NATALIE NEWTON (TRADING AS COMBINED CARE FOR THE ELDERLY) And COMMISSIONER OF TAXATION

[2010] AATA 725

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 725

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3923

TAXATION APPEALS DIVISION		)
Re		NATALIE NEWTON (TRADING AS COMBINED CARE FOR THE ELDERLY)

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Mr S E Frost, Senior Member

Date23 September 2010

PlaceSydney

Decision Objection decision set aside; objection allowed in full.

...................[SGD]...........................

S E Frost
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – decision remitted under s 42D of the Administrative Appeals Tribunal Act 1975 – decision-maker appeals against that “decision” – decision-maker fails, within the specified time, to do one of the things authorised by s 42D(2) – resumption of proceeding in the Tribunal under s 42D(8) despite “appeal” to Federal Court – outstanding substantive issue conceded by Respondent – decision under review set aside

Superannuation Guarantee (Administration) Act 1992, s 12(11)

REASONS FOR DECISION

23 September 2010 Mr S E Frost, Senior Member       

1.      The background to this matter is set out in Re Care Provider and Commissioner of Taxation [2010] AATA 475, which should be read in conjunction with these reasons.

2. On 28 June 2010 I published my reasons for concluding that workers who were paid by the taxpayer to undertake certain tasks were “paid to do work wholly or principally of a domestic or private nature”. That meant that one of the two broad elements of s 12(11) of the Superannuation Guarantee (Administration) Act 1992 (the SGA Act) was satisfied. I was unable to determine the second element of s 12(11) (that is, whether the workers worked less than 30 hours per week, each week), and so I remitted the objection decision, under s 42D of the Administrative Appeals Tribunal Act 1975 (the AAT Act), to the Commissioner for reconsideration. I allowed the Commissioner 42 days to undertake that reconsideration and to take appropriate action under s 42D(2) of the AAT Act.

3.      The Commissioner appealed to the Federal Court against my “decision”.  I am told that the appeal is set down for hearing on 9 November 2010.

4. The 42-day period specified in the reasons accompanying my s 42D order expired on 9 August 2010. By that date the Commissioner had not done any of the things that he is empowered to do by s 42D(2). Subsection 42D(7) of the AAT Act provides that in such a circumstance, the Commissioner is taken to have affirmed the objection decision, and it follows from that, under s 42D(8), that “the proceeding resumes”.

5.      This morning, Mr Ian Young of counsel, for the taxpayer, and Mr David Thomas of counsel, for the Commissioner, appeared before me in what was listed as a Directions Hearing.  The evident purpose of the Directions Hearing, requested by the Commissioner, was to discuss how the proceeding, which is still live in the Tribunal, might progress.

6. In the circumstances, there are two broad possibilities. The first is for me to vary my earlier s 42D order, so as to allow further time for the Commissioner to undertake his reconsideration. That extension of time might be granted until, say, 28 days after the Federal Court appeal has been determined. However, that is not the course favoured by Mr Thomas.

7. The second possibility is that I formally determine the dispute between the parties. With this in mind, Mr Thomas indicated to me this morning that, in relation to the second element in s 12(11) of the SGA Act, the Commissioner did not oppose the taxpayer’s contention that the workers worked for less than 30 hours per week, each week. He invited me, therefore, to determine the second element in favour of the taxpayer, and to set aside the objection decision under s 43 of the AAT Act. Mr Young was content for me to take that course.

8.      Proceeding in this way has the advantage of providing a jurisdictional safety net, if one is needed, in relation to the appeal already instituted against my “decision” dated 28 June 2010.  There must be some doubt as to whether the notice of “appeal” filed in the Federal Court on 26 July 2010 is competent, on the basis that my “decision” on 28 June 2010 did not finally dispose of the proceeding in the Tribunal: see in particular subsections 42D(2), (3), (4) and (8).

9. In any event, and given the Commissioner’s concession in relation to the second element of s 12(11) of the SGA Act, it is appropriate for me to take the course that Mr Thomas has suggested. Accordingly, and for the reasons expressed here and in Re Care Provider, I set aside the Commissioner’s objection decision, and decide instead that the taxpayer’s objection is allowed in full.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member

Signed: ........................... [SGD]........................................
  Associate

Date of Hearing  23 September 2010
Date of Decision  23 September 2010
Counsel for the Applicant         I S Young
Solicitor for the Applicant          Dunstan Legal
Counsel for the Respondent     D F C Thomas
Solicitor for the Respondent     ATO Legal Services