Moore and Commissioner of Taxation (Taxation)

This matter concerned an appeal by Dr Moore against a decision of the Administrative Appeals Tribunal (AAT) affirming the Commissioner of Taxation's assessment of excess contributions tax. The dispute centred on whether Dr Moore had established "special circumstances" under section 292-465(3)(a) of the *Income Tax Assessment Act 1997* (Cth) to warrant a determination that the excess contributions tax assessments were excessive. The decision was made by Deputy President F J Alpins P of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether Dr Moore had discharged her onus of proving the existence of special circumstances that would justify a reduction or remission of the excess contributions tax. This required the Tribunal to consider the entirety of the circumstances presented by Dr Moore and assess whether they were sufficiently exceptional to take her case out of the usual or ordinary course. A related issue was the nature and probative value of the material presented by Dr Moore as evidence, particularly in light of her election not to give evidence or call witnesses.

The Tribunal reasoned that Dr Moore's case was based on documentary evidence and submissions, with little other probative material. It noted that characterising material as "evidence" does not make it so, and that submissions or materials prepared for the proceeding, lacking independent evidential weight, could not found the basis for her claims. The Tribunal emphasised the need to proceed on "rationally probative evidence" rather than suspicion or speculation, distinguishing between permissible inference and impermissible conjecture, as per established case law. Ultimately, the Tribunal concluded that, having regard to the entirety of the circumstances presented, there was nothing that took Dr Moore's case out of the usual or ordinary, and therefore no special circumstances were established.

Consequently, as Dr Moore had not discharged the burden of proving that the excess contributions tax assessments were excessive, the Tribunal affirmed the decision under review. The Tribunal found it unnecessary to consider the other conjunctive preconditions under section 292-465(3) or the exercise of discretion.