Potts and Commissioner of Taxation (Taxation)

[2023] AATA 415

Potts and Commissioner of Taxation (Taxation) [2023] AATA 415 (16 March 2023)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2022/9239

Re:Benjamin Potts

APPLICANT

AndCommissioner of Taxation

RESPONDENT

Decision

Tribunal:Senior Member O’Donovan

Date:16 March 2023

Place:Canberra

The Tribunal is satisfied that the decision is not reviewable by the Tribunal.

Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1974, the Tribunal dismisses the Application.

………….[SGD]…………

Senior Member O’Donovan

CATCHWORDS

PRACTICE AND PROCEDURE – JURISDICTION – Commissioner of Taxation – Tax assessment decisions – where Applicant requested Tribunal review of the decisions to impose shortfall penalties – where relevant notices do not provide Tribunal jurisdiction to review the imposition of such penalties – application dismissed for no jurisdiction

REASONS FOR DECISION

Senior Member O’Donovan

16 March 2023

1. This is an application to seek a review of a tax assessment made by the Commissioner of Taxation (“the Respondent”) in relation to the Applicant, Mr Benjamin Potts.

2. On 19 April 2022, the Applicant was notified by the Respondent that penalties of $50.25 and $4,624.50 had been applied to his Income Tax accounts for the financial year ended 30 June 2021.

3. The Respondent raised the debts pursuant to section 284-75 of Schedule 1 to the Taxation Administration Act 1953, which allows for the penalties to be imposed as a result of the Applicant or the Applicant’s taxation agent making false or misleading statements.

4. On 7 November 2022, the Applicant made an Application for Review to this Tribunal in respect of his Income Tax Statement dated 4 November 2022.

5. At the time of the Application for Review, the Applicant provided an explanation and evidence to this Tribunal as to why he thought the Statement was wrong. He did not address whether the Tribunal had jurisdiction to deal with the matter.

6. On 5 January 2023 the Tribunal sent the Applicant a letter notifying the Applicant that the Tribunal may not have jurisdiction to conduct merits review of the decision. The letter invited comment on the validity of the present application. The Applicant did not provide a response to this correspondence.

7. In this case the Tribunal’s jurisdiction depends on the Applicant first seeking review of the Respondent’s decision by the ATO. There are a select number of ATO decisions that are reviewable by the ATO, which include Notices of assessment for a shortfall penalty.

8. In circumstances where the Applicant disagrees with the Notices of assessment for a shortfall penalty made by the Respondent on 19 April 2022, he is required to lodge an objection directly with the ATO as stipulated by s14ZL of the Taxation Administration Act 1953, before he can approach the Tribunal.

9. An objection can be made by way of accessing and completing the Objection form – for taxpayers which is located on the Respondent’s website. Alternatively, he can lodge his objection in writing with the Respondent.

10. Only after internal review by the Respondent can he seek review by the Tribunal.

11. Based on the information provided by the Applicant on 7 November 2022 alongside his Application, the Tribunal is satisfied that the decision is not reviewable by the Tribunal because he has not yet sought review of the decision by the ATO.

    Decision

12. Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1974, the Tribunal dismisses the Application.

13.     I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Donovan

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

Associate

Dated: 16 March 2023

Date(s) of hearing:	On the papers
Date final submissions received:	7 November 2022