ZCSB and Commissioner of Taxation (Taxation)
[2021] AATA 138
•5 February 2021
ZCSB and Commissioner of Taxation (Taxation) [2021] AATA 138 (5 February 2021)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2018/5318
Re:ZCSB
APPLICANT
AndCommissioner of Taxation
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:5 February 2021
Place:Sydney
The Reviewable Decision dated 20 July 2018 is affirmed.
..................................[sgd]......................................
Senior Member Linda Kirk
CATCHWORDS
TAXATION – Release from particular liabilities in cases of serious hardship – Two stage process - Whether Applicant would suffer ‘serious hardship’ if required to pay tax debt – income/outgoings test – assets/liabilities test – Whether discretion to release Applicant should be engaged – Reviewable Decision affirmed
LEGISLATION
Taxation Administration Act 1953 (Cth) ss 14ZZ, 14ZZK(b)(ii) and sch 1
CASES
Burns and Commissioner of Taxation [2019] AATA 3860
Commissioner of Taxation and A Taxpayer [2006] FCA 888
Corlette v McKenzie (1995) 62 FCR 584
Federal Court in Commissioner of Taxation v Milne (2006) 153 FCR 52
GSJW and Commissioner of Taxation [2019] AATA 5170
Lau and Commissioner of Taxation [2016] AATA 46
M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Neimanis and the Commissioner of Taxation [2012] AATA 814
Powell v Evreniades and Others (1989) 21 FCR 252
Re Adams and Commissioner [2010] AATA 744
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Filsell and Commissioner of Taxation [2004] AATA 1012
Re Huckle and Commissioner of Taxation [2014] AATA 362
Re Rasmussen and Commissioner of Taxation [2013] AATA 746
Re Thomas and Commissioner of Taxation [2014] AATA 102
Schweitzer and Commissioner of Taxation [2019] AATA 1100
Van Grieken v Veilands (1991) 21 ATR 1639
Wilcox J in Corlette and Another v Mackenzie and Others (1996) 62 FCR 597
SECONDARY MATERIALS
Practice Statement Law Administration 2011/17: Debt relief, waiver and write off cl 8-11
REASONS FOR DECISION
Senior Member Linda Kirk
5 February 2021
INTRODUCTION
ZCSB (‘the Applicant’) is seeking review of a decision of the Commissioner of Taxation (the Respondent) made on 20 July 2018 (‘the Reviewable Decision’),[1] in which the Respondent disallowed the Applicant’s objection dated 27 March 2018,[2] and affirmed its decision of 29 January 2018 not to grant the Applicant a release from his tax liabilities under section 340-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth) (‘TAA’).
[1] T7, 83.
[2] T6, 78-82.
On 14 September 2018, the Applicant lodged an application for review with the Tribunal pursuant to section 14ZZ of the TAA.[3]
[3] T1, 1-3.
As at 23 August 2020, the Applicant had a tax debt (‘Tax Debt’) of $1,191,003.90 which consists of his outstanding releasable tax liabilities and general interest charges (‘GIC’) as follows:
Components of Tax Debt
As at 23 August 2020
Individual Income Tax
$443,909.28
GIC on unpaid income tax
$154,571.43
GST
$52,423.00
PAYG instalments
$520,310.00
GIC on integrated client account
$78,999.73
Div. 293 (Additional tax on concessional contributions)
$2,550.65
Total Tax Debt
Eligible for release
$1,252,763.99
$1,191,003.90
The matter was heard at a hearing of the Tribunal on 1 and 2 September 2020. The Applicant appeared by video-conference and was represented. The Applicant and his representative, Michael Newcombe, gave oral evidence at the hearing.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions dated 3 April 2020;
·Respondent’s Section 37 T-Documents filed 13 November 2020 (83 pages) – Exhibit R1;
·Respondent’s Submissions filed 24 August 2020;
·Applicant’s Statement of Facts, Issues and Contentions dated 5 February 2020;
·Witness Statement of the Applicant plus Exhibit JGW-1 dated 5 February 2020 – Exhibit A1;
·Witness Statement of the Applicant plus Exhibit JGW-2 dated 14 August 2020 – Exhibit A2;
·Witness Statement of Michael Newcombe dated 5 February 2020 – Exhibit A3;
·Witness Statement of Michael Newcombe dated 14 August 2020 – Exhibit A4; and
·Applicant’s Submissions filed 14 August 2020.
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION AND POLICY
Where a taxpayer is dissatisfied with an assessment, they may object against it in accordance with the requirements set out in Part IVC of the TAA. The Respondent must decide whether to allow, wholly or in part, or disallow, the taxpayer’s objection.[4]
[4] Section 14ZY of the TAA 1953.
A taxpayer dissatisfied with the Respondent’s objection decision may apply to the Tribunal for a review of the decision or appeal to the Federal Court against it.[5] Subparagraph 14ZZK(b)(ii) of the TAA provides that on application for review of a reviewable objection decision, the Applicant has the burden of proving that the taxation decision should not have been made or should have been made differently.
[5] Section 14ZZ of the TAA 1953.
Part 4-50 of Schedule 1 to the TAA deals with release from particular taxation liabilities. Of particular relevance is Division 340 of Schedule 1 to the TAA which grants the Respondent with powers to release an individual or a trustee of the estate of a deceased person from income tax liabilities they have incurred if satisfying the liability would cause serious hardship.[6]
[6] Sections 340-1, 340-5, 340-10 of the TAA 1953.
Division 340 of Schedule 1 to the TAA is titled, ‘Commissioner’s power in cases of hardship’. Section 340-1 outlines ‘What this Division is about’ and states:
The Commissioner may release you from a particular liability that you have incurred if you are an individual, or a trustee of the estate of a deceased person, and satisfying the liability would cause serious hardship.
Section 340-5 of Schedule 1 to the TAA provides:
340‑5 Release from particular liabilities in cases of serious hardship
Applying for release
(1) You may apply to the Commissioner to release you, in whole or in part, from a liability of yours if section 340‑10 applies to the liability.
(2) The application must be in the approved form.
(3) The Commissioner may release you, in whole or in part, from the liability if you are an entity specified in the column headed “Entity” of the following table and the condition specified in the column headed “Condition” of the table is satisfied.
Entity and condition Item Entity Condition 1 an individual you would suffer serious hardship if you were required to satisfy the liability 2 a trustee of the estate of a deceased individual the dependants of the deceased individual would suffer serious hardship if you were required to satisfy the liability
Effect of the Commissioner’s decision
(4) If the Commissioner:
(a) refuses to release you in whole from the liability; or
(b) releases you in part from the liability;
nothing in this section prevents you from making a further application or applications under subsection (1) in relation to the liability.
Notification of the Commissioner’s decision
(5) The Commissioner must notify you in writing of the Commissioner’s decision within 28 days after making the decision.
(6) A failure to comply with subsection (5) does not affect the validity of the Commissioner’s decision.
Objections against the Commissioner’s decision
(7) If you are dissatisfied with the Commissioner’s decision, you may object against the decision in the manner set out in Part IVC.
Section 340-10 of Schedule 1 to the TAA outlines the taxation liabilities to which section 340-5(3) applies. Relevantly to this matter, taxation liabilities include income tax payable under section 4-1 of the Income Tax Assessment Act 1997 (Cth), GIC, additional tax and certain administrative penalties (see the Table under subsection 340-10(2) of Schedule 1 to the TAA). Goods and Services Tax and penalties for failure to lodge on time are not listed in subsection 340-10(1), or in the Table under subsection 340-10(2) and are ineligible for release.
There is no dispute that the Tax Debt the Applicant is seeking to be released constitutes a taxation liability for the purposes Division 340 of Schedule 1 to the TAA.
The Respondent has issued Practice Statement Law Administration 2011/17: Debt relief, waiver and write off (‘PSLA 2011/17’) which provides guidance to its officers in relation to making decisions pursuant to applications made under section 340-5 of Schedule 1 to the TAA. Relevantly it provides as follows:
8. Definition of serious hardship
‘Serious hardship’ is given its ordinary meaning.
We consider serious hardship to exist where the payment of a tax liability would result in a person being left without the means to afford basics such as food, clothing, medical supplies, accommodation or reasonable education.
We have tests to apply in helping you decide whether serious hardship exists. The object of the tests is to determine whether the consequences of paying the tax would be so burdensome that the person would be deprived of what are considered necessities according to normal community standards.
These tests are:
the income/outgoings test
the assets/liabilities test
other relevant factors.
9. Income/outgoings test
The purpose of the income/outgoings test is to assess a taxpayer's capacity to meet their tax liability from their current income. We take into account household income and expenditure along with the taxpayer's ability to provide the necessities for family members or others for whom they have responsibility. In addition, the following are relevant considerations:
othe taxpayer's capacity to pay in a reasonable timeframe on the basis of their income and outgoings
oscope for the taxpayer to increase their income
owhether all expenditure could be considered reasonable and consideration of any discretionary components
owhether the taxpayer has made attempts to defer or reschedule other financial commitments.
10. Assets/liabilities tests
The purpose of the asset/liabilities test is to assess a taxpayer's equity in, or access to, assets which may be indicative of their capacity to pay.
Consideration is given to any property owned wholly or jointly by the taxpayer and their partner, privately or within a business structure.
There are several types of assets which are regarded as normal and reasonable possessions. These would not be expected to be surrendered in order to pay a tax debt, provided they are of a reasonable nature and include:
oownership of, or interest in, a residential property which is the taxpayer's home
oa motor vehicle
ofurniture and household goods
otools of trade
ocash on hand or bank balances sufficient to meet immediate day-to-day living expenses
ofunds put aside by aged persons to cover funeral expenses.
oAll other significant assets need to be scrutinised to determine capacity to pay (either by sale or used as security for a loan). These assets include other real estate, multiple or luxury motor vehicles or boats, life insurance or annuity entitlements, shares and other investments, and collections for trading, investment or hobby purposes.
11. Other relevant factors
We are not bound to grant release even if a taxpayer can demonstrate serious hardship may be caused by payment of their liability. However we are obliged to act reasonably and not arbitrarily.
Examples of situations in which we may decide against granting release, even though implications of serious hardship may be drawn are where:
oa taxpayer appears to have unreasonably acquired assets ahead of meeting their tax liabilities
oa taxpayer appears to have disposed of funds or assets without giving consideration to their tax liability
orelease would not alleviate hardship, such as where the person has other liabilities or creditors
oa taxpayer has paid other debts (either business or private), in preference to their tax debt
othe taxpayer, without good reason, has not pursued debts owed to them
oserious hardship is likely only to be short term
othe taxpayer has a poor compliance history
othe taxpayer is unable to show that they have planned for future debts
othe taxpayer has structured their affairs to place themselves in a position of hardship (for example, placing all assets in trusts or related entities over which they have control)
othe taxpayer has delayed lodgement of returns resulting in the accumulation of a large debt that they are unable to pay.
ISSUES FOR DETERMINATION
The issue before the Tribunal is whether the Applicant’s Tax Debt should be released in part or in full, pursuant to subsection 340-5(3) of Schedule 1 to the TAA. To determine this, the Tribunal must consider:
1)would the Applicant suffer serious hardship if he were required to pay the Tax Debt; and
2)if so, should the discretion to release him in full or in part for the Tax Debt be exercised?
EVIDENCE BEFORE THE TRIBUNAL
Background and family
The Applicant emigrated from the United Kingdom to Australia with his partner, JG, in 1999[7] when they were aged 29 and 31 years old respectively.[8] Neither the Applicant nor JG had secured employment on their arrival in Australia. Both had completed medical school training in the United Kingdom, and the Applicant had completed four years of training towards becoming a paediatric surgeon.[9]
[7] Exhibit A1, [4].
[8] Exhibit A1, [5].
[9] Exhibit A1, [6].
The Applicant and JG have three children:
·CW born April 2002;
·SW born March 2004; and
·EW born January 2007.
Employment and income
From 1999 to 2000, the Applicant was employed as a Surgery Registrar in Perth. From 2000 to 2002, he worked as a Paediatric Surgery Registrar at the Children's Hospital at Westmead (‘CHW’), from 2002 to 2003 as a Paediatric Surgery Registrar at Princes Margaret Hospital in Perth, and in 2003 as a Paediatric Research Fellow at CHW.[10]
[10] Exhibit A1, [12].
In 2004, the Applicant was admitted to paediatric surgery training with the Royal Australasian College of Surgeons (RACS).[11] He deferred the commencement of his clinical training at RACS to commence a PhD degree at the University of Sydney.[12]
[11] Exhibit A1, [14].
[12] Exhibit A1, [15].
Over the period 2004 to 2006, the Applicant worked part-time as a surgical registrar at CHW, as an Education Fellow at RACS in Melbourne, and assisting paediatric surgical colleagues in private hospitals. This required him to register an ABN as a sole trader in his name commencing on 3 March 2005.[13] In the period March 2005 to October 2006, his main source of income was from employment at CHW and at RACS Melbourne.[14] The Applicant was unfamiliar with the system of billing health funds responsible for payment of the services he provided. The fees he derived from such work were ‘minimal’, and on 30 September 2006 the Applicant cancelled his registration for GST.[15] However, ‘unbeknown to the Applicant his ABN remained active despite his sole source of income from October 2006 being that of an employee earning a wage.’[16]
[13] Exhibit A1, [17].
[14] Exhibit A1, [18].
[15] Applicant’s SFIC, [22].
[16] Applicant’s SFIC, [23].
During the period from January 2007 to 2011, the Applicant was undertaking his PhD part-time whilst also completing his clinical training at CHW in 2007, Sydney Children's Hospital in 2008 and 2011, Monash Children's Hospital in 2009, and Royal Children's Hospital, Melbourne in 2010.[17]
[17] Exhibit A1, [22].
From September 2011 to September 2012, the Applicant was working full time as a paediatric surgery registrar at the Sydney Children’s Hospital.[18] In the 2013 financial year, he was employed at NSW Health Service - Sydney Local Health District, Macquarie University, the Sydney Children's Hospital (Randwick and Westmead), and Adventist Healthcare, and also undertaking his PhD.[19]
[18] Exhibit A1, [27].
[19] Exhibit A1, [33]-[34].
In 2014, he continued working at NSW Health Service, Macquarie University and Adventist Healthcare. He also worked on developing a practice as a surgical assistant to supplement his income as an employee after his contract with Sydney Children's Hospital came to an end.[20] This work started ‘very slowly’, and he was assisting one surgeon with one or two cases every week. He was paid by rendering an invoice to the patient (or the patient’s health fund) under his ABN.[21] The Applicant’s ‘transition from employee to independent contractor was a difficult one for [him] to manage.’[22] He initially ‘made a very poor attempt at sending invoices to the health funds’ which was not ‘very successful’ so he ‘started using a billing service.’[23]
[20] Exhibit A1, [37], [39].
[21] Applicant’s SFIC, [24]; Transcript dated 1 September 2020, 18.
[22] Applicant’s SFIC, [25].
[23] Transcript, 18.
In the 2015 financial year, the Applicant continued to try to increase his income as a surgical assistant and devoted most of his time to this business. He also tried to take some of the family responsibilities from JG who was ‘showing signs of fatigue because of her demanding job’.[24] In the 2016 tax year, JG took a break from work due to her ongoing illness.[25]
[24] Exhibit A1, [41].
[25] Exhibit A1, [43].
In his oral evidence at the hearing, the Applicant told the Tribunal that his current work is assisting cardiac surgeons during surgery and also working in intensive care. His work as a surgical assistant is on a case-by-case basis following a referral from surgeons with whom he has established a working relationship. The work in intensive care is provided to him by a locum agency on a shift basis. He has been working in the same intensive care department for six years and the shifts are regular. In both roles he works as an independent contractor. As regards his work as a surgical assistant, he invoices the health funds in accordance with the relevant codes for each procedure. He explained that this invoicing work is ‘onerous’ and that he sends the information to the billing company which processes the invoices and sends them to the health fund and then the funds are paid through to him. In relation to the intensive care work he is paid by the locum agency who is paid by the hospital for his services.[26]
[26] Transcript, 9-10.
The Applicant told the Tribunal that he does not keep any records of the work he does outside of sending the invoices to his billing company which renders an invoice for him.[27]
[27] Transcript, 19.
Tax obligations
In relation to his tax obligations, the Applicant told the Tribunal that when he started doing more private work, he was trying to manage his own tax affairs. His 2014 to 2016 tax returns were ‘complicated’ because they included business income he earned as a surgical assistant. Putting this information together for his accountant was ‘time consuming’ as he ‘did not have the ability to maintain an accounting system to keep track of [his] income or how [he] should be providing for [his] tax after working as an employee.’[28] As a result, he had to retrieve invoices that he had issued in order to calculate his business income.[29] During cross-examination, the Applicant agreed that he did not in fact need to retrieve invoices as his billing company did this, and therefore this was not a contributing factor to his inability to do his tax.[30]
[28] Exhibit A1, [42].
[29] Exhibit A1, [48].
[30] Transcript, 25.
The Applicant told the Tribunal he was aware he had to pay taxes, but he was not aware of ‘the process for going and doing that as a sole trader.’[31] He stated:
It had never been made obvious to me and when money came in… it was used for things that were more imminently pressing and had to be paid.[32]
[31] Transcript, 11.
[32] Transcript, 11.
When he became aware of the extent of his tax liability, he sought the advice of Bongiorno & Partners (NSW) Pty Ltd (Bongiorno & Partners) and then Mr Newcombe.[33]
[33] Transcript, 11.
In his oral evidence, the Applicant told the Tribunal that his tax agents asked him for information in relation to how the business was developing, including projected income, and this ‘made it a lot more complicated’ than he expected it would be.[34]
[34] Transcript, 21.
The Applicant told the Tribunal that his current practice is that he submits his figures to Bongiorno & Partners and they send him back the business activity statement which provides what tax he owes which he then pays.[35] The funds that come in from the billing agency for the surgical assistant work now goes into an account from which he is paying his tax liabilities.[36]
[35] Transcript, 10-11.
[36] Transcript, 11.
The Applicant did not make any payments towards his Tax Debt in the year ended 30 June 2019.[37] On 5 August 2020, he made a payment of $20,000 towards the Tax Debt.[38]
[37] Applicant’s submissions [47]; Exhibit A2, [19].
[38] Applicant’s submissions [49].
Assets and liabilities
The Applicant provided information by way of Schedule 1 – Assets and Liabilities to the Statement of Michael Newcombe on 5 February 2020 as to his assets and liabilities as follows:
Item Asset ($) Liability ($) ING # 1
327
ING # 2
3,516
ANZ
1
NAB
4
2007 Toyota (insurance value)
4,600
UNISUPER (at 30 June 2019)
77,128
First State Super
238,436
Australian Taxation Office
1,104,670
Total 344,012 1,104,670 Household income
The Applicant stated in the materials provided by him on 5 February 2020, that his income for the year ending 30 June 2020 will be $430,000 or $249,000 after tax. The current yearly income of the Applicant’s partner, JG, will be $66,500 after tax for the year ending 30 June 2020.
Household expenditure
The Applicant stated in the materials provided by him on 5 February 2020 that he expects his total yearly household expenditure to be $271,135 in the year ending 30 June 2020 as itemised below:
Item Yearly expenditure Rent $91,248 Groceries $20,000 Electricity and gas $3,600 Telephone and internet $2,244 Registration and Insurance (Motor Vehicle) $1,608 Repairs and Maintenance (Motor Vehicle) $5,040 Fuel, Petrol and Oil (Motor Vehicle) $9,360 Education $110,724 Medical $2,400 Paternal Support $12,000 Total $258,224 Total inclusive of 5% variance $271,135 Rent
Based on information provided by the Applicant, he and his family currently reside in rental accommodation in Wahroonga and expect to spend $91,248 on rent in the year ending 30 June 2020.[39]
[39] Exhibit A1, [71]; Exhibit A3, Schedule 2.
In his statement dated 5 February 2020, the Applicant wrote that their family home ‘is modest for a family of 5 living in Sydney comprising 3-4 bedrooms, 2 bathrooms, combined living and dining room and outdoor space.’[40] The main factor in choosing to the rent the property is that it is close to the schools their children attend.[41] The Applicant agreed in cross-examination that his children’s schools are both on the train line and, if they were to move houses, the schools would be readily accessible if the house were near public transport.[42]
[40] Exhibit A1, [73].
[41] Exhibit A1, [74].
[42] Transcript, 26.
In his oral evidence, the Applicant confirmed that the residence consists of four bedrooms and three bathrooms and includes a pool and billiard games room on the lower level and a rumpus room on the upper level. He maintained that it is ‘modest accommodation’ for a family of five.[43]
[43] Transcript, 29.
The Applicant told the Tribunal that he is planning to move to cheaper rental accommodation once his eldest daughter completes her schooling in late 2020. They have extended the lease on their current property on three occasions, most recently in October 2019.[44]
[44] Transcript, 36.
Children’s private school fees
Based on information provided by the Applicant, he and JG expect to spend approximately $110,724 in private school fees for their children in the year ending 30 June 2020.[45]
[45] Exhibit A3, Schedule 2.
In his statement dated 5 February 2020, the Applicant wrote that he and JG made the decision to enrol their children at a private school when CW was aged 10 years. They made this decision because their working hours meant that they would not always be able to collect the children from school, and ‘a private school was more flexible for parents who had demanding jobs.’ They also ‘believed that the children would have a wider range of opportunities at a private school and that this would be within [their] expected budget.’[46] Having themselves been educated in the UK, they were ‘not familiar with the Australian education system’ and the schools they visited were most like those he had attended.[47] They were aware of the cost of these private schools, however at the time they were both close to finishing their respective specialist training, and they were planning to work as independent consultants which would provide the income necessary to support three children to attend private schools.[48] He told the Tribunal that he has not reached this estimated income because he has not finished his training.[49]
[46] Exhibit A1, [63]; Transcript 12.
[47] Exhibit A1, [63], Transcript, 12 and 27.
[48] Transcript, 12.
[49] Transcript, 27.
The Applicant told the Tribunal that he and JG had ‘given a lot of thought’ to relocating the children to a government school.[50] He is aware that some of Sydney’s best public schools are located in his area.[51] However, he has always believed it is important that education should all be ‘in one place’. This had been his and JG’s experience and their ‘suspicions were confirmed’ when he consulted the scientific literature.[52] He formed the view that his children may be adversely impacted if they were to be relocated from their existing schools.[53]
[50] Transcript, 12.
[51] Transcript, 27.
[52] Exhibit A1, [65]-[69]; Transcript, 12.
[53] Transcript, 12 and 15.
Groceries, clothing and household costs
Based on information provided by the Applicant, the estimated expenditure on these items is $51,600 per annum or $4,300 per month in the year ending 30 June 2021.[54]
[54] Exhibit A4, Applicant and Household Income and Expenses – Projections for the Years 2021 to 2025.
During cross examination, the Applicant was referred to entries in bank statements that show expenditure on a range of items including holidays, restaurant dinners, theatre tickets and parking fees which the Applicant agreed are discretionary expenditure and ‘could be economised on’.[55]
[55] Transcript, 32-36.
Family support
In the latter part of 2016, the Applicant learned that his father, then aged 87 years, had early signs of dementia making it difficult for his 79 year old mother to care for him. His father and mother were on a modest pension to support themselves, but this was inadequate to attend to his father's medical costs. Over the period 2016 to 2017, the Applicant made three trips back to the United Kingdom to assist his mother in the course of his father's move to a nursing home unit because of his dementia.[56] His father passed away in December 2019. The Applicant helped his father with the payment of his medical bills in the sum of GBP 5,825.72.[57] During cross-examination he agreed that he gave priority to his father’s medical bills ahead of his own taxation liability.[58]
[56] Exhibit A1, [44]-[45].
[57] Exhibit A1, [78].
[58] Transcript, 26.
The Applicant currently sends his mother $1,000 per month and also assists his brother financially.[59]
[59] Exhibit A1, [80]-[81]; Transcript, 26.
Overseas travel
The Applicant agreed that he spent $63,799.43 in overseas travel in the calendar year 2019. He travelled to England in January and December 2019 and the family went on an ‘educational trip’ in June 2019 which included visiting Montreal and Boston.[60]
[60] Transcript, 30.
Partner’s employment and income
The Applicant told the Tribunal that JG is employed as a registrar at a public hospital. She works part-time, usually two to three nights per week, and earns approximately $2,100 per fortnight excluding overtime.[61]
[61] Transcript, 41.
Projected income and outgoings
Michael Newcombe is a Chartered Accountant and the Applicant’s representative.[62] He provided a statement dated 14 August 2020,[63] which included the following projected income and outgoings of the Applicant’s household:
[62] Exhibit A3, 1.
[63] Exhibit A4, Applicant and Household Income and Expenses – Projections for the Years 2021 to 2025.
1 July 2020 to 30 June 2021
1 July 2021 to 30 June 2022
1 July 2022 to 30 June 2023
1 July 2023 to 30 June 2024
1 July 2024 to 30 June 2025
Gross Income
$517,666
$517,666
$517,666
$517,666
$517,666
Income tax
($216,400)
($216,400)
($216,400)
($216,400)
($216,400)
Net income
$301,266
$301,266
$301,266
$301,266
$301,266
Outgoings
($283,857)
($283,857)
($236,261)
($236,261)
($188,168)
Applicant’s Net Surplus
$17,409
$17,409
$65,005
$65,005
$113,098
Add: Net contribution from Applicant’s partner
$80,000
$80,000
$80,000
$80,000
$80,000
Household Surplus
$97,409
$97,409
$145,005
$145,005
$193,098
In his oral evidence, Mr Newcombe told the Tribunal that the projected income figures were based on the most up-to-date available information. He did not have the 2019 tax return nor did he have 2019 BAS returns at the time.[64] The information came from earlier tax returns and information provided by the Applicant.[65]
[64] Transcript, 53.
[65] Transcript, 54.
During cross-examination, Mr Newcombe stated that he does not anticipate the Applicant’s income will increase in the next five years as in his opinion the Applicant has reached the limit of his potential income as a surgical assistant.[66]
CONTENTIONS
[66] Transcript, 50.
Applicant
Both the income/outgoings and the assets/liabilities test under PSLA 2011/17 are satisfied and the Applicant has demonstrated he will suffer serious hardship if he is required to satisfy his tax liability to the Respondent.[67]
[67] Applicant’s submissions [38]-[40].
Based on the figures provided by Mr Newcombe, approximately $677,000 over five years is available for the Applicant to contribute to his tax debts. Adjusting this for the reduction in rent and groceries which can be reduced by $15,000 and $5,000 respectively, the Applicant’s contribution would be up to about $785,000. This is well below the $1.2 million he owes, which cannot be repaid in a five year period.[68] The Applicant ought to be released from so much of his tax debts as cannot be repaid in this time frame.[69]
[68] Transcript, 82.
[69] Applicant’s submissions [36].
The Tribunal ought to exercise its discretion to release the Applicant from his tax debts in whole, and if not in whole in part, by no less than the amount that would remain outstanding (including any GIC) if the Applicant made payments totalling $677,000.[70]
[70] Applicant’s submissions [42].
Respondent
The Applicant does not meet the criterion for a determination that meeting his Tax Debt would result in serious hardship.[71] On the information provided by the Applicant, his gross income is substantial, and in the year ending 30 June 2020 his net household income will be $315,500, and his total household expenditure $271,135, leaving a household surplus of $44,365 a year. This includes the income of the Applicant’s partner.[72]
[71] Respondent’s submissions [25]; Transcript, 84-86.
[72] Respondent’s SFIC [38].
Based on the financial details provided by the Applicant, there appears to be scope for him to substantially reduce his outgoings whilst maintaining a reasonable standard of living.[73] The rent payable by the Applicant for his family home cannot be described as a ‘necessity’ as it is understood in the context of section 340-5 of Schedule 1 of the TAA.[74] Nor can it be said that the annual expenditure on the Applicant’s children’s private school fees is a ‘basic’ expenditure to provide a ‘reasonable education.’[75] The amount spent by the Applicant on rent, school fees and financial support to his mother, indicate that he is not experiencing financial hardship. It follows that if he were required to meet his Tax Debt, he would not experience serious hardship in doing so as it is open to him and his family to reduce their discretionary expenditure.[76]
[73] Respondent’s SFIC [38].
[74] Respondent’s submissions [28].
[75] Respondent’s submissions [30].
[76] Respondent’s submissions [32]; Transcript, 86-89.
In relation to the income aspect of the income/outgoings test, the Applicant has provided limited evidence about his actual and potential earnings and those of JG, and the figures provided by Mr Newcombe are not a reliable estimate of the Applicant’s projected income.[77]
[77] Transcript, 90-91.
The Applicant has not met his onus of establishing that if he were required to meet his Tax Debt this would result in serious hardship within the meaning of section 340-5 of Schedule 1. It follows that the Tribunal does not have the power to release him from all or part of his liabilities.[78] There is therefore no need for the Tribunal to go on to consider the exercise of the discretionary power to release him as the jurisdictional precondition for the exercise of the power is not established.
[78] Respondent’s SFIC [39]; Respondent’s submissions [39]; Transcript, 92-93.
If the Tribunal were to be satisfied that the Applicant would experience serious hardship if he were to satisfy the Tax Debt, the Respondent contends that the Tribunal should not exercise its discretion to release the Applicant in whole or in part from the Tax Debt for the following reasons:
·The Applicant has expended funds in a manner inconsistent with someone experiencing serious hardship. In addition, there is little evidence, if any, that there was no opportunity or ability to significantly reduce expenditure on items including private school fees and rental accommodation.[79]
·The Applicant has an extremely poor compliance history in respect of lodgement of his personal income tax returns. He lodged his personal income tax returns for the financial year ending 30 June 2007, 30 June 2008, 30 June 2009, 30 June 2010 and 30 June 2011 in January 2012. It should not be accepted that the Applicant was unaware of his tax liabilities nor that his disregard of those obligations militates in favour of the exercise of the discretion.[80]
·The Applicant’s professional background, education and current employment as a surgical assistant indicates he should have been in a position to manage his taxation affairs in a manner which is consistent with his taxation obligations;[81]
·The Applicant did not set funds aside to meet his taxation liabilities when he received income that was not taxed at the source.[82]
·The Applicant lodged his income tax returns for the years ending 30 June 2014, 20 June 2015, 30 June 2016 and 30 June 2017 following the Respondent raising a default assessment against him in the year ending 30 June 2014.[83]
·The Applicant delayed lodgement of his personal income tax returns has resulted in the accumulation of a large debt and now constitutes the Tax Debt which is owing.[84]
·The Tax Debt is attributed to multiple delayed lodgements over a period of roughly five years and therefore the granting of a release of the Tax Debt in whole or in part would give the Applicant an advantage over other Australian taxpayers who lodged and paid their tax on time.[85]
·The fact that the Applicant may be rendered bankrupt if he were to meet his Tax Debt is not relevant to whether he ought to be released from his debt in the exercise of the discretion.[86]
[79] Respondent’s SFIC, [40(a)]; Respondent’s submissions, [41.1]; Transcript, 93.
[80] Respondent’s SFIC [40(b)]; Respondent’s submissions, [41.2]; Transcript, 93.
[81] Respondent’s SFIC [40(c)]; Transcript, 93.
[82] Respondent’s SFIC [40(d)].
[83] Respondent’s SFIC [40(e)]; Section 37 T Documents, 7.
[84] Respondent’s SFIC [40(f)].
[85] Respondent’s SFIC [40(g)].
[86] Respondent’s submissions [41.5]; Transcript, 94.
The circumstances do not warrant the exercise of the Tribunal’s discretion to release the Applicant from his Tax Debt, either in whole, or in part, in the event it is found that the discretion to do so is enlivened.[87]
CONSIDERATION AND REASONS
Should the Applicant’s tax debt be released in part or in full, pursuant to subsection 340-5(3) of Schedule 1 to the TAA?
[87] Respondent’s SFIC [43].
Two-stage process
Determination of whether a tax liability should be released in part or in full pursuant to subsection 340-5(3) of Schedule 1 to the TAA has been described as a two-stage process. In GSJW and Commissioner of Taxation [2019] AATA 5170 (‘GSJW’) the Tribunal explained this as follows at [51]-[52]:
51. The determination of whether the Applicant should be released from his eligible taxation liability involves a two-stage process. This process was described by Deputy President McDermott in Lau and Commissioner of Taxation [2016] AATA 46 at paragraph [65]:
65. The Tribunal in Re Filsell and Commissioner of Taxation provided that a two stage approach should be applied determining whether the discretion to release should be exercised:
In the Tribunal’s opinion, the language of the legislation requires a two stage approach. First, the decision-maker must decide whether the settlement of the liability will result in serious hardship. If that decision is favourable to the applicant, the discretion offered by sub-section 340-5(3) then falls for consideration. In reaching the decision to release in whole or part, the question to be addressed is whether, in all circumstances, it is just and proper to provide the requested relief. Matters pertaining to the incidence and consequence of the tax and the effect of its exaction upon the affairs of the person will bear upon the issue of whether the relief is just and proper...
(Footnotes omitted.)
52. The above approach from Re Filsell and Commissioner of Taxation [2004] AATA 1012 was cited and applied by the Federal Court in Commissioner of Taxation v Milne (2006) 153 FCR 52 at 61-62.
A finding of serious hardship is a jurisdictional pre-condition for the exercise of the power to release a taxpayer from their tax liability. In Powell v Evreniades and Others (1989) 21 FCR 252 (‘Powell)’, Hill J, (referring to the predecessor provision section 265 of the Income Tax Assessment Act 1936 (Cth)), outlined the consequences of a finding that this jurisdictional precondition is not satisfied:
Once there is a finding that the exaction of the full amount of tax will not entail serious hardship it would have to follow that there was no power in the Board to release any tax at all.
The onus lies on the Applicant to establish that he meets the jurisdictional precondition for release. In Re Rasmussen and Commissioner of Taxation [2013] AATA 746 (‘Rasmussen’) at [31]-[34], Deputy President Forgie explained that subparagraph 14ZZK(b)(ii) distinguished tax cases from other cases in the Tribunal where it is generally said that there is no burden of proof. As Deputy President Forgie recognised in Rasmussen at [36], this express imposition of an onus requires an applicant to:
produce to the Tribunal evidence on which it can be satisfied, on the balance of probabilities, of the findings of fact that are relevant, first to the ultimate finding that a person would suffer serious hardship if required to satisfy the liability and, if so, then to the exercise of the discretion.
The Deputy President further stated that if the applicant does not produce enough evidence, the decision under review will stand at [38]. Accordingly, if the Tribunal is left with any doubt about any relevant factual matter of which it must be satisfied for it to find that payment by the Applicant of the Tax Debt would result in serious hardship, it must in accordance with subparagraph 14ZZK(b)(ii) affirm the decision under review.
If the jurisdictional pre-condition for release is met the Tribunal will then consider whether the discretion to release an applicant from that liability should be exercised. It is a matter of discretion for the Tribunal and not a matter of right for an applicant (see Wilcox J in Corlette and Another v Mackenzie and Others (1996) 62 FCR 597 at 598 in the context of section 265 of the Income Tax Assessment Act 1936 (Cth)).
What is ‘serious hardship’?
As Deputy President Forgie noted in Schweitzer and Commissioner of Taxation [2019] AATA 1100 (‘Schweitzer’) at [100], there is no statutory definition of ‘serious hardship’ in Division 340 of Schedule 1 to the TAA. Nor does the Division set out any guiding factors or principles that may be relevant in assessing serious hardship. In Powell, Hill J, in considering the predecessor provision, observed at 258:
There is no definition in section 265 of what is meant by “serious hardship” nor would one expect there to be. Each of the words in the phrase is an ordinary English word having a well understood meaning. The context in which the word appears makes it clear that the Relief Board is to consider whether the exaction of the full amount of tax would involve the dependants of a deceased taxpayer [the individuals concerned in that case] in a financial difficulty which in all the circumstances can be said to be serious. The financial difficulty will be such that the dependants will be in significant need warranting action by the Relief Board to relieve their condition.
In Commissioner of Taxation and A Taxpayer [2006] FCA 888, Stone J approved the principles established by Hill J in Powell and stated at [16]-[17] and then at [55]:
… ‘‘serious hardship’’ is itself the test that has to be applied to an applicant’s circumstances to decide if that applicant is eligible for relief from a tax debt. There is no other test, although there may be issues about which factors, in the particular circumstances, are or are not relevant to this determination. It is because the assessment is based so squarely on the individual circumstances that Hill J in [Powell] thought it was inappropriate to try and identify, in the abstract, the circumstances that would give rise to serious hardship.
… In [Powell], Hill J gave such an example when he recognised that there would be ‘‘severe financial hardship’’ if persons were left ‘‘destitute without any means of support’’. The Taxation Ruling gives a similar example when it says that there would be serious hardship if a taxpayer were left ‘‘without the means to achieve reasonable acquisitions of food, clothing, medical supplies, accommodation, education for children and other basic requirements’’. I do not see any inconsistency in these examples. Effect must be given to the qualification of ‘‘reasonable’’ in the Taxation Ruling and, consistently with the reasoning of Hill J, these examples do not exclude the possibility that something less than destitution will constitute serious hardship. Whether this is so depends on the particular circumstances of each case… Implicitly, the Tribunal was assessing the respondent’s individual circumstances by reference to normal community standards.[88]
[88] Commissioner of Taxation and A Taxpayer [2006] FCA 888 at [55].
It is clear from the authorities that, in assessing whether ‘serious hardship’ is established, consideration must be given to whether the taxpayer, if required to pay the tax debt would experience financial difficulties which are serious, however not necessarily at the level of causing destitution.
In Schweitzer, Deputy President Forgie at [101], summarised a number of principles recognised in the authorities as relevant to the determination of whether an Applicant for release would experience ‘serious hardship’. Relevantly, these include:
·The relevant ‘hardship’ is financial hardship, not physical or social hardship: see Hill J in Powell at 258; Re Filsell and Commissioner of Taxation [2004] AATA 1012 (‘Filsell’) at [13]; Re Adams and Commissioner [2010] AATA 744 (‘Adams’) at [17].
·The resources of the household, and not just of the applicant are to be considered in determining the relevant assets and income as against liabilities and expenditure: Van Grieken v Veilands (1991) 21 ATR 1639 per Gummow J at 1646, affirmed by the Full Court at 632, where the Court rejected an argument that his Honour had taken into account an irrelevant consideration, noting that “it cannot be irrelevant to consider what the judge below referred to as ‘the financial affairs of the taxpayer, including his financial relations with the other members of his household, and with any family company’”. See also Filsell at [21]; Adams at [22]; and Neimanis and the Commissioner of Taxation [2012] AATA 814.
·The Tribunal is not limited to consideration of the financial situation at the time of the application but is entitled to consider the position of the Applicant at the time of the hearing and may also consider any evidence about probable future financial position: see Schweitzer at [101]-[103].
Another requirement that has been consistently recognised is that there must be a causal relationship between the requirement to satisfy the tax liability and the serious hardship. As Forgie DP explained in Rasmussen:
40. Although I look at what is meant by the expression “serious hardship” in this section of my reasons, I must keep in mind that s 340-5(3) requires me to do more than decide whether Mr Rasmussen is in serious hardship or would be having regard to his circumstances. The issue that I must come back to and decide is whether he would suffer serious hardship “... if he were required to satisfy the liability”. The need to focus on this becomes clear from the authorities which have considered the criteria that must be met under s 340-5(3) and the discretion that must be exercised. [emphasis in the original].
This approach was adopted by the Tribunal in Re Thomas and Commissioner of Taxation [2014] AATA 102 at [46] and Re Huckle and Commissioner of Taxation [2014] AATA 362 at [45].
While policy guidelines are not part of the law made by Parliament, there is an extensive body of case law that recognises the desirability for decision-makers to make consistent decisions, and that consistency in decision-making is facilitated by the existence of policy guidelines: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642. In M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 the High Court stated at [54]:
Policy guidelines... promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in “high volume decision-making”. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2), Brennan J, as President of the Administrative Appeals Tribunal, said that “[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable” because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions”.
This approach has been endorsed by the Federal Court in the context of the statutory power to release a taxpayer from a taxation debt. In Corlette v McKenzie (1995) 62 FCR 584 Beazley J (as her Excellency then was) (affirmed by the Full Federal Court (1996) 62 FCR 597) her Honour found that the Board was entitled to apply a policy to its decision-making, so long as it did not do so inflexibly at 595-596. This approach has also been adopted in Tribunal decisions, for example, Schweitzer at [104]-[109] and [118]; GSJW at [56]; and Burns and Commissioner of Taxation [2019] AATA 3860 at [28].
Accordingly, the guidance in PSLA 2011/17 set out in paragraph [14] above, is relevant to consideration of whether the Applicant would experience ‘serious hardship’ if he required to pay the tax debt.
1) Would the Applicant suffer serious hardship if he is required to pay the Tax Debt?
As noted in paragraph [14] above, PSLA 2011/17 identifies three tests that assist in determining whether a tax debt should be released in full or in part. These are the income/outgoings test, the assets/liabilities test, and other relevant factors.
(a) Income/outgoings test
Factors relevant to a consideration of this test are listed in clause 9 of PSLA 2011/17 and include:
·the Applicant’s capacity to pay in a reasonable timeframe on the basis of his income and outgoings
·the scope for the Applicant to increase his income
·whether all the Applicant’s expenditure could be considered reasonable and consideration of any discretionary components.
The Applicant’s annual gross household income, being the income earned by him as a locum doctor in intensive care and as a surgical assistant, together with the income earned by his partner JG in her part-time job as a registrar at a public hospital, as detailed in paragraph [50] above, is substantial. He relies on the considerable household expenditure in support of his claim that he satisfies the income/outgoings test for the determination of serious hardship.[89] However, it is clear from the evidence that this expenditure includes a range of expenses that do not involve “what are considered necessities according to normal community standards”: PSLA 2011/17 at clause 8.
[89] Applicant’s submissions [25].
The Applicant’s rental accommodation cannot be described as a ‘necessity’ as understood in the context of section 340-5 of Schedule 1 of the TAA and clause 8 of the PSLA 2011/17. There is no evidence that the Applicant has given any real consideration to moving to cheaper rental accommodation or to a less expensive area. His stated preference is for the family to live close to the children’s schools. He acknowledged however that the schools are on the train line and could readily be accessed by public transport, and that he plans to look for alternative accommodation for the family when his daughter completes her schooling. To put the Applicant’s circumstances into context, the Tribunal has had regard to Deputy President Forgie’s observations in Schweitzer at [132] that if Ms Schweitzer were required to sell her property and lose her inheritance, and live on the age pension and pay rent, this would not amount to serious hardship. She further noted, ‘[t]hose on the Age Pension living in rental accommodation are not, by reason of that fact alone, regarded as suffering serious hardship’.
Whereas PSLA 2011/17 refers to the need for a taxpayer not to be left ‘without the means to afford basics such as... reasonable education’, it cannot be accepted that an annual expenditure of more than $100,000 per annum on private school fees is a ‘basic’ expenditure required to provide the Applicant’s children with a ‘reasonable education’. The Applicant’s evidence is that he and JG chose private schools for their children when they were new to Australia and unfamiliar with the Australian education system, and the schools they chose were ‘most like those’ they had attended in the UK. He also claims that private schools were ‘more flexible’ for parents with ‘demanding jobs’. In circumstances in which there are high quality government school alternatives in the local area, it cannot be said that an expenditure of in excess of $100,000 on private school fees is a ‘basic’ expenditure necessary for a ‘reasonable education’.
The Applicant’s evidence is that he provides financial support to his mother and brother in the United Kingdom. He did not provide any reasons as to why these relatives require this support from him nor why their own resources are inadequate need to be supplemented by allowance paid to them by the Applicant. In relation to the many items of discretionary household expenditure including theatre tickets, restaurant meals, parking fees and overseas travel, the Applicant conceded that there was potential for these to be ‘economised’.
The extent of the Applicant’s outgoings on rent, private school fees, and financial support for his mother and brother, and the amount of discretionary expenditure indicate that he is not experiencing financial hardship. It follows that, if he were required to meet his taxation Tax Debt, he would not experience serious hardship when there are a range of viable options available to him and his family to reduce their annual household expenditure.
In determining whether there would be ‘serious hardship’ to the Applicant it is necessary to take into account the resources not only of the Applicant, but also of his partner, JG who is also a medical practitioner. The Applicant provided a five-year projected income for himself and JG. However, there is limited evidence before the Tribunal about their respective work situations, and their actual and potential earnings. In particular, there is little evidence as to the opportunities available to them to increase their household income, either by the Applicant completing his specialist training or his PhD, or by JG increasing her work hours at the hospital.
The Tribunal finds, based on the information before it, that a reduction in the Applicant’s household expenditure would leave a surplus which would allow the Applicant to meet his Tax Debt in a reasonable time without impacting upon his ability to provide reasonable accommodation, food, clothing, medical supplies and education for himself and his family.
For the reasons above, the Tribunal finds that the income/outgoings test is not satisfied and this weighs against the Applicant being granted a release from his Tax Debt.
(b) Assets/liabilities test
Relevant to a consideration of this test are the assets held by the Applicant and his current liabilities as set out in paragraph [33] above.
In considering the Applicant’s asset and liability position, the Tribunal accepts his debts exceed his available assets and therefore this test weighs in favour of him being granted a release from his Tax Debt.
On the basis of the evidence before it, the Tribunal is not satisfied that the Applicant has met the onus on him to establish that if he were required to meet his tax liability, it would result in serious hardship within the meaning of section 340-5 of Schedule 1 of the TAA.
Having found that the jurisdictional precondition for the exercise of the power to release the Applicant from all or part of his Tax Debt is not satisfied, there is no need for the Tribunal to consider whether the discretionary power should be exercised.
However, for the reasons that follow, the Tribunal is satisfied that even if the discretionary power were enlivened to release the Applicant from his tax liabilities, it is not appropriate in the Applicant’s circumstances that it be exercised to permit such a release in whole or in part.
2) Should the discretion to release the Applicant from his Tax Debt be exercised?
Clause 11 of PSLA 2011/17 sets out other relevant factors which may be considered in deciding whether to exercise the discretion to grant a release from taxation liabilities. Of relevance is whether the taxpayer has a poor compliance history and whether the taxpayer has delayed lodgement of returns resulting in the accumulation of a large debt that they are unable to pay.
The Applicant lodged his personal income tax returns for the financial year ending 30 June 2007, 30 June 2008, 30 June 2009, 30 June 2010 and 30 June 2011 in January 2012. He lodged his income tax returns for the years ending 30 June 2014, 20 June 2015, 30 June 2016 and 30 June 2017 following the Respondent raising a default assessment against him in 2017 for the year ending 30 June 2014. The Applicant’s compliance history is therefore extremely poor.
The Applicant’s evidence is that he ‘gave little thought’ to attending to his tax affairs, and that he ‘did not have the ability to maintain an account system to keep track of [his] income or how [he] should be providing for [his] tax after working as an employee.’ The lack of priority the Applicant gave to his tax obligations is not a matter that supports the exercise of a discretion to release his Tax Debt. Like all independent contractors, the Applicant is required to make provision for, and attend to, the payment of his taxation liabilities. The Tribunal does not accept that the Applicant was unaware of the process for accounting for his tax obligations as an independent contractor. As a professional and educated man who had sought and obtained financial advice in relation to his tax affairs from 2011, his claims not to have knowledge of his tax obligations are implausible, and do not therefore weigh in favour of the exercise of the discretionary release power.
On the basis of this evidence, the other relevant factors do not support the grant of a release of the Applicant from his Tax Debt.
For these reasons, the Tribunal finds that even if the payment of his liabilities would result in serious hardship, there is no basis upon which it would be appropriate for the Tribunal to exercise the discretionary power to release the Applicant from his Tax Debt.
CONCLUSION
On the basis of the evidence before it and applying the relevant authorities and policy guidance, the Tribunal finds that the Applicant has not established that the Reviewable Decision should not have been made or should have been made differently. Accordingly, the Tribunal finds that the Applicant has not discharged his onus under section 14ZZK of the TAA.
DECISION
The Reviewable Decision dated 20 July 2018 is affirmed.
I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
....................................[sgd]....................................
Associate
Dated: 5 February 2021
Date(s) of hearing: 1 and 2 September 2020 Solicitors for the Applicant: Mr A Pitman, A W Pitman & Co Solicitors Counsel for the Respondent: Ms R Graycar Solicitors for the Respondent: Ms R Galea, Australian Taxation Office
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