Rezaei and Secretary, Department of Social Services (Social services second review)

This matter concerned an application by Ms Rezaei for review of decisions made by the Secretary, Department of Social Services, to raise and recover family tax benefit debts. The dispute centred on whether Ms Rezaei had a zero entitlement to family tax benefit in certain years and whether payments made in other years constituted an excess payment, thereby creating a debt. The review was heard by C.j. Furnell SM.

The primary legal issues before the court were whether Ms Rezaei had a family tax benefit entitlement in the "zero entitlement years" and whether the family tax benefit payments made in the "excess payment years" exceeded her entitlement. This involved determining whether Ms Rezaei was a member of a couple during the relevant periods and the proper application of section 32AE of the *A New Tax System (Family Assistance) (Administration) Act 1999* (the Administration Act), particularly concerning the requirement to lodge tax returns or notify that a return was not required. The court also considered whether any debt raised could be waived or written off due to special circumstances.

The court reasoned that for the respondent to succeed in establishing a debt for the "zero entitlement years," it needed to be positively satisfied that Ms Rezaei had no family tax benefit entitlement in those years. The respondent's submission that this lack of entitlement arose from Ms Rezaei's failure to lodge a tax return or notify that she was not required to do so was found to be an incorrect application of section 32AE of the Administration Act. The court noted that section 32AE requires a precondition of three or more variations to an entitlement determination under section 28(2) and a failure to lodge a required tax return, not a failure to advise of no requirement to lodge. Consequently, the court was not satisfied that Ms Rezaei was indebted to the Commonwealth for the amounts sought in relation to the zero entitlement years.

In relation to the "excess payment years," the court was satisfied that Ms Rezaei was indebted to the Commonwealth for the amount by which payments exceeded her entitlement. This excess was attributed to the fact that the payments were calculated without regard to her being a member of a couple with Mr Rashidi during those years. The court affirmed the decisions relating to the excess payment years. However, for the year ending 30 June 2017, the court set aside the decision and remitted it for reconsideration, directing that any debt not be calculated on a "non-lodger" basis but rather on the basis that Ms Rezaei and Mr Rashidi were a couple.