Ling and Marden (Child support)

[2019] AATA 572

Ling and Marden (Child support) [2019] AATA 572 (21 February 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC015714

APPLICANT:  Mr Ling

OTHER PARTIES:  Child Support Registrar

Ms Marden

TRIBUNAL:Member K Buxton

DECISION DATE:  21 February 2019

CATCHWORDS

CHILD SUPPORT – dismissal of application for review - particulars of the administrative assessment – estimate reconciliation - no reasonable prospect of success - application for review dismissed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

DISMISSAL OF APPLICATION FOR REVIEW:

1. In this matter, Mr Ling seeks review of a decision of an objections officer of the Child Support Agency (CSA), dated 17 December 2018, in which his objection to the decision of the CSA to reconcile his estimated income against his adjusted taxable income for the 2017/18 year was disallowed.

1. I convened a directions hearing on 21 February 2019 and discussed the application with Mr Ling and Ms Marden. Each party made submissions during the directions hearing. I offered  the parties the opportunity to provide additional written submissions after the direction hearing in relation to the application and, in particular, as to why it ought not be dismissed on the basis that the application had no reasonable prospects of success. However, each party stated that they did not wish to make any further written submissions.

2. The information provided by the CSA indicated that Mr Ling lodged two separate income estimates, the first of which was for $41,599 per annum applied to the child support case for the period 1 July 2017 to 31 July 2017 and the second of which was for $51,999 to be applied for the period 1 August 2017 to 30 June 2018.  Mr Ling pointed, in his application, to the fact that the CSA has applied  the figure of $51,996 rather than $51,999 for the period commencing 1 August 2017. There may be an explanation for this very minor discrepancy. However, the decision to use the figure of $51,996 rather than $51,999 for the period 1 August 2017 to 30 June 2018 is a separate decision made by the CSA in August of 2017. Mr Ling did not object to the decision at that time and he would require an extension of time within which to do so now which, for the reasons expressed below, he would unlikely be granted. In any event, that decision is not the subject of this review application. The decision under review is limited to the application of the reconciliation process to the income estimates provided by Mr Ling for the 2017/18 year.

3. It appears that Mr Ling’s review application centres upon the use by the CSA in the reconciliation process of adjusted taxable income for the 2017/18 year in the amount of $51,606. Mr Ling stated that his group certificate for the 2017/18 year showed income from employment of $51,113. Mr Ling stated in his application, and on a number of occasions during the hearing, that he did not know from where the CSA obtained the figure of $51,606 in adjusted taxable income. He also stated throughout the directions hearing that he has asked the CSA five times where the figure had come from but the CSA had not provided that information. The objection decision, and the information provided by the CSA, makes abundantly clear that the figure of $51,606 in adjusted taxable income for the 2017/18 year was provided by the Australian Tax Office. The information provided by the Australian Tax Office is ordinarily derived from the taxpayer’s own income tax return. I asked Mr Ling whether there might be income or financial resources in addition to his income from employment which might be included in his adjusted taxable income (as defined by the legislation). Mr Ling stated that he was unsure, and further stated that he was not an accountant, and that it was the CSA who should explain or justify the use of his 2017/18 adjusted taxable income.

1. Ms Marden helpfully submitted that something as simple as interest income or franking credits might account for the discrepancy between Mr Ling’s income estimate and his adjusted taxable income, and she noted that Mr Ling had accrued both in past years. Mr Ling would not indicate to the tribunal whether he accrued either interest income or franking credits in the 2017/18 year despite the question being put to him directly.

2. The provisions relevant to this review application are contained in Part 5, Divisions 7 and 7A of the Child Support (Assessment) Act 1989 (“the Act”). Section 60 of the Act provides for a parent to estimate income for a year of income, or for part of a year of income, by informing the CSA of the election to make such an estimate. Section 61 of the Act then allows that estimate to be used in the calculation of the annual rate of child support. Under section 64 of the Act a reconciliation is made by the CSA if the parent’s actual adjusted taxable income for the year of income is more than the estimated amount. That adjusted taxable income may include both employment income, income from other sources (like bank interest) and certain other financial resources. An amended assessment is then issued for the period of the income estimate to reflect actual income earned.

3. The legislative scheme has been applied to the facts in this case. The result is an amended assessment which, according to the decision under review, required Mr Ling to pay an additional $84.50 in child support for the 2017/18 as a result of the application of his adjusted taxable income to the child support case for that period. At its highest, Mr Ling’s case is that his demand for information from the CSA about his adjusted taxable income had not been met (although he conceded during the directions hearing that he had not taken steps himself to determine the correctness or otherwise of that figure) but he did not go so far as to submit that the information used by the CSA was incorrect. There was no suggestion in any of the material, nor was any serious suggestion made by Mr Ling during the directions hearing, that he was over-assessed to pay child support as a result of the decision to reconcile nor that an error in fact or in law has occurred. That is so whether the CSA had adopted either the figure of $51,999 per annum or $51,996 per annum, for the period 1 August 2017 to 30 June 2018 as either figure would still have triggered the reconciliation process.

4. It follows from the tribunal’s consideration of this review application that the tribunal would be required to make the same decision on review as that made by the objections officer. As Mr Ling does not have any real prospect of obtaining a more favourable decision on review it is therefore appropriate to dismiss his application under subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 on the basis of no reasonable prospect of success. I determine accordingly.