Samadi and Commissioner of Taxation (Practice and Procedure)

[2025] ARTA 787

Samadi and Commissioner of Taxation (Practice and Procedure) [2025] ARTA 787 (29 May 2025)

Applicant/s:  Abdul Wali Samadi

Respondent:  Commissioner of Taxation

Tribunal Number:                2025/3173

Tribunal:Senior Member L. McBride

Place:Sydney

Date:29 May 2025

Date of written reasons:      30 May 2025 

Decision:The Tribunal dismisses the application. The decision of the Commissioner of Taxation, which is the subject of the application, is not a reviewable decision pursuant to section 97 of the Administrative Review Tribunal Act 2024.

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

Senior Member L. McBride

Catchwords

PRACTICE AND PROCEDURE - taxation - request for remission of General Interest Charge – no jurisdiction

Legislation

Taxation Administration Act 1953 ss 8AAG, 14ZQ, 14ZL, 14ZZ

Administrative Review Tribunal Act 2024 (Cth) ss 12,79,105

Decisions

Elias v Commissioner of Taxation [2002] FCA 1132

Isaacs v Commissioner of Taxation [2006] FCAFC 105

Sharp and the Commissioner of Taxation [2010] AATA 1023

Statement of Reasons

1.    On 25 March 2025, the Commissioner of Taxation, the Respondent in this application (Respondent), wrote to Mr Samadi, the Applicant in these proceedings (Applicant), declining to remit the general interest charge (GIC) imposed on the Applicant under s 8AAB of the Taxation Administration Act 1953 (Cth) (TAA).[1]

[1] Taxation Administration Act 1953 (Cth) s 8AAB.

2.    On 15 of April 2025, the Applicant filed an application in the Tribunal seeking review of the Commissioner’s decision not to remit the GIC.

3.    The matter was listed for an interlocutory hearing on 29 May 2025 to address the question of jurisdiction.

4. As I explained to the Applicant at the beginning of the hearing, the Tribunal is a creature of the legislation that established the Tribunal, that is the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The Tribunal’s power to review a decision of the Commissioner arises only if an “Act or legislative instrument provides for an application to be made to the Tribunal for a review of the decision”.[2]

[2] Administrative Review Tribunal Act 2024 (Cth) s 12(1).

5.    As the application concerns interest imposed under the TAA, Part IVC of that Act applies.

6.    Part IVC of the TAA concerns taxation objections, reviews and appeals. Section 14ZL(1) sets out when Part IVC applies. The section is in the following terms:

(1)  This Part applies if a provision of an Act or a legislative instrument (including the provision as applied by another Act) provides that a person who is dissatisfied with an assessment, determination, notice or decision, or with a failure to make a private ruling, may object against it in the manner set out in this Part.

(2)  Such an objection is in this Part called a taxation objection.

7. Under s 14ZY of the TAA, the Commissioner decides taxation objections. The Commissioner must decide, under s 14ZY(1), whether to allow the taxation objection, wholly or in part, or to disallow the taxation objection. This is known as an objection decision under s 14ZY(2) of the TAA.[3]

[3] Taxation Administration Act 1953 (Cth) ss 14ZY(1)-(2), 14ZZ(1)(A)(I), 8AAG(5).

8. Section 14ZZ(1)(a)(i) of the TAA provides that a person who is dissatisfied with a reviewable objection decision made by the Commissioner may apply to the Tribunal for a review of that decision, or appeal to the Federal Court.

9.     A decision not to remit GIC is not a “reviewable objection decision” under Part IVC of the TAA. The power granted to the Commissioner to remit GIC is set out in Part IIA, under section 8AAG(5) of the TAA. However, Part IIA does not provide a right of review to the Tribunal of a decision made under s 8AAG(5).

10.  While certain remission decisions concerning penalties may be subject to review by the Tribunal, a decision of the Commissioner that concerns the remission of GIC is not a “reviewable objection decision” and is not reviewable the Tribunal under Part IVC of the TAA. Decisions of that kind may be reviewable under the Administrative Decisions (Judicial review) Act 1977 (Cth).

11. It follows that the Tribunal is satisfied that the decision is not reviewable by the Tribunal under s 97(2) of the ART Act. Accordingly, the application is dismissed under s 97 of the ART Act.