Maksimovic and the Registrar of Australian Business Register

[2008] AATA 108

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 108

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3932

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DEJAN MAKSIMOVIC

Applicant

And THE REGISTRAR OF AUSTRALIAN BUSINESS REGISTER

Respondent

DECISION

Tribunal B.H. Pascoe, Senior Member  

Date16 January 2008

PlaceMelbourne

Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

REGISTRAR OF AUSTRALIAN BUSINESS REGISTER – Australian Business Number (ABN) – ABN cancelled – applicant incarcerated – carrying on an enterprise – decision affirmed

A New Tax System (Australian Business Number) Act 1999

A New Tax System (Goods and Services Tax) Act 1999

REASONS FOR DECISION

16 January 2008 B.H. Pascoe, Senior Member       

1.      This is an application to review a decision of the Registrar of the Australian Business Register, the respondent, to cancel the Australian Business Number (ABN) formerly held by Mr D. Maksimovic, the applicant.

2. At the hearing Mr Maksimovic appeared by telephone from the Fulham Correctional Centre where he is currently serving a prison sentence. The respondent was represented by Mr S. Sexton, an officer of the Australian Taxation Office. At the conclusion of the hearing, the Tribunal affirmed the decision under review for reasons given orally. Pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975, the respondent requested a statement in writing of the reasons of the Tribunal for its decision.

3.      Mr Maksimovic was registered with an ABN from 22 February 2001.  He completed Business Activity Statements on a quarterly basis until the quarter ended 30 June 2007.  The last three quarters showed nil transactions.  By letter of 6 July 2007, the GEO Group Australia Pty Ltd advised that Mr Maksimovic was currently a prisoner at the Fulham Correctional Centre being received into custody on 4 September 2006 and being eligible for release on parole on 8 June 2010.  By letter of 13 July 2007, Mr Maksimovic requested that my Business Activity Statements cease as I am currently incarcerated.  By letter of 3 August 2007 the respondent gave notice of the decision to cancel the ABN as of 1 October 2006.

4.      Mr Maksimovic acknowledged that he had not been engaged in any business activity since the date of his incarceration.  However, he objected to the cancellation of the ABN as he expected to resume business activities after his release.  As he still possessed a supply of business stationery showing his ABN, he did not wish to apply for a new number on recommencement of business.  It was noted that the respondent confirmed that Mr Maksimovic would be re-allocated the same number if a further application was received.

5. Section 8(1) of the A New Tax System (Australian Business Number) Act 1999 (ABN Act) provides an entitlement to have an ABN if you are carrying on an enterprise in Australia.  Section 41 of the ABN Act provides that enterprise has the meaning given by s 9-20 of the A New Tax System (Goods and Services Tax) Act 1999 which provides that:

(1)an enterprise is an activity, or series of activities, done;

(a)in the form of a business; or

(b)in the form of an adventure or concern in the nature of trade…

Section 18(1) of the ABN Act provides that the respondent may cancel the registration of an ABN if satisfied that you are no longer entitled to have an ABN.

6.      It is very clear that, at least from 4 September 2006, Mr Maksimovic has not been carrying on an enterprise.  Under his current sentence he will not be in any position to carry on an enterprise until after 8 June 2010.  As a consequence, he is not entitled to have an ABN.  It follows that the decision to cancel the ABN should be affirmed.

I certify that the six [6] preceding paragraphs are a true copy of the reasons for the decision herein of

B.H. Pascoe, Senior Member

Signed: Olympia Sarrinikolaou

Clerk

Date of Hearing  16 January 2008
Date of Decision  16 January 2008
Advocate for the Applicant          Self Represented 
Advocate for the Respondent       Mr S. Sexton, Australian Tax Office