Ritchie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 91

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 91

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0607

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL RITCHIE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date  4 February 2008

PlaceSydney

Decision The Tribunal affirms the decision under review.

....................SGD..........................

Mr S E Frost

Member

CATCHWORDS

FAMILY TAX BENEFIT – effective claim – claim for a past period – whether claim made within 12 months of the end of the financial year – no effective claim made within 12 months − decision under review is affirmed.

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance) (Administration) Act 1999 – section 5, 7, 10(2)

REASONS FOR DECISION

4 February 2008 Mr S E Frost, Member        

Introduction

1.      Three weeks after the birth of his son in 2001, Michael Ritchie lodged with Centrelink a claim form which he thought was a claim for Family Tax Benefit (FTB) for the 2001/2002 financial year.  The Secretary, however, has taken the view that the form is not a valid claim form for FTB for that year.  The Secretary concedes that Mr Ritchie lodged a claim for FTB for 2001/2002 in November 2006, but asserts that this is much too late to be an effective claim.

The issue to be determined

2.      The issue is whether the claim form lodged in 2001 amounts to an “effective claim” for FTB for the 2001/2002 financial year.

The legislation

3.      The relevant law is in the ANew Tax System (Family Assistance) Act 1999 (the Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).

4.      Section 5 of the Administration Act states:

“The only way that a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivision”. 

The Subdivision, in section 7, specifies the three different kinds of claims that can be made − a claim for payment of FTB by instalment; a claim for payment of FTB for a past period; and a claim for payment of FTB “by single payment/in substitution because of the death of another individual”.

5.      There are different requirements for the different types of claims.  For example, a claim for payment of FTB by instalment is only effective if the bank account requirement in section 7A of the Administration Act is satisfied.  A claim for payment of FTB either by instalment or for a past period is only effective if the tax file number requirement in section 8 of the Administration Act is satisfied. 

6.      In all cases, according to subsection 7(2) of the Administration Act, a claim must:

(i)be made in a form and manner; and

(ii)contain any information; and

(iii)be accompanied by any documents;

required by the Secretary.

7.      At the relevant time, subsection 10(2) of the Administration Act provided that a claim for a past period was not effective if the claim was made more than 12 months after the end of the relevant income year.

The claim form lodged in 2001

8.      The claim form that the Mr Ritchie lodged in 2001 is apparently 24 pages long and contains a detachable “Notes” booklet taking up a further 20 pages.

9.      The form describes itself as a:

Claim for

·     Family Tax Benefit

·     Maternity Allowance

·     Maternity Immunisation Allowance

for the 2001-2002 financial year

10.     The claim form contains on its front cover the following instruction, among others (although in a font size less than one quarter as large as the words “Family Tax Benefit” appearing at the top of the form):

Use this form to claim

·     Family Tax Benefit as fortnightly payments

·     Maternity Allowance

·     Maternity Immunisation Allowance

NOTE:  You cannot use this form to claim Family Tax Benefit through the tax system

11.     At page 7 of the form, at question 8, the claimant was asked:

Do you want to claim Family Tax Benefit as fortnightly payments?

12.     If the claimant answered “No”, then there was a further question that explained:

You can still claim Family Tax Benefit through the tax system by lodging a claim with your tax return after 30 June 2002.

13.     Mr Ritchie did not answer question 8, but his answer to the consequent “optional question” asking him how he planned to claim FTB through the tax system – namely, “by only claiming a lump sum at the end of the financial year” – suggests that if he had answered question 8, set out at paragraph [11] above, he would have answered it − “No”.

14.     I find that Mr Ritchie wished to claim FTB through the tax system.  I also find that the claim Mr Ritchie made in 2001 was not in the form and manner required by the Secretary for the particular entitlement that Mr Ritchie was seeking.  I find that the note on the front cover of the form was designed to indicate to the reader that a person wishing to claim FTB through the tax system should not use that form because such a claim is not in the “form and manner” required by the Secretary.

15.     The form that Mr Ritchie lodged in 2001 cannot be seen as an effective claim for FTB because, as he made clear, he wanted to receive a lump sum at the end of the financial year.  The particular form did not, and could not, trigger consideration of Mr Ritchie’s entitlement to FTB in those circumstances.

16.     In the absence of any evidence that Mr Ritchie made an effective claim within the period specified by subsection 10(2) of the Administration Act, the decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:         ..............................sgd....................................................
  Associate: Felicia Daniele

Date/s of Hearing  28 September 2007 and 15 January 2008
Date of Decision   4 February 2008
Counsel for the Applicant          
Solicitor for the Applicant          self represented
Counsel for the Respondent    

Solicitor for the Respondent   Ms G. Heggen of Centrelink Legal Services Branch