PTBS and Commissioner of Taxation (Practice and procedure)
[2025] ARTA 1262
•7 August 2025
PTBS and Commissioner of Taxation (Practice and procedure) [2025] ARTA 1262 (7 August 2025)
Applicant:PTBS
Respondent: Commissioner of Taxation
Tribunal Number: 2024/5088
Tribunal:General Member J Dunne
Place:Melbourne
Date:7 August 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the Applicant’s objection dated 16 August 2023 be taken to have been lodged with the Respondent within the period required by section 14ZW of the Taxation Administration Act 1953 (Cth).
...........................[sgd].............................................
General Member J. DunneCatchwords
PRACTICE AND PROCEDURE – refusal of request for extension of time to lodge objection – factors relevant to exercise of discretion to extend time for lodgement – decision refusing request for extension of time set aside.
Legislation
A New Tax System (Goods and Services Tax) Act 1999 (Cth) s 25-10(1A)
Corporations Act 2001 (Cth) s 459HTaxation Administration Act 1953 (Cth) ss 14ZX, 14ZW, Schedule 1 ss 155-35(2), 155-90
Cases
AAT Case 4782 (1988) 20 ATR 3064
AAT Case 7510 (1991) 22 ATR 352
AAT Case 7512/13 (1991) 22 ATR 3526
AAT Case 8/93; No 8601 (1993) 25 ATR 1076.
Brown v Commissioner of Taxation [1999] FCA 563
Case 8/93 [1993] AATA 88
Case Y57 91 ATC 493
Ciaglia and Commissioner of Taxation [2002] AATA 323
Clark and Commissioner of Taxation [2021] AATA 2446
Classic Ceramic Importers v Ceramica Antiga SA (1994) 12 ACLC 334
Commissioner of Taxation v Brown [1999] FCA 1198
De Simone and Commissioner of Taxation [2012] AATA 654
DTMP and Commissioner of Taxation [2016] AATA 684
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669
Federal Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131
Herbert and Commissioner of Taxation [2013] AATA 42
HV/LV Solutions Pty Ltd and Commissioner of Taxation [2025] ARTA 976
Primary Health Care Limited v Federal Commissioner of Taxation [2017] AATA 393
Re Esso Australia Resources Pty Ltd v Commissioner of Taxation [2007] AATA 1776
Re Taxation Appeals [1993] AATA 88
Re Taxation Appeals [1994] AATA 121
Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1994) 12 ACLC 111
Trustee for the Whitby Trust v Federal Commissioner of Taxation [2019] AATA 5637
Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553
WT94/52 and Commissioner of Taxation [1995] AATA 98
Zizza v Federal Commissioner of Taxation [1999]FCA 848Secondary Materials
Practice Statement Law Administration PS LA 2003/7 How to treat a request to lodge a late objectionPractice Statement Law Administration PS LA 2011/4 Collection and recovery of disputed debts
Statement of Reasons
ISSUE
This case is about whether an objection filed on 16 August 2023[1] should be accepted as in time in accordance with subsection 14ZX(3) of the Taxation Administration Act 1953 (Cth) (“TAA”).
[1] T47.
The Applicant[2] was involved in a property development in Victoria. One of the substantive issues between the parties is whether that involvement was via a joint venture, partnership or trust. I refer to that issue as the “GST status issue” in this decision. For GST purposes the Applicant was required to return GST on properties it sold. There was an agreement in writing between the Applicant and the various purchasers that the margin scheme was to apply.
[2] The Applicant is comprised of N Ltd B Ltd and K and M (K and M acting in their capacity as trustees). S Ltd was formerly a participant in the Applicant as was G Ltd. Where necessary I will refer to those entities comprising the Applicant by those references in these reasons for decision.
The objection was to BAS for the quarters ending 30 September 2018 and 31 December 2018 (“Relevant Periods”). The combination of section 155-90 and subsection 155-35(2) of Schedule 1 to the TAA, and paragraph 14ZW(1)(bg) of the TAA operate to determine the timeframe in which the objection was required to be lodged. The result is that the objection was 6 days late, as it was required to be filed by 10 August 2023.
The Applicant sought that the objection be accepted as in time by an extension of time request dated 8 September 2023 (“the EOT request”).[3] Further information about the objection was provided by the Applicant to the Commissioner between September and December 2023.[4]
[3] T50.
[4] T51, T56, T58, T59.
The Commissioner decided it would not accept the objection as within time and issued written notice of that to the Applicant on 30 May 2024 (“Reasons for Decision”).[5]
[5] T2.
The Applicant filed an Application for Review of the Commissioner’s 30 May 2023 decision in this Tribunal[6] on 18 July 2024.[7]
[6] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 proceedings that were not finalised before 14 October 2024 are continued and finalised by the Administrative Review Tribunal. Anything done in relation to any such proceeding before 14 October 2024 is taken to have been done by the Administrative Review Tribunal.
[7] T1.
For the reasons specified below I have concluded that the Applicant’s objection dated 16 August 2023 should be taken to have been lodged with the Respondent within the period required by section 14ZW of the TAA.
PRELIMINARY MATTERS
Some of the material before the Tribunal requires clarification. These matters are dealt with below.
The first matter relates to the date of the Applicant’s objection. The T documents reveal some confusion about the date of the objection. For example:
(a)The Applicant’s EOT request[8] refers to the objection as being dated 21 August 2023.
(b)The Commissioner’s Reasons for Decision[9] refers to the objection as dated 21 August 2023.
(c)Emails from the Commissioner to the Applicant also refer to the 21 August 2023 date as being the date of the objection.[10]
(d)The Applicant’s Statement of Facts, Issues and Contentions lodged at the Tribunal on 11 December 2024 (“Applicant’s SFIC”) at [2] refers to the objection as dated 21 August 2023.
(e)Other material[11] suggests the 16 August 2023 date is the correct objection date.
[8] T50.
[9] T2 [1].
[10] T56.
[11] Such as the Applicant’s Reply Submissions dated 1 May 2025 (“Applicant’s Reply”) [1] and the Respondent’s Statement of Facts, Issues and Contentions dated 24 January 2025 (“Commissioner’s SFIC”) [29].
The Tribunal cannot see where the 21 August 2023 date came from as there is nothing in the T documents that supports that date. The Tribunal records that the extra 5 days would not change its decision in this matter in any event, but for clarity the Tribunal has treated 16 August 2023 as the objection date and read the above documents as incorrectly referencing 21 August 2023, and meaning 16 August 2023.
An ABN was issued to the Applicant in the name of B Ltd, G Ltd, K, M, N Ltd and S Ltd on 1 December 2014.[12] At December 2014 those were the participants in the entity that comprises the Applicant in this case. G Ltd was not a participant from 30 June 2016 (that is, prior to the periods at issue in this case).[13] S Ltd was deregistered on 6 January 2024.[14]
[12] T49.
[13] T13.
[14] ST4.
The reference to the “participants” is used in this decision for the sake of neutrality. I have not used the word “partners” deliberately when referring to the participants as the Applicant disputes this is the correct status.[15] I have also not used the word “beneficiaries” deliberately. The Applicant says that is the correct status and there is a trust relationship, but the Commissioner does not agree.[16] I comment that I agree with the broad tenor of the Commissioner’s submissions[17] that the Applicant’s SFIC and other material filed at the Tribunal uses terms such as “Trust Deed”, “beneficiary” and “trust” to describe relations that are not described that way. I can understand the Applicant’s desire to support its case and do not draw adverse conclusions that the Applicant has been misleading in this regard as suggested by the Commissioner.[18] However, the Applicant would have been wiser to record in a clear sentence why it was utilising this terminology, or to use the correct terminology from the documents and then contend a trust relationship arose despite that terminology. It struck the Tribunal as rather jarring.
[15] Applicant’s SFIC [65].
[16] Commissioner’s SFIC [67] and following.
[17] Commissioner’s SFIC [68].
[18] Commissioner’s SFIC [68].
The second issue is about which entities are the participants in the Applicant that are subject to the filings considered in this decision:
(a)The objection[19] and Application for Review[20] give rise to some confusion. Both are in the name of G Ltd, B Ltd, K and M. N Ltd and S Ltd are not noted.
(b)The EOT request[21] refers to B Ltd, N Ltd, K and M but not G Ltd or S Ltd.
(c)The Reasons for Decision refer to B Ltd, N Ltd, S Ltd, G Ltd, K and M on the cover letter[22] while in the body of the decision, S Ltd and G Ltd are missing from the header reference.[23]
(d)The T documents cover refers to B Ltd, N Ltd, S Ltd, K and M – but not G Ltd.
(e)A letter dated 24 April 2017 from a tax agent for the Applicant[24] suggests that G Ltd was not a participant from 30 June 2016.
[19] T47.
[20] T1.
[21] T50
[22] T2-4.
[23] T2-5.
[24] T13.
This issue appears to have arisen because of the GST status issue. This issue was put to the parties while these reasons were in the process of drafting. The concern was whether the Applicant was represented entirely in this case, or whether merely certain participants of the Applicant were represented. The Applicant’s Reply Submissions dated 1 May 2025 (“Applicant’s Reply Submissions”) consider this issue. The Commissioner responded and said (in substance) that from its perspective there was no issue here.
The Commissioner confirmed that the participants in the Applicant have changed over time, and, in particular, neither S Ltd nor G Ltd remains a participant. The Applicant refers to this as “agreed”.[25] To ensure there is no ongoing confusion on this aspect, the Tribunal has issued an order clarifying that:
(a)The Applicant comprises all participants in the Applicant at the time of each filing in this case; and
(b)For the avoidance of doubt, that the Tribunal accepts the objection, EOT request and objection decision were correctly in the name of the Applicant and the relevant participants in the Applicant at all relevant times.
ANALYSIS
[25] Applicant’s Reply Submissions [3].
Statutory provisions
Subsection 14ZW(2) and subsection 14ZW(3) of the TAA provide:
(2)If the period within which an objection by a person is required to be lodged has passed, the person may nevertheless lodge the objection with the Commissioner together with a written request asking the Commissioner to deal with the objection as if it had been lodged within that period.
(3)The request must state fully and in detail the circumstances concerning, and the reasons for, the person's failure to lodge the objection with the Commissioner within the required period.
Section 14ZX of the TAA provides:
Commissioner to consider applications for extension of time
(1)After considering the request, the Commissioner must decide whether to agree to it or refuse it.
(2)The Commissioner must give the person written notice of the Commissioner's decision.
(3)If the Commissioner decides to agree to the request, then, for the purposes of this Part, the objection is taken to have been lodged with the Commissioner within the required period.
(4)If the Commissioner decides to refuse the request, the person may apply to the Tribunal for review of the decision.
The statutory provisions do not themselves set out the factors the Commissioner must consider when determining whether to accept a late objection as in time. Those principles come from case law. The Commissioner has also set out guidance to staff in Practice Statement Law Administration PS LA 2003/7 How to treat a request to lodge a late objection (“PS LA 2003/7”) for the laudable objective of seeking consistency in decision-making. PS LA 2003/7 is discussed further below.
Principles from case law and analysis
General principles
In Brown v Commissioner of Taxation [1999] FCA 563 (“Brown”) Hill J at [58][26] set out the oft-quoted principles to consider when considering the discretion to accept an objection as in time:
In summary when a taxpayer seeks an extension of time in which to lodge an objection the following matters will require consideration:
1.The taxpayer’s explanation of the delay in lodging an objection against the assessment within the time stipulated by Parliament.
2.The circumstances attendant upon that delay.
3.Whether the objection is one which, on its face, is frivolous or which in law must fail, or, to the extent that this is indeed a different test, is one in which the taxpayer has no arguable case. This matter will be considered by reference to the objection itself and such other material as the taxpayer puts before the Commissioner. It will seldom, if ever, require the decision maker to consider matters such as credit or endeavour to reconcile the evidence which the taxpayer choses to rely upon with other factual material in the possession of the Commissioner. No doubt the stronger the case the more likely that the discretion would be exercised in favour of a taxpayer even where the explanation for delay was thought not to be strong. Whether the converse is also the case need not here be considered.
4.Such other matters as the circumstances of the particular case make relevant, including, if prejudice to the Commissioner is asserted, such prejudice as is shown to arise.
What is required is the balancing of the delay; the explanation for it; the circumstances which gave rise to it and such prejudice if any as may be shown to exist to the Commissioner against the prejudice which may arise to a taxpayer who has by reason of the failure to object in time lost the right to a review of the assessment. In this balancing process the Commissioner or the Tribunal on a review will be guided by what the justice of the case requires. The balancing process should be approached on the basis that whilst Parliament has stipulated a time in which objections are required to be lodged it has entrusted to the Commissioner a power to extend that time in appropriate circumstances. The decision maker should not lose sight of the fact that s14ZW is an ameliorating provision designed to avoid injustice.
[26] The Commissioner’s unsuccessful appeal to the Full Federal Court in Commissioner of Taxation v Brown [1999] FCA 1198 did not challenge this aspect of Hill J’s judgment.
Hill J also said at [47]:
While, therefore, the explanation for delay in lodging the objection will be an important factor, it is necessary to bear in mind that the decision maker should take into account all the circumstances of the particular case against the background that Parliament has enacted a procedure to permit extensions of time being granted. An extension should be granted where the justice of the case requires, cf Wedesweiller v Cole (1983) 47 ALR 528 at 531 per Sheppard J, cited with approval in the present context by Sweeney J in Fardon v Federal Commissioner of Taxation (1992) 92 ATC 4339 at 4348. Neither the Commissioner nor the Tribunal on review should approach the question of determining whether an extension of time should be granted on the basis that it will only be in an exceptional case that an extension is granted. (emphasis added)
The approach in Brown was approved by the Full Federal Court in both Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131 at [15] and in Zizza v Commissioner of Taxation [1999] FCA 848 at [13]. Each of the principles from Brown is considered further below.
The explanation for the delay
The case law is to the effect that the length of the delay impacts the exercise of the discretion, and a very good reason is needed if there is a lengthy delay.[27] The length of the delay is also relevant. If the delay is minimal that requires a less compelling explanation.[28]
[27] Clark and Commissioner of Taxation [2021] AATA 2446 [30]. This is also noted in PS LA 2003/7 at [4].
[28] Brown v Commissioner of Taxation [1999] FCA 563 [49].
For example:
(a)Ciaglia and Commissioner of Taxation [2002] AATA 323: a 9 to 12 year late objection was accepted as in time due to errors made by her lawyer that were outside of her control and due to coercive control suffered by the taxpayer at the hands of her ex-partner which prevented her accessing materials and objecting earlier.
(b)De Simone and Commissioner of Taxation [2012] AATA 654: an approximately 6 year late objection was accepted as in time as there was evidence of a prior attempt to object, a lack of appreciation that the earlier objection as not being considered, and an understanding that a test case would determine the objection. Some of the issues arose as a result of advice from the Commissioner.
(c)Herbert and Commissioner of Taxation [2013] AATA 42: objections that were late by between 12 and 22 years were not accepted as in time, as there was no cogent explanation for such a considerable delay.
In this case, the objection is delayed by less than a week. The explanation for the delay in the EOT request was:[29]
My clients were not aware of any alleged liability in respect of GST until very recently. The Notice of Objection was lodged most promptly after they became aware of the alleged liability. My clients had understood that the GST liability was that of the Trustee which acted on their behalf. It is extremely unlikely that the Commissioner will be prejudiced by the delay. There will be no evidence that will be unavailable as a result of the effluxion of time.
[29] T50.
The Applicant’s SFIC states that it was around 27 June 2023 when statutory demands were issued to some of the participants in the Applicant that the participants became aware of the GST issues they were facing.[30] The Applicant says that prompt steps were taken.[31] The impression given in the Applicant’s SFIC is that the participants were scrambling to determine what to do and are asserted to have been unaware that the Applicant had been registered as a partnership for GST purposes, when it ought to have been registered as a trust.
[30] Applicant’s SFIC [61]. Applicant’s Reply Submissions [11].
[31] Applicant’s SFIC [62].
The Commissioner disputes that the above facts and the impression given are correct. The Commissioner says that the Applicant’s approved representatives had been discussing payment arrangements with the Commissioner for the relevant GST liability for a lengthy period without ever raising this issue.[32] The Commissioner also noted that the Applicant had filed returns for more than 9 years on one basis and it was only when statutory demands were issued to participants in the Applicant that the Applicant said the basis was wrong, and only in respect of GST liabilities, not credits.[33] The Commissioner cited Case 8/93 [1993] AATA 88 and Case Y57 91 ATC 493 in support of the proposition that the fact the Applicant had an available tax adviser before the lodgment timeframe expired is a factor against the Applicant’s objection being accepted as in time.[34]
[32] Commissioner’s SFIC [63].
[33] Commissioner’s SFIC [33], [66], [76].
[34] Commissioner’s SFIC [66]. This point was a matter that was considered when weighing up all of the factors in Re Esso Australia Resources Pty Ltd v Commissioner of Taxation [2007] AATA 1776, as is discussed below. Again, this was not the sole basis for the decision in that case, which again involved an objection that was delayed by years and not days.
I do not agree that proposition can be drawn from those cases as it inappropriately weighs a factor that was at best marginal in the overall context of those cases. In Case 8/93 the objection was more than two and a half years late, the recovery action was against the taxpayer itself and the ignorance claimed was by the taxpayer itself, not the shareholders or participants. It was in that factual context that the Tribunal commented that the taxpayer had advisers and ought to have filed its objection on time. The Tribunal’s holding was also made on the basis of an assessment of the public interest on the facts of that case, not because of the engagement of advisers.[35] Similarly, in Case Y57 it was the same taxpayer that was engaging in payment discussions with the Commissioner and received the advice.[36] The delay was months not days, and the explanation related to a lack of appreciation of a ground of objection as opposed to a lack of knowledge of the filings entirely.
[35] Case 8/93 [1993] AATA 88 [19].
[36] Case Y57 91 ATC 493 [10].
In the Tribunal’s view, this factor is in favour of the Applicant. The Commissioner’s submissions seem to miss the point from the Applicant as to the articulated reason for the delay. It is the participants that were said to be unaware of the Applicant’s filings.[37] That is why the statutory demands triggered knowledge of the GST filings that the Applicant now says were incorrect. The T documents do not demonstrate that the participants were told/copied specifically what was filed by the Applicant and on what basis the Applicant was registered for GST.[38]
[37] Applicant’s Reply Submissions [15].
[38] T14 suggests that the tax agent had been instructed by the participants in relation to the partnership tax file number. The Applicant’s case seems to be that this is not the position: Applicant’s SFIC [7], [9], [17], [18], [58], [59]. Applicant’s Reply Submissions [11].
The overall context of this objection would be relevant when considering the objection itself. It is true that authorised representatives of the Applicant signed the filings at issue, yet we now have the Applicant saying this was wrong all along for reasons relating to the participants.[39] The Tribunal is not blind to these matters. However, the fact that there was an adviser to the Applicant that filed returns is of no significance to the explanation for lateness. The fact there were GST credits that were not disputed is also not relevant to this factor.
[39] Commissioner’s SFIC [63].
It is the extension of time discretion that is being considered in this case, not the objection itself. It is perhaps obvious to emphasise that the delay is 6 days, so the explanation need not be highly compelling (as is noted in PS LA 2003/7). This is hardly a wholesale disregard of the statutory timeframe. On balance, this factor is in favour of the Applicant.
The circumstances attendant upon that delay
The circumstances attendant to the delay are relevant. In Brown, this factor is described as overlapping to some degree with the first factor, but it might take into account other features such as a delay in the receipt of correspondence from the Commissioner.[40]
[40] Brown v Commissioner of Taxation [1999] FCA 563 [46] to [49].
In this case, there is an overlap with the first factor. When considering this factor I have taken into account the Applicant’s submission about acting promptly upon the participants becoming aware of the issue.[41] Prompt action by a taxpayer to dispute a matter was a factor in the Tribunal finding that an out of time objection should have been accepted as in time in HV/LV Solutions Pty Ltd and Commissioner of Taxation [2025] ARTA 976 at [48] for example.[42] It is noted in PS LA 2003/7 as a factor.[43] The Commissioner disagrees this is a factor in this case, pointing out 9 years of filings by the Applicant that were consistent with its position and that 9 years had passed.[44]
[41] Applicant’s SFIC [29], [30], [62]. Applicant’s Reply Submissions [14].
[42] Efforts to dispute the matter on a prior occasion was also considered relevant in De Simone and Commissioner of Taxation [2012] AATA 654.
[43] PS LA 2003/7 [5.7] – this example focuses on a “strong case”.
[44] Commissioner’s SFIC [66].
I agree with the broad thrust of the Commissioner’s submissions. To suggest the Applicant took prompt action is not on the face of the facts correct. The Applicant’s Reply Submissions refer to PS LA 2003/7 and suggest that “the taxpayer did not know about and did not receive the taxation decision”.[45] This is not so. The Applicant (“the taxpayer”) was aware, the participants are asserted not to have been and the cited sentence from PS LA 2003/7 is not relevant to that scenario. At times the Applicant seems to be approaching this matter as if the participants are applicants, when that it is not the case.
[45] Applicant’s Reply Submissions [15].
Because we are talking about a 6 day delay, and taking into account the argued apparent knowledge of the participants which the Applicant says now impact its understanding of what it did, there is an argument in favour of the Applicant. There is a crossover with the first factor, and of course the explanation for lateness need not be compelling given the minimal delay.
Overall, I assess this factor from Brown as neutral.
Assessing whether the objection is frivolous or whether it has arguable merits
The first issue to consider is the standard to consider when assessing the objection in this context. The case law establishes the hurdle for the Applicant to meet is low. The Applicant’s case must be taken at its highest, as must the issue of whether it has arguable merit. In Brown[46] Justice Hill described this factor as a low threshold, and said what is to be determined by the Tribunal is whether the objection is frivolous, must fail or is one in which the taxpayer has no arguable case.
[46] Commissioner’s SFIC [56].
In Commissioner of Taxation v Brown [1999] FCA 1198 the Full Federal Court confirmed on appeal that when assessing whether the objection is arguable or frivolous, in the absence of agreement between the parties,[47] the Tribunal is not entitled to base its assessment on a view of the credibility of witness evidence. Hill J in Brown suggested it would seldom, if ever, be necessary to assess credibility.[48] The Full Federal Court held at [20], [23] and [28]:
[20]In our opinion, the difficulty with the Commissioner's case is that it confuses the formidable evidentiary obstacles the taxpayer undoubtedly faces in ultimately establishing his claim, with the question of whether he has shown an arguable case on the merits. If the taxpayer's case is to be taken at its highest (as Mr Bevan conceded), in our view he has shown enough to establish an arguable case. Indeed, it was for this very reason that the AAT found it necessary, in order to support the conclusion that there was no arguable case on the merits, to reject the evidence of the taxpayer as untruthful.
…
[23]This is not a case where the taxpayer's own evidence demonstrates a fatal flaw in his or her claim. Nor is it a case where there is other evidence, not dependent upon an assessment of a witness's credit, which demonstrates such a flaw. These are the kinds of cases von Doussa J had in mind in Windshuttle when he spoke of "an obvious and easily demonstrated flaw in the applicant's case". Rather, it is a case where the taxpayer advances an account which seems improbable (perhaps highly improbable) but, if accepted, would establish an arguable case on the merits.
…
[28]We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer's case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration. In the present case, for example, while the AAT should not have resolved the application by rejecting the taxpayer's evidence as unworthy of belief, it could have taken into account the obvious difficulties confronting the taxpayer's claim when deciding whether, in the light of all the circumstances, an extension of time was appropriate. (emphasis added)
[47] There is no such agreement here – the Applicant’s Closing Submissions [18] to [20] take the view that assessment of credibility of the Applicant’s witnesses is not for the Tribunal in the current proceedings.
[48] Brown [58].
In Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553, at [26] when considering how to assess whether the objection is frivolous, the Court held:
It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. … On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. … It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant's case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time. (emphasis added)
In Re Esso Australia Resources Pty Ltd v Commissioner of Taxation [2007] AATA 1776 (“Esso”) the Tribunal found the objection was “tenuous … at best”[49] and while not “unarguable”, was “extremely weak”[50] and held that the objection would not be accepted as in time. In that case extensions were sought of between 6 months and 14.5 years to file objections claiming certain payments made to a third party company should have been deductible under the petroleum resource rent tax. The Tribunal based its assessment of the merits of the taxpayer’s case on the statutory wording at issue, not witness evidence, and did not make its decision not to allow an extension of time based only on its assessment of the merits, but also because of the extensive delay (up to 14.5 years), the lack of explanation of that delay and the size and resources of the taxpayer to seek advice prior to taking the original position.[51]
[49] Re Esso Australia Resources Pty Ltd v Commissioner of Taxation [2007] AATA 1776 [77].
[50] Esso [53].
[51] Esso [38], [41], [50].
The objection in this case is based on the GST status issue. The Applicant says that it ought not have been registered as a partnership for tax purposes as it was actually a fixed trust (“the professed Trust”).[52] The Applicant says:
[52] Applicant’s SFIC [6]. Applicant’s Reply Submissions [19].
(a)Mr P and/or nominee signed contracts to purchase properties in Victoria (“Properties”) on 7 August 2014.[53]
(b)The professed Trust was established on 14 October 2014 and Mr P nominated the trustee of the professed Trust as transferee to complete the purchase of the Properties.[54]
(c)The Applicant applied for an ABN in the name of the participants on 19 August 2015, obtained a tax file number on 21 October 2015, and registered for GST on a quarterly basis on 16 November 2015.[55]
(d)Around October 2015, the property development activities on the Properties commenced.[56]
(e)BAS were filed for periods other than the Relevant Periods without specifying entity type.[57] Income tax returns were filed for periods earlier than the Relevant Periods as a partnership.[58]
(f)BAS were filed for periods including the Relevant Periods on 7 August 2019 which showed tax to pay totalling approximately $1.7m (in aggregate) in the Relevant Periods. That amount was not paid but a payment plan was entered into between the Applicant and the Commissioner.[59]
(g)In June and July 2023, statutory demands were issued to the participants in the Applicant.[60] In October 2023 to January 2024 steps were taken to register the trustee of the professed Trust as a fixed trust, a tax file number and ABN were issued, and the professed Trust was registered for GST on a quarterly basis.[61]
(h)The Applicant says that it was the professed Trust that all of the participants understood was conducting property development, and this is evidenced by the nominee arrangement, the fact that invoices were issued to the trustee of the professed Trust rather than the Applicant and the fact that contracts were entered into by the trustee of the professed Trust. The Applicants also suggested that it had relied upon professional advice and that the Commissioner’s acceptance of its filings and self-assessments in the name of the trustee of the professed Trust is also evidence in its favour.[62]
(i)The Applicant contends that particular clauses in what it calls a “Trust Deed,” but which is entitled “Joint Venture Agreement”[63] (“Agreement”) support its position.[64] In particular, the Applicant points to clause 10.1 which says the participants and parties to that Agreement are not partners and clause 11.3 which also provides that the Custodian (as defined, which the Applicants say is the trustee of the professed Trust) is not in partnership with the participants. This means a partnership cannot be the correct position. The Applicant also points to various subclauses in clause 11 which establish the Custodian as evidence of the professed Trust relationship. For example, the Applicant points to clause 11.1(a) which provides that the Custodian holds the legal title to the Properties for the participants “as custodian and trustee”. The Applicant disputes that this is as “bare trustee” as was suggested by the Commissioner at the hearing but says the Tribunal need not determine this in any event for present purposes.[65]
[53] Applicant’s SFIC [5].
[54] Applicant’s SFIC [6] to [7].
[55] Applicant’s SFIC [9] to [11].
[56] Applicant’s SFIC [12].
[57] Applicant’s SFIC [13], [16].
[58] Applicant’s SFIC [17].
[59] Applicant’s SFIC [22], [26]
[60] Applicant’s SFIC [28].
[61] Applicant’s SFIC [29], [30].
[62] Applicant’s SFIC [58], [59], [64]. Applicant’s Reply Submissions [13], [20b].
[63] T58.
[64] Applicant’s SFIC [71].
[65] Applicant’s Closing Submissions dated 10 June 2025 (“Applicant’s Closing Submissions”) [21]-[26].
The Commissioner disagrees with the Applicant and maintains the Applicant has no genuinely arguable case. The Commissioner describes the Applicant’s case as “speculative and self-serving”.[66] In particular, the Commissioner says:
[66] Commissioner’s SFIC [60].
(a)The Applicant’s use of trust terminology and reliance on particular clauses obscures the reality of the Agreement as a whole. The Agreement does not establish a trust relationship but a joint venture relationship.[67]
(b)The Applicant’s witness evidence is wanting. There is no evidence from the relevant tax agents, no evidence of the advice relied upon that the Applicant now says is wrong and only some of the participants have provided witness statements, the majority of which is from former participants and not relevant as a result.[68] The Commissioner also claims that certain witness statements are “fanciful and self-serving”.[69] The Commissioner says it is not suggesting that the Tribunal undertake an assessment of credibility of the witnesses but rather consider the probative value of that witness evidence.[70] The Commissioner submitted that a witness that has an interest in the proceedings that turns on that witness evidence must be approached with caution.[71] I agree with the Commissioner that the witness statements I have seen are not entirely convincing for the Applicant’s overall case, but in considering the issue before me I am to take these statements and all other evidence at its highest. In the circumstances of this case, my view is that I cannot assess the real value of the witness evidence before the Tribunal overall without assessing credibility. It is not for the Tribunal to draw conclusions about credibility in respect of witnesses that do not appear before it.
(c)The entity type that the ABN was issued for was a partnership and this can be seen on the publicly available ABN Lookup.[72] So it is not correct to say that the entity type was not specified by the Applicant.
(d)It is not correct to suggest the Commissioner contributed in any way to the Applicant’s purported misunderstanding. The self-assessment regime places the obligation on the taxpayer to get its filings correct. It is not correct that the Commissioner recognised the existence of the professed Trust at any time.[73] I accept this submission. I found the Applicant’s submissions on this point entirely unconvincing.
(e)The trustee of the professed Trust also did not exist at the time the Commissioner undertook GST reviews and nor could it have filed the BAS as it was registered long after the Relevant Periods.[74] This undermines the Applicant’s case.
(f)A discretionary, fixed unit trust or unit trust must be stamped by the Victorian State Revenue Office within 30 days of the execution of the Deed. This did not occur.[75]
(g)The Applicant distributed tax losses in its income tax returns, and this is not possible if the Applicant was the professed Trust.[76]
(h)The Applicant is only disputing the Relevant Periods where there was GST to pay, and is not disputing periods where GST credits (of over $845,000) arose. All periods should have been objected to if the GST status issue was a genuine issue.[77] The Commissioner’s view is that this matter is really about the statutory demands and the participants seeking to avoid those demands.[78]
(i)Some of the participants or former participants filed “set aside proceedings” in a Victorian State Court in relation to the statutory demands. Those proceedings were dismissed. The Commissioner refers to the decision of the Victorian State Court which in part focused on the strength of the Applicant’s case on objection, holding it was not a genuine dispute.[79] As the Commissioner noted, this related to section 459H of the Corporations Act 2001 (Cth) but the Commissioner said the reasoning from the Victorian State Court in the passage it cited in the Commissioner’s SFIC is relevant to determining whether the objection has arguable merits or is frivolous under section 14ZX of the TAA.[80] The test of “genuine dispute” in the Corporations Act context is whether there is a “serious question to be tried”[81] which is completely different to the low bar of the test in this case. In my view, while relevant, the passage cited does not assist me to determine whether taken at its highest the Applicant’s case has arguable merits nor to balance the other factors in Brown. What the cited passage does is draw to the attention of the Applicant to the considerable hurdles it will have in meeting its burden of proof in this case.
[67] Commissioner’s SFIC [68] to [71], [73]. The Commissioner also suggested in the Commissioner’s SFIC at [11] that the registration for GST purposes as a partnership was because registration as a joint venture requires each participant to be GST registered. The Applicant’s Reply Submissions at [4] dispute that as being the reason for the GST registration being as a partnership. The Tribunal does not need to determine this matter.
[68] Commissioner’s SFIC [62], [64]. Commissioner’s Closing Submissions dated 30 May 2025 (“Commissioner’s Closing Submissions”) [17a], [17b].
[69] Commissioner’s SFIC [74].
[70] Commissioner’s Closing Submissions [23] to [24].
[71] Commissioner’s Closing Submissions [25]; Commissioner’s SFIC [41].
[72] Commissioner’s SFIC [65a].
[73] Commissioner’s SFIC [65b], [65c], [65d],[65e]. Commissioner’s Closing Submissions [12a], [12b].
[74] Commissioner’s SFIC [33b], [65b].
[75] Commissioner’s SFIC [72].
[76] Commissioner’s SFIC [72].
[77] Commissioner’s SFIC [76]. Commissioner’s Closing Submissions [12d], [17c].
[78] Commissioner’s SFIC [77].
[79] Commissioner’s SFIC [78] to [79].
[80] Commissioner’s SFIC [79].
[81] Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669, 671; Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1994) 12 ACLC 111,113; Classic Ceramic Importers v Ceramica Antiga SA (1994) 12 ACLC 334, 339.
The Tribunal’s role when determining the issue in this case is not to decide the objection. I have considered all of the above submissions and the material on the file. Having reviewed that material, the Applicant’s case does not seem particularly convincing. The Commissioner’s arguments have strength. The Applicant has significant hurdles both legally and evidentially. There are issues that the Applicant faces about the purpose of this objection and the Commissioner’s criticisms of the scope of the objection and scope of the evidence have some basis. The Applicant has the burden of proof. The Tribunal is aware of these issues.
None of that is the test. The Tribunal is not determining the objection. The issue is whether taking the Applicant’s case at its highest, the low bar of “having arguable merits” or “not being frivolous” can be said to have been met by the Applicant’s case. As is cited above, in Commissioner of Taxation v Brown [1999] FCA 1198 even a highly improbable case or one with formidable evidentiary obstacles was described by the Full Court to potentially meet this test. Unless an objection is accepted as in time, the taxpayer has no right to dispute the Commissioner’s assessments. That is why the threshold to meet this test is low. The interests of justice are important.
I find, on balance, that the Applicant has met this test. It is not a high threshold. It can be said there is some evidence of the professed Trust (for instance receipts, and some limited clauses in the Agreement that could be argued about), and some witness evidence in support which can be assessed by the Commissioner. Further evidence may be provided by the Applicant in the objection process, and the Applicant knows it has the burden of proof. Although the material for the Applicant that is before the Tribunal seems to be uncompelling, that is not for me to determine in this case.
From the material before the Tribunal, I consider the Applicant’s case difficult, even improbable, but, taken at its highest, if established, it is arguable. It is not frivolous, fanciful and nor can it be said (per Brown) that it “must fail”. For that reason, and after careful consideration given the strong arguments from the Commissioner (which were well put by Mr McKillop), this aspect is narrowly in favour of the Applicant and in favour of the objection being accepted as in time.
I comment that when considering this factor, as is noted in Brown, this factor cannot be divorced from the other matters considered in Brown. In particular, it cannot be ignored that we are talking about an objection that is late by 6 days. The decision in Esso (where the delay was up to 14.5 years) can be distinguished on this basis alone. The Commissioner needs to approach each factor in Brown taking into account the overall factual context and all of the factors in Brown.
Other factors – Prejudice
There is clear prejudice to the Applicant that needs to be considered. That is, that absent the objection being accepted as in time, the Applicant cannot proceed to challenge the BAS for the Relevant Periods.
The Commissioner also says it is prejudiced and this must be considered by the Tribunal.
The first way the Commissioner says it is prejudiced related to the statutory time bar. The Commissioner says that treating the objection as within time “would result in the Commissioner suffering prejudice and otherwise prevents the Commissioner from conducting its operations fairly and efficiently”.[82] This is because “the Commissioner does not have the power to amend the GST assessments that resulted in a credit to the Applicant, filed more than 4-years prior to this proceeding, pursuant to s 155-35 of Schedule 1 to the TAA”.[83] Further, but on the same exact point in substance, as the trustee of the professed Trust’s GST registration can only be backdated 4 years pursuant to subsection 25-10(1A) of A New Tax System (Goods and Services Tax) Act 1999 (Cth), the Commissioner would not be entitled to adjust earlier returns to align with the trustee status.[84]
[82] Commissioner’s SFIC [80].
[83] Commissioner’s SFIC [83].
[84] Commissioner’s SFIC [86].
The Tribunal had an exchange with the Commissioner at the hearing about this rationale. The Tribunal specifically asked the Commissioner whether it was claiming that the Applicant manipulated the objection process to delay it in order to ensure that some periods were time barred before filing its objection. Mr McKillop did not take that position. Instead, he said the Commissioner’s submission was that the time bar was, of itself, prejudice in this case. The Tribunal requested further submissions on this point. These were duly provided in the Commissioner’s Closing Submissions, and the Applicant’s Closing Submissions also touch on this issue.
The Tribunal notes that the Commissioner’s SFIC submissions cited above in paragraph 49 mirrors wording in PS LA 2003/7, and notes that:
(a)In paragraph 4 of PS LA 2003/7 the Commissioner refers to a circumstance when the time bar will be a reason to decline an extension of time as including “whether the delay is explained, in whole or in part, by an intent to allow a period of review of the correct taxpayer and the correct tax period, as contended in the objection, to expire”.
(b)In terms of prejudice and the Commissioner’s operations, paragraph 4 of PS LA 2003/7 says a factor to consider is “whether the Commissioner's consideration of the objection is prejudiced by reason of the delay, including - where material documents have been lost, destroyed or are no longer available; - where witnesses have disappeared or their recollections have faded, and - where avenues of useful enquiry have dried up or have become difficult to pursue”. It does not mention the statutory time bar in that context.
The Commissioner’s SFIC does not refer to these matters from PS LA 2003/7, which, in the Tribunal’s view are correct. Instead, the Commissioner is approaching matters on a general basis. Certainly, PS LA 2003/7 is not restricted in the factors that the Commissioner may take into account but in the Tribunal’s view the Commissioner in this case may not have taken into account specific guidance on the very topic it is focusing upon. Of course, PS LA 2003/7 is not law.
The Commissioner relied upon the following decisions in support of its position:
(a)DTMP v Federal Commissioner of Taxation [2016] AATA 684 (“DTMP”).[85] This case considered whether expanded grounds of objection should be allowed. Senior Member O’Loughlin held at [23] to [24] that the Commissioner’s inability to assess another taxpayer by reason of time limitations was material prejudice. The Commissioner says this case is materially similar to the present case and should be applied.[86] The Applicant disagreed pointing out (amongst other matters) that the taxpayer in DTMP gave no explanation for the delay in raising the expanded grounds of objection which is unlike the circumstances in the present case.[87] The Applicant also submitted that the holdings in Brown require a balancing of all factors, and DTMP did not do that as it was a decision relating to an entirely different context.[88] The Applicant also said that unlike DTMP where the taxpayer continued to have rights to challenge the Commissioner, the Applicant “faces complete denial of merits review without the extension of time”.[89]
(b)Trustee for the Whitby Trust v Federal Commissioner of Taxation [2019] AATA 5637 (“Whitby Trust”). This case also considered issues about expanded grounds of objection. Deputy President O’Loughlin QC held at [155] to [156] that the Commissioner’s inability to amend an assessment to take into account a fresh ground of objection in relation to another assessment was a relevant prejudice. Those comments were obiter, as the taxpayer took the view it did not need to apply for expanded grounds of objection, and the Tribunal could step into the Commissioner’s shoes and determine the matter at issue taking into account any matter it wishes. The Commissioner says that this case tells the Tribunal that DTMP is good law because this judgment was issued after the decision in Primary Health Care Limited v Federal Commissioner of Taxation [2017] AATA 393 and Federal Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131.[90]
(c)Primary Health Care Limited v Federal Commissioner of Taxation [2017] AATA 393 and Federal Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131 (together “Primary Health Care”) are distinguished by the Commissioner. The Tribunal decision in that case held at [72] that delaying lodging the objection to “game the tax system” and to cause the Commissioner to be out of time might be the relevant prejudice. On appeal, the Full Federal Court upheld the Tribunal’s conclusions.[91] The Commissioner says this case can be distinguished because of factors that are not applicable to the present case. For example, the Commissioner had contributed to the delay in Primary Health Care by a change of position, while here, the change of position is solely by the Applicant.[92] The Commissioner also submits respectfully that the Tribunal in Primary Health Care was incorrect in concluding that the taxpayer in DTMP had deliberately delayed raising the additional ground of objection,[93] and at most the holding in DTMP was that this was “advantageous”. [94]
[85] Commissioner’s SFIC [81].
[86] Commissioner’s Closing Submissions [17].
[87] Applicant’s Closing Submissions [6].
[88] Applicant’s Closing Submissions [14].
[89] Applicant’s Closing Submissions [13].
[90] Commissioner’s Closing Submissions [16].
[91] Federal Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131 [23].
[92] Commissioner’s Closing Submissions [12].
[93] Primary Health Care Limited v Federal Commissioner of Taxation [2017] AATA 39, [72].
[94] Commissioner’s Closing Submissions [21] to [22].
There are other cases which favour the Commissioner’s position, and which were not noted by the Commissioner. Each of them involved considerable lateness to the objection (a decade or more) and identify other prejudice to the Commissioner than merely the time bar. For example, WT94/52 and Commissioner of Taxation [1995] AATA 98 at [31] and Esso [57], [70]. They also include cases cited by the Tribunal in DTMP which all involve a lapse of time that is considerably more than the delay in this case.[95] For those that relate to late objections[96] as opposed to the expansion of grounds of objection,[97] there were also other reasons than the application of the time bar that gave rise to prejudice for the Commissioner.
[95]; AAT Case 4782 (1988) 20 ATR 3064; AAT Case 7512/13 (1991) 22 ATR 3526; AAT Case 7510 (1991) 22 ATR 352; AAT Case 8601 (1993) 25 ATR 1076.
[96] AAT Case 7510 (1991) 22 ATR 352.
[97] AAT Case 4782 (1988) 20 ATR 3064 (the explanation for the delay was not accepted); AAT Case 7512/13 (1991) 22 ATR 3526 (there was a Court decision fatal to the merits of the taxpayer’s claim); AAT Case 8601 (1993) 25 ATR 1076 (explanation for the two and a half year delay not accepted; prejudice to the Commissioner from inability to collect tax).
I do not accept the Commissioner’s submissions as to prejudice arising from the application of the time bar in this case. The delay of 6 days to the objection has not led to the result the Commissioner complains of. The operation of the law has. I also do not agree that the mere fact the time bar applies to other periods is sufficient to be prejudice to the Commissioner in the sense from Brown. This is simply the application of the statutory provisions. While it would be useful to the Commissioner to have an unlimited timeframe on every occasion to amend tax returns, that is not the law. The fact that is not the law is not prejudice. It is just what the law is. If a taxpayer manipulates the timing of the objection in circumstances that in some way puts the Commissioner in a time-barred position, that is prejudice, but Mr McKillop did not claim this occurred here. What the Commissioner is saying is that the law is prejudice to it as a general matter. I do not accept that.
When considering prejudice in the Brown context, the cases do not support Commissioner’s position. The cases broadly focus upon whether the effluxion of time since the objection should have been filed means the Commissioner is in a position where it cannot sensibly process the objection – such as missing evidence, memory issues for witnesses, and administrative difficulties (such as returns no longer being available in the Commissioner’s records). The focus is on the objection and the impact on the Commissioner. Cases that support that view include Brown itself;[98] Herbert and Commissioner of Taxation [2013] AATA 42 at [15] (prejudice because the 22 year delay meant return material was unavailable to the Commissioner); Re Taxation Appeals [1993] AATA 88 at [17] (prejudice in an inability to collect the tax due because of the delay); WT94/52 and Commissioner of Taxation [1995] AATA 98 [29] to [30] (prejudice due to evidentiary difficulties resulting from the 10 year effluxion of time); Clark and Commissioner of Taxation [2021] AATA 2446 [33] (inability for the Commissioner to obtain evidence because of the delay); and Re Taxation Appeals [1994] AATA 121 [24] to [25] (evidentiary difficulties for the Commissioner because of the delay, prejudice to settlement processes).
[98] Brown [48], [51].
In terms of DTMP, while I agree that it is a relevant case to consider, I do not accept it is applicable in this context for the following reasons:
(a)I agree with the Applicant that Brown requires a number of factors to be balanced by the Tribunal, and DTMP did not require that because DTMP was about the expansion of grounds of objection.
(b)Brown notes that (at [59]) “In this balancing process the Commissioner or the Tribunal on a review will be guided by what the justice of the case requires. The balancing process should be approached on the basis that while Parliament has stipulated a time in which objections are required to be lodged it has entrusted to the Commissioner a power to extend that time in appropriate circumstances. The decision maker should not lose sight of the fact that s 14ZW is an ameliorating provision designed to avoid injustice”. The interests of justice are relevant in this context and were not in DTMP because (as the Applicant notes) the Applicant’s case would be effectively at an end, unlike the taxpayer in DTMP.
(c)In DTMP the relevant objection was filed on 12 July 2012, the Commissioner determined that objection in November 2012, and, following a change in tax agent, nearly 3 years later, the expansion of objection grounds request was made on 18 March 2015.[99] In March 2015 the time bar was applicable to the Commissioner. There was no explanation for the delay by the taxpayer’s former tax agent in raising the grounds of objection in DTMP.[100] In the current case, we have an objection that is 6 days late. There is no suggestion, inferentially or otherwise, that the passing of 6 days was linked to the time bar in any way. An explanation was given for the delay. I do not accept that DTMP is to the effect that the application of the time bar, unlinked in any way to the delay in the objection, is relevant prejudice to the Commissioner.
[99] DTMP [12], [13], [14].
[100] DTMP [21].
I do not accept that the Tribunal in Primary Health Care was incorrect in its position on DTMP. In DTMP the inference was that the expanded grounds of objection being sought in March 2015 and the time bar applying in March 2015 was not a coincidence. The comments in DTMP at [24] “The Applicant has allowed the Commissioner to proceed in the belief that the grounds sought were not to be agitated and the Commissioner is now prevented from taking the steps required to assess another taxpayer for the income the Applicant now says belongs to someone else” confirms that inference. The comments in [17] of DTMP about the timing of the expansion of grounds being “quite advantageous” to the Applicant also support that inference. I do not think that the Tribunal decision in Primary Health Care overrides DTMP[101] and my view is that it explains the context of DTMP.
[101] Commissioner’s Closing Submissions [7].
I do not accept that obiter comments in Whitby Trust and the comments in DTMP adversely impact the holdings by the Tribunal or the Full Federal Court in Primary Health Care. While of course the facts in Primary Health Care are different to the current case, I do not conclude that the comments made in Primary Health Care can be disregarded in this case. The other cases I cited above all involved considerable lateness to the objection and other issues. That distinguishes them from the present matter.
The second way the Commissioner says it is prejudiced related to the evidence.[102] The Commissioner says there is a lack of evidence that supports the Applicant’s view of the GST status issue, and there is no evidence from the tax agents or all the participants. The Commissioner comments that the Applicant suggests all relevant materials are before the Tribunal or have been produced to the Commissioner. This is not prejudice to the Commissioner. The onus of proof is on the Applicant. If the Applicant does not meet the onus of proof as a result of these evidential matters, that would confirm the Commissioner’s position.
[102] Commissioner’s SFIC [88].
I have concluded that the substantive prejudice in this case is to the Applicant and this factor favours the objection being accepted as in time.
Interests of justice
I comment that the Commissioner should not lose sight of the interest of justice in such a matter. I recognise the strength of the Commissioner’s concerns about the Applicant’s case. But to take a case that a 6 day delay should result in the Applicant having no rights to pursue its argument (that argument being assessed at its highest) is, in my view, not a sensible balancing of the purpose of the statutory provisions which allow for extensions of time, nor of the factors in Brown. This factor is in favour of the Applicant.
I note that Practice Statement Law Administration PS LA 2011/4 Collection and recovery of disputed debts provides the Commissioner’s officials with guidance about the collection of disputed debt. I note this guidance includes a risk assessment process which states that in certain circumstances the Commissioner is not prevented from collection of amounts in dispute nor from obtaining security for such amounts even where an objection or Part IVC proceeding is underway.
CONCLUSION
I have concluded that on balance the factors favour the objection being accepted as in time. For that reason, the decision under review should be set aside, and the Applicant’s objection dated 16 August 2023 should be taken to have been lodged with the Commissioner within the period required by section 14ZW of the TAA.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the written reasons for the decision of General Member J. Dunne
……………[sgd]……………………….
AssociateDated: 7 August 2025
Date of hearing: 22 May 2025 Counsel for the Applicant:
Solicitors for the Applicant:
Ms P Barker
Madgwicks Lawyers
Counsel for the Respondent: Mr M A J McKillop Solicitors for the Respondent: ATO Litigation and Legal Services
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