Apted v FC of T

Members:
DG Thomas P

BJ McCabe DP

Tribunal:
Administrative Appeals Tribunal, Brisbane

MEDIA NEUTRAL CITATION: [2020] AATA 5139

Decision date: 21 December 2020

Justice DG Thomas (President) and BJ McCabe (Deputy President)

1. The applicant in these proceedings applied for a Jobkeeper payment, which is a Coronavirus economic response payment authorised under rules created pursuant to the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) ( the CERP Act ). The applicant submits he has satisfied all the eligibility criteria set out in s 11 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) ( the Rules ), which govern the payment. The Commissioner of Taxation, who administers the Rules, agrees the applicant has complied with all of the criteria in s 11(1), but points to one criterion that he claims has not been satisfied: the Commissioner says the applicant did not have an active Australian Business Number ( ABN ) within the timeframe contemplated by the legislation.

2. The requirement to have an active ABN is described as an integrity rule. It is contained in s 11(6) of the Rules, which provides:

Integrity Rule

(6) An entity is not entitled to a jobkeeper payment under this section unless the entity had an ABN on 12 March 2020 (or a later time allowed by the Commissioner), and the requirement in subsection (7) and (8) is satisfied.

3. The requirements in sub-sections (7) and (8) are not in issue here. The dispute in these proceedings revolves around whether the applicant had an ABN on 12 March 2020 and, if he did not, whether a later time should be allowed by the Commissioner. The answer to the first question turns on our interpretation of s 11(6) and the provisions of the A New Tax System (Australian Business Number) Act 1999 (Cth) ( the ABN Act ). The applicant acknowledges he did not have an active ABN when he made the application to the Commissioner on 20 April 2020 but he subsequently arranged for his old ABN to be reactivated. Importantly, for present purposes, he persuaded the Registrar of the Australian Business Register ( ABR ) to determine the registration of the ABN had a date of effect in 2019 (i.e. before 12 March 2020).

4. The second question only arises if we decide against the applicant on the first. The second question is complicated because the Commissioner says the exercise of the discretion does not form part of the reviewable decision. If he is right, the Tribunal does not have jurisdiction to review the Commissioner's refusal to exercise the discretion. The applicant's only remedy would be to seek judicial review. The applicant says the Commissioner's decision is reviewable before the Tribunal. The applicant argues the discretion ought to be exercised in his favour.

5. The question over whether the exercise of the Commissioner's discretion is reviewable has arisen in a number of other cases currently before the Small Business Taxation Division of the Tribunal. It also arises in other related contexts where the legislation invests the Commissioner with a similar discretion. With that in mind, the Tribunal agreed to treat these proceedings as a test case.

6. For reasons we will explain, we are satisfied:

  • (a) The applicant did have an ABN on 12 March 2020 for the purposes of the Rules;
  • (b) If we are wrong about (a), the Commissioner's exercise of the discretion is in any event reviewable before the Tribunal in these proceedings; and
  • (c) If we are wrong about (a) and right about (b), the discretion should be exercised in the applicant's favour.

The applicant's business

7. We should begin our discussion by noting s 14ZZK(b)(ii) of the Taxation Administration Act 1953 (Cth) ( the Administration Act ) requires the applicant in these proceedings to establish the decision under review should have been made differently.

8. As it happens, the parties are largely in agreement about the facts. There is no real dispute as to what the applicant did, or that he has satisfied the criteria in s 11(1) of the Rules. Our factual findings are mostly derived from the applicant's statement dated 20 October 2020. The statement was admitted into evidence without objection, and the applicant was not required for cross-examination. We have no reason to dispute his account, and we accept it.

9. The applicant is Mr Jeremy Apted. Mr Apted has enjoyed a long career providing property and real estate services. He has been a licenced real estate agent and was a Fellow of the Royal Institute of Chartered Surveyors. He has also been a registered valuer since 1991. His registration notes he is a specialist retail valuer.

10. Mr Apted worked for a number of well-known firms during the earlier part of his career. He subsequently established Apted Property Services in 2012. The business initially provided a range of real estate services including real estate valuation services.

11. When Mr Apted established Apted Property Services in 2012, he operated as a sole trader. He obtained an ABN for that purpose ( ABN *768 ). In early 2013, his wife was formally introduced into the business. Mr and Mrs Apted began operating the business as a partnership. ABN *768 was cancelled and a new ABN was obtained ( ABN *590 ). The partnership was dissolved on 1 August 2014 and ABN *590 was cancelled. On 1 August 2014, Mr Apted resumed conduct of the existing business as a sole trader under ABN *768. The old ABN was reactivated on the ABR with a date of effect of 1 August 2014. Mr Apted was also registered for goods and services tax ( GST ) on 2 August 2014.

12. Over time, Mr Apted came to focus on rental disputes which might make their way to the Retail Shop Leases Tribunal where he would give evidence as an expert valuer. He said he did not do many small jobs. He also relinquished some of the other licences and affiliations which became superfluous to his work, including the real estate licence. He maintained a website and his wife assisted with the administration of the business. His business does not have any employees.

13. Mr Apted decided to retire in 2018. As he explained in his statement (at [17]):

At the time my expectation and intention was to retire and never be gainfully employed again. However, I was cognisant of the fact that I could restart my business at some time in the future if the financial need arose given my expertise and reputation. Also, I maintained contact with associates from the real estate industry and retained my registration as a valuer and specialist retail valuer. I retained those registrations notwithstanding my intention to retire and never be gainfully employed again, because it was inexpensive to do so and provided a back-up if I ever did need to work again.

14. Mr Apted said he did not accept new work after July 2018. On 28 August 2018, he cancelled his GST registration. He said he anticipated he would make substantially less than $75,000 in turnover in the 2018-2019 financial year as the business wound down, so there was little point in remaining registered. On 28 August 2018, he also advised the Registrar of the ABR that he had ceased his business and wished to cancel his ABN registration with effect from 4 June 2018. When he filed his income tax return for the year ended 30 June 2019, he reported net business income of $4738 from his former business.

15. Retirement did not suit Mr Apted. He recalled lunching with former colleagues and business associates in June 2019. They encouraged him to accept some new work. He was contacted soon after by a potential client and he was engaged to provide valuation services in September 2019. He let it be known that he was available to accept new referrals although he decided to focus on retail rental valuations.

16. Mr Apted said he did not apply to have his ABN reactivated in mid-2019 when he resumed his business. He explained in his statement that he thought he was only required to have an ABN if he was to be registered for GST; since he did not anticipate making more than $75,000 per year, he did not think he needed to be registered for GST. He said he did not appreciate that, in the absence of an ABN, his clients would be required to withhold amounts from his fees and remit them to the Commissioner. He said the misapprehension arose because he did not obtain proper advice from a tax adviser - although he pointed out none of his clients withheld any amounts from his fees in the absence of an ABN: applicant's statement at [30].

17. On 31 March 2020, Mr Apted applied online to have his ABN reinstated. He recalled confirming to the Registrar that he had resumed his business as a sole trader. He supplied all the information required by the Registrar and was subsequently informed ABN *768 was reinstated in the ABR with a date of effect of 31 March 2020: Supplementary Tribunal Documents ( ST ) at pp 3-4.

18. We were told Mr Apted contacted the Registrar by telephone on or about 10 June 2020 to discuss the date of effect of his registration. After making representations about his business history, the Registrar confirmed the ABR was adjusted or corrected to show ABN *768 was registered with a date of effect of 1 July 2019 - that is, on or about the date when the applicant had resumed trading. (The information is not contained in Mr Apted's statement but we understand there is no dispute over what occurred.)

19. The most recent iteration of the business has generated modest amounts of income. In the year of income ending 30 June 2020, Mr Apted's income tax return reports business income of $7746. Mr Apted confirms his work continues to focus on the retail sector where rental disputes might arise, and the retail sector has been badly impacted by the Coronavirus. In any event, the work is irregular: it is dependent on market circumstances. Mr Apted says he has continued looking for fresh referrals and remains active in the industry in the hope of securing work. In his statement, he said he had recently received two new referrals.

The Jobkeeper measures

20. Earlier this year, the Commonwealth government announced a package of measures to assist businesses to deal with the disruption caused by the Coronavirus pandemic. The package was necessarily assembled quickly in response to the unfolding disaster. The legislative package under consideration here is comprised of the CERP Act, which is the enabling legislation, and the Rules, which are contained in an instrument issued by the Treasurer pursuant to s 7 of the CERP Act. (We will come to the detail of the Rules below.) Section 13(1) of the CERP Act provides:

An entity who is dissatisfied with a decision covered by subsection (2) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.

21. We pause to note that a taxpayer who is dissatisfied with the outcome of the objection may appeal to the Federal Court of Australia or - provided it is a reviewable objection decision - apply to the Tribunal for review: s 14ZZ of the Administration Act.

22. Section 13(2) of the CERP Act identifies the specific decisions made in the administration of the scheme that may be the subject of objection - and which may therefore be the subject of review before the Tribunal. Of particular relevance here, s 13(2)(a) identifies "a decision that the entity is not entitled to a Coronavirus economic response payment for a period" as a decision that gives rise to rights of objection and subsequent review under Part IVC of the Administration Act.

23. An entity's entitlement to a payment is determined having regard to the criteria in the Rules. The principal criteria are contained in s 11(1). Subsections (6)-(8) include what is described as an 'Integrity rule' which operates to exclude or disentitle otherwise eligible applicants. Relevantly, subsection (6) provides that an entity is not entitled to the payment "unless the entity had an ABN on 12 March 2020 (or a later time allowed by the Commissioner)...". The Rules treat the existence of an active ABN as an integrity measure that excludes entities which are not conducting an active business from accessing the payments even thought they might satisfy the other criteria. In that sense, the requirement that the entity hold an ABN serves as a kind of proxy which promotes achievement of the ultimate policy objective. That objective is apparent in s 3 of the CERP Act, and from the legislative scheme as a whole: to provide targeted assistance to active businesses in order that they might cope with and survive the short-term impact of the Coronavirus on those businesses.

Mr Apted's application for Jobkeeper payments and the objection process

24. The applicant lodged an application for a Jobkeeper payment on 20 April 2020. On 6 May 2020, the Commissioner responded by email to inform the applicant he was not eligible for the Jobkeeper payment as he:

  • Did not register for an ABN on or before 12 March 2020, or
  • Registered for an ABN on or before 12 March 2020 and applied a later start date.

25. The email invited the applicant to contact the Australian Taxation Office if he believed he had been incorrectly assessed. On 7 May 2020, Mr Apted wrote to the Commissioner on letterhead that featured his by-then active ABN. He explained the ABN had been cancelled in 2018 but confirmed the ABN had since been reactivated with a date of effect of 31 March 2020. On 8 May 2020, Mr Apted completed a form titled 'Jobkeeper application for Commissioner's discretion in respect of an eligible business participant'. A copy of the form is exhibited to Mr Apted's statement. The Commissioner responded with a decision contained in a letter dated 22 May 2020. The letter is reproduced at ST p 7. It says:

...

You aren't eligible for JobKeeper

...

On 8 May 2020, you applied for the Commissioner to exercise his discretion to allow an entity further time to meet certain eligibility requirements for the JobKeeper payment.

Our decision

You aren't eligible for JobKeeper because you had no ABN on 12 March 2020.

Reasons for our decision

You requested further time to meet the requirement to have had an ABN on 12 March 2020.

We haven't granted your request for further time because your ABN was not active as at 12 March 2020. Your ABN was cancelled as you advised you had ceased sole trader activities.

More recently you have conducted business activities without an active ABN although you were entitled to hold one. Operating a business without an ABN has adverse tax consequences such as no-ABN withholding, which may result in tax being withheld from certain payments to you at a rate as high as 47%.

One of the requirements of JobKeeper eligibility is that you hold an active ABN, as you had not satisfied this requirement and the re-activation occurred after this date, you have not met the eligibility criteria.

If you don't agree with our decision you may object to it within 60 days. You need to include a detailed explanation of why you think our decision is wrong in your objection. For more information on lodging an objection visit ato.gov.au/howtoobject

...

26. As a general rule, form does not dictate the substance of the decision-making process. Even so, three things should be noted about the interaction between the applicant and the Commissioner. First, the Commissioner required that the applicant complete a separate application form to request the exercise of the discretion. That indicates the Commissioner regarded the two decisions as being separate and distinct. Second, the decision was expressed as a conclusion on the applicant's eligibility for Jobkeeper, noting in the reasons that the Commissioner had not granted the request for further time for activating the ABN. Expressing the decision in that way may suggest there was ultimately only one decision being made - as to eligibility - albeit involving two steps, not two decisions. Third, the letter expressly mentions the right to lodge an objection to the decision. The reference to appeal rights does not distinguish between the eligibility and discretionary elements of the decision.

27. Mr Apted lodged an objection in the required form on 10 June 2020. He pointed out in his objection that the ABN had already been amended to show his ABN was registered with a date of effect of 1 July 2019. On 15 June, he wrote to the Commissioner to confirm the argument he was making. He explained:

With the benefit of hindsight and a better understanding of the Australian Business Register, on 31 March 2020, the date when I updated my ABN details, I should have nominated 1 July 2019 as being the date when the ABN was active. Re activation is from 1 July 2019 not 31 March 2020. My application for the Commissioner's discretion (dated 8 May 2020) was not necessary as I was not registering for an ABN.

I would like to reiterate that my business was active prior to 12 March 2020 and the ABN records have been corrected to show the status as being active from 1 July 2019. My business is also registered with ASIC with a renewal date of 8 August 2020.

28. The Commissioner did not allow the objection. In his reasons for the objection decision, he concluded the applicant "did not meet the eligibility requirements for JobKeeper - Business Participant". In the course of his reasons, the Commissioner acknowledged:

In limited and exceptional circumstances, we have the discretion to allow additional time to obtain an ABN or lodge the returns. This discretion is narrow and does not allow for the substitution of lodgement periods or any other exemption from the Rules.

29. After recounting the history we have already discussed, the reasons for decision explained:

Although the effective date of your ABN has been back dated, this does not change the fact that on 12 March 2020, you did not have an active ABN. Rather, you have reactivated an otherwise dormant ABN.

30. Under the heading "Conclusion", the reasons for decision say:

We have determined that you do not meet the eligibility requirements to receive a JobKeeper payment for a business participant.

Therefore, you are not eligible to claim JobKeeper for a business participant.

31. The document then proceeds to discuss the exercise of the Commissioner's discretion to allow extra time under the heading "Commissioner's Discretion". The discussion begins with a caveat:

This section does not form part of your objection decision as the application of the Commissioner's discretion in relation to JobKeeper does not carry objection rights nor does it form part of your objection decision.

32. The document goes on to provide reasons why the Commissioner decided not to exercise the discretion. Curiously, the principal reason for not exercising the discretion appeared to be that the applicant did not hold an ABN as at the relevant date.

Did the applicant have an ABN on 12 March 2020?

33. That brings us to the first question we must decide. The Commissioner says the words of s 11(6) create a requirement that the applicant actually have an active ABN on 12 March 2020. The Commissioner points out a person who accessed the ABR on 12 March would have observed there was no active ABN recorded for the applicant at that time. The Commissioner says it is irrelevant that the applicant might have registered the ABN at a later time, and it makes no difference if that later registration (or reactivation in this case) had a date of effect earlier than 12 March. The Commissioner argues the words of the subsection clearly contemplate a point-in-time assessment that is not affected by subsequent entries on (or adjustments to) the ABR.

34. The Commissioner argued this interpretation made sense if one appreciates s 11(6) is an integrity rule directed to ensuring assistance targeted active businesses. Mr Livingston, who appeared for the Commissioner, explained in written submissions (at [32]) that the integrity rule:

...would be subverted if s 11(6) were construed in a manner which permitted a new business to be established, or an inactive business to be revived, for the purpose of obtaining the benefits of the JobKeeper scheme.

35. Mr Livingston went on to explain that any arbitrary or unfair outcome that resulted from the application of a point-in-time test could be addressed through the exercise of the Commissioner's discretion to allow a later date. He said there would be little point to the exercise of the discretion if one could avoid the operation of the substantive rule by seeking an amendment of the ABR.

36. Mr Livingston also referred to the Explanatory Statement that accompanied the Rules dated 9 April 2020. The Explanatory Statement, at p 22, observes in relation to the discretion embodied in s 11(6):

This discretion is only able to be exercised by the Commissioner for unintended situations where the entity was running an active business prior to 12 March 2020 but was not required to have an ABN to operate it.

37. The courts have made clear that statutory interpretation begins with the language actually used having regard to the context of the statute as a whole. Where the statute forms part of a suite of statutes that interact, as here, those other statutes form part of the context. One may only resort to the explanatory statement to assist in interpreting the words of a statute where doubt remains after undertaking a textual analysis of the statutory language. We do not think doubt remains in this case. We are satisfied the interpretation issue can be resolved without referring to extrinsic material. Having said that, we are satisfied the text of the Explanatory Statement reinforces our conclusion.

38. The applicant's argument refers to the operation of the ABN Act. Section 3 of the ABN Act explains the purpose of the ABN Act and the ABN. Section 3(1) provides:

Main object

  • (1) The main object of this Act is to make it easier for businesses to conduct their dealings with the Australian Government. This is done by establishing a system for registering businesses and issuing them with unique identifying numbers so that they can identify themselves reliably:
    • (a) in all their dealings with the Australian Government; and
    • (b) for all other Commonwealth purposes.
  • (2) Without limiting paragraph (1)(b), the main object of this Act includes allowing businesses to identify themselves reliably for the purposes of *taxation laws.

39. Ms Horan, counsel for the applicant, says the reference to 'taxation laws' in s 3 clearly extends to the CERP Act and the Rules. She also points out s 28(2) of the ABN Act says the Commissioner is the Registrar of the ABR. She argues the operation of the ABN legislation is of central relevance to the question before us - all the more so because the Treasurer decided to use the existence of an ABN as an integrity rule. Ms Horan says a detailed examination of the provisions of the ABN Act is the key to deciding the first question before us.

40. Section 8(1) of the ABN Act says an entity other than a company registered under the Corporations Act 2001 (Cth)[1] Section 8(2) of the ABN Act says “A Corporations Act company is entitled to have an Australian Business Number”. is entitled to an ABN if (and, by implication, only if):

  • (a) [the entity is] *carrying on an *enterprise in *Australia or,
  • (b) in the course or furtherance of carrying on an enterprise, [the entity] make[s] *supplies that are *connected with the indirect tax zone."

41. The Registrar is entitled to ask for information that he requires in order to be satisfied the entity is entitled to an ABN: s 10(2). Once the Registrar is satisfied an entity is entitled to have an ABN and that it has otherwise satisfied the requirements, s 10(1) requires the Registrar to register the ABN. The mechanics of the registration process are dealt with in s 11. Section 11(1) provides for the allocation of an ABN and the entry of the ABN, the entity's name and the 'date of effect' of the registration in the ABR. The applicant says the 'date of effect' is of central importance for present purposes. Section 11(2) provides:

The date specified as the date of effect of your registration may be any date (including a date before your application for registration was made).

42. We will return to the significance of the 'date of effect' below. But first we should mention s 18, which deals with cancellation of an ABN where the Registrar becomes aware the entity is no longer entitled to have an ABN. In that event, the Registrar must determine the date of effect of the cancellation and note that date on the ABR. (In this case, the applicant's ABN was cancelled in 2018 after he informed the Registrar on 28 August 2018 that he had ceased trading. The Registrar determined the date of effect was 4 June 2018 because that was the date the applicant had ceased trading, as opposed to the date on which the applicant had given notice to the Registrar.) We should also mention s 19 which permits the Registrar to reinstate an entity's registration if the Registrar is satisfied the registration should not have been cancelled. In that event, s 19(3) says ["t]he reinstatement has effect on and from the day on which the registration was cancelled".

43. We should also mention s 21 of the ABN Act. It declares a range of decisions made by the Registrar under the legislation to be reviewable decisions, including:

  • • a decision under s 11(1) setting the date of effect of registration;
  • • a decision under s 13(1) refusing to register an applicant for an ABN;
  • • a decision under s 18 to cancel or not cancel an ABN.

Any of these reviewable decisions may be the subject of an objection under Part IVC of the Administration Act. As we have already explained, objection decisions may find their way to the Tribunal for review.

44. Section 21 of the ABN Act is important because it underlines the seriousness of the ABN registration process. The ABN Act contemplates that the Registrar - the Commissioner in another guise - will actively turn his mind to whether (and from which date) an individual should be registered. Those decisions must be based on evidence, and be defensible in the course of a review process, because of their serious implications for businesses.

45. There is some confusion about precisely which power the Registrar was exercising when he purported to reinstate the applicant's ABN in response to Mr Apted's online application for reinstatement on 31 March 2020. There is no suggestion that the Registrar's cancellation of the ABN in 2018 was a mistake, so it is unclear how s 19 is engaged. Having said that, the Registrar did not reinstate the registration from the date of cancellation. Ms Horan says we do not have to go behind the decision, not least because s 27(1) of the ABN Act provides:

The Australian Business Register is admissible in proceedings as prima facie evidence of the matters registered in it.

46. There is one further provision which we must mention. Section 29A authorises the Registrar to adjust the details recorded in the ABR if the Registrar is satisfied those details are incorrect. The Registrar was presumably exercising this power when he changed the date of effect of the applicant's (reactivated) ABN to 1 July 2019 in response to the historical information provided by Mr Apted over the telephone on or about 10 June 2020.

47. Ms Horan said the Registrar's (adjusted) determination of the date of effect is critical. She argues the date of effect of registration is a matter of fact that is resolved by the Registrar having regard to the criteria and evidence before him. She argues there is no reason evident in the Rules why the Commissioner would not simply adopt that decision - particularly given:

  • • s 28(2) of the ABN Act says the Commissioner is the Registrar, which suggests a measure of comity might be expected in decision-making; and
  • • the clear intention of the ABN Act is that the ABN (and therefore the determinations of the Registrar) could be used authoritatively in dealings with the government, including - perhaps especially - in relation to the administration of taxation laws: see s 4 of the ABN Act.

48. We agree, but there is more to the argument. The integrity rule in s 11(6) promotes the integrity of the Jobkeeper scheme - a scheme intended to provide support to active businesses that experience Coronavirus-related challenges - by requiring that entities have an ABN as a condition of eligibility. The ABN requirement is effective as an integrity measure because an entity would only be entitled to an ABN if they had satisfied the Registrar they were (relevantly) "carrying on an enterprise in Australia". In other words, the Rules seek to ensure the integrity of the Jobkeeper payments process by reference to a proxy - the ABN registration process that is managed by the Commissioner in his capacity as Registrar.

49. The integrity rule in s 11(6) of the Rules understandably assumes a level of confidence in the integrity of the ABN registration process. That process includes a determination by the Registrar of the date of effect - a determination that is ultimately reviewable before the Tribunal. The ABN Act explicitly authorises the Registrar to determine a date of effect that predates the application for registration where he is satisfied it is appropriate to do so. A proper reading of the Rules does not suggest the Treasurer intended to rely on the ABN registration for a limited purpose on a particular date. Having placed his faith in the process as an integrity measure, there is no reason to suppose the Treasurer did not intend to repose trust in the Registrar's determination as to the date of effect of the ABN registration (or reactivation, as the case may be) even where that date of effect is determined, ex post, to precede the date of application to the Registrar

50. Mr Livingston, for the Commissioner, ventured that the ABN registration process might not be as rigorous as one would hope. To the extent he pressed the submission, we think it surprising. The Registrar (the Commissioner in a different role) has information-gathering powers available to assist in determining that an entity is carrying on an enterprise in Australia - that is, whether the applicant is conducting an active business. That is presumably why the Treasurer settled on the existence of an ABN as an integrity measure. The Registrar is surely well-placed to determine when that business became active, and he is empowered to amend the ABR if he is satisfied there was an error or becomes aware that circumstances have changed. Given the purpose of the ABN that includes facilitating interaction with, amongst others, the Commissioner in relation to taxation laws we do not give any force to a submission that we should assume the registration process was not rigorous but rather would assume that the decisions were the product of careful deliberation as seems to be required under the ABN Act. Indeed, decisions of the Registrar to set the date of effect of an entity's registration or cancellation are reviewable decisions that give rise to objection rights under Part IVC of the Administration Act.

51. We do not accept the Commissioner's submission that the integrity rule in s 11(6) would somehow be subverted if the Commissioner were effectively bound by the Registrar's decision to determine an earlier date of effect in a case like this. The Commissioner worries that businesses which were not genuinely active might get access to the benefits under the Rules by belatedly applying for an ABN and convincing the Registrar to change the date of effect of their registration to a date prior to 12 March 2020. But that assumes the Registrar does not do his job according to requirements and satisfy himself of the very matters the Treasurer has assumed in the Rules that the Registrar would consider. We were certainly not provided with any evidence at the hearing to suggest the ABN registration process lacked integrity or rigour; in the circumstances, we are satisfied it is appropriate to assume it operates according to its terms.

52. We do not think that the interpretation of s 11(6) of the Rules which we prefer leaves less scope for the operation of the discretion. At a minimum, the discretion will still be available in cases where the Registrar's decision-making process has not been (or cannot be) appropriately engaged. The Explanatory Statement provides a relevant example. The Statement refers to entities that conduct businesses located in an external territory which are not affected by the no-ABN rules. The no-ABN rules include the requirement in s 12-190 of Sch 1 to the Administration Act that businesses must withhold amounts when dealing with an entity that does not have an ABN. If the GST is not imposed in an external territory, the no-ABN rules do not apply - which means there is no need for the entity to register an ABN. In such a case, the business owner would have no choice but to rely on the Commissioner's discretion.

53. As we shall see, there may yet be other situations where the discretion is available to provide relief against hardship or arbitrary outcomes. But the specific example cited in the Explanatory Statement supports the approach we have taken to the interpretation of s 11(6) which assumes the centrality of the ABN registration process to the operation of the integrity rule. We are satisfied Mr Apted did have an ABN (ABN *768) on 12 March 2020 as a consequence of the decision by the Registrar of the ABR to determine the ABN took effect on 1 July 2019. The Commissioner's original decision to reject the application for Jobkeeper payments was correct when it was made in May 2020 because the Registrar's decision to adjust the date of effect was not made until June 2020. But we are satisfied it is appropriate to make our decision on the basis of the material before us, which includes the information in the ABR that shows the applicant has had an active ABN since 1 July 2019. In reaching that conclusion, we note the uncontradicted evidence that the applicant was, in fact, actively in business as at 12 March 2020.

54. If the applicant did not have an ABN on 12 March 2020, is the Commissioner's exercise of the discretion to allow a later date a reviewable decision in the Tribunal? This question does not fall for determination in circumstances where we have already decided the applicant had an ABN at the relevant time.

55. We will proceed to deal with it (a) in case we are wrong in our conclusion that the applicant had an ABN on 12 March 2020, and (b) because these proceedings have been conducted as a test case which will provide guidance on how the Commissioner and taxpayers should approach the administration of s 11(6) and similar provisions where the same drafting has been used.

56. The applicant says the Commissioner's discretion to allow further time for the applicant to obtain an ABN (should that be necessary) is part of the objection decision made pursuant to s 11 of the Rules that is reviewable under Part IVC. If the applicant is right, the Tribunal may proceed to consider whether that discretion should be exercised differently. The Commissioner says the exercise of the discretion does not form part of the objection decision under review.

57. Our attention was drawn to observations from courts and tribunals about decision-making processes that require the decision-maker to address itself to subsidiary or intermediate decisions in the course of administering the relevant statutory criteria. The applicant referred in particular to:

  • • the judgment of Mason CJ in
    Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 in which his Honour noted that antecedent conclusions or findings which contributed to the ultimate or operative determination may yet be reviewable by a Court (at p 338);
  • • the judgment of Deane J in
    Director-General of Social Security v Chaney (1980) 31 ALR 571 in which his Honour explained the definition of 'decision' in s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) ( the AAT Act ) potentially included "a litany of activities of both a positive and negative nature culminating in 'doing or refusing to do any other act or thing'";
  • • the Tribunal's decision in
    Re CKI Transmission Finance (Australia) Pty Ltd and Australian Taxation Office (2011) 85 ATR 337 where DP Forgie reflected on the reviewability of "subsidiary decisions making up" the ultimate decision on a freedom of information request (at [41]).

58. While those authorities are of general assistance, they do not provide an answer in this case.

59. As Kiefel CJ pointed out in
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250, the Tribunal is a creature of statute. The Tribunal's review is ultimately governed by the terms of the AAT Act, the enactment which authorises the particular review, and any other statutory provision of general or specific application which might be relevant. (In Frugtniet, the decision-making process in question was regulated by the AAT Act, the Corporations Act and the provisions of the Crimes Act 1914 (Cth) which circumscribed reference to spent convictions.) Generalisations about the nature of administrative decisions - particularly general observations derived from the judicial review process - are no substitute for detailed analysis of the specific provisions that govern the decision-making and review process in question. For that reason, we are also wary of comparisons with decision-making processes under differently worded statutory provisions: see, generally,
Commissioner of Taxation v Administrative Appeals Tribunal (2011) 191 FCR 400 (otherwise known as the McMennemin case) at [56] per Keane CJ and Gordon J.

60. While the provisions of the AAT Act establish a legislative platform for the Tribunal's mechanism of review, some of the details of that mechanism's operation in this case - and, in particular, the question whether the exercise of the discretion in s 11(6) forms part of the reviewable objection decision - will ultimately be determined with reference to the CERP Act, the Rules and Part IVC of the Administration Act.

61. We have already referred to s 13 of the CERP Act which says a person dissatisfied with "a decision that the entity is not entitled to a Coronavirus economic response payment for a period"...."may object against the decision in the manner set out in Part IVC of the [Administration Act]." The Commissioner says the plain effect of that provision is that the applicant may only contest a decision regarding his entitlement to a payment - which turns on whether he has satisfied the criteria in s 11 - but not the different (even if contemporaneous) decision not to exercise the discretion to allow a later time for the applicant to do something that would enable him to satisfy the criteria governing entitlement. The Commissioner relied on the reasoning of Keane CJ and Gordon J in McMennemin at [33] to argue Part IVC does not permit a disgruntled taxpayer from contesting a decision that was not a taxation decision within the meaning of s 14ZQ of the Administration Act simply because the decision in question was made contemporaneously with a taxation decision, or was made by the same decision-maker, or was somehow connected with or related to the taxation decision.

62. The decision of the Full Court in McMennemin repays careful reading. The Commissioner had concluded the taxpayers exceeded the non-concessional superannuation contributions cap in the relevant year and assessed the taxpayers as being liable to pay excess contributions tax pursuant to s 292-230 of the Income Tax Assessment Act 1997 (Cth) ( ITAA97 ). Section 292-245, which is found in the same sub-division as s 292-230, provides a person who is dissatisfied with an excess non-concessional contributions assessment may object in the usual manner under Part IVC of the Administration Act. After receiving the assessments in that case, the taxpayers asked the Commissioner to exercise the discretion contained in s 292-465 - a discrete provision located in a different sub-division of the legislation - to disregard the contributions in relation to that year. If the Commissioner had exercised the discretion in their favour, the taxpayers would have been relieved of the liability for which they had been assessed. The Commissioner declined to exercise the discretion and the taxpayers sought review of the objection decisions in the Tribunal. The taxpayers claimed the Tribunal's review necessarily extended to the Commissioner's exercise of discretion.

63. Interestingly, s 262-465 made clear the discretion only became available after a determination had been made and the taxpayer in question thereafter made an application for the exercise of the discretion in an approved form in accordance with s 292-465(2).

64. Keane CJ and Gordon J concluded that a textual analysis of the relevant provisions made clear the exercise of the discretion involved a substantive and separate decision from the assessment which was potentially the subject of objection. The fact the decisions were related and bore upon the ultimate question to be decided on objection (that is, was the assessment excessive or otherwise incorrect?) did not matter. The legislation clearly contemplated separate decision-making processes in relation to what were in substance, two different (if related) questions that could only be answered consecutively.[2] We note the third member of the Full Court was Downes J, the President of the Tribunal at the time. His Honour was in the minority on this occasion. His Honour took what was, in effect a more expansive view of the Tribunal’s jurisdiction in the circumstances, explaining (at [69]): The ultimate question in tax cases is generally whether the assessment is excessive (Administrative Act, s 14ZZK). The burden on the objection and on the application to the Tribunal is to show that the assessment was excessive. The present assessments were excessive, so the taxpayers contended, because no disregarding or re-allocating of contributions went into their calculation. The objections and the applications for review addressed the assessments just as much as they might have addressed the decisions not to make determinations. It does not matter that there is no express provision conferring a right to object against a decision on an application to disregard or re-allocate a contribution. That view did not find favour with the majority.

65. A textual analysis of s 11(6) of the Rules and the related provisions points to a different conclusion in this case. Whereas the provisions discussed in McMennemin clearly contemplated separate decisions with discrete decision-making processes, s 11(6) refers to the exercise of the Commissioner's discretion to provide relief in the same statutory breath as the rule itself. We acknowledge the co-location of the rule and the discretion to provide relief against the operation of the rule does not inevitably mean the two questions are effectively integers of the same question about entitlement that lies at the heart of the reviewable decision, but we are satisfied a proper reading of this provision leads to that conclusion. It follows the exercise of the discretion forms an organic part of a single reviewable decision as to entitlement which may properly be the subject of objection by reason of s 13(2)(a) of the CERP Act.

66. We are fortified in our view by what we take to be the evident beneficial purpose of the legislative package. The Jobkeeper scheme was created to deliver urgent assistance to active businesses with a minimum of fuss in the context of a pandemic. The Rules provided for a streamlined decision-making process that permitted the Commissioner to quickly and flexibly assess applications for payments. An interpretation that tended to create procedural obstacles to (or discontinuities in) the streamlined decision-making process would be inimical to that purpose.

67. We are satisfied the exercise of the discretion referred to in s 11(6) forms part of the reviewable decision that falls to be considered by the Tribunal in the event it was decided the applicant did not have an ABN on the relevant date.

If the discretion is available, should it be exercised in favour of the applicant?

68. We turn to the remaining issue which only arises for consideration if it is accepted the applicant did not have an active ABN as of 12 March 2020.

69. The Commissioner says that if the discretion is reviewable and the question is properly before us, we should not exercise the discretion in the applicant's favour. In written submissions, the Commissioner argued the discretion was only intended to operate in limited circumstances. He relied on the explanatory statement which identified the relatively obscure example of an entity conducting a business in one of Australia's external territories. As we have already explained, entities that are only conducted in an external territory are not required to hold an ABN in circumstances where the no-ABN rules and the GST do not apply: Explanatory Statement at pp 22-23. The importance which the Commissioner attaches to the efficacy of the no-ABN rules where they operate becomes apparent from a reading of section 3 of Law Administration Practice Statement PS LA 2020/1. That discussion makes clear the no-ABN rules are designed to serve as a disincentive to businesses operating outside the compliance framework that facilitates collection of the GST. The Commissioner is concerned that the discretion in this case should not be exercised in a way that weakens or undermines that incentive structure.

70. We note the discretion in s 11(6) of the Rules is not limited by reference to explicit criteria. It is, on its face, open. But that does not mean the Commissioner is free to exercise it arbitrarily. We accept the Commissioner's desire to maintain the efficacy of the no-ABN rules was a proper consideration in the exercise of the discretion. But we do not agree the discretion should be exercised against the applicant in this case.

71. Mr Apted gave uncontradicted evidence that he failed to reactivate his GST because of an oversight. He was not aware of the no-ABN rules, and - for whatever reasons - the handful of business that dealt with him did not put him on notice by withholding GST from the fees Mr Apted earned. Mr Apted also explained he had not taken advice from a tax agent or solicitor about this aspect of his affairs.

72. In those circumstances, we are satisfied Mr Apted was not even aware of the disincentive posed by the no-ABN rules. He certainly did not make a decision to persist in business without an ABN until he became aware of the Jobkeeper scheme. While the Commissioner is generally right to keep the efficacy of the no-ABN rules in mind, we do not think the policy objective he has in mind weighs against the exercise of the discretion in this case.

73. We are satisfied the applicant is the kind of person who was intended to benefit from the Jobkeeper scheme. While his business was small and his income irregular, he still satisfies all of the eligibility criteria in s 11(1). There is nothing to be achieved by denying him access to the payments in order to make a point about the desirability of obtaining an ABN.

Conclusion

74. It is likely most applicants in Mr Apted's position will not require the Commissioner to consider exercising the discretion in s 11(6). Those cases will be dealt with most expeditiously by requiring the applicant to engage with the established ABN registration process - a process that involves the Registrar in making reviewable decisions that can be considered by the Tribunal by way of merits review. If the applicant can satisfy the Registrar in the ordinary way that the applicant was carrying on an enterprise at the relevant time, the Registrar can issue an ABN. Provided the ABN has a date of effect that pre-dates 12 March 2020, the integrity rule will be satisfied. But cases may yet arise where the ABN registration process does not provide a satisfactory answer. In those cases, the exercise of the discretion will become an issue. We are satisfied that applicants forced to rely upon the exercise of the discretion were also intended to have access to review rights before the Tribunal. That approach ensures parity in the review rights available to different applicants. It would be surprising if the rights of review available to applicants relying on the exercise of the discretion were more limited than the rights afforded to applicants disputing decisions made in relation to the issue of ABNs under the ABN Act.

Decision

75. The objection decision under review is set aside. We decide in substitution that the applicant is entitled to the Jobkeeper payment for the period in question.


Footnotes

[1] Section 8(2) of the ABN Act says “A Corporations Act company is entitled to have an Australian Business Number”.
[2] We note the third member of the Full Court was Downes J, the President of the Tribunal at the time. His Honour was in the minority on this occasion. His Honour took what was, in effect a more expansive view of the Tribunal’s jurisdiction in the circumstances, explaining (at [69]): The ultimate question in tax cases is generally whether the assessment is excessive (Administrative Act, s 14ZZK). The burden on the objection and on the application to the Tribunal is to show that the assessment was excessive. The present assessments were excessive, so the taxpayers contended, because no disregarding or re-allocating of contributions went into their calculation. The objections and the applications for review addressed the assessments just as much as they might have addressed the decisions not to make determinations. It does not matter that there is no express provision conferring a right to object against a decision on an application to disregard or re-allocate a contribution.

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