Trustees of the Bontoc Superannuation Fund and Commissioner of Taxation

[2005] AATA 394

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 394

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No       QT2003/336

)  QT2005/15

TAXATION APPEALS DIVISION		)
Re		TRUSTEES OF THE BONTOC SUPERANNUATION FUND

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date4 May 2005

PlaceBrisbane

Decision The Tribunal reinstates the application.

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

SENIOR MEMBER  

CATCHWORDS

PRACTICE AND PROCEDURE – Application for reinstatement – matter dismissed for non-appearance of applicant – application dismissed in error – tribunal’s discretion to reinstate exercised – application reinstated.

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315

Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133; (1994) 80 SSR 1162b

Re Schramm and Repatriation Commission (1998) 54 ALD 504; (1998) 28 AAR 164

REASONS FOR DECISION

4 May 2005  Senior Member B J McCabe

1. The trustees of the Bontoc Superannuation Fund (BSF) asked the Tribunal to review a decision of the Commissioner of Taxation dated 19 May 2003. The matter was listed for hearing on 15 December 2004. The applicants did not appear and the matter was dismissed pursuant to s42A(2) of the Administrative Appeals Tribunal Act 1975. The trustees now ask that the matter be reinstated so it can proceed to hearing.

2.      The matter was set down for a hearing and listing notices were sent to the trustees in advance of the hearing. Mr Howie wrote to the Tribunal on 9 December 2004 and asserted neither of the trustees were well enough to attend the hearing or to extensively brief someone to represent them. This correspondence was received in the Tribunal Registry on 13 December 2004. It did not make its way to me for consideration prior to the hearing when the matter was dismissed.

3.      The letter from the applicants does not include a medical certificate or other evidence confirming they were ill. Mr Howie simply asserted he and his wife were sick, and informed the Tribunal the trustees would not be attending the hearing. That is unsatisfactory. The Tribunal decides when adjournments are to be granted, not applicants. At a minimum, Mr Howie should have requested an adjournment and provided proper reasons with supporting evidence, or offered to supply such evidence as soon as he could make it available. Given he wrote the letter six days in advance of the hearing, it is hard to believe he was unable to provide any evidence suggesting he and his wife were too ill to attend the hearing.

4.      Notwithstanding my irritation at the tone of the letter, I accept it was received in the Tribunal registry in advance of the hearing. If it had been brought to my attention, Mr Howie might have been contacted on the phone  to discuss his letter. When I subsequently discussed his conditions at the hearing of reinstatement, he presented medical certificates that support his claim.

5. In all the circumstances, I am prepared to accept the matter was dismissed in error – the error being the failure to consider Mr Howie’s impertinently-worded request for an adjournment. However reinstatement under s 42A(10) does not automatically flow from the existence of an error. I must be satisfied the reinstatement is appropriate in all the circumstances: see Re Schramm and Repatriation Commission (1998) 54 ALD 504.

6.      When considering what is appropriate, the Tribunal will ordinarily have regard to the principles applicable to applications for extensions of time: Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133. These principles are outlined in the Federal Court authority of Hunter Valley Developments v Cohen (1984) 3 FCR 344. Apart from the excuse, I must consider whether the Commissioner would be prejudiced by reinstatement. I am satisfied he would not be.

7.      The Hunter Valley Developments case also suggests I must consider the merits of the case. The Commissioner has made some powerful submissions in this regard. The Commissioner argued the applicant has failed to provide evidence supporting the fact that claimed deductions were connected with income production. The applicants have also exhibited a general unwillingness to provide evidence in support of their application. The Commissioner contends that on the evidence as it stands the applicants cannot discharge their burden of proving the assessment is excessive.

8.      While I am obliged to look into the merits of the application I should not conduct a mini-trial. At this point in the proceedings there are questions over the merits of the case. However there is good chance that further evidence may be forthcoming at the hearing.

9. The applicants are keen to persist with their claim. It should therefore be reinstated pursuant to s 42A(10) of the Administrative Appeals Tribunal Act 1975.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Date of Hearing  8 February 2005
Date of Decision  4 May 2005
The applicant was self represented.
The respondent was represented by Mr Aftanas.