ZBDD and Commissioner of Taxation (Taxation)
[2025] ARTA 2197
•20 October 2025
ZBDD and Commissioner of Taxation (Taxation) [2025] ARTA 2197 (20 October 2025)
Applicant:ZBDD
Respondent: Commissioner of Taxation
Tribunal Number: 2024/5050-5052
Tribunal:General Member J Dunne
Place:Sydney
Date:20 October 2025
Decision:The Applicant’s request to issue a summons and request to vacate the hearing dates are dismissed.
.................................[SGD].................................
General Member J Dunne
Catchwords
PRACTICE AND PROCEDURE – Application to issue a summons to an ATO officer dismissed - no reasonable grounds to believe that the ATO officer had any information relevant to the Tribunal proceedings given the jurisdiction of the Tribunal and the nature of proceedings in the Tribunal under Part IVC of the Taxation Administration Act 1953 (Cth)
PRACTICE AND PROCEDURE – Request to vacate hearing date due to competing matters impacting the Applicant and/or its representative – prior hearings vacated twice – request refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed) s 40A
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Administrative Review Tribunal Act 2024 (Cth) ss 9, 56, 74
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 29-10, 29-70
Income Tax Assessment Act 1936 (Cth) s 262A
Judiciary Act 1903 (Cth) s 39B
Taxation Administration Act 1953 (Cth) ss 14ZZK, Part IVC, Schedule 1 ss 284-75; 284-90; 284-220; 298-20
Cases
Auckram and Commissioner of Taxation [2022] AATA 1583
Confidential and Commissioner of Taxation [2013] AATA 112
Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504
Davsa Forty-Ninth Pty Ltd ATF Krongold Ford Bus Unit Trust and Commissioner of Taxation [2012] AATA 317
Pratten and Commissioner of Taxation [2025] ARTA 161
Re General Merchandise & Apparel Group Pty Ltd and the Chief Executive Officer of Customs [2009] AATA 988
Re QT97/35-36 and Commissioner of Taxation [1997] AATA 339
Trade Practices Commission v Arnotts Ltd [1989] FCA 340
WT95/13-14 and Commissioner of Taxation [1996] AATA 62
Statement of Reasons
SUMMONS REQUEST
Issue and Conclusions
The Applicant filed its Application for Review in this Tribunal on 17 July 2024.[1] It related to an objection decision from the Commissioner dated 14 June 2024.[2] This case is an interlocutory hearing of the Applicant’s Request to Issue a Summons.
[1] T1. On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 proceedings that were not finalised before 14 October 2024 are continued and finalised by the Administrative Review Tribunal. Anything done in relation to any such proceeding before 14 October 2024 is taken to have been done by the Administrative Review Tribunal.
[2] T2.
The substantive case is about two broad issues:
(a)Goods and services tax (“GST”), particularly, the availability of input tax credits pursuant to section 29-10 of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Act”) for periods between June 2016 and December 2019. There are secondary issues relating to what is accepted as a tax invoice or adjustment note, and record-keeping requirements in section 29-70 of the GST Act and section 262A of the Income Tax Assessment Act 1936 (Cth); and
(b)Shortfall penalties for recklessness imposed under section 284-75 and section 284-90 of Schedule 1 to the Taxation Administration Act 1953 (Cth) (“TAA”) and uplifted under section 284-220 of Schedule 1 to the TAA. The issue is whether the penalties were appropriately applied. Remission of those penalties under section 298-20 of Schedule 1 to the TAA is also at issue.
The Applicant understands that it bears the burden of proof under section 14ZZK of the TAA. This matter is set down for a hearing on 10 and 11 November 2025.
On 9 October 2025, the Applicant filed Request to Issue Summons in respect of an ATO officer (“Ms A”). The Commissioner objected to the summons application by email dated 10 October 2025. An interlocutory hearing was held to determine whether a summons should be issued to Ms A on 17 October 2025.
For the reasons below, I have decided to dismiss the Applicant’s Request to Issue Summons to Ms A.
REASONS FOR DECISION – SUMMONS REQUEST
Submissions from the parties
The Applicant’s Request to Issue a Summons sought a summons on the following grounds:
(a)The T documents do not contain records of all of the phone calls between Ms A and Ms T a director of the Applicant.
(b)Ms A should be cross-examined about those phone calls.
(c)This is for the purpose of ensuring the Tribunal is “given the opportunity to consider all relevant material and information to the decision to be made.”
(d)It is also to “assist the Applicant to make submissions to the Tribunal on the discretions to be exercised by it, firstly, to treat a document as a tax invoice or adjustment note, and secondly, to apply and remit penalties.”
(e)“[M]ore importantly to ensure the Tribunal is given the opportunity to consider all relevant material and information about the final audit decision made in August 2020 to refund the GST credits and to therefore set aside the decision made in June 2024.”
Before me at the interlocutory hearing the Applicant was consistent with the reasons in its application. The Applicant submitted that the reason the material from Ms A is relevant is because it gives further information as to the background for the Commissioner’s decisions, particularly the exercise of any applicable discretions. The Applicant said the evidence was needed for proper procedural fairness.
The Commissioner opposes the Request on the following basis:[3]
(a)The material sought by the Applicant from Ms A is not relevant to these proceedings.[4]
(b)Requesting the Tribunal to consider how the Commissioner’s decision was made at audit is not permissible in Part IVC proceedings.[5]
(c)Ms A’s phone calls with the Applicant were not a “final audit decision made in August 2020”.[6]
(d)The Tribunal should reject the Applicant’s request for a summons.[7]
[3] Respondent’s Written Outline of Submissions on the Applicant’s Request to issue Summonses (sic) [to Ms A] dated 15 October 2025 (“Commissioner’s Submissions”)
[4] Commissioner’s Submissions [11]-[12].
[5] Commissioner’s Submissions [14]-[15].
[6] Commissioner’s Submissions [12].
[7] Commissioner’s Submissions [16].
Before me at the interlocutory hearing, the Commissioner confirmed those submissions.
Statutory provisions and case law
The relevant parts of section 74 of the Administrative Review Tribunal Act 2024 (Cth) (“ART Act”) provide:
Power to issue summons
(1) If the Tribunal has reasonable grounds to believe that a person has information, or a document or thing, relevant to a proceeding in the Tribunal, the Tribunal may, in writing, summon the person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a)appear before the Tribunal to give evidence;
(b)produce any document or thing specified in the summons.
(2) Except with the consent of the person being summoned, the day specified in the summons must be at least 14 days after the day the summons is given to the person.
(3) The Tribunal may summon the person:
(a)at the request of a party to the proceeding; or
(b)on its own initiative.
(4) The Tribunal may refuse a request for a person to be summoned.
The test for issuance of a summons requires the Tribunal to have reasonable grounds to believe Ms A has information relevant to this proceeding.
The Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (“AAT Act”) also contained a discretionary power to issue a summons in subsection 40A(1). As was noted in Pratten and Commissioner of Taxation [2025] ARTA 161 (“Pratten”) at [67], section 74 of the ART Act is different in that the wording that “the Tribunal has reasonable grounds to believe that a person has information, or a document or thing, relevant to a proceeding in the Tribunal” was not in subsection 40A(1) of the AAT Act. However, relevance was the primary consideration when determining whether to issue a summons under section 40A of the AAT Act.[8] Further, the AAT Act case law was to the effect that where a summons was an abuse of process (such as relating to a non-reviewable matter), it was not granted.[9] Those features remain relevant to section 74 of the ART Act.
[8] Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; Re QT97/35-36 and Commissioner of Taxation [1997] AATA 339 [19].
[9] Trade Practices Commission v Arnotts Ltd [1989] FCA 340
The case law is broadly consistent on the issue of whether government officials (including Australian Taxation Office (“ATO”) officers) should be subject to a summons from the Tribunal and the purpose of a summons, under the AAT Act or the ART Act. For example:
(a)In WT95/13-14 and Commissioner of Taxation [1996] AATA 62 the Tribunal revoked summons that had been issued to ATO officers, holding at [8]-[10]:
8. Tribunal proceedings are by way of a de novo consideration of the decision under review. In general, the Tribunal is not concerned whether or not the decision-maker was right or wrong in his or her approach or whether or he or she was influenced by extraneous considerations.
9. It is not usually relevant to know the internal machinations within the Australian Taxation Office, or whether, the decision under review is or is not consistent with previous decisions of the Deputy Commissioner of Taxation or his officers, or whether the actual decision-makers were acting under the influence of internal directions. It is up to each party to call evidence and make submissions upon what is the preferable decision for the Tribunal to make in this application.
10. The Tribunal finds that the matters sought by these summonses are not relevant for its consideration of this matter.
(b)In Re General Merchandise & Apparel Group Pty Ltd and Chief Executive Officer of Customs [2009] AATA 988 the Tribunal said at [231]:
The power [to issue a summons] may not be used in the course of a proceeding for the purposes of obtaining documents that may assist one or more of the parties to the proceeding to pursue a collateral purpose even if it is a purpose that bears a relationship to the decision being reviewed by the Tribunal but does not raise an issue that is reviewable.
(c)In Davsa Forty-Ninth Pty Ltd ATF Krongold Ford Bus Unit Trust and Commissioner of Taxation [2012] AATA 317 in the context of considering whether the taxpayer carried on an “enterprise” for the purposes of the GST Act, the taxpayer applied for a summons of three ATO officers. The Tribunal dismissed those summons applications and said at [7]:
The role of the Tribunal in a matter such as the present substantive application is to make the correct or preferable decision. In this regard, the Tribunal stands in the shoes of the Commissioner and starts afresh. Whatever the ATO officials thought about the character of the applicant's activities and whether or not they constitute the carrying on of a business is now irrelevant.
(d)In Confidential and Commissioner of Taxation [2013] AATA 112 a summons was sought for ATO officers to produce documents in their possession that were relevant to the proceedings. This was in the context of arguments from the taxpayer that the assessments at issue were tainted by bad faith. The Tribunal refused the requested summons. At [572] the Tribunal concluded that the Tribunal had no power to review the validity of the assessments nor the process by which the Commissioner came to those assessments. As the summons requests were directed the validity of the assessments, they were dismissed.
(e)In Auckram and Commissioner of Taxation [2022] AATA 1583 six summons were sought by the taxpayer, including of ATO officers. The Tribunal found[10] that the ATO officers would not provide any relevant evidence to the review and the summons were a ‘fishing expedition.’
(f)In Pratten the taxpayer sought to issue summons to two ATO officials. In dismissing the application to summons those ATO officials, the Tribunal held at [66]:
The historical views and opinions of Messrs Barns and Murray as taxation officers, as well as the investigations they undertook at the time of the issue of the amended assessments and in relation to making the objection decision are irrelevant to the task of the Tribunal, which is to provide an independent mechanism of review. Put simply, the subjective views of ATO officers and their interactions during the course of examining Mr Pratten’s tax affairs will be of no meaningful assistance or relevance to the Tribunal. The Tribunal is required to make findings of fact and apply the law independently, consistent with its objective as set out in s 9 of the ART Act. As the taxpayer, Mr Pratten bears the onus of proof in Part IVC proceedings.
(g)The Tribunal went on to refer to section 74 of the ART Act as follows at [67]:
I also agree with the Commissioner’s view that the inclusion of the words “the Tribunal has reasonable grounds to believe” in s 74(1) of the ART Act is not a minor update and the words import a condition on the exercise of the power in s 74(1) of the ART Act not found in s 40A(1) of the AAT Act. …. In these circumstances and having particular regard to the role of the Tribunal in Part IVC taxation review proceedings, there is no proper basis for the Tribunal to have “reasonable grounds to believe” that the information which Messrs Barns and Murray may have will be “relevant to a proceeding”.
(h)The Tribunal also held at [71]:
Mr Pratten has made plain that the evidence of Messrs Barns and Murray is sought to enable him to challenge the “propriety, fairness and accuracy of the amended assessments”. This suggests Mr Pratten wishes to put the validity of the amended assessments in issue, as also evident from a number of statements in Mr Pratten’s Statement of Facts and Contentions dated 19 December 2023. For example, Mr Pratten suggested Mr Barns was impartial and the AFP played a role in shaping the tax audit outcomes. Mr Pratten’s arguments are misplaced as the Tribunal is not empowered to review the audit process nor the Position Paper nor the validity of the assessments. The Tribunal exercises administrative, not judicial power in undertaking the merits review. […] While the Tribunal is obliged to afford each party a reasonable opportunity to present its case and adduce evidence pursuant to s 55 of the ART Act, it is not an opportunity to treat the proceeding as if it were a quasi-judicial review and seek to challenge the making of the amended assessments.
[10] Auckram and Commissioner of Taxation [2022] AATA 1583 [39], [42], [44], [47].
Application to this case
The Applicant maintains that the evidence of Ms A is needed to explain the context of the assessments and to explain the decisions made by the Commissioner. The reality is that the views of Ms A, what she said and did on phone calls, are completely irrelevant to the Tribunal’s task in this case. The Applicant wishes to utilise this evidence for the purpose of reviewing the Commissioner’s processes and supporting claims of procedural unfairness and inconsistency in decision making (for example). The Tribunal is not empowered to conduct such a review.
The Applicant has made the mistake that the other taxpayers in the cases cited above made. The Tribunal is not judging the propriety of the Commissioner’s actions. Matters of administrative law or judicial review are the purview of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) by virtue of section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Federal Court by virtue of section 39B of the Judiciary Act 1903 (Cth).
The Applicant’s objection to its tax assessments has been disallowed. Under Part IVC of the TAA, the Tribunal provides an independent mechanism of review, makes findings of fact, and considers whether the claimed GST input tax credits are available, and whether shortfall penalties should be imposed and/or remitted. The process undertaken prior to the assessments, the history of events, the context of phone calls between Ms A and the Applicant and, particularly, whatever Ms A thought, did, or said when engaging with the Applicant is irrelevant to that task. The Tribunal considers matters independently.
I also do not accept that Ms A’s evidence is needed for the Applicant to make submissions to support its case as was suggested in the Applicant’s Request to Issue Summons. The Applicant’s submissions before the Tribunal must focus on the law and why it says input tax credits should be available, and why it says shortfall penalties should not be imposed and/or should be remitted and not on the Applicant’s complaints about the Commissioner. Ms A’s evidence of phone calls in 2020 is not required for the Applicant to prepare such submissions. I find Ms A’s evidence of the phone calls between Ms A and the Applicant is not relevant.
I further find that there are no reasonable grounds to believe Ms A’s evidence is relevant to the present proceedings. As was stated in Pratten at [49], this is an objective test. There is no reasonable and objective basis to suggest anything Ms A has to say about the phone calls will be relevant to the Tribunal’s task in this case.
For those reasons, the Applicant’s Request to Issue Summons is dismissed.
REASONS FOR DECISION - REQUEST TO VACATE HEARING
The Applicant has also requested that the hearing date be vacated and deferred to a later date. The reason for this request relates to issues facing the Applicant (particularly an audit from an unrelated regulator to the Commissioner), and personal issues facing the Applicant’s representative. The Applicant also pointed to delays in the Commissioner’s decision-making to support its view that a further delay would not be unreasonable. The Commissioner opposes the hearing date being vacated.
To date the Tribunal has vacated two hearing dates – the first was on 27 June 2025, and the second was 29 October 2025 and 30 October 2025. The Tribunal advised the Applicant that vacating hearing dates twice was extremely unusual, and there needed to be a substantive basis for further vacating a hearing that has been set down for a considerable period. It was explained to the Applicant that the Tribunal has more than 100,000 cases before it and its timetabling of hearings and other case events is not as flexible as the Applicant may expect. It was explained that the constituted member has cases set down right through to April 2026, and there is simply not the kind of flexibility the Applicant seems to think exists.
Of course, if there is a substantive reason to vacate, the Tribunal will consider that. The reasons provided to the Tribunal in this case do not satisfy it. The fact that there are other matters that the Applicant and its representative must manage is neither uncommon in litigants before the Tribunal nor a rationale to vacate the hearing dates that have been set down for a considerable time. Whatever time the Commissioner took prior to this matter being lodged at the Tribunal is not relevant to the Tribunal determining whether a hearing date should be vacated by the Tribunal.
For those reasons, the Applicant’s request to vacate the hearing date is refused as there is no substantive reason justifying a third hearing date being vacated. This matter needs to be heard, consistently with the Tribunal’s objective in section 9 of the ART Act. In particular, section 9(b) of the ART Act has the objective of ensuring that applications to the Tribunal are “resolved as quickly and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits”. The tax issues in these proceedings are not so extremely complex that they require further time to pass before they can be heard properly. The Applicant has already filed its submissions in this case and its evidence.
This matter will be heard on 10 and 11 November 2025. The Applicant is encouraged by the Tribunal to change its focus from complaints about its experience with the Commissioner because those issues may be canvassed before other Courts, but not the Tribunal. Instead, the Applicant should refocus its case on the law, why GST input credits should be allowed, and why penalties should not be imposed, or should be remitted. The Applicant bears the burden of proof. It should approach that positively.
The parties are also reminded of their obligations under section 56 of the ART Act to assist the Tribunal and their obligations to satisfy the directions issued by the Tribunal. These include directions issued to the Applicant on 14 October 2025, which require response by 31 October 2025.
……………………[SGD]…………………………….
General Member J. DunneDated: 20 October 2025
Date of hearing: 17 October 2025 Advocate for the Applicant:
Self-represented
Solicitors for the Respondent:
ATO Review and Dispute Resolution
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