Barrow and Commissioner of Taxation

[2012] AATA 640

---

• The impact of this case on ATO policy is discussed in Decision Impact Statement: Barrow and Commissioner of Taxation (Published 9 November 2012).

(Decision by: )

Barrow
and Commissioner of Taxation

Tribunal:

Member:
Senior Member C R Walsh

Decision date: 21 September 2012

Pert

---

Decision by:

INTRODUCTION

1. Mr Barrow seeks a review of the Commissioner's objection decision (dated 14 October 2011) which disallowed Mr Barrow's objection (dated 17September 2010) to the following:

(i)

amended energy grants credit scheme claim assessments (dated 8 February 2010and issued pursuant to section 20 of the Product Grants and Benefits Administration Act 2000( PGBAA )) in respect of diesel fuel allegedly purchased by Mr Barrow for use in his fishing operations in the period from8 June 2003 to 30 June 2006, inclusive;

(ii)

a tax shortfall penalty assessment of $1,535.34 (dated 12 February 2010 and issued pursuant to section 298-30 of Schedule 1 to the Taxation Administration Act 1953 ( TAA ))relating to the shortfall arising from thesaid amended energy grants credit scheme claim assessments;

(iii)

net fuel amount assessments totalling $31,372.00 (dated 12 February 2010 and issued pursuant to section 105-5(1)(b) of Schedule 1 to the TAA)in respect of diesel fuel allegedly purchased by Mr Barrow for use in his fishing operations in the tax periods from 1 July 2006 to 30 September 2009, inclusive; and

(iv)

a tax shortfall penalty assessment of $7,843.00 (dated 12 February 2010 and issued pursuant to section 298-30 of Schedule 1 to the TAA)relating to the shortfall arising from the said net fuel amount assessments.

2. The above amended energy grants credit scheme claim assessments and net fuel amount assessments arose following an audit of Mr Barrow's affairsby the Commissioner in late 2009 and early 2010 as a result of which Mr Barrow was asked to substantiate his respective claims for energy grants (in the period from 8 June 2003 to 30 June 2006) and fuel tax credits (in the tax periods from 1 July 2006 to 30 September 2009).

3. At that time, Mr Barrow was unable to provide the Commissioner with the necessary documentary evidence to substantiate that he purchased the diesel fuel, the subject of his respective claims, for use in his "fishing operations".Consequently, the Commissioner disallowed the energy grants and fuel tax credits claimed by Mr Barrow and issued him with the said assessments reflecting the audit decision.

4. However, since then, as a result of the production of certain documentary evidence, including copies of monthly "Trap and line: catch and effort returns" lodged by Mr Barrow with the Western Australian Department of Fisheries, the Commissioner has agreed to concede those parts of Mr Barrow's assessments that relate to the period before 1 July 2007.

5. That is, the Commissioner has conceded Mr Barrow's energy grants credit scheme assessments (and associated penalties), in full, as well those parts of Mr Barrow's net fuel amount assessments (and associated penalties) which relate to the tax periods from 1 July 2006 to 30 June 2007 (i.e. the pre 1 July 2007 tax periods).

6. As such, only Mr Barrow's net fuel amount assessments(and associated penalties)which relate to the tax periods from 1 July 2007 to 30 September 2009 remain in dispute and for consideration by the Tribunal in this review application.

RELEVANT FACTS& EVIDENCE

7. At all relevant times Mr Barrow was registered for goods and services tax purposes pursuant to Part 2-5 of the A New Tax System (Goods and Services Tax) Act 1999.

8. In respect of the tax periods from 1 July 2007 to 30 September 2009, Mr Barrow claimed the following net fuel amounts in his Business Activity Statements ( BASs ), pursuant to section 41-5 of the Fuel Tax Act 2006 ( FTA ):

9. The following penalties were imposed on Mr Barrow in respect of the following shortfall amounts arising out of the above net fuel amounts claimed in the following tax periods:

In each instance, the penalty was imposed for a failure to take "reasonable care" in complying with a taxation law and represents 25% of the relevant tax shortfall amount pursuant to section 284-90 of Schedule 1 to the TAA.

Evidence of Mr Barrow

11. Mr Barrow's evidence before the Tribunal was, in summary, as follows:

•

Mr Barrow commenced fishing with a commercial fishing licence some time in 2002and he worked in the fishing industry until late 2009.

•

Mr Barrow's commercial fishing licence expired in about April or May 2007 but he continued to fish, without a licence, until he retired from fishing in late 2009.

•

No "Trap and line: catch and effort returns" were lodged with the Western Australian Department of Fisheries by Mr Barrow during the period in which he fished without a commercial fishing licence, being the period from about April/May 2007 to late 2009, for the reason that he was not supposed to be fishing without such a licence. Therefore, there is no documentary record at the Department of Fisheries of Mr Barrow's fishing operations during that period.

•

Throughout the entire period that Mr Barrow worked in the fishing industry (i.e. from some time in 2002 until late 2009) his accountant and tax agent was Mr John Collins of J D Collins & Associates. Mr Barrow's practice, throughout that period, was to take the receipts for any fishing expenses he had incurred (including his expenditure on diesel fuel) for the relevant three- monthly reporting period to Mr Collins at his office "in a lunch box". Mr Barrow said that he relied on Mr Collins to keep his receipts as a record of his fishing expenses, including the receipts for his expenditure on diesel fuel.

•

When he approached Mr Collins, requesting copies of the receipts for his fishing expenses (including on diesel fuel) that he had provided Mr Collins at regular intervals throughout the relevant period, Mr Barrow said that Mr Collins was unable to produce any of his receipts for the reason that they no longer existed. Mr Barrow stated that he was told by Mr Collins that his receipts had been stored by Mr Collins at a storage facility in Wangara and that, as a result of that storage facility being flooded, all of his archived records were destroyed.

Evidence of Mr Collins (Mr Barrow's tax agent)

12. Mr Collins was, at the request of the Tribunal, summoned by the Commissioner to appear and give evidence in the hearing of this application. In summary, Mr Collins' evidence before the Tribunal was as follows:

•

Mr Collins started his career with the Australian Taxation Office, where he worked for 13 years, during which time he studied part-time to obtain a Bachelor of Business degree from Edith Cowan University. After that,Mr Collins taught at TAFE for 2 years. Mr Collinsthen became a registered tax agent and purchased an accounting practice, in which he has worked for the past 16 years.

•

To his best recollection, Mr Barrow has been Mr Collins' client since about 2005, during which period he has prepared and lodged Mr Barrow's BASs (including his fuel tax credits claims) and his income tax returns.

•

According to Mr Collins, Mr Barrow would periodically bring all of his receipts for his fishing business expenses (e.g. diesel fuel, mechanical repairs to his boats and vehicles, bait etc.) to Mr Collins' office. Mr Collins said that, on such occasions, he would routinely go through the various receipts with Mr Barrow (i.e. physically sighting the receipts) and separate them into different expense categories (such as fuel, repairs and maintenance, telephone, bait etc). Mr Collins stated that his next step was to add up the receipts in each separate expense category(using an adding machine or calculator) and record the totals for each expense categoryonto working papers which he would subsequently useto prepare and submit Mr Barrow's BASs electronically.

•

However, according to Mr Collins, all of Mr Barrow's receipts and his working papers had been destroyed as a consequence of his remote locked-up storage unit being flooded, where he had stored Mr Barrow's records in archive boxes, resulting in Mr Collins havingnodocumentary evidence to substantiate Mr Barrow's fuel tax credit claims.

•

At some point in time (around January 2009, to the best of Mr Collins' recollection), Mr Barrow stopped providing him with receipts for his fishing business expenses and, instead, provided Mr Collins with totals for each separate category of Mr Barrow's fishing expenses. As the figures provided by Mr Barrow were, in Mr Collins' opinion, "entirely consistent" with the previous expenses Mr Collin was "happy to accept [Mr Barrow's] additions as well as [his own]" without physically citing the actual receipts for those expenses.

•

Mr Collinsconfirmed that he prepared and lodged Mr Barrow's income tax returns for the income years ended, 30 June 2008, 2009 and 2010. In preparing those income tax returns, Mr Collins said that he did not "reinvent the wheel" but, rather, would prepare them using the summaries of income and expenditure previously prepared and used to lodge Mr Barrow's BASs in the tax periods concerned, including in respect of the post-January 2009 period when Mr Barrow began to collate and provide Mr Collins with his own totals for each category of expense (i.e. without having physically sighted Mr Barrow's receipts).

Extracts from Mr Barrow's income tax returns for the 2008 and 2009 income years

13. An extract from Mr Barrow's income tax return for the income year ended 30 June 2008 (Exhibit R1) shows that:

•

Mr Barrow's tax agent for the 2008 year was Mr Collins of J D Collins & Associates;

•

Mr Barrow's "main business or professional activity" in the 2008 year was "Fishing - Marine Nec";

•

the "Business name" of Mr Barrow's "main business" in the 2008 year was "Sea Barrow";

•

Mr Barrow's "Total business income" for the 2008 year was $76,290, comprising "Assessable govt ind payments" of $4,910 and "Other business income" of $71,380;

•

Mr Barrow's"Total expenses" for the 2008 year were $57,156, comprising "Bad debts" of $456, "Rent expenses" of $5,000, "Depreciation expenses" of $561, "Motor vehicle expenses" of $3,500 and "All other expenses" of $47,639; and

•

the "Net income" of Mr Barrow's business for the 2008 year was $19,134.

14. An extract from Mr Barrow's income tax return for the income year ended 30 June 2009 (Exhibit R1) reveals that:

•

Mr barrow's tax agent in the 2009 year was Mr Collins of J D Collins & Associates;

•

Mr Barrow's "main business or professional activity" in the 2009 year was "Fishing - Marine Nec";

•

the "Business name" of Mr Barrow's "main business" in the 2009 year was "Sea Barrow";

•

Mr Barrow's "Total business income" for the 2009 year was $65,231, comprised solely of "Other business income";

•

Mr Barrow's "Total expenses" for the 2009 year were $41,295, comprising "Depreciation expenses" of $2,145, "Motor vehicle expenses" of $3,750, "Repairs and maintenance" of $12,891 and "All other expenses" of $22,509; and

•

the "Net income" of Mr Barrow's business for the 2009 year was $23,936.

ISSUES

15. The mainissues for determination by the Tribunal in this review application are whether:

(i)

Mr Barrow purchased or otherwise acquired the amounts of diesel fuel claimed in the tax periods 1 July 2007 to 30 September 2009 (refer to the Table in paragraph 7 above). This is ultimately a matter of substantiation though the production of documentary evidence;

(ii)

Mr Barrowwas entitled to the net fuel amounts claimed in the tax periods 1 July 2007 to 30 September 2009 (refer to the Table in paragraph 7 above) as he used the diesel fuel purchased in his "fishing operations" (for the purpose of section 34(1) of the Energy Grants (Credits) Scheme Act 2003 ( EGCSA ) and, it follows, section 41-5 of the FTA); and

(ii)

the tax shortfall penalties relating to the shortfall arising from the relevant net fuel amount assessments(refer to the Table in paragraph 8 above) should be remitted in whole or in part.

These issues are considered, in turn, below.

LAW & ANALYSIS

(i) Whether Mr Barrow purchased or otherwise acquired the amounts of diesel fuel claimed in the tax periods 1 July 2007 to 30 September 2009 (refer to the Table in paragraph 7 above)

Record keeping requirements for fuel tax credit claims

16. Pursuant to section 382-5(1) and 382-5(2)(h) of Schedule 1 to the TAA Mr Barrow was required to keep records that recorded and explained all transactions and other acts he engaged in that were relevant to his claimed entitlement to fuel tax credits and was required to retain those records for at least 5 years after the completion of transactions or acts to which they related: see section 382-5(3) of the TAA.

17. The 5 year retention period begins on the day the relevant BASs were lodged: section 382-5(3)(b) and (d) of Schedule 1 to the TAA.

18. Section 382-5(8) of Schedule 1 to the TAA provides that the records kept must be such as to enable Mr Barrow's claimed net fuel amount entitlements to be readily ascertained.

19. Mr Barrow has not kept any such records. By failing to keep such records, Mr Barrow prima facie committed an offence pursuant to section 382-5(9) of Schedule 1 to the TAA.However, see the discussion in paragraphs 26 to 27 below.

Onus of Proof

20. In accordance with section 14ZZK(b) of the TAA,Mr Barrow has the burden of proving that the relevant net fuel amount assessments are excessive. This is because section 14ZZ(b)(i) of the TAA gives rise to a "rebuttal presumption of law that an assessment is not excessive": McCormack v Federal Commissioner of Taxation [1979] HCA 18; 143 CLR 284 at 314 per Jacobs J. See also Latham CJ in Trautwein v Federal Commissioner of Taxation (No1) [1936] HCA 77; 56 CLR 63 wherein Latham CJ commented (at 88) that an assessment is "prime facie right - and remains right until the appellant shows that it is wrong."

21. There is no requirement on the part of the Commissioner to show that the assessment(s) in question can be supported by evidence: Gauci v Federal Commissioner of Taxation [1975] HCA 54; 136 CLR 81 at 89 per Mason J andGalea v Federal Commissioner of Taxation [1990] FCA 456; 90 ATC 5060 at 5067 per Hill J. Further, the Commissioner is entitled to "rely upon any deficiency in proof of the excessiveness of the amount assessed to uphold the assessment": Federal Commissioner of Taxation v Dalco [1990] HCA 3; 168 CLR 614 at 624 per Brennan J.

22. In Nguyen and Commissioner of Taxation [2011] AATA 544 Senior Member O'Loughlin said (at [7]) that the evidence of the applicant should be approached critically and subject to careful scrutiny. Further, according to Senior Member Sweidan in Thorpev Federal Commissioner of Taxation [2011] AATA 638; 2011 ATC 10-203, 4,182 (at [23]), the Tribunal will usually insist on corroborative evidence before the sworn evidence of a taxpayer can be accepted.

23. The reason for this was explained by Hill J in Imperial Bottleshops Pty Ltd & Egerton v Federal Commissioner of Taxation [1991] FCA 276; 91 ATC 4546 at 4,552 as follows:

"A taxpayer who does not keep records of his deductible outgoings faces a very difficult task. If he goes into the witness box and swears that he has incurred the outgoings he is making a self-serving statement. That does not necessarily mean that he is not to be believed. Such a statement, like statements of purpose, or object or state of mind must, however, be "tested most closely, and received with the greatest caution": Pascoe v Federal Commissioner of Taxation (1956) 11 ATD 108 at 111. It would, of necessity, be a rare case indeed where a taxpayer, claiming to have expended a very large sum of money on trading stock and other business expenses, would succeed in satisfying the burden of proving that the assessment is excessive. Some other corroborative evidence would normally be required which makes it more probable than not that his sworn testimony is to be believed. It must, however, be borne in mind that the evidence of a taxpayer is not to be regarded as "prima facie unacceptable", cf McCormack v Federal Commissioner of Taxation [1979] HCA 18; (1978-9) 143 CLR 284 at 302 per Gibbs J."

Conclusion

24. The observations made by Hill J in Imperial Bottleshops are entirely apposite to this review application. Although Mr Barrow went into the witness box and swore under oath before the Tribunal that he purchased the diesel fuel claimed in his BASs in respect of the tax periods from 1 July 2007 to 30 September 2009 inclusive, Mr Barrow adduced no documentary evidenceto corroborate his sworn testimony.

25. However, Mr Barrow's evidence before the Tribunal was that the reason that he could not adduce any such documentary evidence was that, during the relevant period, he had periodically handed over all receipts for expenses associated with his fishing business (including his receipts for diesel fuel) to his tax agent, Mr Collins, in a "lunch box" and that Mr Collins no longer had those receipts as they had been destroyed when Mr Collins' storage facility, where those receipts had been archived, was flooded. In his evidence, Mr Collins confirmed that he no longer had any records relating to Mr Barrow's fishing business as they had all been destroyed when his storage facility was flooded.

26. Mr Collins' sworn evidence differed from Mr Barrow's evidence to the extent that Mr Collins' recollection was that, from about January 2009, Mr Barrow no longer provided him with receipts for his fishing business expenses but, rather, gave him total figures for each expense category. Mr Collins' said that those figures were "entirely consistent" with Mr Barrow's earlier expenses. That is, according to Mr Collins, from about January 2009 he no longer prepared Mr Barrow's BASs (which included Mr Barrow's fuel tax credit claims)or Mr Barrow's income tax returns having first physically sightedthe receipts for Mr Barrow's fishing business expenses. Instead, Mr Collins said that from that time he prepared Mr Barrow's BASs (and income tax returns) based entirely on figures provided to him by Mr Barrow. In contrast, Mr Barrow said that it was his practice throughout the relevant period to provide Mr Collins with receipts for his fishing business expenses.

27. It is difficult to say, based on the evidence before the Tribunal, whose version of events, for the post January 2009 period,is correct. If Mr Barrow's testimony is to be believed,Mr Barrow gave Mr Collins all receipts for his fishing business expenses in respect of the relevant period and those receipts were subsequently destroyed when Mr Collins' storage facility was flooded. In this case, Mr Barrow would not have committed an offence pursuant to section 382-5(8) of Schedule 1 to the TAA. However, if Mr Collins is to be believed, Mr Barrow has not produced and, it follows, did not retain any receipts for fishing business expenses (including, relevantly, diesel fuel) incurred by him in the post January 2009 period. In such circumstances, Mr Barrow would have committed an offence pursuant to section 382-5(8) of Schedule 1 to the TAA for a failure to retain appropriate records of his expenditure relevant to the post January 2009 period.

28. In any event, at least with respect to the tax periods from 1 July 2007 to 31 December 2008 the Tribunal considers that it may be inferred from Mr Collins' evidence that Mr Barrow did in fact purchase the fuel claimed in his BASs for those periods. That is, Mr Collins' evidence was that he had prepared Mr Barrow's BASs for those tax periods (including Mr Barrow's claims for fuel tax credits) having first sighted receipts for all of the expenses incurred (including diesel fuel). Mr Collins' evidence in this regard supports the evidence of Mr Barrow. As such, the Tribunal's view is that Mr Barrow has substantiated his fuel tax credit claims for the tax periods from 1 July 2007 to 31 December 2008 and has discharged his onus of proof that the Commissioner's net fuel amount assessments for those periods are excessive: McCormack, Trautwein, Thorpe and Imperial Bottleshops.

29. With respect to the final 3 tax periods in dispute (comprising 1 January 2009 to 31 March 2009, 1 April 2009 to 30 June 2009 and 1 July 2009 to 30 September 2009) the situation is, for the reasons expressed earlier, not so clear. Mindful of the cautionary words of Hill J in Imperial Bottleshops (referred to in paragraph 23 above), the Tribunal considers that it cannot, based on the conflicting evidence before it, find that Mr Barrow has substantiated his fuel tax credit claims for the tax periods from 1 January 2009 to 30 September 2009 or that he has discharged his onus of proof that the net fuel amount assessments,issued in respect of those periods, are excessive.

(ii) Mr Barrow's entitlement to the fuel tax credits claimed for the tax periods 1 July 2007 to 30 September 2009

Entitlement to fuel tax credits

30. Section 41-5 of the FTA provides that, if you are registered for goods and services tax, you are entitled to a fuel tax credit in respect of taxable fuel to the extent that you acquire the fuel for use in carrying on your enterprise. However, this entitlement may be affected by Part 3 of Schedule 3 of the Fuel Tax (Consequential and Transitional Provisions) Act 2006 ( FTCTPA ). Broadly, the FTCTPA provides for the phased implementation of the fuel tax credit system (from the energy grants credit scheme) effective 1 July 2006.

31. Item 10(5) of Schedule 3 to the FTCTPA states that you are not entitled to a credit under section 41-5 of the FTA unless you would have been entitled to an "off-road" credit under the EGCSA.

32. Section 53 of the Energy Grants (Credit) Scheme Act 2003 ( EGCSA ) provides that you can claim an energy grant if you are entitled to an off-road credit for diesel fuel you purchase for a 'qualifying' use. Use "in primary production" is a use that qualifies. "Primary production" is defined in section 21 of the EGSCA to include "fishing operations".

33. "Fishing operations" are defined in section 34(1) of the EGCSA and include "the taking, catching or capturing of fish" for the purposes of a carrying on a business.

34. Based on the evidence before it, the Tribunal is satisfied that Mr Barrow was engaged in "fishing operations" for the purposes of section 34(1) of the EGCSA (and section 41-5(1) of the FTA) in the period up until at least January 2009, albeit without a commercial fishing licence from about April/May 2007 (when Mr Barrow's commercial fishing licence expired and was not renewed by him). Consequently, Mr Barrow was entitled to claim the fuel tax credits that he did in that period.

35. However, in relation to the period from about January 2009, Mr Barrow has, as discussed above, been unable to substantiate, by way of documentary or other corroborative evidence, the quantum of diesel fuel purchased by him for use in his fishing operations (and net fuel amounts claimed) in the period from about January 2009 to 30 September 2009.

(iii) Remission of penalties in whole or in part

36. Section 284-75(1) of Schedule 1 to the TAA imposes a penalty for a tax shortfall amount resulting from an omission or statement that was false or misleading. Broadly, the behaviour or combination of behaviours that caused the relevant tax shortfall amount determines the amount of penalty payable. Where there is a shortfall amount and part or all of it is caused by the failure of the taxpayer or a registered tax agent to take reasonable care to comply with a taxation law (other than excise laws), the taxpayer is liable to a penalty of 25% of the amount of the shortfall, or part of the shortfall, as appropriate: item 3 of section 284-90(1) of Schedule 1 to the TAA. Mr Barrow's penalties, for the shortfalls arising from the Commissioner's net fuel amount assessments (dated 12 February 2010) in respect of the tax periods from 1 July 2007 to 30 September 2009, were imposed pursuant to these provisions.

37. The Commissioner has the discretion to remit an administrative penalty in whole or part pursuant to section 298-20 of Schedule 1 to the TAA. This discretion has been held to be unlimited, provided it is exercised within the boundaries of the subject matter, scope and purpose of the legislation: Federal Commissioner of Taxation v Burness 2009 ATC 20-135. See alsoFederal Commissioner of Taxation v Dixon 2008 ATC 20-015.

38. As discussed above, based on the evidence before it, the Tribunal is satisfied that Mr Barrow was engaged in "fishing operations" for the purposes of section 34(1) of the EGCSA (and section 41-5(1) of the FTA) in the period up until at least January 2009, albeit without a commercial fishing licence from about April/May 2007 and was therefore entitled to claim the fuel tax credits that he did in respect of that period. Further, for the reasons provided above, the Tribunal's view is that Mr Barrow substantiated his fuel tax credit claims for the tax periods from 1 July 2007 to 31 December 2008 and discharged his onus of proof that the Commissioner's net fuel amount assessments for those periods are excessive: McCormack, Trautwein, Thorpe and Imperial Bottleshops. Consequently, the Tribunal considers that the tax shortfall penalties imposed on Mr Barrow in relation to the pre January 2009 tax periods should be remitted in full.

39. However, as the Tribunal is not satisfied on the evidence before it thatMr Barrowsubstantiated the net fuel amounts claimed by him in the 3 tax periods, from 1 January 2009 to 30 September 2009 (being 1 January 2009 to 31 March 2009, 1 April 2009 to 30 June 2009 and 1 July 2009 to 30 September 2009, respectively) it cannot be satisfied that Mr Barrow has not made false or misleading statements for the purposes of section 284-75(1) of Schedule 1 to TAA in his BASs in relation to net fuel amounts claimed in those periods. Accordingly, the penalties in respect of those 3 tax periods should not be remitted pursuant to section 298-20 of Schedule 1 to the TAA.

40. In such circumstances it follows that the Tribunal cannot be satisfied that Mr Barrow's conduct in claiming thenet fuel amounts in respect of the 3 tax periods from 1 January 2009 to 30 September 2009 did amount to, at the very least, a failure to take 'reasonable care' to comply with relevant tax laws. As such, the appropriate base penalty amount for the purposes of section 284-90 of Schedule 1 to the TAA is, in each case, equal to 25% of the relevant tax shortfall amounts.

DECISION

41. For the above reasons, the Tribunal:

(i)

sets aside the Commissioner's objection decision (dated 14 October 2011),and allows Mr Barrow's objection to that objection decision, so far as it relates to:

(a)

the amended energy grants credit scheme claim assessments (dated 8 February 2010 and issued pursuant to section 20 of the PGBA);

(b)

the tax shortfall penalty assessment of $1,535.34, relating to the shortfall arising from the said amended energy grants credit scheme claim assessments (dated 12 February 2010 and issued pursuant to section 298-30 of Schedule 1 to the TAA);

(c)

the net fuel amount assessments for the tax periods from 1 July 2006 to 31 December 2008, inclusive (dated 12 February 2010 and issued pursuant to section 105-5(1)(b) of Schedule 1 to the TAA);and

(d)

the tax shortfall penalty assessment, relating to the shortfall arising from the said net fuel amount assessments, for the tax periods from 1 July 2006 to 31 December 2008, inclusive (dated 12 February 2010 and issued pursuant to section 298-30 of Schedule 1 to the TAA); and

(ii)

affirms the Commissioner's objection decision (dated 14 October 2011) so far as it relates to:

(a)

the net fuel amount assessments for the 3 tax periods from 1 January 2009 to 30 September 2009, inclusive (dated 12 February 2010 and issued pursuant to section 105-5(1)(b) of Schedule 1 to the TAA); and

(b)

the tax shortfall penalty assessment, relating to the shortfall arising from the said net fuel amount assessments, for the 3 tax periods from 1 January 2009 to 30 September 2009, inclusive (dated 12 February 2010 and issued pursuant to section 298-30 of Schedule 1 to the TAA).