Yarahmadi and Commissioner of Taxation (Taxation)

[2023] AATA 3811

Yarahmadi and Commissioner of Taxation (Taxation) [2023] AATA 3811 (22 November 2023)

Division:TAXATION AND COMMERCIAL DIVISION

File Number:2023/5157          

Re:Reza Yarahmadi  

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:22 November 2023

Place:Brisbane

The application for review is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

.......................[SGD]............................

Deputy President Bernard J McCabe

CATCHWORDS

SUPERANNUATION – release of superannuation on compassionate grounds – whether Reg 6.19A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) is reviewable by the Tribunal – application dismissed pursuant to s42A(4) of the Administrative Appeals Tribunal Act (Cth)

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Superannuation Industry (Supervision) Act 1993 (Cth)
Superannuation Industry (Supervision) Regulations 1994 (Cth)

Taxation Administration Act 1954 (Cth)

REASONS FOR DECISION

Deputy President Bernard J McCabe

22 November 2023

1. Australia’s superannuation system is designed to facilitate Australian workers saving for their own retirement. To that end, the law requires employers to make regular contributions into superannuation funds. The law also provides for certain concessions that make superannuation savings tax effective. The fund can be accessed by the worker in the ordinary course when he or she retires after they reach the preservation age. Workers may wish to access those benefits before they reach preservation age. That can only be done in limited circumstances.

2. Regulation 6.19A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SISR) permits a person to apply to the regulator – the Commissioner of Taxation for present purposes – to allow some of the funds to be released to the individual on compassionate grounds. Specifically, the funds may be released because the regulator is satisfied the amount released is required:

   (a)to pay for medical treatment or medical transport for the person or a dependant; or

   (b)to enable the person to make a payment on a loan, to prevent:

   (i)     foreclosure of a mortgage on the person's principal place of residence; or

   (ii)    exercise by the mortgagee of an express, or statutory, power of sale over the person's principal place of residence; or

   (c)to modify the person's principal place of residence, or vehicle, to accommodate the special needs of the person, or a dependant, arising from severe disability; or

   (d)to pay for expenses associated with the person's palliative care, in the case of impending death; or

   (e)to pay for expenses associated with a dependant's:

   (i)     palliative care, in the case of impending death; or

   (ii)    death; or

   (iii)   funeral; or

   (iv)   burial; or

   (f)to meet expenses in other cases where the release is consistent with a ground mentioned in paragraphs (a) to (e), as the Regulator determines.

3. The regulator must also be satisfied the person making the application does not otherwise have the financial capacity to meet the expense in question.

4. Where the person relies on the ground in Reg 6.19A(1)(a) (i.e. to pay for medical treatment), Reg 6.19A(3) effectively requires the person to provide certification from at least two registered medical practitioners (at least one of whom is a specialist) that confirms:

   (a)the medical treatment is necessary to:

   (i)     treat a life threatening illness or injury; or

   (ii)    alleviate acute, or chronic, pain; or

   (iii)   alleviate an acute, or chronic, mental disturbance; and

   (b)the treatment is not readily available to the person, or the dependant, through the public health system.

5. Mr Reza Yarahmadi asked the Commissioner of Taxation to release his superannuation benefits early on compassionate grounds. I understand he is relying on the need to pay for medical treatment. In the Commissioner’s reasons for decision, the relevant ATO officer refused the application for release because Mr Yarahmadi did not provide the medical evidence required under the rules. That decision was affirmed in an internal review dated 18 August 2023. The letter from the Commissioner informing Mr Yarahmadi of the decision also included the contact details for the Inspector-General of Taxation and Taxation Ombudsman.

6. Mr Yarahmadi has applied to the Tribunal seeking review of the Commissioner’s decision. The Commissioner says the Tribunal does not have jurisdiction to complete the review.

7. The Tribunal is a creature of statute. It does not have jurisdiction or power to review every decision made by a public servant or agency. It can only review those decisions which are identified as reviewable decisions in an enactment. Most decisions made by the Commissioner of Taxation are made under taxation laws that can be reviewed by the Tribunal following the process set out in Part IVC of the Taxation Administration Act 1954 (Cth) (the TAA). But the decision in this case was not made under a taxation law that is reviewable pursuant to Part IVC of the TAA. The decision was made under the superannuation laws.[1] It is therefore necessary to determine if there is an enactment (presumably within the superannuation laws) that says the decision in question is reviewable by the Tribunal.

   [1] I should add that if the decision was reviewable under the TAA, it would still not be ripe for review by the Tribunal because the applicant had not gone through the objection process contemplated in Part IVC of the TAA.

8. Division 13.5 of SISR provides for Tribunal review of certain ‘reviewable decisions’ made by the regulator. Regulation 13.25(3) makes clear that a decision cannot be reviewed by the Tribunal unless and until the primary decision has been reconsidered by the regulator – but not every reconsidered decision is automatically a ‘reviewable decision’ that can go before the Tribunal. For a particular decision to be reviewable by the Tribunal after reconsideration, it must be included on a list set out in the definition of ‘reviewable decision’ in Regulation 1.03(1).

9. Unfortunately for Mr Yarahmadi, a decision to refuse release under Regulation 6.19A of SISR is not identified as a ‘reviewable decision’ in Regulation 1.03(1). It follows the Tribunal has no jurisdiction to undertake the review. His recourse lies to the Inspector-General and Taxation Ombudsman, or perhaps to the Federal Court if he seeks judicial review.

   Conclusion

10. Mr Yarahmadi is angry at the way he believes he has been treated. I am not in a position to comment on how his case has been handled because the Tribunal is only permitted to entertain applications for review where it has been given jurisdiction under an enactment. In those circumstances, his application for review must be dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

...............................[SGD].........................................

Associate

Dated: 22 November 2023

Date of hearing:	21 November 2023
Applicant:	Self represented
Counsel for the Respondent:	Anne Smyth
Advocate for the Respondent:	Rebecca Guan