The Taxpayer and Commissioner of Taxation

[2006] AATA 84

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 84

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No QT2005/330

TAXATION APPEALS DIVISION		)
Re		THE TAXPAYER

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date3 February 2006

PlaceBrisbane

Decision The Tribunal does not have jurisdiction to deal with the application for review. The application is therefore dismissed.

................[Sgd]..............................

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – JURISDICTION – review of original decision to be made within 60 days – decision affirmed subsequent to 60 day period ending – decision void – no jurisdiction to hear the application for review of subsequent decision

Superannuation Industry (Supervision) Act 1993 s 344

REASONS FOR DECISION

3 February 2006 Senior Member B J McCabe

1.      The Commissioner of Taxation decided the applicant was not a complying superannuation fund in the year ended 30 June 2003 because trustees of the fund had contravened provisions of the Superannuation Industry (Supervision) Act 1993 (SISA). The applicant wrote to the Commissioner on 8 July 2005 requesting a review of that decision pursuant to s 344(1) SISA. The Commissioner has the power to revoke, vary or affirm a decision: s 344(4). The decision was deemed to be affirmed for the purposes of s 344(4) when the Commissioner failed to make a decision within 60 days of the date of that application: s 344(5).

2.      The Commissioner sent a further letter to the applicant on 7 September 2005 advising a decision had not been made within 60 days. The letter invited the applicant to make a further application for review so that the matter could be re-considered. The applicant despatched a fresh application for review on the same day. The Commissioner considered the request and purported to affirm the original decision with written reasons. The applicant was informed of the decision and advised of its appeal rights in a letter dated 4 November 2005.

3.      The applicant filed an application for review of the decision of 4 November 2005 with the Tribunal on 2 December 2005.

4.       Ms Hopton told the Tribunal the Commissioner’s letter of 7 September 2005 should never have been sent. She explained a (deemed) decision had already been made. The Commissioner’s review carried out pursuant to the request dated 7 September 2005 was therefore ineffective and unreviewable.

5.      I agree the Commissioner’s purported decision of 4 November 2005 is void because it was not made in accordance with s 344 SISA. In those circumstances, the Tribunal does not have jurisdiction to carry out a review.

6. If the applicant wishes to dispute the Commissioner’s (deemed) decision it will be necessary to file a fresh application referring to that decision. This application will be out of time, but Ms Hopton has properly conceded the Commissioner will not oppose an application to extend time under s 29 of the Administrative Appeals Tribunal Act 1975.

conclusion

7.      The Tribunal does not have jurisdiction to deal with the application for review. The application is therefore dismissed.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date/s of Hearing  18, 23 January 2006
Date of Decision  3 February 2006
The applicant was represented by Mr Connolly.
The respondent was represented by Ms Hopton.