Jassar & Manesh Pty Ltd as trustee for the Jassar Manesh Consultants Unit Trust and Commissioner of Taxation (Taxation)

This matter concerned an application by Jassar & Manesh Pty Ltd as trustee for the Jassar Manesh Consultants Unit Trust (the applicant) against the Commissioner of Taxation. The dispute arose from the applicant's liability to repay overpaid amounts under the Coronavirus Economic Response Package (JobKeeper) Act 2020 (Cth) (CERP Act). The decision was made by R Olding SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Commissioner had properly exercised, or failed to exercise, a discretion conferred by the CERP Act to determine that an entity is not liable to repay all or part of an overpaid amount. The Tribunal was required to consider the relevant factors that should inform the exercise of this discretion, particularly in light of the object and purpose of the JobKeeper scheme.

The Tribunal reasoned that the discretion to waive repayment of overpaid amounts is unconstrained in its terms, meaning that the relevance of any consideration is determined by the subject matter, scope, and purpose of the legislation. The object of the CERP Act is to provide financial support to entities affected by COVID-19. However, the Tribunal found that simply retaining overpayments to provide financial support would not be a proper exercise of the discretion, as it would fail to give sufficient regard to the specific nature of the JobKeeper scheme. The scheme was intended to subsidise wages paid to employees, not to provide general grants. Therefore, the Tribunal concluded that the discretion should not be exercised merely because the applicant was affected by the pandemic or because retention of the funds would offer financial assistance.