Trimboli and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Ms Trimboli against a decision of the Social Security and Child Support Division of the Tribunal (Tier 1) which affirmed a debt of $13,676.55 for Family Tax Benefit (FTB) for the 2013-2014 financial year. Ms Trimboli had applied for FTB online, estimating her income and her partner's income. Subsequently, she contacted Centrelink to advise that neither she nor her partner were required to lodge tax returns for that year, as they had no taxable income. Centrelink then processed her FTB payment. Later, Centrelink advised Ms Trimboli of a debt, which was affirmed on internal review and by the Tier 1 Tribunal. The Tier 1 decision found that Ms Trimboli's claim for FTB had not been validly made because she had not lodged her tax return for the relevant period, and her partner had also not lodged a return, despite both being required to do so.

The primary legal issues before the Tribunal were whether Ms Trimboli had an entitlement to FTB for the 2013-2014 income year, whether a debt of $13,676.55 was legally recoverable, and if so, whether there were grounds to write off or waive recovery of the debt, in whole or in part. The Tribunal was required to consider the provisions of section 14A of the relevant Act, which restricts the determination of claims for FTB for a past period where an income tax return has not been lodged, and section 101 of the Act, which confers a discretion on the Secretary to waive recovery of a debt in special circumstances.

The Tribunal reasoned that Ms Trimboli's claim for FTB for the 2013-2014 income year was made under section 14A of the Act, as it was for a past period. Crucially, section 14A(2) and (3) stipulate that such a claim is taken never to have been made if the claimant or their partner were required to lodge an income tax return for that past period and had not done so by the end of the first income year after the past period, or a further period allowed by the Secretary. The Tribunal found that Ms Trimboli and her partner were required to lodge tax returns for the 2013-2014 income year and had not done so within the prescribed timeframes. However, the Tribunal also considered its discretion under section 101 to waive recovery of the debt. While not finding sufficient special circumstances to waive the entire debt, the Tribunal noted administrative errors by Centrelink in processing the payment based on a phone call where Ms Trimboli believed she had advised her tax return was lodged, and her initial income estimate was inaccurate.

The Tribunal set aside the reviewable decision. It determined that Ms Trimboli had a legally recoverable debt of $13,676.55 arising from the overpayment of FTB for the 2013-2014 income year. However, in accordance with section 1237AAD of the Act, the Tribunal waived the right to collect part of the debt from 1 July 2015 until 17 July 2015, and remitted the matter to the respondent to recalculate the applicant's debt in accordance with this decision.