The Taxpayer and Commissioner of Taxation

[2006] AATA 540

Administrative

Appeals

Tribunal

 

PRELIMINARY DECISION AND REASONS FOR PRELIMINARY DECISION [2006] AATA 540

ADMINISTRATIVE APPEALS TRIBUNAL          № VT2003/184-185

taxation        appeals        DIVISION

Re:            THE TAXPAYER

Applicant

And:         COMMISSIONER OF TAXATION

Respondent

PRELIMINARY DECISION

Tribunal:       Mr Egon Fice, Member

Date:22 June 2006

Place:Melbourne

Decision:The Tribunal declines to make directions regarding the provision of the documents sought by the Taxpayer.

(sgd) Egon Fice

Member

PRACTICE AND PROCEDURE – request for documents – request for production of documents – relevance of documents – documents relevant to appeal to Federal Court ‑  request for directions refused

Income Tax Assessment Act 1936 ss 82AAA/AAC

Administrative Appeal’s Tribunal Act 1975  s 44

Harris v Commissioner of Taxation (2002)125 FCR 46

Prebble vCommissioner of Taxation [2003] ATC 4770

REASONS FOR PRELIMINARY DECISION

22 June 2006  Mr Egon Fice, Member

1. The Taxpayer has requested that the Commissioner, as the holder of relevant archived material, provide to the Tribunal evidence that, from the commencement of s 82AAA of the Income Tax Assessment Act 1936 in 1964, the Commissioner has followed his current construction of that section and disallowed all controlling interest deductions made pursuant to s 82AAA/AAC in respect of a contributor as an eligible employee of the controlled company. The Taxpayer has also requested that the Commissioner provide to the Tribunal copies of archived materials which do not support the Commissioner’s contended construction of s 82AAA.

2.      On 17 May 2006 I made a decision in this matter regarding the referral of questions of law to the Federal Court of Australia.  The basis upon which the Taxpayer sought a referral to the Federal Court was, essentially, that the decisions of the Full Court of the Federal Court in Harris v Commissioner of Taxation (2002) 125 FCR 46 and Prebble v Commissioner of Taxation [2003] ATC 4770 were plainly incorrect and were given per incuriam.  The Taxpayer argued that the Tribunal should not follow those decisions.

3.      It seems to me that the Taxpayer’s request to have the Commissioner produce documents which may support her construction of the relevant sections of the Income Tax Assessment Act goes to the Taxpayer’s complaint that the Full Court decisions in Harris and Prebble are wrong and ought not be applied to her case.  However, as I explained in my preliminary decision of 17 May 2006, that is not a question for this Tribunal.  This Tribunal is bound to follow the Full Court decisions in Harris and Prebble, unless the taxpayer is able to demonstrate that her case is distinguishable from those cases on its facts. The documents she has now requested be produced by the Commissioner will not assist her or the Tribunal in that regard. What the Commissioner may have decided regarding the construction of s 82AAA in previous matters is of no relevance to the proceeding before the Tribunal.

4.      The Taxpayer also submitted that the documents she has requested be produced by the Commissioner are relevant in so far as the taxpayer may wish to appeal this Tribunal’s decision to the Federal Court. 

5.      Section 44 of the Administrative Appeal’s Tribunal Act 1975 provides for appeal to the Federal Court of Australia on a question of law.  While I accept that the Taxpayer may ultimately wish, in the event that she is unsuccessful before the Tribunal, to appeal that decision to the Federal Court, and that she may wish to raise the per incuriam argument before that court, it is not a matter which will concern this Tribunal for the reasons set out in my earlier preliminary decision. Given the nature of a review before this Tribunal, it is my role to ascertain the facts of the Taxpayer’s case and to apply the law to those facts. The way in which the Commissioner has dealt with other cases involving s 82AAA cannot affect the Taxpayer’s claim before this Tribunal.

6.      I therefore decline to make directions regarding the provision of the documents sought by the Taxpayer.

I certify that the six [6] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Directions Hearing:        1 May 2006

Date of Preliminary Decision:     22 June 2006
Solicitor for the applicant:          Nil – self‑represented

Solicitor for respondent:            Ms C. Leslie, Australian Government Solicitor