Thompson and Commissioner of Taxation

[2011] AATA 668

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 668

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2011/2398

SMALL TAXATION CLAIMS TRIBUNAL		)
Re		Melinda Thompson

Applicant

And Commissioner of Taxation

Respondent

DECISION

Tribunal Deputy President J W Constance

Date23 August 2011

PlaceMelbourne

Decision The Tribunal does not have jurisdiction to review the advice contained in the email dated 21 April 2011 sent by the respondent to the applicant.

……(sgd J W Constance).....

Deputy President

TAXATION – imposition of a Medicare levy surcharge - complaint redirected to the Commissioner by the Ombudsman – taxation objection not made – no reviewable objection decision – no jurisdiction

Taxation Administration Act 1953 (Cth) ss14ZU, 14ZQ, 14ZY, 14ZZ

REASONS FOR DECISION

26 September 2011  Deputy President J W Constance

INTRODUCTION

1.        Ms Thompson applied to the Tribunal for a review of advice received from the Commissioner of Taxation by email on 21 April 2011. This advice related to an Amended Notice of Assessment imposing a Medicare Levy Surcharge for the 2009 income year sent to Ms Thompson on 15 March 2011.

2.        On 23 August 2011 the Tribunal decided that it had no jurisdiction to hear the application as there was no ‘reviewable objection decision’ in existence at the time reasons for this decision were given orally.

3.         The reasons for the Tribunal’s decision are now provided in writing.

FACTS

4.        In February 2011 Ms Thompson received a letter from the Commissioner stating that Ms Thompson may be liable for a Medicare Levy Surcharge.

5.        On 18 February 2011, Ms Thompson requested that the ATO waive or reduce the Medicare Levy Surcharge applicable to the 2009 year.

6.        On 15 March 2011 a Notice of Amended Assessment for the 2009 year was provided to Ms Thompson by the Commissioner imposing a Medicare Levy Surcharge of $331.83.

7.        Ms Thompson lodged a complaint with the Ombudsman requesting that the Medicare Levy Surcharge for the 2009 income year be waived; this was redirected to the Commissioner on the 13 April 2011. Acknowledgement by the Commissioner of receipt of complaint was made on 14 April 2011.

8.        The Commissioner reviewed the complaint made by Ms Thompson. She was contacted by telephone on the 21 April 2011 and advised that she was liable for the Medicare Levy Surcharge. This advice was confirmed by email on the same day. The email included the following:

You have confirmed that you and your spouse each held Singles policies during 2009 income year and that your daughter was not covered with private patient hospital cover.

As the combined income of you and your spouse exceeded the family MLS threshold for 2009 and your dependent child was not covered with private hospital cover, you are liable for MLS.

9.        Ms Thompson has sought a review of the advice given on 21 April 2011.

ISSUES

10.      The power of this Tribunal to review decisions of the Commissioner is limited by the legislation which provides for the review, in this case the Taxation Administration Act 1953 (Cth).  Section 14ZZ of that Act provides that if a person is dissatisfied with an objection decision made by the Commissioner the person may apply to the Tribunal for a review of that decision “if the decision is a reviewable objection decision”.

11.      To decide whether the Tribunal has jurisdiction to review in this matter I have to decide whether a reviewable objection decision has been made.

REASONING

12.      In section 14ZQ a reviewable objection decision is defined to mean “an objection decision that is not an ineligible income tax remission decision.”   In this case there is no dispute that the decision (if any) is not an ineligible income tax remission decision and so the question becomes “is there an objection decision?”   

13.      Under section 14ZY the Commissioner’s decision to allow (wholly or in part) or to disallow a taxation objection is an objection decision. 

14.Section 14ZU of the Act provides:

How taxation objections are to be made

A person making a taxation objection must:

(a)     make it in the approved form; and

(b)     lodge it with the Commissioner within the period set out in section 14ZW; and

(c)     state in it, fully and in detail, the grounds that the person relies on.

Note: A person who objects against the Commissioner's failure to make a private ruling must lodge a draft private ruling with the objection: see subsection 359-50(4).

15.      Ms Thompson does not dispute that she has not made a taxation objection as required by the Act.  For this reason there has been no objection decision and consequently no reviewable objection decision.  As there has been no reviewable objection decision  the Tribunal does not have jurisdiction to deal with this application.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President J W Constance

Signed:         ….(sgd K Peterson)…………
  K Peterson, Associate

Date of Hearing  23 August 2011
Date of Decision  23 August 2011
Date of Written Reasons          26 September 2011
For the Applicant  Self represented
Solicitor for the Respondent     Ms Vikki King, Departmental Advocate