Spence and Commissioner of Taxation (Taxation)

[2016] AATA 403

Spence and Commissioner of Taxation (Taxation) [2016] AATA 403 (17 June 2016)

Division	TAXATION & COMMERCIAL DIVISION
File Number(s)	2016/0024; 2016/0025; 2016/0026; 2016/0027
Re	Allan Spence
APPLICANT
And	Commissioner of Taxation
RESPONDENT

DECISION

Tribunal	Deputy President S E Frost
Date	17 June 2016
Place	Sydney

The application for reinstatement is refused.

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

Deputy President S E Frost

CATCHWORDS

PRACTICE AND PROCEDURE - reinstatement application - applications originally dismissed for lack of jurisdiction - applications not dismissed 'in error' - application for reinstatement refused

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 42A(10)

Taxation Administration Act 1953, Part IVC, ss 14ZU, 14ZY, 14ZZ

CASES

-

SECONDARY MATERIALS

-

REASONS FOR DECISION

Deputy President S E Frost

17 June 2016

INTRODUCTION

1. On 27 January 2016 the Tribunal dismissed applications 2016/0024-0027 for lack of jurisdiction. 

2. In doing so, the Tribunal accepted the Commissioner’s submission, as did Mr Spence himself, that Mr Spence had not made valid objections against the assessments that he was seeking to have reviewed.

3. Since then Mr Spence has applied to have the applications reinstated.  That is despite his continued steadfast insistence that his initial correspondence to the Commissioner did not constitute valid objections against the assessments.

4. On 3 May 2016 the Tribunal directed Mr Spence to lodge written submissions in support of his reinstatement application by 20 May 2016.  In making that direction the Tribunal indicated that, depending on the substance of those submissions, the reinstatement application might be determined on the papers.

   THE REINSTATEMENT POWER

5. The reinstatement power in a case such as this is found in s 42A(10) of the Administrative Appeals Tribunal Act 1975.  A precondition to the reinstatement of the applications is that ‘it appears to the Tribunal that an application has been dismissed in error’.  If that precondition is met, then ‘the Tribunal may … reinstate the application and give such directions as appear to it to be appropriate in the circumstances’.

   CONSIDERATION

6. I have not considered it necessary to require the Commissioner to file written submissions in response to Mr Spence’s reinstatement application.  That is because I am satisfied that the original applications were not dismissed ‘in error’.

7. A purported objection decision based on an invalid objection is not truly an objection decision and therefore there is no right of review in this Tribunal: Part IVC of the Taxation Administration Act 1953 generally, and ss 14ZU, 14ZY and 14ZZ specifically.  Dismissal of the applications on 27 January 2016 was entirely correct.

8. In any event, in circumstances where the person seeking reinstatement continues to insist that his originating document – the notice of purported objection – was invalid, and where that position is accepted by the Commissioner (and also by the Tribunal), there is no point reinstating applications which are once again bound to fail for lack of jurisdiction. 

   LATER DEVELOPMENTS

9. More recently Mr Spence has lodged valid objections against the assessments and the Commissioner has determined those objections.  Mr Spence is apparently dissatisfied with at least some of those objection decisions and he has separately applied to the Tribunal for review of those objection decisions.

10. That is an appropriate course for Mr Spence to have taken.  Indeed, it is a course urged upon him by both the Tribunal and the Commissioner when the initial applications were dismissed.

    DECISION

11. The application for reinstatement is refused.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost

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

Associate

Dated 17 June 2016

Date(s) of reinstatement hearing	3 May 2016
Date final submissions received	19 May 2016
Applicant	In person
Solicitors for the Respondent	Mr N Shizas, ATO Review and Dispute Resolution Group