Sobczuk and Commissioner of Taxation

[2004] AATA 655

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 655

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   QT2003/337

TAXATION APPEALS  DIVISION		)
Re		PEDRO SOBCZUK

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Senior Member McCabe

Date25 June 2004

PlaceBrisbane

Decision The Tribunal declines to allow the reinstatement application.  

......................Sgd......................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for reinstatement – matter dismissed for non-appearance of applicant – whether appropriate to reinstate matter – applicant has already received remedy – no further remedy possible – application for reinstatement refused

Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133

Hunter Valley Developments v Cohen (1984) 3 FCR 344

REASONS FOR DECISION

25 June 2004 Senior Member McCabe    

Introduction

1. Mr Pedro Sobczuk asked the Tribunal to review a decision of the Commissioner of Taxation pursuant to s 82 of the Small Superannuation Accounts Act 1995. The matter was listed for hearing on 10 February 2004, but Mr Sobczuk did not appear. The matter was dismissed pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975. Mr Sobczuk now asks that the matter be reinstated so it can proceed to a hearing.

The failure to appear at the earlier hearing

2.      The matter was listed for hearing on 10 February 2004. A listing notice was sent out to Mr Sobczuk. The applicant wrote to the Tribunal on 16 January 2004 seeking an adjournment on the basis of his health. At my direction, my associate wrote to the applicant on 20 January 2004 advising him the Tribunal required a medical certificate before it would vacate the hearing date. There was no medical certificate provided to the Tribunal prior to the hearing and the proceedings were dismissed.

3.      Mr Sobczuk says he asked his treating psychiatrist to write to the Tribunal and to the Federal Court, where the applicant has other proceedings on foot. He says he thought the psychiatrist had done so. In fact, copies of the letter written by the psychiatrist were addressed to the Federal Court but not the Tribunal. It appears the psychiatrist misunderstood his instructions.

4.      I am satisfied the applicant’s failure to appear at the hearing was the result of a genuine misunderstanding.

Should the matter be reinstated?

5. The power to reinstate proceedings that have been dismissed pursuant to s 42A(2) is found in s 42A(9) provided the applicant applies within 28 days of the date he was notified of the dismissal. I am satisfied the applicant is within that time limit. The Tribunal therefore has the discretion under s 42A(9) to reinstate the matter “[i]f it considers it appropriate to do so”.

6.      When considering what is appropriate, the tribunal will ordinarily have regard to the principles applicable to applications for extensions of time: Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133. Those principle were outlined by the Federal Court in Hunter Valley Developments v Cohen (1984) 3 FCR 344. I have already dealt with one of the matters which require attention: I am satisfied with Mr Sobczuk’s excuse for failing to appear. I am also satisfied the Commissioner would not be prejudiced by reinstatement. No evidence of prejudice was tendered, in any event. The more difficult issue is the question of merit.

7.      The cases make it clear that the Tribunal should not conduct a mini-trial in a hearing of reinstatement. I do not propose to do so, but I must make a preliminary assessment of the applicant’s case.

The applicant’s case

8.      Mr Sobczuk worked for the Carnarvon Medical Services Aboriginal Corporation in 1995-1996. That relationship ended unhappily when the applicant was charged with misappropriating the corporation’s funds. He was convicted and sentenced to gaol. He has been engaged in a series of disputes with the Commissioner ever since over matters arising out of his tax affairs during that period.

9.      This dispute relates to the applicant’s superannuation. A quantity of money representing superannuation contributions from the applicant’s employer was being held in the Superannuation Holding Accounts Reserve. The Commissioner refunded the money to the Corporation. The Commissioner subsequently discovered the Corporation had not provided an appropriate level of superannuation support for Mr Sobczuk and a Superannuation Guarantee Charge was levied against it. The money was duly paid to the Commissioner.

10. The Commissioner says he sent vouchers to the applicant issued under s 65 of the Small Superannuation Accounts Act 1995. The employee can present the vouchers to any superannuation fund and the money held by the Commissioner will be credited to that fund. The respondent says the vouchers were sent to the applicant but they were never returned. Mr Sobczuk says he never received the vouchers.

11.     The Deputy Commissioner of Taxation wrote to the applicant on 12 August 2003 pointing out the vouchers had not been deposited. He said the money being held would be credited to a default account if the applicant did not respond. Mr Sobczuk responded in writing on 20 August 2003. His letter said he had not received the vouchers and complained that the Commissioner had not responded to his earlier inquiries about whether he was entitled to any interest that would have accrued on the funds since 1995.

12.     The respondent proceeded to credit $1633.98 to Mr Sobczuk’s Ausfund account in the absence of an indication from Mr Sobczuk as to where he wanted to deposit the money. The $1633.98 credit was comprised of the superannuation guarantee charge less the administration component and penalties. The interest component was included in the amount. Ausfund confirmed in a letter dated 4 November 2003 (a copy of which was provided to the applicant) that the money had been received and credited.

13.     The Commissioner says the applicant is free to retrieve the money from Ausfund. The Commissioner has encouraged the applicant to contact Ausfund, but the applicant refuses to do so. He says he may not have received interest on the money prior to it being credited to Ausfund. He also repeated his complaint that he was not supplied with any vouchers. He says the Commissioner was negligent in the handling of the applicant’s money. He wants compensation.

The Commissioner’s case

14.     The respondent’s position is simple. He says the money has been credited to the applicant. The respondent says the vouchers sent to the applicant were not presented. The applicant was told the money would be credited to an account with Ausfund in the absence of any instructions to the contrary. The applicant received the letter of advice and declined to advise the Commissioner of an alternative fund.

15.     The Commissioner says the applicant’s only remedy here is to approach Ausfund and arrange for the money to be transferred to the super fund of his choice. The Commissioner says there are no other remedies available to the applicant under the law in the circumstances.

Conclusions

16.     The Commissioner is right. He is not liable to compensate the applicant for any loss that may have been sustained by the applicant. The Commissioner correctly conceded that money was owed to the applicant. I think it is likely he sent vouchers to the applicant but even if he did not, the deputy commissioner wrote to the applicant on 12 August 2003 advising the money would be credited to an account with Ausfund if the applicant did not identify an alternative fund. The applicant chose not to identify an alternative fund in his letter of 20 August 2003. Instead, he unhelpfully demanded to know where the vouchers were, and when the interest on the money would be forthcoming.

17.     The Commissioner has done all he can to fix the problem that arose, and he has acted reasonably in the circumstances. I am not aware of any statutory power or obligation to compensate the applicant for any loss he may have sustained as a result of the delay in crediting the money to the applicant’s account.

18.     The applicant’s complaint about the missing vouchers is pointless. Even if the vouchers did not reach him, he was advised in writing about the process and invited to contact the Australian Taxation Office to express his preference. He failed to do so, and he has still not contacted Ausfund. His insistence that the respondent produce the vouchers when the respondent has already credited the money to an account is so unreasonable as to call into question the applicant’s motives in making the complaint.

19.     It would be a waste of time and resources to reinstate these proceedings. The application is dismissed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 11 June 2004
Date of Decision: 25 June 2004
The applicant represented himself.
The respondent was represented by Mr Curran