge application on time with reasons why required documents are missing, or provide a statutory declaration stating why documents are not available);

-   attributes failure to meet application period to someone else, but could reasonably have taken action themselves to rectify the failure; or

-   found it inconvenient to lodge in time.

41. In relation to the italicised portion of the table in paragraph 15, the Tribunal considers that may be inappropriate to require a taxpayer to prove beyond reasonable doubt that he or she failed to meet the deadline because of incorrect advice in writing from the ACAT Revenue Office. Although it is prudent to assess allegations that a taxpayer received incorrect advice from the ACT Revenue Office carefully, the Respondent conceded that imposing the criminal standard of proof in this context is questionable and "excessively enthusiastic". It was also conceded that a standard of proof was not, to the knowledge of the Respondent, stipulated in the TAA or the Duties Act when the commissioner is exercising his or her powers under those Acts. At its worst, the requirement might deprive the taxpayer of procedural fairness by imposing a criminal standard of proof in a context which, if a probative standard were to apply at all, would use the civil standard of balance of probabilities. The Tribunal therefore recommends, pursuant to section 68(3)(c)(ii) of the ACAT Act, that that the wording of this part of the circular be re-examined.

………………………………..

Professor Peta Spender

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:                DAVID AND JANE HAGAN          

RESPONDENT:            THE COMMISSIONER FOR AUSTRALIAN CAPITAL REVENUE

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      Dr D Jarvis

SOLICITORS:  APPLICANT:  Mr David Hagan

RESPONDENT: ACT Government Solicitor

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER: Professor Peta Spender, Presidential Member

DATE/S OF HEARING:          15 and 30 July 2010    PLACE: CANBERRA

DATE/S OF DECISION:          28 February 2011       PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: