Sharp and Commissioner of Taxation

[2010] AATA 1023

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1023

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4445

TAXATION APPEALS DIVISION		)
Re		ALANAH SHARP

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date17 December 2010

PlaceCanberra

Decision The application is dismissed.

......................[sgd]........................

Mr S. Webb, Member

CATCHWORDS

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

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

Administrative Appeals Act 1975 ss 25, 33, 42A(4), 43

Elias v Commissioner of Taxation [2002] FCA 1132

Isaacs v Commissioner of Taxation [2006] FCAFC 105

REASONS FOR DECISION

17 December 2010 Mr S. Webb, Member         

1.      Alanah Sharp requested remission of accrued General Interest Charge (GIC) to 12 July 2010 in the amount of $14,177.45. A Deputy Commissioner denied the request. Ms Sharp applied for review of that decision.

2.      On 14 October 2010 a Deputy District Registrar of the Tribunal wrote to Ms Sharp’s representative, Andrew Maroc and Associates, seeking an explanation within 14 days that the decision is reviewable by the Tribunal. No response was received within the allotted time. Subsequently, however, on 3 November 2010 a further letter was filed on Ms Sharp’s behalf. Unfortunately, this letter did not address the issue of the Tribunal’s jurisdiction to review the decision that is the subject of Ms Sharp’s application. Attached to the letter is a further letter by a Deputy Commissioner to Ms Sharp, rejecting a further request by her for remission of the GIC accrued to 20 September 2010.

3.      On 10 November 2010 a District registrar of the Tribunal wrote to the Commissioner inviting submissions on the issue of jurisdiction raised by Ms Sharp’s application. The Commissioner’s response was filed on 22 November 2010.

4.      I have carefully considered the documents filed by Ms Sharp and the Commissioner. There are a number of things to say about these matters.

5.      Firstly, Ms Sharp has not demonstrated that the Tribunal has any power or jurisdiction to review the GIC remission decision. The filed documents are not sufficient for that purpose.

6.      Secondly, the Tribunal does not exercise power at large; it is a creature of statute.[1] The Tribunal’s jurisdiction is conferred upon it by enactments other than the Administrative Appeals Tribunal Act 1975 (the AAT Act).[2]

[1] Isaacs v Commissioner of Taxation [2006] FCAFC 105 at para 36.

[2] Sections 25(1) and (4), Administrative Appeals Tribunal Act 1975.

7.      Under section 14ZZ of the Taxation Administration Act 1953 (the Administration Act) the Tribunal has jurisdiction to review a ‘reviewable objection decision’, being ”an objection decision that is not an ineligible income tax remission decision”.[3] The manner in which a taxation objection is to be made and dealt with is governed by Part IVC of the Administration Act - “if a provision of an Act or of regulations (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”.[4]

[3] Section 14ZQ Taxation Administration Act 1953.

[4] Section 14ZL Taxation Administration Act 1953.

8.      As can be seen, while certain remission decisions concerning penalties may be subject to review by the Tribunal, the same cannot be said for remission decisions concerning the GIC under section 8AAG of the Administration Act. Decisions concerning the remission of GIC are not ‘reviewable objection decisions’ and are not reviewable under Part IVC of the Administration Act by this Tribunal; decisions of that kind may be reviewable under the Administrative Decisions (Judicial review) Act 1977.[5]

[5] Elias v Commissioner of Taxation [2002] FCA 1132 at [42] to [44]; see also CCH Australian Master Tax Guide, 2009, 29-530 at p1507.

9. It follows that the Tribunal has no jurisdiction to review the decision that is the subject of Ms Sharp’s application concerning remission of GIC. That being so, the application is dismissed pursuant to section 42A(4) of the AAT Act.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         ....................[sgd]............................................................
           H. Choi (Associate)

Date of Hearing  9 December 2010
Date of Decision  17 December 2010
Representative for the Applicant    Andrew Maroc & Associates
Solicitor for the Respondent          Self Represented