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

Jassar & Manesh Pty Ltd as trustee for the Jassar & Manesh Unit Trust (the applicant) sought review of a decision by the Commissioner of Taxation (the respondent) not to exercise a discretion to waive repayment of an overpaid JobKeeper amount. The dispute concerned whether the applicant was liable to repay certain JobKeeper payments it had received. The matter was heard by a Senior Member of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion conferred by the Coronavirus Economic Response Package (JobKeeper Payments) Rules to determine that an entity is not liable to repay an overpaid amount should be exercised in favour of the applicant. This required the Tribunal to consider the various reasons put forward by the applicant as to why the discretion should be exercised, and to evaluate those reasons against the objectives and principles of the JobKeeper scheme.

The Tribunal considered seven submissions advanced by the applicant. These included arguments that the payments were used consistently with the program's objectives, that the amounts were passed on to employees, that the applicant was out of pocket in advancing these payments, that repayment would jeopardise the applicant's survival and have wider economic consequences, that the applicant misunderstood the application process, and that any errors were unintentional. The Tribunal found that while the applicant may have advanced funds in excess of amounts received, it was not an objective of the JobKeeper scheme for employers to be subsidised in excess of wages paid to an employee for a fortnight. The Tribunal noted that overclaiming effectively cross-subsidised other employees and business expenses, which was inconsistent with the scheme's objectives.