Sukumaran v Commissioner of Taxation

[2000] FCA 942

FEDERAL COURT OF AUSTRALIA
Sukumaran v Commissioner of Taxation [2000] FCA 942

SIVA SUKUMARAN v COMMISSIONER OF TAXATION
N169 of 2000

WILCOX J
SYDNEY
5 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N169 of 2000

BETWEEN:	SIVA SUKUMARAN Applicant
AND:	COMMISSIONER OF TAXATION Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	5 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The applicant, Siva Sukumaran, pay the costs of the proceeding incurred by the respondent, Commissioner of Taxation.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N169 of 2000

BETWEEN:	SIVA SUKUMARAN Applicant
AND:	COMMISSIONER OF TAXATION Respondent

JUDGE:	WILCOX J
DATE:	5 JULY 2000
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J: This is an application, by way of appeal under s44 of the Administrative Appeals Tribunal Act 1975, in respect of a decision given by the Administrative Appeals Tribunal.  The Tribunal affirmed the disallowance by the respondent, the Commissioner of Taxation, of objections to notices of assessment in respect of the applicant's liability for income tax for the years ended 30 June 1995 and 30 June 1996.  The applicant is a former officer of the Australian Taxation Office.  He represented himself before the Tribunal and has done the same thing today before the Court.

2. The issue before the Tribunal was whether certain payments received by the applicant should be treated as received under a voluntary redundancy program or an early retirement scheme and should therefore be eligible for tax concessions pursuant to s27CB of the Income Tax Assessment Act 1936.  The Tribunal member examined the history of the applicant's employment with the Australian Taxation Office and posed for herself the questions whether his retirement from that office amounted to constructive dismissal and whether the retirement was part of a voluntary redundancy or, in the alternative, whether the retirement was part of an early retirement scheme.  She reached conclusions adverse to the applicant's case in respect of all of those matters.

3. For reasons which the member set out in her decision, she found that the applicant had not left his employment with the Australian Taxation Office pursuant to a scheme of voluntary redundancy or early retirement.  These were conclusions of fact and cannot be challenged in this Court unless affected by an error of law. 

4. It is open to an applicant to contend that statutory procedures required in the particular case were not followed.  At the directions hearing, I understood that Mr Sukumaran would embark on such a case.  However, he has not done so.  Consequently the only issue is whether an error of law has occurred.

5. Prior to the hearing, Mr Sukumaran sent lengthy submissions to the Court.  I read these, but I found they dealt only with the facts of the case.  I was unable to detect any question of law.  I asked Mr Sukumaran today to identify any relevant questions of law.  I pointed out to him, on several occasions during the course of his submissions, that the Court could not review the facts found by the Tribunal.

6. So far as I have been able to understand, Mr Sukumaran's complaints about the Tribunal's decision fall into two areas, neither of which, in my opinion, raises any question of law. 

7. The first complaint seems to be that the Tribunal's account of the history of his employment did not include any reference to a reorganisation of his section of the Australian Taxation Office that occurred during 1994.  Mr Sukumaran told me from the bar table of various things that happened at that time.  It is true to say these matters are not mentioned in the Tribunal's decision.

8. However, I see no reason why the Tribunal was bound to mention these matters.  The critical period was the first few months of 1995.  The Tribunal member dealt, in some detail, with what happened at that time, and the options that were available to Mr Sukumaran.  I do not think it was incumbent upon her to set out all the detail of his employment, providing she dealt with the critical matters.  This appears to have occurred.  In any event, a gap in an account of the facts would not usually be an error of law. 

9. Mr Sukumaran’s second complaint seems to arise out of paragraph 23 of the Tribunal's reasons.  In that paragraph the Tribunal refers to the contentious income received by Mr Sukumaran in the taxation year ended 30 June 1996.  This money was apparently received by the applicant out of funds held in a St George Approved Deposit Fund.  The Tribunal member said this money "had the accepted status as an approved superannuation fund".  Accordingly, under s27F(1) of the Act, the income was not eligible for concessional treatment.

10. Mr Sukumaran does not challenge the Tribunal's statement that the St George Fund had the accepted status of an approved superannuation fund.  Nor, as I understand him, does he challenge the proposition that the consequence of the fund having that status is that the income was not eligible for concessional treatment.  However, he complains that the Tribunal member failed to record that the money had reached the St George Fund by way of a rollover of superannuation funds held by the Commonwealth Superannuation Fund. 

11. As I understand it, that indeed was the fact; but I have struggled to understand why this made a difference.  Despite the fact that I put that question to Mr Sukumaran on several occasions, I was left unenlightened. 

12. It seems to me the Tribunal member correctly stated the factual position.  Of course, she might have added the further item of history to which Mr Sukumaran has referred; but it seems to be clear it would have made no difference in the result whether she did or not. 

13. In the circumstances, I fail to see any error of law in the Tribunal's decision; or any circumstance attracting the jurisdiction of this Court to intervene.  In my opinion, the application should be dismissed.

    [There was discussion about costs.]

14. The order of the Court will be that the application is dismissed and that the applicant, Siva Sukumaran, pay the costs of the proceeding incurred by the respondent, the Commissioner of Taxation.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             5 July 2000

Applicant appeared in person:
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 July 2000
Date of Judgment:	5 July 2000