Voyka and Commissioner of Taxation

[2008] AATA 205

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 205

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5220-5227

TAXATION APPEALS DIVISION		)
Re		JOHN VOYKA

Applicant

And COMMISSIONER OF TAXATION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date17 March 2008

PlaceBrisbane

Decision THE TRIBUNAL refuses the application to extend time.

.......................[sgd]......................

Deputy President

CATCHWORDS

INSOLVENCY AND BANKRUPTCY – application for extension of time for review – lack of standing due to bankruptcy – applications not made in name of trustee in bankruptcy – applications dismissed

Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(4)

Re Percey and Commissioner of Taxation [2007] AATA 1706

Robertson v Commissioner of Taxation (2004) 137 FCR 513

REASONS FOR DECISION

17 March 2008 Deputy President P E Hack SC    

1.This is an application by Mr John Voyka to extend the time for the making of an application to review objection decisions made by the respondent, the Commissioner of Taxation. In April 2003 the Commissioner made default assessments of Mr Voyka’s liability to pay superannuation guarantee shortfall and superannuation guarantee charge for the years 1993 to 2000.

2.Mr Voyka objected to the assessments shortly after they were issued, however the Commissioner did not deal with his objections. On 14 May 2004 Mr Voyka gave the Commissioner a written notice requiring the making of a decision. The Commissioner did not respond to that notice and, by operation of s 14ZYA(3) of the Taxation Administration Act 1953 (Cth), the Commissioner was taken to have made decisions to disallow the objection 60 days after its receipt, that is, around mid-July 2004.

3.On 26 October 2007 Mr Voyka lodged the present application to extend time within which to seek a review of the Commissioner’s deemed objection decisions. Shortly thereafter, on 9 November 2007, and on the petition of the Deputy Commissioner, a sequestration order was made against the estate of Mr Voyka by Federal Magistrate Wilson[1].  Messrs Van Der Velde and Sweeney were appointed trustees of the estate. They have notice of these proceedings and do not desire to participate in them.

[1]        See Deputy Commissioner of Taxation v Voyka [2008] FMCA 67.

4.The application has been adjourned from time to time to permit Mr Voyka to appeal the decision to make a sequestration order. That appeal has now been heard and determined by Dowsett J., exercising the jurisdiction of the Full Court of the Federal Court. His Honour dismissed the appeal on 6 February 2008. Mr Voyka tells me that he intends to seek special leave to appeal to the High Court from his Honour’s decision.

5.The application for extension of time is opposed by the Commissioner on the grounds that Mr Voyka lacks standing. Reliance is placed upon the decision in Robertson v Commissioner of Taxation[2] which I applied in circumstances indistinguishable from the present in Re Percey and Commissioner of Taxation[3]. In that case I held that I was bound by the decision in Robertson to conclude that the bankrupt applicants there had no standing to pursue an application to review the Commissioner’s objection decision as they were not persons “dissatisfied” with the objection decisions. I said[4]:

“In Robertson, the Court held that, upon his bankruptcy, Mr Robertson was unable to maintain his status as a person “dissatisfied” with the objection decision of the Commissioner and accordingly lacked standing to apply to the Tribunal for a review of the Commissioner’s decision. Their Honours’ conclusion was expressed in this way[5]:

‘McCallum v Commissioner of Taxation ^[[6]] is, unless successfully challenged, authority for the proposition that the principle laid down in Cummings v Claremont Petroleum NL ^[[7]] is applicable to the determination of whether a bankrupt has standing to apply to the Tribunal for review of an objection decision. As is mentioned above, the appellant did not challenge the authority of McCallum v Commissioner of Taxation. Nor did he contend that the fact that he had made his application to the Tribunal before he became bankrupt rendered McCallum v Commissioner of Taxation distinguishable. It follows inexorably, in our view, that the contention that he was entitled to maintain his application to the Tribunal under s 14ZZ because, absent any liability to the Commissioner, his estate would have been more than adequate to pay his remaining creditors must fail.’”

[2] (2004) 137 FCR 513.

[3] [2007] AATA 1706.

[4] At [11].

[5] At para. [22].

[6] (1997) 75 FCR 458.

[7] (1996) 185 CLR 124.

6.The first issue is whether I ought accede to Mr Voyka’s application to adjourn the present application to enable the application for special leave to be dealt with. Mr O Seighin, who appeared for the Commissioner, opposed that course.

7.In my view, no useful purpose would be served by granting the adjournment sought. That is so because if Mr Voyka obtains special leave and succeeds in his appeal he may bring a fresh application to extend time to seek a review of the Commissioner’s objection decisions. The Commissioner is on notice that Mr Voyka wishes to agitate the correctness of those decisions, a factor that would be relevant to the exercise of the discretion to extend time. Moreover the application for special leave does not, in my view, have any realistic prospect of success, at least on the basis that Mr Voyka advanced before me. The matters that he wants to contest go to the correctness of his criminal conviction rather than any error of principle in the decision of Dowsett J.

8.In the result I would refuse the application for adjournment.

9.As for the application itself, I can see no basis upon which I could distinguish Robertson in the present case. Given that the law that binds me leads to the conclusion that Mr Voyka lacks standing, no useful purpose would be served in granting the extension sought. 

10.The application must be refused.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ............................[sgd]....................................................
           Jacqui Woods, Associate

Date of Hearing  17 March 2008
Date of Decision  17 March 2008
Applicant  In person
Solicitor for the Respondent          Departmental Advocate