NZBG and Commissioner of Taxation

[2017] AATA 1753

NZBG and Commissioner of Taxation [2017] AATA 1753 (11 October 2017)

Division:TAXATION & COMMERCIAL DIVISION

File Number(s):      2016/6075

Re:NZBG 

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:11 October 2017  

Place:Sydney

The applicant’s application for leave to give evidence at the final hearing from New Zealand is dismissed.

...........................[sgd].............................................

Deputy President B W Rayment

Catchwords

PRACTICE AND PROCEDURE – application to give evidence from New Zealand – insufficient funds to appear at hearing in person – prohibitive cost of video-link – application dismissed

REASONS FOR DECISION

Deputy President B W Rayment

11 October 2017

1. The applicant in these proceedings resides in New Zealand. He has applied to the Tribunal for a review of the Commissioner’s decision rejecting his application for the writing off of a tax debt.

2. In these interlocutory proceedings, the applicant seeks leave to give his evidence at the final hearing in this matter from New Zealand. The applicant has sworn an affidavit deposing that he has insufficient funds to permit him to travel to Sydney to give evidence at the final hearing. I make no findings to that effect since cross-examination by the respondent was not permitted. I directed the applicant to make enquiries as to the availability of video link facilities and the applicant has deposed that while they are available, he cannot afford that cost. It seems that the cost of providing video link access would exceed the cost of the applicant coming to Sydney.

3. The applicant was due to file further material in support of his application by 6 October 2017. I decided to look at that material before deciding the present application, and have now done so.

4. I indicated at the hearing on 20 September 2017 that as at present advised, I was predisposed to reject any application to call telephone evidence in support of his application. That is because I have been informed by the respondent that issues of credibility will arise concerning the applicant’s alleged inability to pay the tax debt.  I do not believe that it is feasible to judge issues of credibility listening to evidence by telephone. If the applicant cannot come to Sydney, he can make submissions by telephone, but such submissions will not be evidence. The ability to make submissions and to tender evidence (not involving his own evidence being taken by telephone) will have to satisfy the obligation to give him a hearing.

5. My inspection of the material filed by the applicant has not caused me to alter the tentative views I expressed when this application was heard by telephone on 20 September 2017.

6. The applicant’s application for leave to give evidence at the final hearing from New Zealand is therefore dismissed.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

.................................[sgd].......................................

Associate

Dated: 11 October 2017

Date(s) of hearing:	20 September 2017
Date final submissions received:	6 October 2017
Applicant:	In person
Counsel for the Respondent:	Ms R Graycar
Solicitors for the Respondent:	Mr R Dunne, Australian Taxation Office