Knnw v Commissioner of Taxation
[2014] AATA 691KNNW
vCommissioner of Taxation
Member:
Senior Member F D O'Loughlin
Subject References:
Relief from taxation debt
serious hardship
whether there is serious hardship
if there is serious hardship whether discretion to release ought be exercised
decision affirmed
Legislative References:
Taxation Administration Act 1953 (Cth) - Schedule 1, s 340-5
Case References:
Balens and Commissioner of Taxation - [2013] AATA 203
Berryman v Commissioner of Taxation - [2005] AATA 918
Corlette v Mackenzie - (1996) 62 FCR 597
Fay and Commissioner of Taxation - [2013] AATA 504
Milne and the Commissioner of Taxation - [2005] AATA 633
Neimanis and Commissioner of Taxation - [2012] AATA 814
Nicholls v Commissioner of Taxation - [2011] AATA 189
O'Reilly and Commissioner of Taxation - [2009] AATA 235
Powell v Evreniades - (1986) 21 FCR 252
Re Adams, Stephen and Commissioner of Taxation - [2010] AATA 744
Re Bak and Commissioner of Taxation - [2008] AATA 630
Re Filsell and Commissioner of Taxation - [2004] AATA 1012
re Peter Alexander Lipthay and Commissioner of Taxation - [2005] AATA 224
Re Robert Fox and Commissioner of Taxation - [2005] AATA 766
Rollason v Commissioner of Taxation - [2006] AATA 962
The Federal Commissioner of Taxation v Milne - [2006] ATC 4503
Vagh and Commissioner of Taxation - [2007] AATA 32
Van Greieken v Veilands - (1991) 21 ATR 1639
Giris Pty Ltd v Federal Commissioner of Taxation - (1969) 119 CLR 365
Federal Commissioner of Taxation v GM Swift & Ors - 89 ATC 5101
Case U204 - 87 ATC 1138
Decision date: 22 September 2014
Melbourne
Decision
63. The objection decision under review is affirmed.
| Dates of hearing | 21 July, 8 August & 1 September 2014 |
| Applicant | In person |
| Advocate for the Respondent | Mr W Stewart |
| Solicitors for the Respondent | ATO Dispute Resolution |
Taxation Administration Act 1953 (Cth)
To his discredit, the Commissioner advanced the proposition that this was a preference to another creditor which should weigh against an exercise of any discretion to release the Applicant. That contention was withdrawn during the hearing.
See, for example, Powell v Evreniades (1986) 21 FCR 252 at 258 per Hill J., Re Filsell and Commissioner of Taxation [2004] AATA 1012 at [13] and Re Adams, Stephen and Commissioner of Taxation [2010] AATA 744 at [25].
(1986) 21 FCR 252 at 258.
Income Tax Assessment Act 1936 (Cth)
See Van Greieken v Veilands (1991) 21 ATR 1639 at 1646 per Gummow J
See Corlette v Mackenzie (1996) 62 FCR 597 at 600, where Einfeld J indicated his support for the Relief Board's practice of treating an inability to provide for the necessities of life as the relevant standard for financial hardship, and Nicholls v Commissioner of Taxation [2011] AATA 189 at [5].
O'Reilly and Commissioner of Taxation [2009] AATA 235 at [22].
Fay and Commissioner of Taxation [2013] AATA 504 at [28] referring to Ferguson v Federal Commissioner of Taxation [2004] AATA 779.
O'Reilly and Commissioner of Taxation [2009] AATA 235 at [20].
Re Bak and Commissioner of Taxation [2008] AATA 630 at [16].
Van Grieken v Veilands & Ors (1991) 21 ATR 1639 and Neimanis and Commissioner of Taxation [2012] AATA 814 at [35].
Corlette v Mackenzie (1996) 62 FCR 597 at 598 per Wilcox J with whom Einfeld and Foster JJ agreed.
Corlette v Mackenzie (1996) 62 FCR 597 at 599/600 per Wilcox J with whom Einfeld and Foster JJ agreed.
Balens and Commissioner of Taxation [2013] AATA 203 at [31], re Peter Alexander Lipthay and Commissioner of Taxation [2005] AATA 224 at [20], Re Robert Fox and Commissioner of Taxation [2005] AATA 766 at [20], Vagh and Commissioner of Taxation [2007] AATA 32 at [47], and Berryman v Commissioner of Taxation [2005] AATA 918 at [13].
Unreported Milne and the Commissioner of Taxation [2005] AATA 633 at [20] and [21] referred to in The Federal Commissioner of Taxation v Milne [2006] ATC 4503 at [19]; Rollason v Commissioner of Taxation [2006] AATA 962 at [34].
(1969) 119 C.L.R. 365.
89 ATC 5101 and before that at Case U204 87 ATC 1138.
Assuming his after tax base salary entitlement for the month of March 2014 ($7,789) was representative of the three months.
Paid on 30 April 2014.
Assuming the Applicant does not secure ongoing work with the result that only his wife's and his children's earnings are recognised.
Assuming the Applicant does secure ongoing work with the result that $5,102.77 is added to his wife's and his children's earnings to be recognised.
Tab 26 'Summary'.
As at 17 July 2014.
Taken out on 21 August 2007 and with a present outstanding amount at 27 May 2014 of $482,055.88, see ST1/4/17
Includes Home loan of $375,448.57DR outstanding, Home equity loan account 113 of $42,941.47DR and Home equity loan account 114 of $64,392.96DR, see DAY 2 book TAB 8/1
ST1/436.
ST1/442
ST1/439
ST1/435 but see now ASD 13/1
DAY 2 Book TAB 8/1 and, as at 2 June the Applicant stated it had a balance $1,500 ST1/420. As of 27 May 2014 this a/c had a balance of $345.05. When the Applicant lodged his first SFIC on 14 March 2014 the balance was, on 27 February 2014, $35.30.
ST1/420, however, as at 28 May 2014, this account had a balance of $127.16 [ST1/449]
DAY 2 Book TAB 28/1
Balance for all children.
T18-88 - estimate only, no documentary evidence provided. Applicant's estimate used for the purposes of these calculations.
T18-88 - estimate only, no documentary evidence provided. Applicant's estimate used for the purposes of these calculations. Although owned by family trust, the Applicant controls the family trust and its assets are at his disposal.
Internet search on 4 August 2014 shows 'on the house.com.au' gives a guesstimate value of the property of between $931,000 and $1,049,000.
ST1/418 on 11 May 2014 c.f. Transcript Day 2, p 12,[40] with a further $3,500 expended in repairs equalling expenditure of $8,000.