Tysver and Mauter (Child support)

[2020] AATA 2040

Tysver and Mauter (Child support) [2020] AATA 2040 (27 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC018201, 2020/PC018213, 2020/PC018217, 2020/PC018218, 2020/PC018219, 2020/PC018220

APPLICANT:  Mr Tysver

OTHER PARTIES:  Child Support Registrar

Ms Mauter

TRIBUNAL:Member S Brakespeare

DECISION DATE:  27 March 2020

DECISIONS:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the adjusted taxable incomes for past periods for the liable parent should be changed – conditions for changing the incomes to lower amounts are not met – decisions under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Tysver is the parent liable to pay child support to Ms Mauter in respect of their children, [Child 1] and [Child 2]. On 27 May 2019 an officer of the Child Support Agency made the following decisions (the original decisions):

   ·      to use Mr Tysver’s 2008/09 taxable income of $0 to calculate the child support payable to Ms Mauter for the period 27 May 2010 to 10 November 2010;

   ·      to use Mr Tysver’s 2010/11 taxable income of $0 to calculate the child support payable to Ms Mauter for the period 1 July 2011 to 30 September 2012;

   ·      to use Mr Tysver’s 2014/15 taxable income of $5,273 to calculate the child support payable to Ms Mauter for the period 1 March 2016 to 31 May 2017;

   ·      to use Mr Tysver’s 2015/16 taxable income of $0 to calculate the child support payable to Ms Mauter for the period 1 June 2017 to 30 November 2017;

   ·      to use Mr Tysver’s 2016/17 taxable income of $0 to calculate the child support payable to Ms Mauter for the period 1 December 2017 to 28 February 2019; and

   ·      to use Mr Tysver’s 2017/18 taxable income of $0 to calculate the child support payable to Ms Mauter for the period 1 March 2019 to 30 September 2019.

2. Ms Mauter objected to the decisions. On 19 December 2019 an objections officer of the Child Support Agency allowed the objections and made the following decisions (the objection decisions):

   ·      to not use Mr Tysver’s 2008/09 taxable income of $0 and to continue to use his 2008/09 provisional income of $39,236 (male total average weekly earnings) to calculate the child support payable for the period 27 May 2010 to 10 November 2010;

   ·      to not use Mr Tysver’s 2010/11 taxable income of $0 and to continue to use his 2010/11 provisional (indexed) income of $114,349 to calculate the child support payable for the period 1 July 2011 to 30 September 2012;

   ·      to not use Mr Tysver’s 2014/15 taxable income of $5,273 and to continue to use his 2014/15 provisional (male total average weekly earnings) income of $47,504 to calculate the child support payable for the period 1 March 2016 to 31 May 2017;

   ·      to not use Mr Tysver’s 2015/16 taxable income of $0 and to continue to use his 2015/16 provisional (male total average weekly earnings) income of $48,308 to calculate the child support for the period 1 June 2017 to 30 November 2017;

   ·      to not use Mr Tysver’s 2016/17 taxable income of $0 and to continue to use his 2016/17 provisional (male total average weekly earnings) income of $48,308 to calculate the child support payable for the period 1 December 2017 to 28 February 2019; and

   ·      to not use Mr Tysver’s 2017/18 taxable income of $0 and to continue to use his 2017/18 provisional (male total average weekly earnings) income of $50,076 to calculate the child support payable for the period 1 March 2019 to 26 May 2019.

3. Mr Tysver lodged an application for review of the decisions with the tribunal. A hearing was held on 27 March 2020. Mr Tysver and Ms Mauter gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with papers relevant to the review (727 pages).

4. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

1. The statutory provisions relevant to this review are the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The issue which arises in this case is whether Mr Tysver’ taxable income for the relevant years can be applied retrospectively to the child support assessments.

CONSIDERATION

1. Section 58 of the Act allows the Child Support Agency to determine a person’s adjusted taxable income for a child support period where either the person’s taxable income for the last relevant income year has not been assessed under an Income Tax Assessment Act or the Child Support Agency is unable to ascertain whether or not the person’s taxable income for that year has been so assessed.

2. The tribunal finds that the Child Support Agency made determinations of Mr Tysver’ adjusted taxable income under section 58 of the Act in respect of the following child support periods:

   ·      $39,236 (2008/09) for the period 27 May 2010 to 10 November 2010;

   ·      $114,349 (2010/11) for the period 1 July 2011 to 30 September 2012;

   ·      $47,504 (2014/15) for the period 1 March 2016 to 31 May 2017;

   ·      $48,308 (2015/16) for the period 1 June 2017 to 30 November 2017;

   ·      $48,308 (2016/17) for the period 1 December 2017 to 28 February 2019; and

   ·      $50,076 (2017/18) for the period 1 March 2019 to 26 May 2019.

3. Section 58A of the Act applies if the Child Support Agency subsequently ascertains components of a person’s adjusted taxable income and the amount is different than the amount determined under section 58:

   Subsequently ascertaining components of a parent's adjusted taxable income
             (1)  The Registrar must immediately amend an administrative assessment of child support payable by or to a parent in relation to a child support period if:

   (a) the assessment was made on the basis of a determination under section 58; and

   (b)  either:

   (i)  the Registrar subsequently ascertains the amount of the parent's adjusted taxable income for the last relevant year of income; or

   (ii) the Registrar makes a later determination under section 58; and

   (c)  either:

   (i) if subparagraph (b)(i) applies--the amount that was subsequently ascertained is different from the amount that was determined under section 58; or

   (ii) if subparagraph (b)(ii) applies--the later amount that the Registrar determines is different from the earlier amount determined under section 58.

   Retrospective determinations

   (2)  If:

   (a) at the time the Registrar is to amend the administrative assessment under this section, the parent could lodge his or her tax return by the date required under Part IV of the Income Tax Assessment Act 1936 (taking into account any deferral under section 388-55 in Schedule 1 to the Taxation Administration Act 1953 ); or

   (b)  paragraph (a) of this subsection does not apply and:

   (i) the amount subsequently ascertained, as mentioned in subparagraph (1)(b)(i), is higher than the amount that was determined under section 58; or

   (ii) the later amount that the Registrar determines, as mentioned in subparagraph (1)(b)(ii), is higher than the earlier amount determined under section 58; or

   (c)  neither paragraph (a) nor (b) applies, but circumstances prescribed by the regulations for the purposes of this section apply in relation to the parent;

   …

4. According to the papers the Child Support Agency became aware on 27 May 2019 that Mr Tysver was not required to lodge tax returns, and that his taxable income was $0 for the 2008/09, 2010/11, 2015/16, 2016/17 and 2017/18 financial years. In respect of the 2014/15 financial year the Child Support Agency established that he was not required to lodge a tax return and his taxable income was $5,273.

5. The tribunal asked Mr Tysver when he made the Child Support Agency aware that he was not required to lodge tax returns. Mr Tysver told the tribunal that he had confirmed with the ATO that he lodged his “not required to lodge return” declarations with the ATO on time; that is the 2010/11 declaration was lodged on 31 October 2011; the 2014/15 declaration was lodged on 2 November 2015, the 2015/16 declaration was lodged on 31 October 2016, the 2016/17 declaration was lodged on 31 October 2017 and the 2017/18 declaration was lodged on 21 October 2018.

6. Mr Tysver said that the Child Support Agency should have become aware of the “not required to lodge return” declarations at the time they were made to the ATO as the Child Support Agency and ATO are linked.

7. Ms Mauter told the tribunal that Mr Tysver has spent years hiding income and refusing to pay the child support assessment. She has at all times been advised by the Child Support Agency that if Mr Tysver subsequently lodged his income tax returns and they were outside the relevant timeframes there would not be retrospective determinations if the subsequent income was lower than what had already been assessed.

8. Mr Tysver vehemently denied having any undeclared income.

9. The tribunal finds that the Child Support Agency became aware of the taxable incomes for the relevant years on 27 May 2019. Retrospective determinations can only be made if either paragraph 58A(2)(a), paragraph 58A(2)(b) or paragraph 58A(2)(c) applies. The time for lodging the income tax returns has passed and therefore paragraph 58A(2)(a) does not apply. The taxable incomes ascertained by the Child Support Agency are not higher than incomes determined under section 58 of the Act and therefore paragraph 58A(2)(b) does not apply.

10. The Regulations referred to in paragraph 58A(2)(c) are the Child Support (Assessment) Regulations 2018 (the Regulations). Section 11 of the Regulations relevantly provide:

    11  Adjusted taxable income—prescribed circumstances

    (1) For the purposes of section 58A of the Act, the following circumstances are prescribed in relation to a parent who was unable to provide information about the parent’s adjusted taxable income to the Registrar at the time the relevant administrative assessment was made:

    (a)  one or more of the following applied in relation to the parent at that time:

    (i)  the parent did not know that an application for the assessment had been made and accepted;

    (ii)  the parent had a serious illness or injury;

    (iii)  the parent was under detention or imprisonment;

    (iv)  the parent resided in a remote location which made it difficult to contact the Registrar;

    (v)  a natural disaster prevented the parent from being able to contact the Registrar;

    (vi)  there was some other exceptional circumstance that prevented the parent from providing the information;

    (b)  the Registrar confirms that the parent was unable to provide the information at that time because of a circumstance mentioned in paragraph (a);

    (c)  the parent later provides the information to the Registrar as soon as is practicable in the circumstances.

11. Mr Tysver told the tribunal that during the relevant period he had suffered from [a medical condition] and had also had a marriage breakdown. He provided no other details. The tribunal is not satisfied that Mr Tysver was unable to provide the relevant information in respect of each child support period at the time due to any of the circumstances listed. The tribunal finds that paragraph 58A(2)(c) is not satisfied.

12. The tribunal finds that retrospective determinations cannot be made in respect of the assessments for the following child support periods:

    ·      27 May 2010 to 10 November 2010;

    ·      1 July 2011 to 30 September 2012;

    ·      1 March 2016 to 31 May 2017;

    ·      1 June 2017 to 30 November 2017;

    ·      1 December 2017 to 28 February 2019; and

    ·      1 March 2019 to 26 May 2019.

DECISIONS

The decisions under review are affirmed.