Steven Power and Commissioner of Taxation
[2014] AATA 343
[2014] AATA 343
Division TAXATION APPEALS DIVISION File Number
2013/4539
Re
Steven Power
APPLICANT
And
Commissioner of Taxation
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 2 June 2014 Place Brisbane The Tribunal affirms the objection decision.
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Deputy President I R Molloy
CATCHWORDS
TAXATION – Taxation liability – Application for release – Whether payment of tax liability would cause serious hardship – Factors relevant to exercise of discretion – Decision affirmed
LEGISLATION
Taxation Administration Act 1953 (Cth) Sch 1, s 340-5
CASES
Commissioner of Taxation v A Taxpayer [2006] FCA 888
Powell v Evreniades [1989] FCA 114
Van Grieken v Vielands (1991) 21 ATR 1639
REASONS FOR DECISION
Deputy President I R Molloy
2 June 2014
The applicant, Mr Power, applied to the Commissioner of Taxation (the Commissioner) under s 340-5 of Sch 1 of the Taxation Administration Act 1953 (Cth) (the Act) to be released from his tax liabilities.
His application was refused on 20 February 2013 and an objection was disallowed on
11 July 2013. This is a review of the objection decision.
As of 4 May 2014, Mr Power’s outstanding tax liabilities amounted to $57,566.93 comprised of:
· Income tax instalments associated with lodged returns since 2008
$37,180.38
· General interest charges
$14,869.55
· Three income tax instalments, each of $1,839.00, associated with returns yet to be lodged for September 2013, December 2013, and March 2014.
$5,517.00
Issues
There is no dispute that Mr Power’s tax liabilities, including the general interest charges, are of a type which may be released.
Section 340-5(3) of Sch 1 of the Act provides that, before a person can be released from a liability for tax, it must appear that he or she would otherwise suffer serious hardship.
If this requirement is satisfied there remains a discretion whether or not to grant the application.
The issues are therefore:
·Whether it appears that Mr Power would suffer serious hardship if he were not released from his tax liability in whole or in part.
·If serious hardship is shown, how the discretion should be exercised.
Serious hardship
The term serious hardship should be given its ordinary meaning. The description may be satisfied by something less than destitution: Powell v Evreniades [1989] FCA 114.
The individual circumstances of the taxpayer should be assessed by reference to normal community standards: Commissioner of Taxation v A Taxpayer [2006] FCA 888. Financial relations with members of the taxpayer’s household are relevant: Van Grieken v Vielands (1991) 21 ATR 1639 at 1644-6.
Mr Power is 39 years of age, married, and lives with his wife and three school-age daughters on the Sunshine Coast.
The family moved to Queensland from Sydney in 2002. From 2002 until 2008 Mr Power was employed as a salesperson with an office furniture retailer.
Since 2008 Mr Power has worked as a sales representative for an office furniture wholesaler. He is paid a retainer of $1,000.00 per week with the prospect of bonuses depending on results. He said he has only once been paid a bonus.
He is provided with a vehicle, a Toyota Kluger, for use during and outside work hours. Maintenance and fuel costs are met by his employer. His work requires travel but he is rarely away overnight.
Since about mid-2013 Mr Power has been engaged in additional work delivering and installing furniture. The income this generates was described as sporadic. From June to early December 2013 it averaged $249.00 per fortnight.
Mr Power’s wife worked part-time as a cleaner in Sydney. However she has not worked for remuneration since they shifted to Queensland. She receives a family tax benefit of $720.00 per fortnight.
Mr Power and his wife therefore have an average gross fortnightly income of $2,969.00 comprising:
·Retainer as sales representative $2,000.00
·Furniture delivery/installation business $249.00
·Family tax benefit $720.00
Mr Power is on a PAYG instalment of $1,839.00 per quarter, which equates to $306.50 per fortnight. The household income is therefore approximately $2,662.00 per fortnight after tax.
Mr Power also said his eldest daughter, aged 17 and in her final year at school, works part-time. Her actual income was not stated. Mr Power said she planned to travel overseas next year and work in London. In the circumstances I do not place any significance on this source of income.
Mr Power said his fortnightly expenses are as follows:
Amount Rent $790 Food and household expenses $800 Electricity and gas $95 Telephone (including mobile phones) $150 Clothing $80 Vehicle registration and insurance $30 Vehicle repairs, petrol and maintenance $50 School and other educational expenses $35 Medical, dental and pharmacy $60 Entertainment $150 Total $2,240
Based on this there is a net income position of approximately $422 per fortnight calculated as follows:
·Income $2,622.00
·Less outgoings $2,240.00
·Net surplus $ 422.00
Mr Power rents an unfurnished three-bedroom house. He said less expensive suitable accommodation is not available. He pointed out that two of his daughters share a bedroom.
Mr Power said that weekly supermarket shopping accounted for $250 to $280 ($500 to $560 per fortnight). He was unable to explain how a further $240 to $300 per fortnight was spent on food and household expenses.
The Commissioner also pointed out that the figure of $800 per fortnight for food and household expenses was not reflected in the bank statements provided by Mr Power.
I think the figure of $800 is inflated and is more likely $700.
The telephone expenses include mobile phones for his wife and the two older children. Mr Power has a betting account with the TAB to which he has made modest deposits from his bank account. The same account reveals some expenditure on alcohol and
fast food. The Commissioner also pointed out that Mr Power’s expenses include
$150 per fortnight on entertainment.
None of these outlays could be described as extravagant. However, they do display a level of discretionary spending which, if necessary, could be reduced.
The only assets disclosed by Mr Power are minimal cash in bank accounts, and a
1997 Honda CRV which Mr Power valued at $3,500. The vehicle, he said, was purchased in about 2007 for $17,000, and is used by his wife.
To these could be added furniture, household and personal affects. The Commissioner elicited from Mr Power that there are two television sets. Mr Power’s response was the children have a TV which cost only about $200.
Mr Power has no liabilities that he has disclosed.
Mr Power said his wife had a motor vehicle accident several years ago giving rise to a liability of about $3,500 which was paid over time. There were also expenses for one of the children to have braces.
Apart from these matters no explanation has been offered for the failure by Mr Power to meet his tax liabilities as they arose.
Instead of paying what I find were manageable assessments, Mr Power has largely ignored his tax liabilities over the last five or six years, and has allowed the amounts due to accumulate with interest.
It is hardly surprising, therefore, that Mr Power will experience some difficulty in meeting his current tax debt. However, even on his own figures, he has capacity to pay over time.
On his figures it would take approximately five years to pay the current liability, and longer with ongoing interest charges. However, given his age and position in life, I do not consider that would create serious hardship.
Furthermore, I accept the Commissioner’s submission that Mr Power should not require as much as five years to pay the debt. His expenses have been over-stated as I have indicated. There is also room to reduce discretionary spending.
I am not satisfied that Mr Power’s situation, if required to pay his tax debt, would be one of serious hardship.
Discretion
If this were a case of serious hardship I would exercise my discretion against granting relief.
As I have said, Mr Power’s situation has been brought about by his own failure to meet his tax obligations. It is not a situation that has been forced upon him. He has simply failed to give proper priority to paying his tax. Since entering the PAYG instalment system in 2008 he has paid only 4 of 22 assessments.
Mr Power has not made any sustained effort to clear arrears and achieve compliance. Since 2009 he has entered into three separate payment arrangements with the Tax Office. He has defaulted under two of those arrangements and cancelled the third. Since the middle of last year he has been paying $150 per fortnight but he has not been meeting current assessments.
In the circumstances it would not be appropriate to release Mr Power from his tax liability in whole or in part.
Conclusion
The objection decision is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy .............................Sgd........................................
Associate
Dated 2 June 2014
Date of hearing 15 May 2014 Applicant In person Solicitors for the Respondent Ms Alice Liang, Australian Taxation Office
Key Legal Topics
Areas of Law
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Taxation Law
Legal Concepts
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Tax Liability
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Appeal
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