Tsantis and Secretary to the Department of Family and Community S Ervices
[2003] AATA 835
•30 July 2003
DECISION AND REASONS FOR DECISION [2003] AATA 835
ADMINISTRATIVE APPEALS TRIBUNAL) V2003 / 47
)
GENERAL ADMINISTRATIVE DIVISION )Re:MIMIKA TSANTIS
Applicant
And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal : Mr B. H. Pascoe, Senior Member
Date : 30 July 2003
Place : Melbourne
Decision: For reasons given orally at the hearing the decision under review is affirmed.
(sgd) B.H. Pascoe
Senior Member
SOCIAL SECURITY – Family Tax Benefit – whether applicant lodged income tax return by 30 June 2002 – received on 1 July 2002
Family Assistance (Administration) Act 1999 s28
REASONS FOR DECISION
30 July 2003 Mr B.H. Pascoe, Senior Member
This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) dated 11 December 2002 which affirmed a decision of the respondent that Ms M. Tsantis was not entitled to a “top up” payment of Family Tax Benefit for the year ended 30 June 2001.
The issue in this case is a discrete issue of whether Ms Tsantis lodged her income tax return for the year ended 30 June 2001 by 30 June 2002.
The evidence of Ms Tsantis was that she provided her signed income tax return to her accountant on either 26 or 27 June 2002. In the normal course, the accountant would have lodged the return electronically with the Australian Taxation Office (“ATO”) on Friday, 28 June 2002. In fact, the return was received by the ATO on Monday, 1 July 2002. The accountant believed that 28 June was a very busy day for lodgement of returns and all returns were not able to be lodged on that day as a result of congestion of the system. All that can be said by Ms Tsantis and her accountant now is that her return was not recorded as lodged until 1 July 2002.
It is clear from many decisions of the Courts and this Tribunal that “lodged” means receipt by the appropriate person who can receive lodgement. It might be said that the facts of this case are not dissimilar to those where a person gives to another person a letter to be mailed and, for perhaps quite good reasons, that other person is unable to post the letter until the next day.
Ms Tsantis seeks the exercise of a discretion. While accepting that the delay of one day only precluding payment of an entitlement to a top up amount of Family Tax Benefit appears unfair, section 28 of the Family Assistance (Administration) Act 1999 (the Act) is quite specific. To be entitled to a top up amount, the Act requires lodgement of the income tax return by the end of the year ended 30 June 2002 and no later. It must be accepted that, if one day’s delay can be ignored, why not two days or seven days or some other period of time. There is no discretion within the Act given to the decision maker, the SSAT, this Tribunal or to the Federal Court. Ms Paul has indicated that, in some cases, there is an element of discretion that has been exercised by the respondent where there is evidence that at least an attempt was made to lodge the income tax return. Whether or not that is done informally by the respondent, no such discretion is available to this Tribunal.
The only issue this Tribunal can deal with is whether the income tax return was lodged by 30 June 2002. Unfortunately it was not. For whatever reason and, given the terms of the Act, a reason is irrelevant, the income tax return was not lodged by the required date. It should be noted that, on several occasions commencing on 6 May 2002, Ms Tsantis was reminded by the respondent of her obligation to lodge by the required date. She took the risk of leaving it to the last moment and it was not lodged by that date.
Unfortunately, and with some sympathy for Ms Tsantis, I have no option other than to affirm the decision under review that there is no entitlement to a top up payment of Family Tax Benefit in respect of the year ended 30 June 2001.
I certify that the seven [7] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr B.H. Pascoe, Senior Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: 30 July 2003
Date of Decision: 30 July 2003
Advocate for the applicant: Nil ‑ Self‑representedAdvocate for the respondent: Ms K. Paul, Centrelink
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