Hari Iyengar v Commissioner of Taxation

[2015] AATA 80

[2015] AATA 80

Division	TAXATION APPEALS DIVISION
File Number(s)	2014/6391, 6392
Hari Iyengar
APPLICANT
And	Commissioner of Taxation
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Dr James Popple, Senior Member
Date	16 February 2015
Date of written reasons	16 February 2015
Place	Canberra

The application to grant a stay order is refused.

............................[sgd]............................................

James Popple, Senior Member

CATCHWORDS

TAXATION AND REVENUE — income tax — reviewable objection decision — stay order sought — whether Tribunal has jurisdiction to issue a stay order for an objection decision — stay application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 41

Taxation Administration Act 1953 (Cth) ss 14ZQ, 14ZS and 14ZZB(1)(a)

REASONS FOR DECISION

James Popple, Senior Member

16 February 2015

Summary

1. I refuse the application for a stay order.  The Tribunal does not have the power to stay the decision under review.

   Background

2. On 10 October 2014, the Commissioner of Taxation sent a notice of objection decision to Mr Hari Iyengar.  Mr Iyengar had objected to a notice of amended assessment for the 2012 income year and a notice of assessment for the 2013 income year issued to him, and to an administrative penalty imposed upon him in relation to the 2013 income year.  The Commissioner disallowed Mr Iyengar’s objection.

3. On 11 December 2014, Mr Iyengar applied under s 14ZZ of the Taxation Administration Act 1953 (the TA Act) and s 29(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for review of the Commissioner’s objection decision. He also sought an order under s 41 of the AAT Act, staying the operation or implementation of the decision.

   Can the Tribunal make a stay order?

4. Section 41(2) of the AAT Act provides that the Tribunal can make an order “staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates”. But s 14ZZB(1)(a) of the TA Act provides that s 41 of the AAT Act does not apply in relation to a “reviewable objection decision”. Section 14ZQ of the TA Act defines “reviewable objection decision” to mean “an objection decision that is not an ineligible income tax remission decision”. Section 14ZS of the TA Act sets out the circumstances in which an objection decision is an “ineligible income tax remission decision”. None of those circumstances applies to the objection decision in this review.

5. The objection decision in this review is a “reviewable objection decision” for the purposes of s 14ZZB of the TA Act. Section 41 of the AAT Act does not apply to that decision. The Tribunal cannot make the stay order that Mr Iyengar seeks. I must refuse his application for a stay of the Commissioner’s objection decision.

I certify that the preceding 5 (five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

...............................[sgd].........................................

Associate

Dated 16 February 2015

Date(s) of hearing	16 February 2015
Applicant	In person
Counsel for the Respondent	Ms Katherine French