McNamara; Secretary, Department of Social Services and (Social services second review)

[2016] AATA 689

McNamara; Secretary, Department of Social Services and (Social services second review) [2016] AATA 689 (7 September 2016)

Division	GENERAL DIVISION
File Number	2016/0631
Re	Secretary, Department of Social Services
APPLICANT
And	Suzanne McNamara
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	7 September 2016
Place	Perth

The Tribunal sets aside the decision under review and, in substitution, decides that the Respondent is not entitled to Family Tax Benefit supplements and top up for the income year ended 30 June 2013.

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Senior Member CR Walsh

CATCHWORDS

FAMILY TAX BENEFIT (FTB) – whether respondent entitled to FTB supplements and top-up for the 2012/2013 financial year – failure by respondent and her partner to lodge their income tax returns for the year ended 30 June 2013 year by 30 June 2014 – no “special circumstances”  - decision set aside and substituted

LEGISLATION

Acts Interpretation Act 1901 – s 29

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance) (Administration) Act 1999- s 32A – s 32B – s 32C – s 32D – s 32E – s 32F – s 32G – s 32H – s 32I – s 32J – s 107

Evidence Act 1995 – s 160

Family Assistance and Other Legislation Amendment Act 2013

Social Services and Other Legislation Amendment Act 2014 – s 26(1) – s 26(2)

CASES

Andre and Secretary, Department of Social Services [2016] AATA 205

Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25

Beadle and Director General of Social Security (1985) 60 ALR

Cannon; Secretary, Department of Social Services [2015] AATA 1028

Dann and Secretary, Department of Social Services [2016] AATA 196

Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114

Dranichnikov v Centrelink [2003] 75 ALD 134

Fedigan and Secretary, Department of Social Services [2016] AATA 211

Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2010) 185 FCR 52

Groth and Secretary, Department of Social Security (1995) 40 ALD 541

Hollis and Secretary, Department of Social Services [2015] AATA 941

Hooker and Secretary, Department of Social Services [2015] AATA 732

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Ivocic and Director General of Social Services [1981] AATA 57

Secretary, Department of Social Services and Field [2015] AATA 903

Secretary, Department of Social Services v Shanhun [2016] AATA 675

REASONS FOR DECISION

Senior Member CR Walsh

7 September 2016

INTRODUCTION

1. This application concerns whether Ms McNamara is entitled to be paid Family Tax Benefit (FTB) supplements and top-up for the 2012/2013 financial year under the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act).  This turns on whether there were “special circumstances” which prevented Ms McNamara and her partner from lodging their income tax returns for the year ended 30 June 2013 by 30 June 2014 as required by the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).

   FACTUAL & PROCEDURAL BACKGROUND

2. The following facts, as set out in the Secretary’s “Statement of Facts, Issues and Contentions”, dated 5 May 2016, are not in dispute.

3. During the 2012/2013 financial year, Ms McNamara received FTB payments from the Department of Human Services (the Department).

4. On 17 March 2014, the Department sent Ms McNamara a letter advising her of the following:

   Family Tax Benefit – Important action required by 30 June 2014

   You now only have one year instead of two years to lodge a tax return, or tell us if you and/or your partner are not required to lodge a tax return in order to receive your full Family Tax Benefit entitlements…

   To make sure you receive your full Family Tax Benefit entitlement, you and your partner need to lodge a 2012-2013 tax return, or tell us if you and/or your partner are not required to lodge a tax return, by 30 June 2014.

5. On 26 May 2014, Centrelink sent Ms McNamara a text message reminding her to lodge her and her partner’s income tax returns for the year ended 30 June 2013 by 30 June 2014 in order to receive her full FTB entitlements.

6. On 16 September 2014, Ms McNamara and her partner lodged their tax returns for the 2013 income year.

7. On 21 November 2014, the Department wrote to Mr McNamara advising her of the following:

   You were paid Family Tax benefit during the 2012-13 financial year based on you estimated family income.  We have now checked your entitlement using you actual family income

8. Having undertaken this reconciliation process, the Department decided that as Ms McNamara her partner had failed to lodge their 2013 income tax returns by 30 June 2014, Ms McNamara was not entitled to receive any FTB supplements or top-up (totalling $2,810.39) for the 2012/2013 financial year. Consequently, Ms McNamara was only entitled to receive an amount of $16,622.86 for the 2012/2013 financial year, being the amount she had already received in that year (the Original Decision).

9. On 25 November 2014, Ms McNamara’s accountant, Mr Levi Wheatcroft, of Wheatcroft Accounting, wrote to the Department advising it of the following:

   On the 23^rd May 2014 I was engaged by Gary and Suzanne McNamara to prepare and lodge their personal income tax returns for the financial year ended 30^th June 2013.  On that date they provided me with all of the information required to complete the engagement.  These tax forms were finalised and lodged on 16^th September 2014.

   Lead times of four months for business tax returns, whilst obviously not ideal, are not uncommon for small firms in regional Australia,  Due to some miscommunication in my office, I was not aware of the client’s eligibility for the Family Tax Benefit and as such I did not prioritise this job in order to meet the 30^th of June deadline.

   Given that the client has made every effort to comply with your requirements, and that my turn around time is not within the client’s control, it would seem inappropriate to penalise them by withholding their Family Tax Benefit entitlement.

10. On 13 May 2015, a Centrelink Authorised Review Officer (ARO) affirmed the Original Decision (the ARO Decision). The basis of ARO Decision was that Ms McNamara:

    ·and her partner had not lodged their 2013 tax returns, or notified the Department that Ms McNamara was not required to lodge a 2013 tax return, by 30 June 2014; and

    ·had not demonstrated “special circumstances” for this non-compliance.  Specifically, the ARO Decision states:

    …delay caused by your accountant is not a ‘special’ circumstance and therefore the decision not to pay you any further Family Tax Benefit for 2012/2013 is correct.

11. Ms McNamara’s accountant, Mr Wheatcroft, provided Centrelink with a letter from Dr Jansz, general practitioner, dated 27 August 2015, stating:

    I am the GP of Mr Levi Wheatcroft.

    I saw him 13 August 2014 at which time he [i.e. Mr Wheatcroft] was showing significant signs of stress related to discovery that his partner had contracted a serious illness 6 weeks before.  He had taken some time to seek help and counselling regarding this matter.  As such he may have suffered impaired performance at work or home in his usual activities.  I would request that this be taken into account when considering any matters related to this period.

12. Ms McNamara’s accountant, Mr Wheatcroft, provided Centrelink with a letter from Dr Kriek, general practitioner, dated 22 September 2015, stating:

    I write this letter to confirm that Mr Wheatcroft’s partner was diagnosed with a serious illness in June 2014.  This has had significant ramifications to his own health and personal living arrangement.  Her illness is chronic in nature and requires ongoing medical treatment and support and Mr Wheatcroft acts as her primary carer.

13. On 19 November 2015, Ms McNamara applied to the AAT1 for a review of the ARO Decision.

14. On 22 December 2015, Ms McNamara’s accountant, Mr Wheatcroft, provided the AAT1 with the following submission in support of Ms McNamara’s application:

    As principal accountant at Wheatcroft Accounting (my firm) I believe I am fundamentally involved in the series of events culminating in the timely submission of Ms McNamara’s (the applicant’s) tax forms.  Therefore my own circumstances must be considered in determining whether any special circumstances existed in the case at hand.

    …

    During June 2014 my spouse was diagnosed with a life threatening illness, with a prognosis not determined at that time.  The nature of the illness had significant ramifications for my own health and personal living arrangements.  In addition, the illness has required significant ongoing support from myself.  I have provided…two letters from medical doctors substantiating these facts.

    These events significantly reduced the productivity of the firm during the period in question.  In general similar engagement can be completed by my firm in less than 1 month, and it is not unusual for us to complete engagements much sooner upon a client’s request.  In this case the applicant did request that the engagement be finalised by 30 June 2014, and it would have been reasonable to assume that we would do so.  Between 16 June 2014 and 7 January 2015 I recall that Ms McNamara did enquire as to the progress of this engagement more than once.  There is no doubt that the extended delay in finalising this engagement was precipitated by my family crisis.

15. At the hearing before the AAT1, Ms McNamara gave evidence that she and her partner relied on an accountant to lodge their individual and business tax returns. Ms McNamara said she was not aware that the returns had to be lodged in one year instead of two. Ms McNamara said that she dropped off her returns to her accountant on 23 May 2014 on the assumption they would be lodged by 30 June 2014. Ms McNamara explained that she had not followed up with the accountant about the lodgement until after 30 June 2014 as “there had been a lot of disruption in her household during this time and the tax returns were not uppermost in her mind”.

16. Ms McNamara’s evidence before AAT1 was also that during June 2014 her family had taken on a foster child, who brought illegal substances into the home and “caused a lot of grief”. Ms McNamara said that she and her husband spent a lot of time trying to locate the boy’s mother and eventually reunited the child with her sometime after June 2014. It was only after this time she thought to chase up her tax returns with her accountant, Mr Wheatcroft.

17. Ms McNamara’s accountant, Mr Wheatcroft, gave evidence to the AAT1 that he was aware of the requirement to lodge Ms McNamara’s tax returns by June 2014, however had failed to do so due to his partner’s illness. He claimed that this “impacted on his usual practice and contributed to his lack of proper oversight in this particular matter” and referred to the letters provided by his general practitioners.

18. On 20 November 2015, the AAT1 set aside the ARO Decision and substituted and substituted that decision with the following decision:

    That the period for lodgement of Mrs McNamara's and her partner’s 2012-13 income tax returns is extended to 16 September 2014 due to special circumstances. (the AAT1 Decision)

19. In the AAT1 Decision, the AAT1 found that there were special circumstances in this case which warranted the exercise of the discretion to extend time, namely the illness of the accountant's partner which caused his usual risk management system to be displaced and the filing of Ms McNamara and her partner’s 2013 tax returns to “slip through the system”. The AAT1 also found that Ms McNamara’s failure to follow up the returns in a timely manner was impacted by her preoccupation with a difficult foster child.

20. The effect of the AAT1 Decision was that Ms McNamara met the reconciliation conditions contained in the Administration Act and was entitled to be paid the FTB supplements and top-up for the 2012/2013 financial year under the Family Assistance Act.

21. On 5 February 2015, the Secretary applied to this Tribunal for a review of the AAT1 Decision.  The Secretary’s stated Reasons for Application are:

    There was insufficient evidence and reasons for the AAT to find special circumstances and extend the time for lodgement of Ms McNamara’s and her partner’s tax returns for the purposes of the Family Tax Benefit top ups for the 2012/2013 financial year.

    CONSIDERATION

22. Section 32A of the Administration Act requires that the Secretary disregard the amounts of the FTB supplements when making or varying a determination until the claimant “has satisfied the FTB reconciliation conditions” which apply in the relevant period.

23. Section 32B of the Administration Act provides that if only one of the provisions 32C-32J of the Administration Act applies to a person, that person satisfies the FTB reconciliation conditions at the relevant reconciliation time as contained in the provision they satisfy.

24. Section 32C of the Administration Act is the relevant reconciliation provision in this matter. Section 32C provides that if an individual is a member of a couple and both the individual and their partner were required to lodge a tax return (as is the case here), both must lodge their tax returns within the first income year after the relevant income year,[1]  unless the Secretary (and in turn the Tribunal) is satisfied that there are “special circumstances” that prevented the individual and their partner from lodging the return before the end of that first income year. [2]

    [1] The changes to the time frames for the lodgement of tax returns were inserted into the Administration Act by the Family Assistance and Other Legislation Amendment Act 2013. The changes applied in relation to the 2012/2013 income year and later income years.

    [2] The reconciliation conditions contained in 32C – 32H and subsection 107 as they currently appear in the Administration Act were inserted by the Social Services and Other Legislation Amendment Act 2014 (the 2014 Amending Act). However, the application provisions for the 2014 Amending Act state that the changes to ss 32C-32H and 107 of the Administration Act only apply in relation to the 2013/2014 income year or a later income year: see s 26(1) and (2) of the 2014 Amending Act.

25. Therefore, in order for the time for making a claim to be extended, the Secretary (and in turn the Tribunal) must be satisfied of two things:

    (i)that circumstances existed that were “special”; and

    (ii)those special circumstances prevented the claimant from making her claim within time:  Hooker and Secretary, Department of Social Services [2015] AATA 732 at [14] and [19] and Hollis and Secretary, Department of Social Services [2015] AATA 941 at [30]-[31].

26. It is not in dispute that Ms McNamara and her partner did not lodge their tax returns for the 2012/2013 financial year until 16 September 2014 (i.e. after 30 June 2014, as required by the Administration Act).

27. What is in dispute is whether there were “special circumstances” which prevented Ms McNamara and her partner from lodging the returns before 30 June 2014, the end of the first income year. This issue is considered below.

28. The expression “special circumstances" is not defined in the Family Assistance Act or the Administration Act.

29. However, the meaning of “special circumstances” has been considered extensively by the Federal Court and the Tribunal in the context of social security and family assistance law. In summary, it has been held that for circumstances to constitute “special circumstances” they must be circumstances which are “unusual, uncommon or exceptional,” “markedly different from the usual run of cases,” “special” or “out of the ordinary” and they include “events which would render the (strict application of the rule in question) unfair or inappropriate:” see for example, Re Ivocic and Director General of Social Services [1981] AATA 57 at [45]; Re Beadle and Director-General of Social Security (1984) 6 ALD 1 (Re Beadle) at 3 per Toohey J; Beadle and Director General of Social Security (1985) 60 ALR 225 at 228 as per Bowen CJ, Fisher and Lockhart JJ; Groth and Secretary, Department of Social Security (1995) 40 ALD 541 (Groth) at 545 per Kiefel J; Dranichnikov v Centrelink [2003] 75 ALD 134 at [66] per Hill J; Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25 (Angelakos) at [33] and Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114; (2007) 94 ALD 693 (Davy) at [80]. Circumstances might be “special”, although they apply to more than one person or class of persons, provided they are not of universal application: see Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2010) 185 FCR 52 at [65]. Ultimately, whether circumstances answer any of these descriptions depends on the context in which they occur: Re Beadle; Groth; Angelakos; Davy.

30. Recently, there have been a number of cases before the Tribunal involving similar circumstances to the present case, namely where an accountant/tax agent has failed to lodge his client’s tax return on time.  Some of these cases are outlined below. Whilst such cases may inform the Tribunal, each case must be decided on its own merits.  The doctrine of stare decisis does not apply in the Tribunal as it does in a court.

31. In Cannon; Secretary, Department of Social Services (Social Services second review) [2015] AATA 1028 (Cannon) the Tribunal considered special circumstances in FTB cases and in particular, whether the following could amount to “special circumstances”:

    (i)If a person is unaware of the change to the lodgement periods; and

    (ii)If a tax agent/accountant advises that they were the cause of the late lodgement.

32. In Cannon, in rejecting that (i) (above) amounted to “special circumstances” DP Constance found (at [16]-[20]) (citations omitted):

    As a matter general principle, ignorance of the law is no excuse for a person's failure to comply with it.  In addition, there is no legal obligation on the Secretary or any Government Department to advise potential claimants of changes in the law which may adversely affect them.

33. In Cannon, in rejecting that (ii) (above) amounted to “special circumstances”, DP Constance found (at [21]~[24]) (citations omitted):

    I do not consider that a mistake made by Mr Turner’s accountants can be properly regarded as a special circumstance to entitle Ms Cannon to receive the adjustment to the Family Tax Benefit. The Accountants have unequivocally admitted responsibility for their error and Ms Cannon may have a means of redress against them.

34. Similar findings were made by the Tribunal in relation to a customer’s ignorance of the change in lodgement requirements in Dann and Secretary, Department of Social Services (Social services second review) [2016] AATA 196 (Dann) at [14]:

    It has long been held that lack of knowledge of the law is not an unusual or uncommon experience that would constitute special circumstances for the purposes of s 10(2) of the Administration Act. Equally, it is well established that there is no obligation or general common law duty of care to advise recipients or potential recipients of benefits that might potentially be available under the Act, or of changes in the law.

35. In Secretary, Department of Social Services and Field (Social services second review) [2015] AATA 903 (Field) at [24]-[28] DP Forgie found, after considering the position under the Administration Act, and at common law, likewise concluded that there was no requirement on the Secretary to inform each recipient, or potential recipient, of benefits under the social security law or of changes in the law affecting any particular payment.

36. In Fedigan and Secretary, Department of Social Services (Social services second review) [2016] AATA 211 (Fedigan) at [24]-[35], the Tribunal also found that failure by an accountant to lodge tax returns on account of psychiatric and psychological issues did not amount to “special circumstances":

    I accept that Miss Fedigan and Mr Preston had provided their tax returns to their accountant in time for processing to the ATO. I accept also that the accountant incurred the delay. I do not accept that this is an unusual, uncommon or out of the ordinary occurrence.

1. In Elrington and Secretary, Department of Social Services (Social services second review) [2016] AATA 169 (Elrington) DP Forgie was not satisfied that there were “special circumstances”, where the applicant had failed to follow up his tax agents to ensure his return was lodged. DP Forgie found (at [27]-[28]) that the applicant was aware from notices sent by the Department of the importance of lodging his return by 30 June 2014 and that the applicant should have followed up his accountants about the status of his return in circumstances where he had not received any request to sign a declaration authorising lodgement of his return from his tax agent Deputy President Forgie also noted that any failure in the applicant actually receiving the notices would “not lead me to a different conclusion” (at footnote [20]).

2. Similarly, in Andre and Secretary, Department of Social Services (Social services second review) [2016] AATA 205 (Andre) SM Dunne found:

   16.As a matter of general principle, ignorance of the law is no excuse for a person’s failure to comply with it. In addition, there is no legal obligation on the Secretary or any Government Department to advise potential claimants of changes in the law which may adversely affect them.

   17.Ms Andre gave evidence that she had forwarded her signed return to her accountant in time for it to be lodged in time, but the accountant did not process it automatically as she had expected. I do not consider that a mistake or delay by Ms Andre’s accountant can be properly regarded as a “special circumstance" to entitle her to receive the extension to the FTB.

3. In the recent Tribunal decision in Secretary, Department of Social Services (Social services second review) v Shanhun [2016] AATA 675 (Shanhun), in finding that no “special circumstances existed”, the Tribunal said:

   33.…the Respondent had waited until the twelfth month of the year in which she needed to lodge her tax return in order to receive FTB supplements.  She had received a letter from the Department in March 2014 reminding her of the requirement to lodge the return and the consequences in regard to FTB supplements if a tax return is not lodged.  The evidence that she gave to the hearing was that she was ‘not good with paperwork’, but she did not put forward any other reason for waiting until 3 June to engage her accountant.  There is nothing particularly “unusual” or “special” or put of the ordinary” in this conduct.

   …

   35.The Respondent…gave evidence…that it is reasonable for her to assume, having put this matter into the hands of her accountants, that they would be seized of the need for the return to be lodged in a timely way.

   …

   37.I accept that it was beyond the control of the Respondent that the firm did not lodge her tax return for the 2012-2013 financial year until 1 July 2014.  But it was not beyond her control to have signed the authority to lodge her return earlier than the very last day of the relevant period…

   …

   40.…There were no special circumstances which were out of the ordinary…or which were unusual or uncommon, which stopped or hindered the Respondent from lodging her tax return at any time in the relevant 12 month period.

4. In Ms McNamara’s case, the Tribunal finds that no "special circumstances” existed which prevented her or her partner from lodging their 2013 income tax returns by 30 June 2014, as required by the Administration Act: refer to paragraph 25 above.

5. As set out in the “Factual & Procedural Background”, Ms McNamara was made aware by Centrelink of the need for her and her partner to lodge their 2013 income tax returns by 30 June 2014 by both text message and a letter dated 17 March 2014. The consequences if she failed to do so were made clear in the letter dated 17 March 2014:  refer to paragraphs 4 and 5 above.

6. It was Ms McNamara’s evidence before the AAT1 that she did not specifically recall receiving the 17 March 2014 letter and was not aware that the time limits had changed.

7. However, pursuant to s 29 of the Acts Interpretation Act 1901, service of this notice is deemed to be effected at the time at which the letter would be delivered in the ordinary course of post. Ms McNamara has not sought to produce any evidence to rebut this presumption, or the similar presumption contained in s 160 of the Evidence Act 1995.

8. Further, information about the reduced time limit to lodge the tax return for the 2012/2013 income year by 30 June 2014 was publicly available. That is, on 26 September 2013, the Department published on its website the document titled “Changes to the time period for lodging lump sum claims and confirming income” that relevantly stated the following:

   From 1 July 2013, the amount of time you have to confirm your income changed. You have one year instead of two years to: ...confirm your income for Family Tax Benefit - this means that you and your partner (if you have one) need to lodge a tax return with the Australian Taxation Office... [by] 30 June 2014.

9. Consistent with the decisions of the Tribunal in Cannon, Dann and Field, the Tribunal finds that ignorance of the law is no excuse for Ms McNamara’s failure to comply with the 30 June 2014 deadline and there is no legal obligation on the Department (Centrelink) to advise potential claimants of changes to the law that may affect them. Further, any ignorance that Ms McNamara had of her and her partner’s income tax return lodgement requirements does not constitute “special circumstances”.

10. Further, the Tribunal finds the fact that Ms McNamara and her partner were caring for a difficult foster child does not constitute “special circumstances” in circumstances where it is clear that they entrusted the lodgement of their 2013 tax returns to their accountant and that accountant has accepted responsibility for the failure to lodge the returns on time.

11. Whilst it is regrettable that Ms McNamara’s accountant was responsible, by his own admission, for Ms McNamara and her partner’s 2013 tax returns not being lodged on time (by 30 June 2014) that also does not amount to “special circumstances” that prevented Ms McNamara lodging her and her partner’s 2013 income tax returns on time: Cannon; Fedigan; Andre and Shanhun and see paragraph 29 above.

12. Further, consistent with the findings of the Tribunal in Cannon, Fedigan, Andre and Shanhun, Ms McNamara’s accountant’s mistake, apparently due to his wife’s ill health, does not amount to “special circumstances” as that expression has been held to mean:  refer to paragraphs 29 and 33 above.  As the Secretary contended, Ms McNamara’s means of redress is against her accountant, not the public purse.

13. In any event, the Tribunal considers that the medical evidence before the AAT1 does not support its finding that the illness of the accountant’s partner caused the mistake to be made. The medical certificates provided to the AAT1 (refer to paragraphs 11 and 12 above) are extremely general in nature and give no insight into any diagnosed condition or its effect on the accountant’s ability to lodge the 2013 income tax returns of Ms McNamara and her partner on time. Moreover, only the medical certificate dated 27 August 2015 (see paragraph 11 above) gives any particularity as to when the accountant was suffering "stress.” The certificate states that the accountant was observed to have such symptoms on 13 August 2014. This was well after the accountant claimed to have first looked at the 2013 tax returns of Ms McNamara and her partner (in May 2014) and when the 2013 tax returns were due to be lodged (by 30 June 2014), and well before the 2013 tax returns were ultimately lodged (on 16 September 2014):  refer to paragraph 9 above.

14. In conclusion, the Tribunal finds that there was nothing "unusual, uncommon or exceptional”, “markedly different from the usual run of cases”, “out of the ordinary” or “special” in the circumstances postulated by Ms McNamara which prevented her and her partner from lodging their 2013 income tax returns by 30 June 2014, as required by the Administration Act. : refer to paragraph 29 above.

    DECISION

15. For the above reasons, the Tribunal sets aside the AAT1 Decision and, in substitution, decides that Ms McNamara is not entitled to be paid FTB supplements and top up for the 2012/2013 financial year as no “special circumstances” exist in Ms McNamara’s particular case.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

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Administrative Assistant

Dated 7 September 2016

Date of hearing	6 September 2016
Representative for the Applicant	Ms B Rayment
Solicitors for the Applicant	Mills Oakley Lawyers
Representative for the Respondent	Mr L Wheatcroft