Morrow and Commissioner of Taxation (Taxation)

This matter concerned an application by the Applicant for an extension of time to lodge an objection with the Commissioner of Taxation. The Applicant, who was a resident but not a citizen of Australia, had been receiving a French Civil Pension since 1970. She had declared this pension on her Australian income tax returns, believing it to be taxable. However, in 2004, she made inquiries which suggested that an agreement between Australia and France, made in 1976, meant her pension was not taxable. She sought confirmation of this, redress for past taxes paid, a Private Ruling, and an extension of time to lodge an objection. The Commissioner disallowed the extension of time for assessments prior to 1 July 1986, citing a lack of statutory power, but allowed extensions for the financial years 1986 to 1999 and allowed the objections for those years in full. The Applicant was advised of her right to seek a review of the decision on the extension of time application by the Small Taxation Claims Tribunal within 28 days, but did not lodge such a review.

The primary legal issue before the Tribunal was whether to grant the Applicant an extension of time to lodge her application for review of the Commissioner's decision regarding the extension of time for certain tax assessments. This involved considering the futility of granting such an extension, given the Applicant's failure to pursue a review within the prescribed time limit and the potential jurisdictional limitations of the Tribunal in relation to earlier tax years. The Tribunal was required to assess whether, in all the circumstances, it was reasonable to grant the extension of time.

Deputy President McCabe P reasoned that the Applicant's substantive application, which sought to challenge the Commissioner's decision on the extension of time for earlier tax years, was likely futile. This futility stemmed from the Commissioner's finding that there was no statutory power to grant an extension of time where the time limit had expired before 1 July 1986, a finding the Applicant had not successfully challenged by lodging a timely review with the Small Taxation Claims Tribunal. Given this lack of prospects of success for the substantive application, the Tribunal concluded that it was not reasonable in all the circumstances to grant the Applicant an extension of time to lodge her application.

Consequently, the application for an extension of time was refused.