Iskenderian and Secretary, Department of Social Services (Social services second review)

[2016] AATA 717

Iskenderian and Secretary, Department of Social Services (Social services second review) [2016] AATA 717 (16 September 2016)

Division	GENERAL DIVISION
File Number	2016/1253
Re	Alina Iskenderian
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	16 September 2016
Place	Perth

The Tribunal affirms the decision under review.

.........[Sgd]...............................................................

Senior Member CR Walsh

CATCHWORDS

FAMILY TAX BENEFIT (FTB) – whether the applicant was entitled to a reconciled amount of FTB for the 2012/2013 financial year – failure by the applicant and her partner to lodge their income tax returns for the 2012/2013 financial year by 30 June 2014 – no “special circumstances” prevented this from happening  - decision under review affirmed

LEGISLATION

Acts Interpretation Act 1901 – s 29

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance) (Administration) Act 1999- s 32A – s 32B – s 32C – s 107

Evidence Act 1995 – s 160

Family Assistance and Other Legislation Amendment Act 2013

Social Services and Other Legislation Amendment Act 2014 – s 26(1) – s 26(2)

CASES

Andre and Secretary, Department of Social Services [2016] AATA 205

Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25

Beadle and Director General of Social Security (1985) 60 ALR 225

Dann and Secretary, Department of Social Services [2016] AATA 196

Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114; (2007) 94 ALD 693

Dobson and Secretary, Department of Social Services [2015] AATA 892

Dranichnikov v Centrelink [2003] 75 ALD 134

Elrington and Secretary, Department of Social Services [2016] AATA 169

Fedigan and Secretary, Department of Social Services [2016] AATA 211

Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2010) 185 FCR 52

Groth and Secretary, Department of Social Security (1995) 40 ALD 541

Hambrook and Secretary, Department of Social Services [2016] AATA 424

Hollis and Secretary, Department of Social Services [2015] AATA 941

Hooker and Secretary, Department of Social Services [2015] AATA 732

Lineham and Secretary, Department of Social Services [2016] AATA 127

Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Ivocic and Director General of Social Services [1981] AATA 57

Secretary, Department of Social Services and Cannon [2015] AATA 1028

Secretary, Department of Social Services and Field [2015] AATA 903

Secretary, Department of Social Services v McNamara [2016] AATA 689

Secretary, Department of Social Services v Shanhun [2016] AATA 675

Woodward and Department of Family and Community Services [2001] AATA 818

SECONDARY MATERIALS

Family Assistance Guide – s 6.4.3

REASONS FOR DECISION

Senior Member CR Walsh

16 September 2016

INTRODUCTION

1. This application concerns whether Ms Iskenderian is entitled to a reconciled amount of Family Tax Benefit (FTB) for the 2012/2013 financial year (totalling $5,900.36). This turns on whether there were “special circumstances” which prevented Ms Iskenderian and her partner from lodging their income tax returns for the year ended 30 June 2013 by 30 June 2014, as required by s 32C of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).

   FACTUAL & PROCEDURAL BACKGROUND

2. Ms Iskenderian received FTB payments during the 2012/2013 financial year totalling $1,412.48.

3. On 14 February 2014, the Department of Human Services (the Department) sent Ms Iskenderian a letter advising her of the changes to family assistance payments, as follows:

   In the May 2013 Federal Budget, changes were announced that reduce the period of time that families have to claim and/or provide information for family assistance payments.  From the 2012-13 financial year onwards, you now have one year instead of two years to:  submit a lump sum claim for Family Tax Benefit, and/or Child Care Benefit confirm your income for Family Tax benefit  - this means that you and your partner (if you have one) need to lodge your tax return/s with the Australian Taxation Office, or tell us that you do not need to lodge a tax return, and ensure that your child/ren has/have met any immunisation or health check requirements for the relevant financial years.  You will also have one year instead of two years to submit a claim and confirm your income for payment of the Single Income Family Supplement.  It is important that you are aware of the reduced period of time so that you do not miss out on your full entitlements, including Family Tax Benefit supplements and the Child Care Rebate.  What you need to do if you have not already claimed family assistance payments for the 2012-2013 financial year, and you intend to do so, you will need to submit a claim and confirm your income by 30 June 2014.

4. On 20 March 2014, the Department sent Ms Iskenderian a letter advising her of the following:

   Now you have only one year instead of two years to lodge a tax return, or to tell us if you and/or your partner are not required to lodge a tax return in order to receive your full Family Tax benefit entitlements…To make sure you receive your full Family Tax Benefit entitlement, you and your partner need to lodge a 2012-2013 tax return, or tell us if you/and your partner are not required to lodge a tax return, by 30 June 2014.  There are benefits to lodging your 2012-2013 tax return or telling us if you are not required to lodge a tax return before 30 June 2014.  These include:  Top up payment – if you were underpaid Family Tax Benefit, you may receive any payment owing as a lump sum.  Family Tax benefit supplements – depending on your circumstances, you may be entitled to an additional lump sum Family Tax Benefit after the end of the financial year…

   …

   If you and your partner do not take action by 30 June 2014 if you and your partner have not lodged a tax return or you have not advised us that you and your partner are not required to lodge tax return/s by 30 June 2014: you will not be eligible for any further Family Tax benefit, including the Family Tax Benefit supplements, for the 2012-2013 financial year you will have to pay back all of the Family Tax Benefit you received for the 2012-2013 financial year, and you will no longer be able to receive Family Tax Benefit payments fortnightly.

5. On 1 May 2015, Ms Iskenderian and her partner lodged their respective income tax returns for the 2012/2013 financial year.  They were required to do this by 30 June 2014.

6. On 5 May 2015, the Department sent a letter to Ms Iskenderian advising her that the balance of the FTB paid previously was based on an estimated family income and the department had checked the entitlement using actual family income and determined that the Applicant was entitled to a top up payment of FTB (totalling $561.66).

7. The 5 May 2015 letter also noted that Ms Iskenderian was not entitled to a FTB supplement and top up amount (i.e. reconciled amount) of $5,900.36, which had been deducted as an adjustment.  This was because Ms Iskenderian and her partner had not filed their income tax returns for the 2012/2013 financial year by 30 June 2014.

8. On 6 October 2015, the Department made a decision that Ms Iskenderian was not entitled to any FTB top up or supplement in respect of the 2012/2013 financial year as she had not met the reconciliation conditions in the Administration Act as a result of the late lodgement of her and her partner’s income tax returns for the 2012/2013 financial year (the Original Decision).

9. On 7 October 2015, Ms Iskenderian contacted the Department requesting a review of the Original Decision on the basis that she was not informed by Centrelink, the Australian Taxation Office (the ATO) or her accountant that she was required to lodge her and her partner’s 2012/2013 tax returns by 30 June 2014.

10. On 8 October 2015, Ms Iskenderian requested for an extension of time to lodge her claim for FTB for the 2014 income year because of “Illness/caring responsibility”.

11. On 11 November 2015, a Centrelink Authorised Review Officer (ARO) affirmed the Original Decision (the ARO Decision).

12. Ms Iskenderian subsequently applied to the Social Services and Child Support Division of the Tribunal (the AAT1) for a review of the ARO Decision.

13. On 1 February 2016, the AAT1 affirmed the ARO Decision. In summary, the AAT1 found that:  (i) Ms Iskenderian’s lack of awareness of the changed law did not amount to “special circumstances”; and (ii) Ms Iskenderian’s family circumstances at the time did not amount to “special circumstances” as they were “not unusual or out of the ordinary” (the AAT1 Decision).

14. On 2 March 2016, Ms Iskenderian applied to this Tribunal for a review of the AAT1 Decision.  Ms Iskenderian’s stated “Reasons for the Application” are as follows:

    The main reason for making this application is based on the clause ‘special circumstances’.  So far we have had two reviews.  One by someone I’ve never met or spoke to before she made her decision and one impartial but somewhat not understanding of our particular situation at the time that the tax was due.  We feel that a cholic (sic.) baby, post natal depression and subsequent potential autism in our second baby is most certainly ‘special circumstance’.  The second review was decided upon by a lady with no children.  Even I wouldn’t have understood the impact of such circumstances if I had no children or in fact knew of the impact these events would have on a young family.  We are utterly appauled (sic.) that these circumstances have been played down.  They are most certainly ‘special circumstances’.  When you are living that life.  Everything got behind during that period.

    CONSIDERATION

    (i)Was Ms Iskenderian entitled to a reconciled amount of FTB for the 2012/2013 financial year?

15. Section 32A of the Administration Act provides that the FTB Part A and Part B supplements are to be disregarded in making or varying a determination regarding an individual’s entitlement to be paid FTB at a particular rate in a particular income year unless and until that individual has satisfied the FTB reconciliation conditions.

16. Section 32B of the Administration Act provides that if only one of the reconciliation provisions in the Administration Act applies to an individual, that individual satisfies the FTB reconciliation conditions at the relevant reconciliation time as contained in the provision they satisfy.

17. It is not in dispute that s 32C of the Administration Act is the relevant reconciliation provision in Ms Iskenderian’s case. Section 32C provides that if an individual is a member of a couple and both the individual and their partner were required to lodge a tax return (as is the case here), both must lodge their tax returns within the first income year after the relevant income year,[1]  unless the Secretary (and in turn the Tribunal) is satisfied that there are “special circumstances” that prevented the individual and their partner from lodging the return before the end of that first income year. [2]

    [1] The changes to the time frames for the lodgement of tax returns were inserted into the Administration Act by the Family Assistance and Other Legislation Amendment Act 2013. The changes applied in relation to the 2012/2013 income year and later income years.

    [2] The reconciliation conditions contained in ss 32C–32H and s 107, as they currently appear in the Administration Act, were inserted by the Social Services and Other Legislation Amendment Act 2014 (the 2014 Amending Act). However, the application provisions for the 2014 Amending Act state that the changes to ss 32C-32H and s 107 of the Administration Act only apply in relation to the 2013/2014 income year or a later income year: see s 26(1) and (2) of the 2014 Amending Act.

18. Consequently, in order for the time for making a claim to be extended, the Secretary (and in turn the Tribunal) must be satisfied of two things:

    (i)that circumstances existed that were “special”; and

    (ii)those “special circumstances” prevented the claimant from making her claim within time:  Hooker and Secretary, Department of Social Services [2015] AATA 732 at [14] and [19] and Hollis and Secretary, Department of Social Services [2015] AATA 941 (Hollis) at [30]-[31].

19. It is not in dispute that Ms Iskenderian and her partner did not lodge their tax returns for the 2012/2013 financial year until 1 May 2015 (i.e. after 30 June 2014, as required by s 32C of the Administration Act).

20. What is in dispute is whether there were “special circumstances” which prevented Ms Iskenderian and her partner from lodging their 2012/2013 income tax returns by 30 June 2014. This issue is considered below.

    (ii)Were there “special circumstances” which prevented Ms Iskenderian from lodging her 2012/2013 income tax return by 30 June 2014?

21. The expression “special circumstances" is not defined in the A New Tax System (Family Assistance) Act 1999 or the Administration Act. However, the meaning of “special circumstances” has been considered extensively by the Federal Court and the Tribunal in the context of social security and family assistance law. In summary, it has been held that for circumstances to constitute “special circumstances” they must be circumstances which are “unusual, uncommon or exceptional,” “markedly different from the usual run of cases,” “special” or “out of the ordinary” and they include “events which would render the (strict application of the rule in question) unfair or inappropriate:” see for example, Re Ivocic and Director General of Social Services [1981] AATA 57 at [45]; Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 per Toohey J; Beadle and Director General of Social Security (1985) 60 ALR 225 at 228 as per Bowen CJ, Fisher and Lockhart JJ; Groth and Secretary, Department of Social Security (1995) 40 ALD 541 at 545 per Kiefel J; Dranichnikov v Centrelink [2003] 75 ALD 134 at [66] per Hill J; Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25 at [33] and Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114; (2007) 94 ALD 693 at [80]. Circumstances might be “special”, although they apply to more than one person or class of persons, provided they are not of universal application: see Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2010) 185 FCR 52 at [65]. Ultimately, whether circumstances answer any of these descriptions depends on the context in which they occur.

22. Ms Iskenderian filed with the Tribunal a document titled “Chronology of Special Circumstances”, dated 18 May 2016 (the Chronology of Special Circumstances).[3]

    [3] The Chronology of Special Circumstances was tendered as Exhibit 2 (Attachment A).

23. The Chronology of Special Circumstances states:

    Below is a chronology of personal events that have taken place in mine and my family’s life since the birth of my second child. The medical circumstances that prevailed at the time made, particularly my life and tasks impossible to sustain. I fell behind in everything to do with daily tasks. As mentioned in the previous hearing life was ‘muddled’ as I was suffering from p natal depression and dealing with colic baby. We feel that this was not explored or discussed or even taken seriously at the previous hearing. This may be due to the fact that I have tried to hide this fact due the associated stigma and embarrassment. I have recently looked further into PND due to having some similar but less severe feelings with my fourth child and this was picked up on at a pre natal and post natal level which was never done before. The issue keeps being reverted back to the fact that we didn’t receive a letter from FA or SS to inform that the time frame for making a claim had been reduced. This is true and we were unaware however there were far more pressing circumstances at the time which, no doubt, deemed us eligible for the amount of $5800 by FA/SS. My husband worked less and I gave up my work and business because of my pnd which I was dealing with, with no external family, friend or medical assistance. Both my tax agent and ato were informed that I was struggling with the mammoth task of out tax which ordinarily takes me around 6 weeks to put together. I believe my 11 12 taxes were also late and the penalties associated with 11 12 and 13 taxes were remitted for these reasons. Post natal depression is debilitating and...

    Ordinarily I function well and at a high standard of efficiency. During these years my circumstances were indeed ‘special’. This is a condition that should be taken seriously and we are confused that it seems to be being brushed aside.  The way it impacted on our family’s life is far beyond not getting tax completed on time but more the inability to function properly is very much a part of this condition. I can confidently comment on this because I have now had some counselling and reflecting during my counselling to know that and my condition is improved and certainly not at the severe level it was during those few years.

    Chorology

    27^th June 2008 our first child Ava Corke is born. It is difficult with a first baby but nothing more unusual than any other family experiencing first baby. It is new and mostly joy

    23^rd July 2010 second child Alice Corke is born.

    She cries all the time. It’s relentless and there hardly a moment of respite. She is a colic baby. I can’t put her down. I have no family or friends close enough to reach out to. One day blurs into the next. This continues over her first few years. I try to go to playgroup but I cannot put her down to even go to the bathroom. Nobody else can hold her as she screams so loud.  I stop going to the supermarket as she screams so loud that everyone is always looking at me and I run to parents rooms to cry. I have to do whatever I can manage, which is not a lot, whilst holding her. She doesn’t sleep for any length of time. I have post natal depression or stress but I am too embarrassed to get help. I am embarrassed as a professional to have psychiatric care on my record. I consider going to ngala but I refrain because I am embarrassed about the partially renovated and untidy condition of my home. I look into this and they check on your home life. I am too embarrassed to pursue this form of help. They don’t do questionnaire checks about your state of mind as they do now in hospitals whilst you are pregnant and post pregnancy. I am unable to perform daily tasks well. I organise what I can, being pretty much food and washing and not much else whilst carrying my daughter. I have a hump on back from all the carrying and had a lot of continual back, neck and shoulder pain not at all comparable to that of the normal nursing of a child as my previous daughter. I have been to see chiropractors and osteopaths for relief.

    Attachment: see letter from GP Dr Petersen. [Attachment omitted]

    My husband leaves work early and doesn’t go in as before. This is why our combined income is low during these years.  I have to leave my work eventually which I did two evenings a week. She screams with my husband the entire time I’m not there. I leave crying going to work every time. I also leave the Big Band I used to sing with when I had my first child and prior. My tax does not take 1 or two days or even weeks normally. When fed into my daily tasks previously my husbands and my tax would take up to 6 weeks if not longer to prepare even before I give it to the accountant.  All of my paperwork not to mention daily work falls extremely behind and is too overwhelming to catch up with or even look at. I am in a state of depression and I too am crying a lot and I am someone who rarely cries.

    When Alice is between 1-2 years old, she is still a screamer. The neighbours continually ask us to close our windows even in summer, we comply to keep peace. On top of this, she is not speaking or fulfilling any cues to allude to speech. She has had tonsillitis twice. Over the course of the following year we are becoming concerned and eventually we speak to our doctor who recognises that this needs to be followed up with audiology, speech therapy and autism checks. I am still in a state of depression or severe anxiousness. I am also pregnant with William.

    Attachments: audiology and speech therapy. [Attachment omitted]

    William Corke is born November 2012. I don’t feel that I am suffering a renewed or compounded round of post natal depression. He does not make me feel anxious. I am still very anxious and dedicated to Alice. William sleeps and has many of the normal cues as per first child Ava. During this year we are investigating issues with Alice and I spend a lot of time doing what the speech therapist has advised me to do. This is paramount in my life. At this stage there is no autism but there is no change in speech. She is still very difficult. Apart from nursing William I am still not functioning as before Alice and I am ridiculously behind in all paperwork. As explained to the member of the first tribunal hearing. I had stacks upon stacks of paperwork, I could not tend to. In July 2013 I realised that I could not see myself doing tax for that year in time. Whilst I was just keeping my head above water with caring for family, I could not tackle the workload. She stated that I had until May 2014 to submit at the latest but that if I felt that my situation would not change then I should contact ATO to discuss the matter.

    I contacted the ATO immediately as well as several other times between July and September. I tried to explain my circumstances. They also said I still have time to lodge but did not refer me to a late lodgement form.  They waived the penalty for late lodgement for 2012. They discuss tax debts with me instead. This just stresses me further.

    I have not received any paperwork regarding claiming benefits from Family Assistance. I am now informed that it is not their job to inform families of this but if my tax was done and submitted on time I would have received this amount and the tax department would have taken it off our tax debt.  Apparently, as I now know, I received some benefits in 2012 but I thought these were baby bonus money for the birth of William. They went into a separate account which I had opened for the children’s needs. This account I rarely looked at as it was for children related circumstances.

    Up until the 2013 tax was eventually lodged in May 2015 where some months earlier Alice had started to speak and her level of angst as well as mine subdued somewhat, I received a letter from FA stating that I was owed $5800 but that was adjusted I didn’t know that my husband and I were even eligible to claim for assistance. I just always thought that we owed money to the government. I even thought that this money was a record of baby bonus money paid to me and it wasn’t until a neighbour saw this document that it was explained to me that I should visit Family Assistance Centre and discuss this matter.

    See attachment of received letter and notes written all over the page to show confusion. [Attachment omitted]

    24^th November 2015:  I now have my fourth child, and final. I was asked to do questionaries during pregnancy and after birth. They deemed that I have high levels of angst and post natal depression and I have now been to see councillors. The way I feel now is not even anywhere comparable to my state of mind back when Alice was born and her first 3-4 years. This is a very serious condition or state of mind that should never be downplayed. It most certainly is a ‘special circumstance’ affecting the life of the person suffering Post natal stresses and anxieties. Its debilitating and you feel as though you’ve only just got your head above water. This, as well as dealing with a colic baby, or a consequence of this.  My life was normal before giving birth to Alice. Just like any other family having children with its ups and downs. These years were nothing short of a dark period in our lives which I cannot even compare with my current diagnosis. I did try to discuss this at the previous hearing and it appeared that the questioning about this was very minimal. I am embarrassed still about this period of my life there is still so much I am embarrassed about that I have not written yet it seems much easier to write about it than to discuss in front of faces. All a mother wants to do is everything they can and I wasn’t doing well at all.

    It is most upsetting that thus far this circumstance is not deemed to be in any shape or form “special” I was suffering undiagnosed post natal depression for years and am still suffering it to some degree, though I am now able to perform daily tasks much better.

    It is also worth noting that the tax department waived the late fee for mine and my husband’s tax due to these circumstances.

    My husband I don’t ask for much in respect of government handout but we do owe the tax dept an accumulated debt that we have not been able to get on top of. We do hope that the parties concerned see that this amount was allocated to us for a reason. And because of my medical circumstances and late lodgement of tax 2013 we have are deemed not eligible to have this tax debt eased. Of paragraph ‘3’, ‘7’, and ‘39’ it is clear that focus is on a letter not received and that there is no ‘special circumstances involved’. Yet I recall discussing my state of mind on several occasions.

    I did try to talk about my post natal depression, perhaps it was more alluded to because it was probably the first time that I have mentioned it publicly. All the focus seemed to be on the fact that mail wasn’t received and in fact the decision was based on the fact that I had no evidence to support that mail was not received. In clause 39 it clearly states that that lacking awareness of the change of law is not a ‘special circumstance’. We are aware of this but what of all the other issues that were discussed? After reading through the document of the last hearing and Ms Petrucci’s decision, I can clearly see that I am trying to tell her about my post natal depression. It was very difficult to say it in words that this is a condition I suffered and still do at a lesser degree. I have only spoken of this with my gp and councillor and not really even with my husband who was present… [Emphasis added]

1. Ms Iskenderian gave similar oral evidence, by telephone from London, at the hearing.

   Ms Iskenderian’s mental health and personal circumstances

2. In summary, Ms Iskenderian contends that she was suffering from undiagnosed post natal depression following the birth of her second child, Alice Corke (Alice), on 23 July 2010, who had colic and some developmental difficulties.  Ms Iskenderian claims that this undiagnosed post natal depression lasted at least three years following Alice’s birth.

3. As a consequence of this undiagnosed post natal depression, Ms Iskenderian says that she was struggling to cope with everyday tasks, including her paperwork, such as her university work related paperwork, her small business “home stay” related paperwork and collating the relevant receipts and other documents to provide to her accountant to enable him to complete her and her husband’s tax returns for the 2012/2013 financial years.  Ms Iskenderian said she felt debilitated, was crying all the time and unable to function normally, as she had done before the birth of Alice. According to Ms Iskenderian, these circumstances are “special circumstances” which prevented her from filing her and her partner’s income tax returns for the 2012/2013 financial year by 30 June 2014.

4. Whilst Ms Iskenderian has provided some medical evidence in relation to her second born child’s (Alice’s) developmental difficulties, she has not provided any contemporary corroborating medical evidence in support of her contention that she was suffering from a post natal depression condition which prevented her from lodging her and her partner’s income tax return for the 2012/2013 financial year by 30 June 2014, as required by s 32C of the Administration Act. Indeed, on her own evidence, Ms Iskenderian’s post natal depression condition was undiagnosed at the relevant time. Without independent contemporary medical/psychological evidence corroborating that Ms Iskenderian had post natal depression at the relevant time the Tribunal is unable to find that Ms Iskenderian’s mental state constituted “special circumstances” which prevented her from lodging her 2012/2013 income tax returns by the due date (by 30 June 2014): see Woodward and Department of Family and Community Services [2001] AATA 818; Lineham and Secretary, Department of Social Services (Social services second review) [2016] AATA 127 at [20] - [23] per SM Cremean and Hambrook and Secretary, Department of Social Services (Social services second review) [2016] AATA 424 at [54] per SM Cunningham.

5. Whilst the Tribunal is sympathetic to the circumstances Ms Iskenderian found herself in at the relevant time, there was nothing "unusual, uncommon or exceptional”, “markedly different from the usual run of cases”, “out of the ordinary” or “special” in the circumstances postulated by Ms Iskenderian which prevented her and her partner from lodging their 2013 income tax returns by 30 June 2014, as required by the Administration Act: refer to paragraph 29 above. More specifically, it is not “unusual, uncommon or exceptional” of “out of the ordinary” for FTB recipients, like Ms Iskenderian, to be struggling to juggle the demands of a difficult newborn child with the demands and other pressures associated with work/business and family life.

   Ms Iskenderian was unaware of requirement to lodge her and her partner’s 2012/2013 tax returns by 30 June 2014

6. Mr Iskenderian contends that she was not aware that she was required to lodge her and her partner’s 2012/2013 income tax returns by 30 June 2014 and that she did not receive the Department’s (Centrelink’s) letters dated 14 February 2014 and 20 March 2014 notifying her of this requirement.  Ms Iskenderian further contends that she was not informed by the ATO, Centrelink or her accountant that she could lodge a late lodgement form in circumstances where she would be unable to meet the statutory deadline of 30 June 2014. 

7. Being unaware of the requirement to lodge her tax return by the required date is not a “special circumstance”. In this regard, the Tribunal notes the decision of DP Constance in Secretary, Department of Social Services and Cannon (Social Services second review) [2015] AATA 1028 (Cannon) which provides:

   17.As a general principle, ignorance of the law is no excuse for a person’s failure to comply with it. In addition, there is no legal obligation on the Secretary or any Government Department to advise potential claimants of changes in the law which may adversely affect them.

   18.On this basis I am satisfied that Ms Cannon’s lack of awareness of the changed law does not amount to special circumstances within the meaning of the Act. I note that this is consistent with the approach previously taken by the Tribunal.

   Similar findings have been made in Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488 at [18]-[19]; Dobson and Secretary, Department of Social Services [2015] AATA 892 at [20]; Secretary, Department of Social Services and Field (Social services second review) [2015] AATA 903 at [24]-[28]; Hollis [2015] AATA 941 at [43]; Dann and Secretary, Department of Social Services (Social services second review) [2016] AATA 196 at [14] and Secretary, Department of Social Services v McNamara [2016] AATA 689 (McNamara).

8. As set out in the “Factual & Procedural Background”, in Ms Iskenderian’s case the Department (Centrelink) sent her on 14 February 2014 advising her of changes to family assistance payments:  refer to paragraph 3 above. The Department (Centrelink) sent Ms Iskenderian a further letter on 20 March 2014 advising her that she was required to lodge her and her partner’s income tax returns for the 2012/2013 financial year by 30 June 2014:  refer to paragraph 4 above.

9. Pursuant to s 29 of the Acts Interpretation Act 1901, service of these letters (notices) is presumed (deemed) to be effected at the time at which the letters would be delivered in the ordinary course of post. Ms Iskenderian has not sought to produce any evidence to rebut this presumption, or the similar presumption contained in s 160 of the Evidence Act 1995.

10. Further, information about the reduced time limit to lodge the tax return for the 2012/2013 income year by 30 June 2014 was publicly available. That is, on 26 September 2013, the Department published on its website the document titled “Changes to the time period for lodging lump sum claims and confirming income” that stated the following:

    From 1 July 2013, the amount of time you have to confirm your income changed. You have one year instead of two years to: ...confirm your income for Family Tax Benefit - this means that you and your partner (if you have one) need to lodge a tax return with the Australian Taxation Office... [by] 30 June 2014.

11. Consistent with the decisions referred to in paragraph 30 above, the Tribunal finds that ignorance of the law is no excuse for Ms Iskenderian’s failure to comply with the 30 June 2014 deadline and there is no legal obligation on the Department (Centrelink) to advise potential claimants of changes to the law that may affect them. Further, any ignorance that Ms Iskenderian had of her and her partner’s income tax return lodgement requirements does not constitute “special circumstances”.

12. There have been a number of cases in which the Tribunal has found that failure by an applicant’s accountant/tax agent to lodge his/her client’s tax return on time do not constitute “special circumstances”: see Cannon at [21]-[24]; Andre and Secretary, Department of Social Services (Social services second review) [2016] AATA 205 at [16]-[17]; Elrington and Secretary, Department of Social Services (Social services second review) [2016] AATA 169; Fedigan and Secretary, Department of Social Services (Social services second review) [2016] AATA 211 at [24]-[35]; McNamara and Secretary, Department of Social Services (Social services second review) v Shanhun [2016] AATA 675.

13. The Tribunal notes that Ms Iskenderian had engaged an accountant to assist in the lodging of her and her partner’s 2012/2013 income tax returns (which eventually occurred on 1 May 2015). On her own evidence, Ms Iskenderian realised in July 2013 that she could not see herself “doing tax for that year in time” and that the ATO did not refer her “to a late lodgement form” which “was an option they could have suggested”: refer to paragraph 21 above. The Tribunal notes that Ms Iskenderian and her partner had 11 months from that time to lodge their tax returns on time by 30 June 2014, but neither Ms Iskenderian nor her partner collated the required documentary material to enable the accountant to lodge their tax returns on time.  Any failure on the part of Ms Iskenderian’s accountant/tax agent to lodge her and her partner’s tax returns for the 2012/2013 financial year by 30 June 2014 does not constitute “special circumstances”: see paragraph 35 above.  Similarly, any failure on the part of the ATO to make Ms Iskenderian aware that she could lodge a late lodgement form does not constitute “special circumstances”. The lodgement of a tax return by an individual is ultimately the responsibility of that individual, including those who lodge via a tax accountant/agent:  see paragraph 35 above and s 6.4.3 of the Family Assistance Guide, titled “Requirement to lodge an Income Tax Return”.

    DECISION

14. For the above reasons, the Tribunal affirms the AAT1 Decision.

I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

.......[Sgd].................................................................

Administrative Assistant

Dated 16 September 2016

Date of hearing	12 September 2016
Applicant	Self-represented (By telephone)
Representative for the Respondent	Mr A Burgess
Solicitors for the Respondent	Sparke Helmore Lawyers