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

[2017] AATA 3059

Sneesby and Secretary, Department of Social Services (Social services second review) [2017] AATA 3059 (11 November 2017)

Division:GENERAL DIVISION

File Number(s):       2017/2024; 2017/2025

Re:Courtney Sneesby   

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:11 November 2017

Date of written reasons:    8 December 2017

Place:Sydney

The reviewable decision in relation to the 2015 financial year is set aside, and, in substitution, the applicant is entitled to the Family Tax Benefit top-up for that particular financial year. The reviewable decision in respect of the 2014 tax year is affirmed.

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Senior Member M J McGrowdie

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefits – whether Family Tax Benefits are payable for financial years ended June 2014 and June 2015 – whether there are special circumstances – special circumstances exist for June 2015 income year - family tax benefit is payable for income year ended June 2015 – decision regarding 2014 income year affirmed – decision regarding 2015 income year set aside and substituted

LEGISLATION

New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

New Tax System (Family Assistance) Act 1998 (Cth)

REASONS FOR DECISION

Senior Member M J McGrowdie

8 December 2017

1. The applicant, Courtney Sneesby, seeks the family tax benefit top up in respect of the financial years ended 30 June 2014 and 2015.  The legislation governing such benefits is contained in the New Tax System (Family Assistance) Act 1998, and New Tax System (Family Assistance) (Administration) Act 1999 (Cth).  In short, to be entitled to the family tax benefit top up, as the legislation was in relation to those financial years, the tax returns had to be lodged primarily within a 12-month period of the close of the previous financial year, and, in special circumstances, within a further 12-month period of that date, making a total of two years. 

2. Mrs Sneesby lodged tax returns for herself and her spouse, and also a company tax return for the financial years ended 30 June 2014 and 2015 on 1 September 2016.  So far as the financial year ended 30 June 2014, lodgement was outside the ultimate bar period of two years.  Accordingly, there is no entitlement in respect of that financial year for the family tax benefit top up.  Even if income levels were within acceptable limits, Mrs Sneesby has not been able to obtain the benefit for that period.  

3. In relation to the financial year ended 30 June 2015, the position is somewhat different.  The tax returns were lodged outside of the first 12-month period, but within 12 months of that date being in the second year period.  Section 32C of the New Tax System (Family Assistance) (Administration) Act 1999 (Cth) provides that the period can be extended from 12 months to two years if special circumstances exist.  In this case, the evidence was that the applicant has, for quite some time, suffered from a condition known as Hashimoto’s Disease.  In short, that is a thyroid condition.  The applicant found unexpectedly that she was pregnant in January 2016, and this led to her thyroid condition reaching a very troublesome level. 

4. Mrs Sneesby’s pregnancy led to significantly increased symptomatology in relation to her thyroid condition, and risks regarding her pregnancy.  Mrs Sneeby was under the care of general practitioner Dr Helen Williams, and was also seeing a medical specialist, Dr Steven Joung.  

5. Dr Joung, as her specialist, had recommended to the applicant sometime in March 2016 that she adhere to a strict rest regime at home, and that she be extremely vigilant in her approach to activities to maintain a viable pregnancy.  This confined Mrs Sneesby to bed for a considerable period of time.  In evidence, her estimate is that her capacity had been reduced to about 20 per cent of her normal capacity, and that that was the situation which continued through until the end of August 2016. 

6. Returns were lodged, as I have indicated, on 1 September 2016.  Mrs Sneesby’s evidence was that her husband is a truck driver, running an independent business, and has always left all the financial affairs of the family in Mrs Sneesby’s hands.  Mrs Sneesby has had a career involving clerical activities, but Mr Sneesby has not had the experience, nor demonstrated the ability to be able to proceed to preparation of returns or management of the finances.  That has been left to Mrs Sneesby, and has been the case for a very long time. 

   
   
   

7. There are letters in the Tribunal’s file which have been lodged by Mrs Sneesby, one being from Dr Williams, dated 20 June 2017, and one from Dr Joung, which is undated, but which refers to an examination date of 18 March 2016.  Those reports refer to her medical condition.  Prior to her pregnancy, Mrs Sneesby was doing well with her condition, but her thyroid levels shot up significantly from the normal healthy adult reference range of less than 60 to something in the vicinity of 1300 u/ml, which would be units per milligram.  

8. Mrs Sneesby’s overall condition at that time also resulted in her suffering mental distress and some depression.  Lodging a tax return in that period was, according to Mrs Sneesby in oral evidence, well beyond her capacity at the time.  She did, however, lodge the return some eight weeks after the end of the two-year period that I have earlier referred to.  Her thyroid condition had improved by the end of August 2016, and the returns were lodged on 1 September.  Included in the returns lodged was a company return for the trucking business that was also overdue, having become due in March of 2016. 

9. That is further evidence, in my view, of the severity of Mrs Sneesby’s condition.  She has been in receipt of the family tax benefits from about 2006, and this is the first time in respect of the years 2014 and 2015, that she ran into any difficulties. 

10. Notices had been sent from the Department to Mrs Sneesby, indicating that there was a 12-month period that needed to be complied with, and her evidence was, whilst not denying that that was the case, she did not recall having seen such notices.  It was submitted on behalf of the Department that the reason why Mrs Sneesby’s lodgement was late was as a result of her unawareness that the period for lodgement had been reduced from two years to one year, and that it was not her condition which led to the lateness, but her misunderstanding.

11. That argument might have greater force were it not for the fact that the returns for the 2014 financial year were lodged more than two years late, so that, even if Mrs Sneesby’s understanding had been that a two year period applied, then, 2014 lodgement was late, even on her calculation.

12. When one searches for a reason why such a return would have been late, given Mrs Sneesby’s compliance with lodgement in the past, it was that her condition as had been exacerbated by her pregnancy, and this led to such a disruption in her life, that she was unable to attend to lodgement of her return or her partner’s return until the time it was lodged.

13. To my mind, it is consistent that Mrs Sneesby lodged the returns as soon as her condition had abated; her evidence being was that this was in August 2016, with the returns being lodged at the beginning of September 2016.

14. Accordingly, it is my view that the preferred approach is to regard the delay as being due to Mrs Sneesby’s condition rather than her misunderstanding in relation to the date required for lodgement.

15. Also consistent with that approach is the fact that the company return was lodged some six months overdue.

16. Section 32C of the New Tax System (Family Assistance) (Administration) Act 1999 (Cth)  makes a provision for an extension of the 12 month period, for a further 12 month period, provided that, in respect of the further 12 month period, there have been special circumstances which existed to excuse the lodgement of the return.  Special circumstances require more than simply accepting that it was inadvertence or the pressures of daily life, such that an applicant did not get around to lodging in time.

17. Special circumstances require some consideration of the person’s individual circumstances which, generally speaking, require them to be unusual or uncommon, in other words, something to distinguish them from the ordinary circumstances of life.

18. Here, Mrs Sneesby suffered from a very unusual condition.  Her condition was complicated by an unexpected pregnancy which led to a significant compromise in her ability to deal with a wide variety of matters. She had two other children at home, and they were aged ten and eight, and Mrs Sneesby had to rely heavily on family support and the support of her husband to achieve normal living, or relatively normal living.

19. These circumstances are in my view sufficient to regard them as being unusual, and particularly individual to the applicant.

20. Accordingly, I am of the view that there were special circumstances existing, which prevented both the applicant and her partner from lodging returns before the end of the first income year following the end of the financial year.

21. I accept the evidence of Mrs Sneesby, that her husband did not possess the necessary skills or experience to handle such matters  that had been for quite a long time, Mrs Sneesby’s burden or responsibility, and, that, even when she was having difficulty, he just did not have the capacity to assist in that regard.

22. In summary, therefore, and having accepted that there were special circumstances existing in respect of the lodgement of returns for the 2015 year, it follows that Mrs Sneesby would be entitled to the Family Tax Benefit top-up for that financial year.

23. In respect of the financial year in 2014, as the returns were not lodged until after the expiration of two years, from the end of the financial year in 2014, there is an ultimate bar and there is nothing that Mrs Sneesby can provide to advance her cause in that regard, and, so, for that financial year, that is the financial year ended 30 June 2014, a Family Tax Benefit top-up is not payable.

    DECISION

24. The reviewable decision in relation to the 2015 financial year, is set aside, and, in substitution, the applicant is entitled to the Family Tax Benefit top-up for that particular financial year. The reviewable decision in respect of the 2014 tax year, is affirmed.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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Associate

Dated: 8 December 2017

Date(s) of hearing:	10 November 2017
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Department of Human Services