MacDonell and La Femina (Child support)

[2020] AATA 3648

MacDonell and La Femina (Child support) [2020] AATA 3648 (16 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC018141

APPLICANT:  Mr MacDonell

OTHER PARTIES:  Child Support Registrar

Ms La Femina

TRIBUNAL:Member C Breheny

DECISION DATE:  16 June 2020

DECISION:

The decision under review is set aside and a decision substituted that:

• For the period 30 May 2019 to 30 September 2019 Mr MacDonell’s adjusted taxable income is set at $87,007 per annum, and

• For the period 1 October 2019 to 31 December 2020 Mr MacDonell’s adjusted taxable income is set at $120,000 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents - benefits derived from company – decision under review set aside and substituted

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.

REASONS FOR DECISION

BACKGROUND

1. Ms La Femina and Mr MacDonell are the separated parents of [Child 1], born April 2012 and [Child 2], born June 2013. A child support case has been registered with the Department of Human Services – Child Support (the Department) since 13 March 2018 and registered for collection since that date. Child support was initially payable on the basis that Ms La Femina has 85% care of the children, but care changed from July 2019 such that Ms La Femina has 61% and Mr MacDonell has 39% care of the children. Mr MacDonell was assessed as liable to pay child support to Ms La Femina, until 22 July 2019, when the roles reversed.

2. For the period 13 March 2018 to 31 July 2018 Mr MacDonell’s child support liability had been administratively assessed as being $7,634 per annum based on his 2016/17 adjusted taxable income of $91,684 and Ms La Femina’s 2016/17 adjusted taxable income of $89,984.

3. For the period 1 August 2018 to 22 July 2019 Mr MacDonell’s child support liability had been administratively assessed as being $214 per annum based on his 2017/18 adjusted taxable income of $47,983 and Ms La Femina’s 2017/18 adjusted taxable income of $94,866. From 23 July 2019 Ms La Femina became liable to pay child support to Mr MacDonell because the care of the children changed.

4. On 30 May 2019, Ms La Femina applied to the Department for a change of assessment on the basis that Mr MacDonell’s income, property, financial resources and earning capacity were not accurately reflected in the assessment. She also applied for a change of assessment based on the children’s special needs, the children’s education costs and her legal duty to support another person. Mr MacDonell responded to the change of assessment application and cross-applied for a change of assessment because he had given money, goods or property to the children.

5. On 25 September 2019, decision maker (DM) [named] decided to change the administrative assessment on the basis of Mr MacDonell’s income and financial resources and the children’s special needs and determined that for the period 23 July 2019 to 22 July 2021 Mr MacDonell’s adjusted taxable income was set at $90,000 and Ms La Femina’s adjusted taxable income was set at $102,521 and that for the period 1 January 2019 to 22 July 2019 the annual rate of child support payable by Mr MacDonell was increased by $4,800.

6. On 23 October 2019, Mr MacDonell objected to the decision and on 20 December 2019, an objections officer of the Department decided to partly allow the objection. The objections officer determined that for the period 30 May 2019 to 31 October 2022 Mr MacDonell’s adjusted taxable income was set at $140,000 and for the period 30 May 2019 to 30 September 2019 Ms La Femina’s adjusted taxable income was set at $102,521.

7. On 31 December 2019, Mr MacDonell applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of the Department’s decision. A hearing into Mr MacDonell’s application for review was held on 16 June 2020. Both Ms La Femina and Mr MacDonell attended the hearing by conference telephone and gave evidence on affirmation. 

8. I had before me the statement and documents provided by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 13 January 2020 and numbered 1–697. I also considered additional documents provided by Mr MacDonell (marked A1–A411) and Ms La Femina (marked B1–B194) as a result of written directions issued on 28 April 2020.

LEGISLATIVE FRAMEWORK AND ISSUES

1. The legislation relevant to this review is contained in the child support law, in particular the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. This requires the application of a statutory formula, which takes into account factors such as the number of children, the level of care provided and the income of each parent. Either the liable parent or the carer entitled to child support may apply to the Registrar for a determination to depart from the child support administrative assessment under Part 6A of the Act (section 98B). Section 98C provides that the Registrar may make a determination to depart from the formula assessment and establishes a three-step process. The Registrar, and the Tribunal standing in place of the Registrar, must be satisfied that a ground for departure exists and that it is just and equitable and otherwise proper to make a departure determination.

3. The grounds for departure from an administrative assessment of child support are those set out in subsection 117(2) of the Act. If satisfied that a ground or grounds exist, and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in section 98S of the Act.

4. In the legislation, each ground for departure is prefaced by the words, “in the special circumstances of the case”. Therefore, when considering whether one (or more) grounds exists, the Tribunal must be satisfied that there are “special circumstances” in the case. The phrase “special circumstances of the case” is not defined in the Act. The Full Family Court, in the case of Gyselman and Gyselman (1992) FLC 92-279 stated that:

   It is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.

5. Subsection 98C(3) of the Act provides that subsections 117(4) to (9) of the Act apply and the Tribunal must consider these when deciding whether it would be just and equitable or otherwise proper to make the departure decision.

CONSIDERATION

A ground for departure

1. Ms La Femina asked for a departure from the administrative assessment and Mr MacDonell cross-applied citing a number of “Reasons”, but agreed that the review should proceed on the basis that the assessment does not correctly reflect the parties’ respective income, property, financial resources and earning capacity (also known as “Reason 8A and Reason 8B”).

Income, property, financial resources and earning capacity of both parties

1. Subparagraph 117(2)(c)(ia) of the Act provides that, in the special circumstances of the case, a ground for departure may be established if application of the legislative provisions relating to an administrative assessment results in an “unjust and inequitable determination of the level of financial support to be provided by the liable parent” due to the income, property and financial resources of either parent.

Mr MacDonell – income, property and financial resources

1. At the time Ms La Femina lodged her application on 30 May 2019 child support liability was $214 per annum, based on Mr MacDonell’s 2017/18 adjusted taxable income of $47,983 and her 2017/18 adjusted taxable income of $94,866. Ms La Femina submitted that Mr MacDonell had a number of properties and his financial resources were far greater than indicated in his yearly tax returns.

2. Mr MacDonell said that he is a self-employed [occupation 1] and he is the sole director and shareholder of his company [Business 1][Business 1]. he is also the sole director and shareholder of [Business 2], which is the trustee for the [Trust 1]. Mr MacDonell noted that in 2016 some of his clients approached him regarding investing funds from their self-managed superannuation in property. The trust acquired a property in [a named suburb] as a development project.

3. Mr MacDonell stated that he receives a fee for managing the trust and more recently he has been receiving an additional income for working as a project manager for the property development [project]. These incomes are declared via his company [Business 1].

4. Mr MacDonell contended that his work as [an occupation 1] has been adversely affected by [a recent event]. He does not earn much now from his services in this area.

5. Mr MacDonell agreed that he also owns rental properties and that income (or loss) is declared in his personal tax returns. Mr MacDonell submitted audited financial statements for [Business 1] and the [Trust 1], as well as relevant income tax returns and bank statements to provide an indication of his income and financial resources in the relevant financial years.

   The 2017/18 financial year

6. Mr MacDonell’s personal income tax return for 2017/18 indicates a taxable income of $19,570, comprising of a director’s fee from [Business 1] ($47,621), interest ($362) and rental losses of $28,413 (folio A313). I note the Department added back the rental losses to arrive at a taxable income of $47,983 ($19,570 + $28,413), which was used in the administrative assessment from 1 August 2018 (folio 35) and at the time Ms La Femina lodged her application.

7. The tax return indicates that Mr MacDonell had two rental properties at the time, with a gross rental income of $50,730 and rental losses of $79,143 for a net rental loss of $28,413 (folio A318).

8. The Income Statement for the [Trust 1] (folio A292) shows that in 2017/18 Mr MacDonell received an administration fee of $24,487 and the trust made a loss of $53,748. Mr MacDonell noted that the trust distribution (administration fee) he received was recorded as part of the income for [Business 1].

9. The Profit/Loss Statement for [Business 1] (folio A378) shows that in 2017/18 the company’s income was $87,083.06 and it had expenses of $87,083.06. The expenses included Mr MacDonell’s director’s fee of $47,621. The company tax return for that year indicates the same income and expenses for a total company profit of $0 (folios A300/301).

10. I note that the 2017/18 Profit/Loss Statement includes trading loss of $4,478 in the company’s expenditure. This was later changed to a company profit of $4,478 in the [Business 1] Income Statement of 2018/19 (folio A332).

11. I am persuaded that this amount ought to be added to Mr MacDonell’s financial resources in 2017/18 and on the basis of all the evidence before me these amounted to $52,461 ($19,570 taxable + $28,413 rental loss + $4,478 trading loss).

    The 2018/19 financial year

12. Mr MacDonell’s personal income tax return for 2018/19 shows a taxable income of $31,489 (folio A357). The income comprises a capital gain of $50,957 (from the sale of a property), plus rental income, reported as net rental loss of $19,261 and $16 interest. Mr MacDonell claimed tax deductions of $223. Adding back the rental losses, I find that Mr MacDonell’s 2018/19 taxable income is $50,543 ($31,489 + $19,261 + $16 - $223).

13. The 2018/19 tax return for the [Trust 1] indicates a net loss of $49,269 (folio A359). The Income Statement shows that Mr MacDonell was paid administration costs of $30,740 (A340). According to Mr MacDonell this cost is reported as income for [Business 1]. The 2018/19 income tax return for [Business 1] reports total income of $49,262 and expenses of $20,847 for a company profit of $28,415 (folio A348).

14. The 2018/19 Balance Sheet for [Business 1] also indicates that Mr MacDonell withdrew $8,049 from the Director’s Loan account. The company’s liability in this regard reduced from $250,057 to $242,008 (folio A333). Mr MacDonell noted that he and another person loaned the company some money in the past to keep it operational. It was his decision to withdraw some of that money in that year and he should be able to do so.

15. Mr MacDonell is able to withdraw the money from his company, but it is a financial resource that was available to him in 2018/19. Based on the evidence before me I thus find that Mr MacDonell’s 2018/19 income and financial resources amounted to $87,007 ($50,543 taxable + $28,414 profit + $8,049 loan).

    The 2019/20 (current) financial year

16. Mr MacDonell stated that his main job now is the project management for the [property development]. He provided a letter from the builders ([named]) dated 23 October 2019 confirming that Mr MacDonell will be receiving a project management fee for overseeing the property development and the fee will be between $60,000 to $90,000, including GST (folio 474). The first payment of $5,500 was made on 16 October 2019. Mr MacDonell noted that this fee will be recorded as income for [Business 1].

17. Mr MacDonell provided a partial Profit/Loss Statement for the [Trust 1] for the period 1 July 2019 to 30 April 2020 (10 months). It indicates that Mr MacDonell has received administration fees of $22,865, which annualised would amount to about $27,438 (folio A410).

18. Mr MacDonell also provided a partial Profit/Loss Statement for [Business 1] for the period 1 July 2019 to 30 April 2020 (folio A380). It indicates company income of $91,262.02 and expenses of $11,086.08 for a company (year to date) profit of $80,175.94. This would result in an annualised profit of $96,211.28.

19. The partial 2019/20 Balance Sheet for [Business 1] also indicates that Mr MacDonell withdrew $60,742 from the Director’s Loan account and the company’s liability reduced from $242,008 to $181,266. (folio A379).

20. Mr MacDonell agreed that the income from his rental properties would be recorded again in his 2019/20 personal income tax return and he estimated that he would incur similar rental losses as in 2018/19, about $20,000.

21. Based on this evidence it appears that Mr MacDonell’s current income and financial resources would amount to at least $116,211 (company profit plus rental losses) to $176,953, if the resources from the Director’s loan are added and I so find.

Mr MacDonell – earning capacity

1. Ms La Femina submitted in her initial application that Mr MacDonell had greater earning capacity (folio 48).

2. The relevant legislative provisions for consideration of a parent’s earning capacity are provided for in subparagraph 117(2)(c)(ib) and also in subsection 117(7B) of the Act. Essentially the provision restricts the circumstances in which a person’s earning capacity can be used as a basis to depart from a formula assessment.

3. There are three essential matters to be considered in determining whether the administrative assessment should be departed from on the grounds of earning capacity. In simple terms they can be explained as follows:

   ·did the parent not work despite ample opportunity to do so, reduce their hours of work or change their occupation, industry or working pattern; and

   ·was the parent’s decision not to work despite ample opportunity to do so or to reduce their hours of work or change their occupation, industry or working pattern not justified because of caring responsibilities or their state of health; and

   ·the parent has not demonstrated that it was not a major purpose of their decision not to work despite ample opportunity to do so or to reduce their hours of work or change their occupation, industry or working pattern to affect the administrative assessment of child support.

   All three of the above criteria must be met before a change of assessment can be made to take into account whether the parent has a greater earning capacity.

4. In this case Mr MacDonell is working full-time in his business and there is no indication that he had reduced his working hours or changed his occupation, industry or working pattern. This means that paragraph 117(7B)(a) of the Act is not satisfied in this case. As all three criteria provided for in subsection 117(7B) of the Act are therefore not met, I cannot consider Mr MacDonell’s earning capacity further.

Ms La Femina – income, property and financial resources

1. Ms La Femina is working as an [occupation 2] for [a named employer] and she has done so for seven years (folio B3). Recent payslips (for April/May 2020) indicate that her base salary is currently $4,110 per fortnight and her annual base income is $107,246 (folio B167). It appears that, in the past, Ms La Femina also received a higher duties allowance (folio B171).

2. Ms La Femina provided her 2018/19 income tax return which indicates a taxable income of $102,521 (folio B36).

3. I have no evidence that Ms La Femina has any other source of income and I am therefore satisfied that Ms La Femina’s income, property and financial resources are adequately represented by her annual income tax returns.

Ms La Femina – earning capacity

1. Ms La Femina has been working full time for a number of years and she was working full time when she lodged her change of assessment application. As such I do not consider that Ms La Femina has greater earning capacity than she exercises for the purposes of this review.

Conclusion – income, property, financial resources and earning capacity of both parties

1. When Ms La Femina lodged her departure application on 30 May 2019 (the 2018/19 financial year), the rate of child support was based on Mr MacDonell’s 2017/18 taxable income of $47,983 and Ms La Femina’s 2017/18 taxable income of $94,866 resulting in a child support liability of $214 per annum payable by Mr MacDonell to Ms La Femina. This changed from 23 July 2019, when care for the children changed and Ms La Femina became liable to pay child support to Mr MacDonell.

2. I have found that Mr MacDonell’s actual income and financial resources in 2018/19 amounted to $87,007 and I have estimated that Mr MacDonell’s child support liability for the children, if calculated on the basis of his actual financial resources, would be $6,610 per year at the time Ms La Femina lodged her application. This would decrease to about $4,805 per year, once the care of the children changed.

3. I note the objections officer also substituted Ms La Femina’s actual 2018/19 taxable income for the period 30 May 2019 to 30 September 2019. This would reduce Mr MacDonell’s child support liability by about $9 to $11 per week only.

4. I find that the difference between an annual child support liability of $6,610 and the annual rate of child support ($214) based on Mr MacDonell’s 2017/18 taxable income at the time, is so great that it gives rise to special circumstances in this particular case. I do not find that the small reduction in child support liability (between $9 and $11 per week) if Ms La Femina’s 2018/19 taxable income is used, is significant enough to warrant a departure from the administrative provisions based on her income.

5. I am therefore satisfied that the ground for departure set out in subparagraph 117(2)(c)(ia) of the Act has been made out in respect of Mr MacDonell’s income, property and financial resources only.

6. Subparagraph 98C(1)(b)(i) of the Act is satisfied if “one, or more than one” of the grounds for departure are established. Having found one ground for departure established, I will now consider whether it is just and equitable to make a departure determination.

Just and equitable

1. The requirement to consider whether a departure would be just and equitable directs that my attention is turned to what is fair to the parents and their children. To do so I must have regard to a number of factors set out in subsection 117(4) of the Act, such as the needs of the children, the parents’ commitments and any hardships that would be caused by departing, or not departing, from the statutory formula.

Mr MacDonell

1. Mr MacDonell’s income, property and financial resources have been discussed in some detail above. I have found that at the time Ms La Femina lodged her application for a change of assessment (in the 2018/19 financial year) Mr MacDonell’s income, property and financial resources amounted to $87,007. I have estimated his current (2019/20) income, property and financial resources to be around $116,211 to $176,953.

2. Mr MacDonell provided a completed Statement of Financial Circumstances (folios A2-A10). He indicated income of $1,153 per week (about $60,000 per year), plus $1,298 per week rental income (about $67,500).

3. He indicated expenses (excluding child support), but including taxation and half of the children’s school fees of $1,209 per week. He also stated that mortgage payments for the properties amounted to $1,223 per week, which was covered by the rental income.

4. I note Mr MacDonell’s bank accounts indicate three current home loan repayments (as at April 2020) of $1,704 per month (folio A14), $2,827 per month (folio A205) and $520 per month (folio A210). These total $5,051 per month or $1,166 per week. Mr MacDonell also allocated $40 per week for entertainment and holidays, which are considered non-essential expenses[1].

   [1] The Family Court (in Mee and Ferguson (1986) FLC 91-716) has been prescriptive about the types of expenses that can be considered “necessary” expenses and that there are only a few expenses which can be considered to take priority over a parents’ primary duty to support their children. This includes expenses such as a reasonable amount for rent or mortgage payments, food, utilities, and some loans.

5. On this basis Mr MacDonell’s income $2,451 per week exceeds his expenses of $2,335 per week by about $116. Based on the evidence before me, I therefore find that Mr MacDonell is able to meet all of his current expenses.

Ms La Femina

1. Ms La Femina indicated on her Statement of Financial Circumstances (folio B2–B9) that her average weekly income is about $1,647 per week. Ms La Femina also receives child care subsidy payments for the children’s after school care program, but she was unsure of the actual amount.

2. I note that $1,647 was her weekly net income until about March 2020 (folio B169). The most recent payslip indicates gross income of about $2,055 per week ($1,506 net per week) (folio B167). Ms La Femina stated that she recently (from 20 April 2020) reduced her working hours to 0.8 EFT because of the special needs of daughter, [Child 2] and her own health. Her pay will thus decrease further (folio B165).

3. Based on her payslip I estimate the new gross fortnightly income to be about $3,288 or $1,644 per week (being 80% of $4,110 per fortnight). I estimate taxation for this income to be about $812 per fortnight ($406 per week), resulting in a net weekly income of about $1,238.

4. Ms La Femina indicated total expenses of about $3,144 per week, including $1,000 per week for house repairs and $155 per week for holidays, entertainment, gifts and books. Ms La Femina stated that her home is in great need of repair and “is riddled with asbestos”. She also found asbestos building material buried in her backyard and it cost a lot of money to have this removed and make her home safe. Ms La Femina stated that she recently increased her mortgage by $20,000 to pay for the renovations and most of that money has now been spent. Ms La Femina estimated that she would still need to spend about $15,000 to render the house and put up a new front fence, but she thought that these expenses would probably not be as urgent, as the other renovations.

5. Ms La Femina’s bank account statement indicates that she currently repays her home loan at a rate of $1,937.66 per month (folio B179) or about $447 per week. Based on the above information I have estimated that Ms La Femina’s weekly expenses amount to approximately $1,898 (excluding $155 per week discretionary expenses).

6. Ms La Femina indicated that she spends $100 per week ($5,200 per year) on the children’s activities and another $193 per week ($10,036 per year) on “child minding”, as well as an additional $68.46 per week on education expenses.

7. It therefore appears that Ms La Femina has a, income shortfall of about $660 per week, based on her reduced earnings of $1,238 per week. It is difficult to see how Ms La Femina would be able to meet her expenses from her reduced income.

The children

1. Ms La Femina indicated that general expenses for the children include about $68 per week for private school fees and the parties agreed that they pay half of the fees each.

2. She noted that she spends an additional $176 per week on food and toiletries for the children (excluding amounts for gifts and books). Thus, her total expenditure (including childcare and education fees) for the children is $537 per week or $27,924.

3. [Child 2] and [Child 1] are now eight and seven years old and attend school. They have no income, property or financial resources relevant to my determination.

Otherwise proper  

1. The requirement to consider whether it is “otherwise proper” to depart from the administrative assessment directs attention to what is fair to the community. It is necessary to consider the effect of any departure from the administrative assessment on entitlements to income-tested pensions, allowances or benefits (subsection 117(5) of the Act).

2. It is a prime objective of the child support legislation that parents should be obliged to support their own children to the extent of their real capacity, and that that obligation should not be unnecessarily abrogated to the public welfare system when the parents themselves have the capacity to maintain their children.

3. Ms La Femina is in receipt of childcare subsidy payments, which are affected by maintenance payments such as child support. Any increase to child support payable would result in an appropriate decrease in these payments. Such a result would be otherwise proper.

Conclusion

1. Section 98S of the Act describes the determinations that the Registrar, and the Tribunal standing in the shoes of the Registrar, may make if it decides to depart from the administrative assessment. It is open to the Tribunal to set a rate of child support payable or set some of the variables used in the administrative assessment formula (for example, vary one or both parents’ adjusted taxable income).

2. When Ms La Femina lodged her departure application on 30 May 2019 (the 2018/19 financial year), the rate of child support was based on Mr MacDonell’s 2017/18 taxable income of $47,983 and Ms La Femina’s 2017/18 taxable income of $94,866 resulting in a child support liability of $214 per annum payable by Mr MacDonell to Ms La Femina.

3. Mr MacDonell submitted that the income he can derive from his business is not as high as indicated by the objections officer (i.e. $140,000 per annum). He noted that he went through difficult separation/divorce proceedings. These affected his ability to earn income for some time and the income amount set by the objections officer was unrealistic.

4. Mr MacDonell agreed that his income situation is slowly improving and suggested that an annual income of about $90,000 to $100,000 was much more realistic. He also submitted that his financial situation could change at any time and any departure determination should therefore not “run for too long”.

5. Ms La Femina contended that Mr MacDonell’s financial resources were probably even higher than anticipated by the objections officer. She noted that Mr MacDonell’s payments were in arrears, but the rate of child support was affecting her Centrelink payments, regardless of whether she actually received the money. Ms La Femina also suggested that any departure determination should not be in force for too long, as Mr MacDonell’s financial circumstances did seem to change regularly.

6. I have found that Mr MacDonell’s 2018/19 income and financial resources amounted to $87,007 and that currently (in 2019/20) Mr MacDonell’s income and financial resources would amount to at least $116,211 (company profit plus rental losses) to $176,953, if the resources from the Director’s loan are added. I am cognisant of the fact that the current financial year has not yet ended and Mr MacDonell’s actual financial circumstances are not yet fully known.

7. Based on my findings I have therefore decided that Mr MacDonell’s income of $87,007 should be used to calculate his rate of child support until the end of the child support period, in which Ms La Femina’s change of assessment was lodged, i.e. to 30 September 2019. There should be no increase in Ms La Femina’s income for that period, as determined by the objections officer. From 1 August 2019 to 31 December 2020 I will set Mr MacDonell’s adjusted taxable income at $120,000. This is at the lower end of his current income and financial resources and at the end of this period Mr MacDonell’s actual income should be known.

8. I have estimated that my decision will reduce Mr MacDonell’s arrears by about $2,000 and reduce his current liability by about $167 per month to about $7,536 per annum (about $145 per week). Mr MacDonell should be able to manage these payments.

9. The child support payments will assist Ms La Femina to meet her expenses for the children. I note her child care fees should also be reduced by any childcare subsidy payments she receives from Centrelink. The child support payments will not however meet her significant weekly income shortfall, particularly given her now reduced income. Ms La Femina will need to address this matter separately.

10. I will also note that Mr MacDonell’s annual income tax returns will probably continue to show low earnings, because he appears to declare his rental income/loss only on these tax returns. The income from his company is declared separately and the parties may need to consider how these earnings should be notified to the Department in the future.

11. I have reached a different conclusion from the objections officer and I therefore set aside their decision.

DECISION

The decision under review is set aside and a decision substituted that:

• For the period 30 May 2019 to 30 September 2019 Mr MacDonell’s adjusted taxable income is set at $87,007 per annum, and

• For the period 1 October 2019 to 31 December 2020 Mr MacDonell’s adjusted taxable income is set at $120,000 per annum.