NZBG and Commissioner of Taxation (Taxation)

[2017] AATA 2784

NZBG and Commissioner of Taxation (Taxation) [2017] AATA 2784 (14 December 2017)

Division:TAXATION & COMMERCIAL DIVISION

File Number:          2016/6075

Re:NZBG

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:14 December 2017

Place:Sydney

The decision under review is affirmed.

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

Deputy President B W Rayment

CATCHWORDS

TAXATION – tax debt – whether the applicant’s tax debt and general interest charge ought to be released in whole or in part – applicant failed to disclose financial position – applicant failed to discharge onus of proof – decision under review affirmed

LEGISLATION

Taxation Administration Act 1953 (Cth) ss 14ZZK(b), sch 1 s 340-10

CASES

NZBG and Commissioner of Taxation [2017] AATA 1753

REASONS FOR DECISION

Deputy President B W Rayment

14 December 2017

1. This is an application to review the refusal of the respondent to accede to the applicant’s request for release of a tax debt. The applicant now lives in New Zealand and applied unsuccessfully to have his evidence taken otherwise than in person in Sydney.  See my decision in this matter reported at NZBG and Commissioner of Taxation [2017] AATA 1753.

2. The applicant tendered some written materials and made submissions by telephone at the hearing. This presented a difficulty for the applicant because he has the burden of proving that the taxation decision concerned should not have been made or should have been made differently: s.14ZZK(b)(ii) of the Taxation Administration Act 1953 (the Act).

3. The issues in the review are whether the applicant’s tax debt of $92,671.44 and general interest charge of $338,184.38 ought to be released, in whole or in part, under s.340-10 of Schedule 1 to the Act.

4. There is a sum of money owing to the Commissioner for legal costs amounting to $272,154.15.  The respondent had no power under the section to release that sum, and even if release of the tax debt had been, or were now, to be directed, the applicant on his own case would still have significant hardship which would not be cured by the release of his tax debt. The submission made by the applicant about that matter is that, if the tax debt were released, he would intend to apply to the Commissioner to release the costs debt in his discretion. There is no evidence before me that such an application might or would lead to the costs debt being released, and if I had come to the question, I would not have been satisfied that an order for release of the tax debts would relieve hardship.

5. However, I am unable to accept that the applicant has satisfied his onus of proof under s.14ZZK(b)(ii) of the Act.

6. In the first place, the applicant has not satisfied me as to the assets which he owns or the liabilities which he has. I am not satisfied to make findings about the assets which he owns based upon assertions made by him in written submissions. He asserts that he has no assets other than monies in the bank. I am in no position to make findings about the extent of any assets which he has. As to monies in the bank, he has failed to put evidence about the present state of those accounts, if any, before me. Similarly, the extent of any liabilities which he may have is unproven before me.

7. In the second place, I am satisfied, on the basis of materials filed after the hearing which took place before me, that he has a pension income from the New Zealand government, but I am not satisfied that he has no other income. I have not been provided with any materials from which I could infer that any investigation is made by the pension authorities of any income which he may be receiving.  Nor am I made privy to any information given by him to the New Zealand authorities as to his assets, nor as to the investigations, if any, carried out by the New Zealand authorities about his assets.

8. Certain submissions about possible assets and sources of income available to the applicant have been made by the Commissioner and the applicant has filed statements made by New Zealand residents about those matters, which are unable to be tested before me because the persons in question have not attended the Tribunal hearing. I cannot give statements made by those persons sufficient weight to make findings based upon their evidence. Moreover, it is not for the Commissioner to make the applicant’s case, in the sense of putting up submissions which it is for the applicant to answer and thereby discharge his onus of proof. On the contrary, the applicant must make full disclosure of his financial position and offer any relevant proof of those aspects of it which calls for such proof. He has not done so.

   DECISION

9. For those reasons the applicant has not discharged his onus of proof and the reviewable decision must be affirmed.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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

Associate

Dated: 14 December 2017

Date(s) of hearing:	31 October 2017
Date final submissions received:	24 November 2017
Applicant:	In person
Counsel for the Respondent:	Ms R Graycar
Solicitors for the Respondent:	Australian Taxation Office, Review and Dispute Resolution