KARLYNNA REEVE and COMMISSIONER OF TAXATION Professor RM Creyke, Senior Member 11 April 2013 Canberra
[2013] AATA 212
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/0355
Taxation Appeals Division )
Re: Karlynna Reeve
Applicant
And: Commissioner of Taxation
Respondent
DIRECTION
TRIBUNAL: Professor RM Creyke, Senior Member
DATE: 3 May 2013
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1. at paragraph 3 replace “failure to provide a document as required, namely, evidence that the property was her principal place of residence” with “failure to lodge her income tax return”.
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Professor RM Creyke, Senior Member[2013] AATA 212
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0355
Re
KARLYNNA REEVE
APPLICANT
And
COMMISSIONER OF TAXATION
RESPONDENT
INTERLOCUTORY Decision
Tribunal Professor RM Creyke, Senior Member
Date 11 April 2013 Place Canberra The application to grant a stay order is refused.
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Professor RM Creyke, Senior Member
Catchwords
Practice & Procedure – reviewable objection decision – objection decision – stay order sought – whether Tribunal has jurisdiction to issue a stay order for an objection decision
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) sections 25, 41
Taxation Administration Act 1953 (Cth) sections 14ZL, 14ZQ, 14ZY(2), 14ZZA, 14ZZB(1)(a)
REASONS FOR INTERLOCUTORY DECISION
Professor RM Creyke, Senior Member
11 April 2013
In a notice of assessment dated 27 September 2012 relating to the taxation liability of Ms Karlynna Reeve for the 2009 tax year, the Commissioner of Taxation assessed tax payable by Ms Reeve to include an amount of $66,900 for capital gains tax on property sold at 14 William Street, Goulburn, NSW.
Ms Reeve maintains that the property concerned has been her principal residence and hence is not subject on sale to capital gains tax. A general interest charge is accruing from the original due date for payment.
In addition, Ms Reeve was assessed on 27 September 2012 with an administrative penalty of $11,305.10 for failure to provide a document as required, namely, evidence that the property was her principal place of residence. In addition, Ms Reeve was notified of a decision to impose a general interest charge which was accruing from the original due date for payment of her tax liability.
On 6 October 2012 Ms Reeve lodged an objection to the liability assessment and to the default assessment, but on 17 December 2012 both decisions were upheld.
On 7 January 2013, Ms Reeve lodged an application with the Tribunal for further review of these decisions.
In addition, on 18 March 2013 Ms Reeve sought an order staying the decisions of the Commissioner of Taxation, including the accrual of general interest charge. An email was sent by the Tribunal that day to the Australian Tax Office seeking views on the application for a stay order.
On 25 March 2013, Ms Ristevki of the Australian Tax Office, for Mr Grahame Tanna, Assistant Commissioner, replied opposing the order and setting out the reasons for that decision.
Legislation and Consideration
The relevant legislation is found in the Taxation Administration Act 1953 (Cth) (TA Act) and the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). In particular section 41(1) of the AAT Act provides authority for the Tribunal to issue a stay order in relation to a ‘decision’. A ‘decision’ must be one which the Tribunal is authorised by legislation of an agency, including the Australian Tax Office, to review (section 25 of the AAT Act). Section 25(6) of the AAT Act provides that such legislation may ‘exclude or modify’ the Tribunal’s powers of review. That has occurred in relation to the Tribunal’s stay power under section 41.
Section 14ZZA(a) of the TA Act provides that the Tribunal can hear applications for review of ‘reviewable objection decisions’ by the Commissioner. However, section 14ZZB(1)(a) of the TA Act specifically provides section 41 of the AAT Act – the stay order provision – does not apply to ‘reviewable objection decisions’.[1]
[1] Taxation Administration Act 1953 (Cth) (TA Act) s 14ZZB(1)(a).
A ‘reviewable objection decision’ is defined to mean an ‘objection decision’ that is not an ‘ineligible income tax remission decision’.[2] Ms Reeve’s application for review is not an ‘ineligible income tax remission decision’. However, it is an ‘objection decision’.[3]
[2] TA Act s 14ZQ.
[3] TA Act s 14ZY(2).
An ‘objection decision’ arises whenever ‘a person who is dissatisfied with an assessment, determination, notice or decision’ objects to the decision.[4] Ms Reeve was dissatisfied with the assessments for which she has sought review by the Tribunal and she has objected to them. They are accordingly ‘objection decisions’ and in turn ‘reviewable objection decisions’. That means the Tribunal is not permitted under the TA Act to authorise a stay order in relation to those decisions.
[4] TA Act s 14ZL.
The Tribunal regrets that this information was not provided to you at the time of your application for a stay order.
In light of these provisions of the TA Act, the Tribunal has no option except to uphold the objection by the Commission of Taxation to your application for a stay order.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member .....................................[sgd]...................................
Associate
Dated 11 April 2013
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