CASE 32/97

BJ McMahon DP

Administrative Appeals Tribunal

Decision date: 10 June 1997

BJ McMahon (Deputy President)

The above matters were listed on 10 June 1997 to determine an objection as to jurisdiction which had been raised by the respondent. The applicants are a former Tax Agent and his private company. Applications for review were made to this Tribunal on 23 December 1996. The objection to jurisdiction was taken by the respondent on 5 February 1997 in a detailed letter setting out the basis of the objection. A

ATC 354

copy of this letter was sent to the applicant inviting him to indicate in writing any material which he submitted showed that there were reviewable decisions.

2. On 11 March 1997 the applicant wrote to the Tribunal. In that letter he alleged that the respondent's letter contained some inaccuracies but did not specify what they were. He also raised an allegation that he had been subjected to duress and that therefore the relevant assessments were ``flawed and illegal''. No details were provided.

3. In response to this letter, the hearing as to jurisdiction was set down some three months in advance in order to enable the applicant to make further detailed submissions.

4. He was invited to do this on a number of occasions and agreed to provide written material. The only material in writing received by the Tribunal was a further letter dated 20 March 1997 in which the applicant said:

``I am relying on a number of cases to support my application and these will be forthcoming.''

5. Between the date of receipt of this letter and the hearing on 10 June 1997 the applicant was contacted on a number of occasions by telephone to ensure that he knew of the date of the hearing as to jurisdiction and to request again that he provide written submissions to the respondent and to this Tribunal. Despite a number of promises to make these available, none was forthcoming.

6. Approximately half an hour before the hearing as to jurisdiction was scheduled to commence the applicant left a telephone message at the Registry of the Tribunal saying that he wished to have an adjournment as he did not feel able to attend the hearing. No details were given as to the reason for his inability to be present. When his request was conveyed to the respondent's advocate the adjournment application was opposed. In the absence of a proper application supported by some evidence as to why an adjournment should be granted (a procedure that would have been well known to the applicant as a former Tax Agent) and in the light of the lack of developments in the applicant's case over the three months allowed to him, I refused the application for adjournment and proceeded to hear the matter in his absence. I concluded that the Tribunal did not have jurisdiction and this formal decision was conveyed to the applicant in due course. I have now been asked to give my reasons in writing and they are as follows.

7. Both the applicants were subject to a Taxation audit for the years ended 30 June 1984 to 30 June 1989. As a result of this audit, there were various meetings and some correspondence. These resulted in a negotiated settlement at a meeting held on 14 November 1990. A further meeting was held on 17 December 1990 to finalise terms which included an agreement that no objections would be lodged against the assessments to be issued as a result of the compromise. This agreement was confirmed in writing by the applicant's solicitors.

8. Accordingly, assessments that were issued in January 1991 did not include a culpability component for an incorrect return. More than two years later in July 1993, the applicant lodged amendment requests seeking a reduction in penalties on the assessments and a further deduction for $88,000 for the applicant company in relation to monies paid in 1986. The amendment requests were disallowed in September 1994.

9. Almost two years later, a Notice of Objection was lodged on 21 August 1996. This notice included a request for an extension of time. The request, however, failed to state ``fully and in detail'' the circumstances concerning and the reasons for the applicant's failure to lodge the objection with the Commissioner within time as required by section 14ZW(3) of the Taxation Administration Act 1953 (the Administration Act). The Commissioner came to the view that time should not be extended in the circumstances and refused the request. A Notice of Refusal was sent to the applicant on 10 February 1997. The notice, a copy of which was shown to me on the hearing, contained information as to the applicant's rights. So far as I am aware these have not been exercised.

10. The applicant relied upon the operation of section 14ZYA of the Administration Act in his applications to this Tribunal. This section provides that if a Taxation objection has been lodged with the Commissioner within 60 days and the Commissioner has not made an objection decision within certain specified periods, then there is a deemed disallowance which would provide a reviewable decision. The applicant's resort to this section, however,

ATC 355

is misconceived. It is designed to deal only with delinquency on the part of the Commissioner when the applicant has been timely with his objection. In the present circumstances, the objection was almost two years after the amendment decision and more than five years after the original assessments. Section 14ZYA has no application in these circumstances.

Accordingly there is no reviewable decision before the Tribunal. The applications were therefore dismissed for want of jurisdiction as there is no objection decision under section 14ZY upon which jurisdiction could be based.

This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.