Qasim and Commissioner of Taxation (Practice and procedure)

[2024] ARTA 295

Qasim and Commissioner of Taxation (Practice and procedure) [2024] ARTA 295 (18 November 2024)

Decision and Reasons for Decision

Applicant:  Shaheen Qasim

Respondent:  Commissioner of Taxation

Tribunal Number:                2024/4634

Tribunal:  General Member M Stratos

Place:  Melbourne

Date:  18 November 2024

Decision:The Tribunal refuses to extend the period during which the Applicant may apply to the Tribunal for review of a decision.

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

General Member M. Stratos

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time – application for review of objection decision ten years out of time – GST credits and penalties – Hunter Valley principles – whether examination of relevant circumstances support the grant of an extension of time – application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

(Cth)

Taxation Administration Act 1953 (Cth)

CASES

Brown v Commissioner of Taxation [1999] FCA 563 Comcare v A’Hearn (1993) 45 FCR 441 Commissioner of Taxation v Brown [1999] FCA 1198

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109

Windshuttle v Deputy Federal Commissioner of Taxation (1993) ATC 4992

Statement of Reasons

1. On 2 July 2024, Dr Shaheen Qasim (the Applicant) lodged with the Administrative Appeals Tribunal (‘the AAT’) an application for an extension of time until 23 July 2024 within which to lodge her application for review of a decision of the Commissioner of Taxation (‘the Respondent’) dated 14 October 2014 (‘the objection decision’). The objection decision concerned the Applicant’s entitlement to Goods and Services Tax (‘GST’) credits claimed for the period July 2010 to March 2013 plus the imposition of penalties.

1. The Respondent opposes the Applicant’s request for an extension of time that is brought almost ten years out of time.

1. Prior to this application for review being heard and determined, on 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

1. On 4 November 2024, the Tribunal held a hearing by telephone to determine the extension of time application. Dr Qasim appeared on her own behalf, and the Respondent was represented by Mr Ram Pandey from the Australian Taxation Office, instructed by Ms Emily Keskovski and Ms Elizabeth Risteski. The Tribunal had before it the Applicant’s application for an extension of time with annexures, the Respondent’s submissions, the Applicant’s submissions in reply with annexures, a Hearing Book and a Further Hearing Book filed by the Respondent.

ISSUE

1. The issue to be determined is whether the Tribunal is satisfied it is reasonable in all the circumstances to extend the time for the making of an application to the Tribunal for review of the objection decision dated 14 October 2014.

LEGISLATION

1. The prescribed time within which an application must be lodged was set out in section 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). In general, the prescribed time under that section was 28 days from the date the reviewable decision was given to an Applicant. Section 18 of the Administrative Review Tribunal Act 2024(Cth) (‘the ART Act’) prescribes a time no less than 28 days, but that is dependant upon any other period provided for under relevant rules. However, those provisions under both Acts may be modified by legislation under which reviewable decisions are made.

1. The Taxation Administration Act 1953 (Cth) (‘the TA Act’) is one such piece of legislation. Section 14ZZC of the TA Act provides that an application to the Tribunal for review of a decision must be lodged within 60 days after the person making the application is served with the decision.¹

1. In relation to making an application outside the prescribed 60 day period, no modification was made to section 29(7) of the AAT Act. It provided:

   The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

1. Section 19 of the ART Act has not been modified by the TA Act. Section 19 outlines the Tribunal’s power to extend a period in which an Applicant may seek review of a reviewable decision:

   Application to extend period

   (1)A person (the applicant) may apply to the Tribunal to extend the period during which the applicant may apply to the Tribunal for review of a decision.

   (2)The Tribunal may, by order, extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so.

   (3)The Tribunal may extend the period even if it has expired.

1. The AAT Act and ART Act therefore both give the Tribunal the power to extend time in which to apply for review if the Tribunal considers or is satisfied that it reasonable to do so in all the circumstances.

EXTENSION OF TIME PRINCIPLES

1. It is well established when considering whether the discretion to extend time should be exercised, a decision maker should have regard to the factors identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 ('Hunter Valley’) as modified by the Full Court of the Federal Court in Comcare v A’Hearn (1993) 45 FCR 441. Those factors were usefully outlined in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 and are relevantly summarised below:

1 This section of the TA Act amended section 29(2) of the AAT Act and replicates this modification to section 18 of the ART Act

(a)There is no onus of proof upon an Applicant for extension of time. Special circumstances need not be shown, but the application will not be granted unless the decision maker is positively satisfied it is proper to do so. The ‘prescribed period’ is not to be ignored.

(b)It is not a pre-condition for success that an acceptable explanation for delay must be given although it is to be expected that such an explanation will normally be given as a relevant matter to be considered. Action taken by the Applicant is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether an Applicant has rested on their rights and whether the Respondent was entitled to regard the matter as being finalised.

(c)Any prejudice to the Respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor acting against the grant of an extension. The mere absence of prejudice is not enough to justify the grant of an extension.

(d)The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

1. Hill J commented in Brown v Commissioner of Taxation [1999] FCA 563 ('Brown’) upon the relevance of the Hunter Valley principles when determining an extension of time application under the TA Act. It was explained at [56]:

   …there is much to be said for the view that the merits of the objection are of less concern when an application for an extension of time to object is under consideration than would be the case where judicial review of an administrative decision is sought. For it is only after the objection is lodged within the time which is extended that the Commissioner is placed under a duty to consider the objection and allow or disallow it or allow it in part. I do not wish to be taken as saying that the merits of the objection are totally irrelevant. For present purposes I am prepared to accept the view of von Doussa J in Windshuttle that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold. What is involved is whether the objection on its face discloses a case which is arguable, not whether having regard to other matters, including evidence which may not even be known to the taxpayer at the time of making the application, the case is one that the taxpayer will or will probably lose.

BACKGROUND

1. The Applicant carried on an enterprise of providing specialist services as an endocrinologist from 2000. She was registered for GST and reported on a quarterly basis.

1. The Applicant’s registration as a medical practitioner was suspended in 2010 and subsequently cancelled in 2014.

1. In July 2013, the Applicant’s Business Activity Statements (‘BAS’) lodged for the period spanning 1 July 2010 to 31 March 2013 were subjected to an audit. For that period the Applicant claimed GST credits in total of $306,870. Although the Applicant provided some documentary information for the purpose of the audit, she did not provide relevant tax invoices to demonstrate all acquisitions and resulting GST credits. The audit outcome in December 2013 reduced the GST credit claim to nil and the Applicant’s GST registration was cancelled on the ground that she was no longer carrying on a business, having been de-registered from practising as an endocrinologist. A penalty amount of 25% for failure to exercise reasonable care was applied to the GST shortfall. The total liability was

   $383,587.50.

1. In May 2014, the Applicant sought a subpoena to produce documents such as the tax invoices relevant to the assessment made by the Respondent. The Applicant in evidence stated that she did not receive any documents as part of this action.

1. In June 2014, the Applicant objected to the assessment of both the net amounts for 2011 to 2013 and the shortfall penalty. The Applicant was given a further opportunity to provide relevant invoices to support the acquisitions made in the period under consideration. Although the Applicant did at that time provide some further information, not all invoices were provided and the information at hand did not always reconcile with the claims made.

1. By decision dated 14 October 2014, the Applicant’s objection was allowed in part, in that the Respondent agreed the Applicant was carrying on an enterprise while suspended and thus her GST registration should not have been cancelled. The Respondent allowed some GST credits that were substantiated throughout the period with a consequential reduction of the penalty amount.

1. An extract of a file note (annexed by the Respondent to their Submissions) made by an officer of the ATO dated 27 October 2014 states:

   Dr Qasim rang and asked that I call her back. I rang and we discussed at length how unhappy she was with the objection decision. I advised her that she can request a formal review of the decision by the Federal Court or the AAT. I advised her of the 28 day and 58 day time limit respectively however she can always apply to them for an extension. We also discussed that she can request an informal review of the decision by the ATO. I advised that it wasn’t automatically allowed and that she would need compelling evidence that the decision was incorrect. Dr Qasim advised she would prefer to lodge a request for an informal review at this stage. I advised that she can always request an extension for time and apply for a formal review at a later time. Dr Qasim advised that she would get her accountant to pursue this avenue.

1. On the same day, the ATO Officer sent an email to the Applicant confirming:

   …as discussed you can apply for a formal review of the objection decision by the Administrative Appeals Tribunal or the Federal Court (please keep in mind the time limits that apply to each, 60 days and 28 days respectively)…

1. The Applicant requested an informal review of this decision with the Respondent through her tax agent on 12 December 2014. On 8 January 2015, the Respondent wrote to the Applicant’s tax agent confirming the objection decision would not be reviewed as it was the correct outcome. The Respondent advised the Applicant in that letter that if she was not satisfied with the objection decision, she could ask the AAT to review it, or lodge an appeal with the Federal Court.

1. Debt recovery proceedings were instituted in the District Court of New South Wales in 2016 by the Deputy Commissioner of Taxation (‘DCT’) against the Applicant for repayment of primary tax debts and subsequent general interest charge for an amount of $489,161.63.

1. An email between representatives of the DCT dated 11 October 2018 refers to the Applicant’s solicitor making various representations regarding his client's intention to file an appeal in the AAT. This proceeding was resolved in 2018 by agreement that the Applicant would consent to judgment in full, pay the DCT’s costs and no judgment to be enforced for a three-month period.

1. On 20 January 2023, the DCT served a Bankruptcy Notice on the Applicant. On 6 February 2023, the Applicant filed an application to set the notice aside. In March 2023, the DCT

agreed to the Applicant’s application to have the notice set aside and this application was resolved by consent in this manner.

1. On 2 July 2024, the Applicant lodged with the AAT an application for an extension of time in which to seek review of the objection decision dated 14 October 2014.

APPLICANT’S SUBMISSIONS AND EVIDENCE

1. The Applicant’s submissions, made in writing and in oral evidence at the interlocutory hearing, revolved around three main concerns:

   (i)she had not been made aware of the ability to seek review of the objection decision until July 2024;

   (ii)her solicitors and accountants had failed to follow instructions properly; and

(iii)the objection decision was wrong as the Respondent did not consider all the relevant invoices or evidence available.

1. The Applicant considered it was in the public interest for her matter to be reviewed, as she was a law-abiding citizen who has worked hard, acted in good faith and should not be penalised for any faults of her accountants or solicitors. She submitted there would be no prejudice to the Respondent in allowing the extension, especially in a situation where she felt the Respondent’s representatives failed in their duty of care towards her.

Explanation for the delay

1. On her extension of time request, the Applicant noted she had not received the decision under review until July 2024, as the Respondent had been sending information to her tax agents.

1. In evidence before the Tribunal, the Applicant stated she was not aware of the existence or ability of the Tribunal to review the objection decision. The Applicant recalled speaking with the ATO officer in 2014 but there was no mention of any rights of review or how to action such a review. It was not until she was liaising with an ATO officer in 2023 and 2024 that the Applicant understood the role of the Tribunal in reviewing such decisions.

1. The Applicant explained she had been liaising with an ATO officer in 2023 following the bankruptcy proceedings being commenced, but it was not until 2024 that she was finally made aware by the ATO of her ability to seek review with the Tribunal.

Role of the Solicitor

1. In an affidavit dated 4 September 2024, the Applicant seeks that an ‘…extension of time for review of the decision of the Australian Tax Office be given as my solicitors failed to follow instructions for GST income to be reviewed by the Administrative Appeals Tribunal in a timely manner’. Her submission in reply of 2 October 2024 repeats concerns regarding the circumstances surrounding her suspension from practice and the actions of her accountants and solicitors in not lodging an application with the Tribunal for review.

1. The Applicant gave evidence that she only recently became aware of the judgment debt that was entered into by consent on her behalf in 2018, when the 2023 proceedings were issued against her. She claimed she had not given instructions to resolve in this manner back in 2018. She explained her solicitor in 2018 would have sought her instructions as to the best pathway or action to take following the resolution of that matter, but she did not recall the AAT being specifically mentioned at that time. She would have instructed the lawyer to do whatever he thought was best in that situation.

1. When asked as to whether she contacted her solicitor to ascertain the outcome of those next steps following resolution of the court proceedings in 2018, she confirmed she had not followed up with anyone, as she thought it would have been finalised. She was prompted into following matters up with her lawyers upon receipt of the bankruptcy notice in 2023.

Merits of the application

1. In the Applicant’s extension of time request, it was noted she had obtained documentation pursuant to a Freedom of Information (‘FOI’) request and was concerned the original audit decision had not taken into account relevant invoices. In her application for review dated 23 July 2024 she stated:

   The decision is gravely incorrect. As the audit was carried out without the invoices, the attending officer failed in her duty of care to provide reasons for her failure to attend to the grounds of objection sent to her by the H& R block , & again by busy book keeping. The officer claimed that the original decision will be adhered to on the basis of law. Despite my request to attend to the matter, she consistently denied me

an opportunity to attend to a review. She insisted that it was (the) correct. Which it wasn’t, as the audit was carried out without the invoices that the retiring auditor failed to consult. The invoices were provided as I have been able to obtain from ATO under FOI, the invoices suggest that the audit was incorrect and incomplete due to the prejudice of the attending officer…this person was very unhelpful despite my insistently thorough reply to her assertions and comments made that she would not change her opinion and would not allow a proper discussion with myself or my representatives that were given the opportunity to ventilate the mistakes made by ATO. Most unfortunate as I was not able to get a fair chance of getting the facts right. She was adamant that she would not allow any discussion, hence my refusal for a fair internal review of the matter to the detriment of myself, I pleaded with her to allow me an opportunity for a reasonable explanation. Wasting invaluable time, energy and resources to a law-abiding citizen who was unable to seek justice in a timely manner.

1. The information provided pursuant to the FOI request referenced above came from the Respondent in the form of the invoices previously provided by the Applicant as part of lodging her business activity statements, the audit process and upon objection. The Applicant explained she had earlier issued subpoenas for the Respondent to provide information in 2014 but was not successful in obtaining a response to this request. She has never been able to obtain invoices that would have been found in those files she says were stolen from her office in Forster, New South Wales.

1. The Applicant submitted a review of the invoices obtained pursuant to the FOI request would show the Respondent had not adequately taken that evidence into account, and if given the chance to have the decision reviewed would demonstrate she was entitled to the amounts claimed. As to whether she had any further evidence to rely upon, the Applicant indicated she could file bank statements from 2010 onwards to demonstrate payments at the relevant dates. She also outlined she wished to engage an independent accountant to undertake a review of all the material which would demonstrate how the objection decision was wrong and what the correct assessment should be.

RESPONDENT’S SUBMISSIONS AND EVIDENCE

1. In written submissions dated 20 September 2024 and oral submissions at the interlocutory hearing, the Respondent relied on four main factors to argue against the grant of an extension of time, namely:

   (i)there is no reasonable explanation for the delay;

(ii)the Applicant has rested on her rights;

(iii)there are questionable prospects as to the merits of the substantive application; and

(iv)there would be prejudice to the Respondent occasioned by the delay.

Explanation for delay

1. The Respondent did not consider the Applicant had provided a reasonable explanation for the delay. The Respondent submitted the Applicant was aware of the objection decision in October 2014 when she received the objection decision. That decision outlines review rights and the timeframes in which to seek any such review.

1. The Respondent submitted the Applicant was given a further opportunity to understand her rights of review when she took part in a phone conversation with an ATO officer on 27 October 2014, as evidenced by the file note of that date. The Applicant was then sent an email the same day outlining her rights of review. She took deliberate action in choosing to seek an informal review of the decision in December 2014, and was aware of that option because of the phone call to the ATO in October 2014 and follow up email.

1. In the event this submission was not accepted, the Respondent contended the Applicant must have been aware of her review rights by 2018 at the latest when debt recovery proceedings were finalised by consent. The Respondent relied upon the email exchange of 11 October 2018 which summarised the statement made by the Applicant’s representative in open court prior to the matter being finalised by consent:

   … made various representations regarding his client's intention to file an appeal in the AAT, making particular reference to relying upon her medical issues which had been canvassed in prior proceedings with the Health Care Complaints Commission…

   …on the basis that his client intended to make an application to the AAT, (the Applicant’s legal representative) sought a stay of the enforcement of any judgment pending determination of the review proceedings…

1. The Respondent contended the Applicant has not adequately explained why she did not appeal in 2014 when she was advised of her rights of review by the Respondent, in 2018 when advised by her solicitor, or in 2023 when she again engaged legal representatives in relation to the bankruptcy proceedings.

Rested on her rights

1. The Respondent submitted the Applicant has rested on her rights, as she was aware of her right to seek review of the objection decision. The objection decision outlined the time frame and rights of review. The Applicant was advised of review rights in conversation with an officer of the Respondent and again in subsequent follow-up correspondence of October 2014. The Applicant chose not to seek a review of the objection decision at this time.

1. The Respondent contended further that the solicitor, noting the statement made to the Court in 2018, would have advised the Applicant regarding the ability to seek review by the Tribunal of the objection decision. Nonetheless, she still chose not to seek a review at that time. Even if she provided such instructions to seek review which were subsequently not acted upon, she has rested on her rights by not taking any action to correct this situation.

1. The Respondent noted the Applicant had been able to exercise her rights at the audit and objection stages of review and in other proceedings against the Respondent in 2014, 2018 and 2023, engaging accountants and lawyers throughout to represent her interests. She has been provided with multiple opportunities to provide further evidence to support her view that the objection decision is wrong and yet has not provided any further documents of probative value.

Merits of the application

1. The Respondent considered there to be questionable prospects of the merits of the substantive application. The Respondent noted the Applicant has not provided and is unlikely to provide any new evidence to sustain a review of the objection decision and was concerned the description of those tax credits the Applicant seeks to review have no connection to the enterprise the Applicant was carrying on in the relevant years.

1. The Respondent rejected the Applicant’s submission that the objection decision was wrong for the reason the Respondent had not reviewed invoices provided when making their findings. The Respondent confirmed the documents received pursuant to the Applicant’s FOI request were those documents held by the ATO previously provided by the Applicant and considered in the objection decision. The objection decision itself systematically reviewed those invoices and information, and allowed a very small proportion of the Applicant’s claim and provided explanations where invoices were disallowed.

1. The Respondent submitted the Applicant has no further relevant evidence to provide, and as such there is no other evidence upon which a different decision could be made. The Applicant has had ten years to provide further corroborative evidence but has been unable to do so.

Prejudice to the Respondent

1. Lastly, the Respondent contended the substantial length of time that has passed since the objection decision was made would prejudice the Respondent in its ability to obtain information from third parties.

CONSIDERATION

1. In determining whether the Tribunal is satisfied that it is reasonable in all the circumstances to extend time, the Tribunal must weigh together the relevant factors as outlined in Hunter Valley.

Reason for Delay

1. The Applicant lodged her application ten years out of date. This is a substantial period. The Applicant claimed she was not aware of the Tribunal and its ability to review decisions until 2024 when she was liaising with an officer of the Respondent.

1. It was unclear from the evidence given exactly when she says she first became aware of the ability to seek review by the Tribunal. She indicated she commenced liaising with an ATO officer some time in 2023 as a result of seeking further advice following the bankruptcy proceedings that were settled in her favour, but it wasn’t until 2024 that this officer gave advice to the Applicant on how to apply for review.

1. The Applicant did not deny receiving the objection decision in her oral evidence. Neither did the Applicant deny speaking with an officer of the Respondent at the time she received the objection decision in October 2014. She did state that regardless she was not aware of her ability to seek review with the Tribunal.

1. It may be that it was only in 2024 the Applicant realised she could seek review at the Tribunal. It is understood that if she did not know she had the right to seek review until 2024,

then it would be difficult to seek review prior to that time. There has, however, been no acceptable explanation for why the Applicant did not have this same realisation when provided with the objection decision in 2014 which included details of review rights, or as a result of the phone conversation with an ATO officer in 2014, or upon receiving the email following up from that same phone conversation. At these three points in time the Applicant was advised of her rights of review.

1. The Tribunal is not satisfied that an acceptable explanation for the delay in seeking review has been given by the Applicant. Such satisfaction is not a pre-condition for an extension of time to be granted, although this factor, coupled with the lengthy period of time that has passed, weighs against any grant of an extension of time.

Has the Applicant rested on her rights?

1. In October 2014, the Applicant was assisted by an accountant to lodge her requests for internal and informal review. The Applicant was able to exercise her rights for those forms of review at the relevant time yet did not exercise those rights of which she was advised to seek review by the Tribunal or the Federal Court.

1. The Applicant’s solicitor in debt recovery proceedings told the Court, according to the email received in evidence dated 11 October 2018, the Applicant intended to make an application to the AAT in 2018. The Applicant could have pursued her review rights at that time, on the assumption she had been given advice regarding this. No application was filed at that time.

1. The Applicant stated her representative in 2018 had not acted upon her instructions to proceed to do ‘whatever was best’. She did not recall being advised or giving specific instructions to apply to the Tribunal. She confirmed she had not followed up whether her instructions had been acted upon for five years until such time as she was served with a bankruptcy notice in 2023 as she had thought it had all been resolved. By not following up her instructions for five years, the Applicant has rested on her rights, which had she pursued at the time, may have led to an earlier application for review being lodged with the Tribunal.

1. At each of those stages of engagement with the Applicant, the Respondent was entitled to regard the matter as being finalised. The Respondent advised the Applicant of appeal rights in 2014, and they were not pursued. The Respondent was of the understanding through the Applicant’s lawyers that she would pursue an AAT appeal in 2018. This did not eventuate

for more than five years, and it is reasonable during this period the Respondent considered proceedings finalised.

1. Although the Applicant gave evidence her solicitor acted without instructions to resolve the 2018 debt proceedings by consent, and that he did not act upon instructions to proceed to do ‘whatever was best’, there was no other evidence of any advice given at this time by the solicitor to the Applicant, or what instructions the Applicant provided at that time. A serious allegation has been made by the Applicant that instructions were not followed, although it was noted there did not appear to be any action taken by the Applicant to right this alleged wrong, be it through a complaint to a professional regulatory body or with a phone call to the solicitor’s office to check what was happening in relation to any further proceedings.

1. The Applicant submitted her advisors had not given correct information to enable her to seek review within the prescribed period. Any delays occasioned by her solicitors or accountants should generally not be visited upon the Applicant as their client. However, the Tribunal is not satisfied the delay was caused in its entirety by her advisors, given the finding above that the Applicant had personally been advised of her review rights on three occasions in October 2014 by the Respondent. Furthermore, her inaction in advancing her own claims with her solicitors after the finalisation of the debt recovery proceedings cannot lead to laying the blame for any late application solely on the action of the solicitor.

1. The Tribunal considers the Applicant had not taken appropriate action available to her in the ten years since the objection decision was made and has rested on her rights in this regard. This factor weighs against a grant to extend time to seek review.

Prejudice

1. The Applicant explained several of her files were stolen while working in an office in Forster and she had not been able to access invoices or relevant material contained therein. She had made repeated attempts to gain access to these records but without success. She had copies of all the invoices previously provided to the ATO and would be able to provide bank statements as evidence of further payments made from 2010 to 2013. The Applicant confirmed she does not have any invoices other than those received from her FOI request. Those records have been available to the Respondent since the objection decision was made.

1. The Respondent claimed in written submissions that it would be prejudiced in its ability to gather any further evidence from third parties if time was extended to pursue this application. It was not explained further as to what type of evidence and from which third parties would be required in any review of the substantive application.

1. It is not difficult to understand with the passing of time such has occurred in this instance that documents would be long destroyed or difficult to find, and that witness memories may have faded. This impacts the Applicant in seeking to challenge the objection decision as much as it may impact the Respondent’s ability to properly investigate and review the matter. Similarly, these are real difficulties for the Tribunal which may need to consider new evidence that may be less reliable than would have been if gathered closer to the events the subject of the objection decision.

1. However, as the Applicant asserts the decision is wrong because the invoices held were not properly taken into account, any review of the substantive application may only need be based on those invoices already available. Given this and coupled with the likelihood of there not being much more available in the way of contemporaneous evidence, the Tribunal does not consider the factor of prejudice weighs heavily either for or against the granting of an extension.

Merits of the application

1. As outlined in Windshuttle v Deputy Federal Commissioner of Taxation (1993) ATC 4992 at 4999 by von Doussa J:

   The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion… the applicant’s case had prospects of success, and what those prospects were. 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…

   …it is inappropriate for the tribunal concerned to embark on a full scale trial of the merits of the underlying question which will be agitated only if time is extended…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…should not be accepted.

1. The test to be applied when determining whether an objection has prospects of success is whether the objection arguably has merit, which requires the Applicant’s case to be assessed at its highest. A full-scale review of the substantive decision is not required.

Similarly, findings as to the credit of the Applicant or the reliability of the evidence have no place in any analysis of the merits at this stage.²

1. A review of the substantive application in this matter would focus on substantiation of the Applicant’s claims for GST credits with evidence in the form of invoices or corroboration that such GST credits were correctly claimed. The objection decision also made findings about certain types of claims made by the Applicant that would not be considered creditable acquisitions or allowable expenses where the nexus between such acquisitions and the enterprise carried on have not been established.

1. The Applicant asserts there were irregularities or mistakes undertaken in the audit process in 2013 and 2014 which meant invoices were not properly considered in allowing the claimed GST credits. The Applicant has not indicated which invoices were not considered. The Applicant has not made any assertions as to exactly how the objection decision is wrong, other than to argue the Respondent did not consider the invoices provided. The Applicant has not particularised which claims should be allowed because they properly meet the test for creditable acquisitions or that she can demonstrate the relevant nexus required.

1. The Applicant has made attempts to source other material to evidence her claims, but unfortunately has not been successful in such attempts. The provision of bank statements as suggested by the Applicant without further evidence to corroborate what any particular payments therein relate to are unlikely to be helpful in assisting the Applicant’s case.

1. The Applicant stated at the hearing her desire to have an accountant review all the material to properly account for amounts claimed. No such accountant’s review has been sought at this time. Nor would any such review constitute evidence but is more likely to reflect a submission yet to be made on her behalf.

1. The Tribunal understands the Respondent already holds all the currently available evidence, being the invoices previously provided. The Respondent has referenced invoices in its objection decision. The objection decision that reviewed these invoices did amend the findings of the audit, as noted at the interlocutory hearing, to allow approximately 2.5% of the claims made by the Applicant on objection. The Respondent submitted that without

2 Commissioner of Taxation v Brown [1999] FCA 1198, 18.

further evidence, it was highly unlikely there would be further claims allowed or amendments made to the objection decision.

1. Although as outlined above in Brown, the test when determining prospects of success is not whether having regard to evidence ‘the case is one that a taxpayer will probably lose.’ The concern in this application is that there is every likelihood of there being no further probative evidence available. What evidence is available has already, on the assertion of the Respondent and as outlined in the objection decision, been taken into account. The Applicant makes no assertions as to where else the decision under review might be wrong.

1. On the face of the information held and arguments made by both parties, it is difficult to reach a view as to the likelihood of the Tribunal ultimately varying or setting aside the decision, especially in light of the onus that would be borne by the Applicant to not only satisfy the Tribunal that the decision under review is wrong, but what the correct decision should be.³ There may be some prospect that upon review of the invoices, some further claims could be allowed. Any such prospects appear at this current stage to be limited.

CONCLUSION

1. The Tribunal appreciates the Applicant was going through a very difficult set of circumstances at the time of the audit and objection decision. Her registration to practice as a specialist had been suspended and then cancelled, there were concerns with office files being stolen, and there may have been irregularities in relation to the information provided by her accountants to the Respondent. Since that time, the Applicant has contended with further litigation brought against her by the Commissioner in relation to the debt the subject of the objection decision, and she has explained there were times in those proceedings her solicitors did not act upon her instructions.

1. None of the factors outlined above are of themselves determinative of whether the Tribunal should extend the time for the making of an application for review. Neither are those factors

3 14ZZK of the TA Act provides the applicant has the burden of proving:

(i)  if the taxation decision concerned is an assessment—that the assessment is excessive or otherwise incorrect and what the assessment should have been; or

(ii)  in any other case—that the taxation decision concerned should not have been made or should have been made differently.

exhaustive, and in each case the Tribunal should exercise its discretion with regard to all the circumstances of an individual case.

1. The Tribunal finds the length of the delay in seeking review is significant, the reasons for that delay are unsatisfactory and the Applicant has rested on her rights to seek review. Combined with the limited prospects of success for the substantive application, the Tribunal is not satisfied that it is reasonable in all the circumstances to extend time for the making by the Applicant of the application to the Tribunal for review of the objection decision dated 14 October 2014.

DECISION

1. The Applicant’s application for an extension of time to make an application pursuant to section 19 of the ART is refused.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of General Member M. Stratos

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

Associate

Dated: 18 November 2024

Dateof hearing:	4 November 2024
SolicitorsfortheRespondent:	Australian Taxation Office
AdvocatefortheApplicant:	Self-represented