Re The Trustee For Andrew Garrett Family Trust No. 3 v Commissioner of Taxation

[2013] AATA 395
(2013) 60 AAR 483

(Decision by: Deputy President S A Forgie)

Re The Trustee For Andrew Garrett Family Trust No. 3
v. Commissioner of Taxation

Tribunal:
Administrative Appeals Tribunal

Member:
Deputy President S A Forgie

Subject References:
GST
whether Tribunal has jurisdiction to consider application for review of decision deemed to have been made by Commissioner
whether decision deemed to have been made
whether notice requiring Commissioner to make an objection decision given 60 days after taxation objection made
when taxation objection made
what are the 'grounds' that must be specified in the taxation objection
no jurisdiction

Legislative References:
A New Tax System (Goods and Services Tax) Act 1999 - s 7-1; s 7-5; s 7-15; s 35-5
Administrative Appeals Tribunal Act 1975 - s 25(1); s 25(4)
Income Tax Assessment Act 1997 - s 995-1(1)
Taxation Administration Act 1953 - s 3AA(2); s 14ZL; s 14ZQ; s 14ZS; s 14ZU; s 14ZX; s 14ZY; s 14ZYA(1); s 14ZYA(2); s 14ZYA(3); s 14ZZ; s 14ZZK; Schedule 1; s 105-5; s 105-20; s 105-25; s 105-40; s 298-30; s 388-50

Case References:
Re Confidential and Commissioner of Taxation - [2013] AATA 112
Re Sanctuary Australasia Pty Ltd and Commissioner of Taxation - [2013] AATA 371
Re Trustee for Oenoviva (Australia & New Zealand) Plant and Equipment Trust - [2013] AATA 253

Other References:
Taxation Ruling TR 2011/5 - Income tax: objections against income tax assessments

Hearing date: 7 June 2013
Decision date: 12 June 2013

Melbourne


Decision by:
Deputy President S A Forgie

REASONS FOR DECISION

1. Mr Andrew Garrett is the trustee of the Andrew Garrett Family Trust (No 3) (Family Trust). In that capacity, he has lodged in the Tribunal an application on behalf of the Family Trust for review of a decision he has identified as having been deemed to have been made by a delegate of the Commissioner of Taxation (Commissioner) under s 14ZYA(3) of the Taxation Administration Act 1953 (TAA). He states that the decision was deemed to have been made after the Family Trust gave the Commissioner a written notice under s 14ZYA(2) on 24 March 2013 requiring him to make an objection decision on a taxation objection lodged earlier. The Commissioner rejects the proposition that he is deemed to have made a decision. He does so on the basis that he did not receive a valid objection decision until 16 February 2013. As 60 days had not passed between that date and the date on which he was given notice, he cannot be deemed to have made a decision under s 14ZYA(3) of the TAA. Therefore, as the Commissioner had not yet made a decision at the time it lodged an application let alone been deemed to have made one, the Family Trust was not entitled to lodge an application under s 14ZZ of the TAA. As it was not entitled to do so, its application was not made under that legislation and the Tribunal has no powers of review.

2. Under s 25(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal has power to review any decision in respect of which an application is made to it under an enactment. That provision complements s 25(1)(a), which provides that any enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by it. Section 14ZZ of the Taxation Administration Act 1953 (TAA) provides that a person dissatisfied with an objection decision, which has been made by the Commissioner and which is a reviewable objection decision, may apply to the Tribunal for its review. An objection decision made by the Commissioner as he is required to do under s 14ZY of the TAA or is deemed to have made under s 14ZYA(3) is a reviewable taxation objection decision.

3. I have decided that the Family Trust had not made a taxation objection until 16 February 2013 as its earlier correspondence with the Australian Taxation Office (ATO) had not stated, in full and in detail, the grounds on which the taxation objection was made. At the time the Family Trust lodged its application for review, the Commissioner had not made an objection decision. As 60 days had not passed when the Family Trust gave it notice under s 14ZYA(2) requiring the Commissioner to make an objection decision, s 14ZYA(3) had not taken effect to deem the Commissioner to have made an objection decision. Therefore, there was, at the time the Family Trust lodged its application, no objection decision and the Family Trust was not entitled to lodge the application. As a consequence, the Tribunal has no jurisdiction to entertain that application and it is dismissed.

BACKGROUND

The legislative scheme for the payment and refund of GST

4. The decision that Mr Garrett claims the Commissioner is deemed to have made concerns the Family Trust and the assessment of the appropriate amounts of goods and services tax (GST) payable or refundable to them. The relevant legislation includes the AAT Act, A New Tax System (Goods and Services Tax) Act 1999 (GST Act) and the TAA. I will summarise the relevant provisions of each.

5. In the broadest outline, the GST Act can be said to impose a goods and services tax (GST). It sets out the rules determining how the GST arises (if it arises at all) and who is liable to pay it, when and how input tax credits arise and who is entitled to them, how to work out payments and refunds of GST and when and how the payments and refunds are to be made. GST is payable on taxable supplies and taxable importations. [1] An entity's entitlement to input tax credits arise on creditable acquisitions and creditable importations.

6. Amounts of GST that is payable by an entity is set off against that entity's amounts of input tax credits to produce what is described as a "net amount for a tax period". That net amount may be altered to take account of adjustments. [2] Once the net amount has been assessed for a tax period, that becomes the amount that the either the entity must pay to the Commonwealth or the Commonwealth must refund to the entity in respect of that period. [3] Whether the entity is entitled to a refund is determined by reference to whether the assessed net amount for a tax period is less than zero. If it is, the entity is entitled to a refund but otherwise is liable to pay the assessed net amount. [4]

7. The TAA sets out administrative provisions that complement the scheme established by the GST Act. Of particular relevance are the provisions found in Subdivision 105-A of Part 3-10 of Schedule 1 of TAA. They apply to assessments of indirect taxes and so to, among others, the assessment of GST. [5] Section 105-5(1)(a) provides that the Commissioner may, at any time, make an assessment of a taxpayer's net amount, or part of that net amount, for a tax period. If he does so, he must give notice of it under s 105-20. The Commissioner may amend an assessment under s 105-25. A taxpayer's liability to pay indirect tax does not, however, depend on the Commissioner's having made an assessment and nor does the Commissioner's liability to pay a net amount under s 35-5 of the GST Act. [6]

8. Provision is also made for the payment of penalties. Section 298-30 of Schedule 1 to the TAA requires the Commissioner to make an assessment of the amount of an administrative penalty under Division 284. [7]

When and how may review be sought of the Commissioner's decisions under the GST regime?

9. Part IVC of the TAA provides for review of the Commissioner's decisions and for appeals to the Court. Section 14ZL(1) provides:


"This Part [Part IVC] applies if a provision of an Act or of regulations (including the provision as applied by another Act) provides that a person who is dissatisfied with an assessment, determination, notice or decision, or with a failure to make a private ruling, may object against it in the manner set out in this Part."

10. Section 105-40(1) of the TAA provides that an entity may object, in the manner set out in Part IVC, if dissatisfied with a decision that is a "reviewable indirect tax decision" relating to it. A decision made under s 105-5, relating to the Commissioner's assessment of indirect tax, or under s 105-25, relating to his amendment of such an assessment, are both reviewable indirect tax decisions. [8]

11. Section 14ZU of the TAA sets out how to make a taxation objection:


"A person making a taxation objection must:

(a) make it in the approved form; and

(b) lodge it with the Commissioner within the period set out in section 14ZW; and

(c) state in it, fully and in detail, the grounds that the person relies on.

Note: ..."

Section 14ZV limits the right to make a taxation objection when it is made against an assessment or determination that has been amended in any particular. The person's right to object is then a right to object against the alterations or additions in respect of, or matters relating to, that particular.

12. The "approved form" referred to in s 14ZU(a) has the meaning given in s 388-50 of Schedule 1 to TAA. Section 388-50(1) provides:


"A return, notice, statement, application or other document under a *taxation law is in the approved form if, and only if:

(a)
it is in the form approved in writing by the Commissioner for that kind of return, notice, statement, application or other document; and
(b)
it contains a declaration signed by a person or persons as the form requires (see section 388-75); and
(c)
it contains the information that the form requires, and any further information, statement or document as the Commissioner requires, whether in the form or otherwise; and
(d)
for a return, notice, statement, application or document that is required to be given to the Commissioner - it is given in the manner that the Commissioner requires (which may include electronically)."

13. Taxation Ruling TR 2011/5 is entitled "Income tax: objections against income tax assessments". At [117], it states:


"It is not necessary to use a printed form or electronic template published by the Commissioner. An objection by letter or other paper document will be in the approved form for the purposes of paragraph 14ZU(a) provided it:

·
is in writing;
·
contains the necessary signed declaration;
·
contains the requisite information; and
·
is lodged in the required manner. [9] "

14. The grounds specified in a taxation objection are of some importance. Although s 14ZZK(a) permits the Tribunal to make an order to the contrary, the general position is that the applicant is limited to the grounds stated in the taxation objection to which the reviewable objection decision relates. Within the confines of those grounds, an applicant for review in a case such as this then has the burden of proving that the assessment made by the Commissioner is excessive. [10]

15. Provided a taxation objection is lodged within time, the Commissioner is required, in most cases, to decide whether to allow it, either wholly or in part, or to disallow it. [11] The TAA does not expressly set a time limit within which the Commissioner must make a decision on a taxation objection but s 14ZYA effectively imposes time constraints upon him. Putting aside situations in which the Commissioner has extended the time within which to lodge a taxation objection because it is not relevant in this case, s 14ZYA applies in a case of this sort if:


"... the taxation objection ... has been lodged with the Commissioner within the required period and the Commissioner has not made an objection decision by whichever is the later of the following times:

(a)
the end of the period (in this section called the original 60-day period ) of 60 days:

(i)
the day on which the taxation objection is lodged with the Commissioner;
(ii)
...

(b)
if the Commissioner, by written notice served on the person within in the original 60-day period, requires the person to give information relating to the taxation objection - the end of the period of 60 days after the Commissioner receives that information." [12]

16. If the circumstances set out in s 14ZYA(1) arise, then s 14ZYA(2) permits a person to give the Commissioner a written notice requiring him to make an objection decision. This effectively gives the Commissioner another 60 days - or a 120 days in all - to make the decision for s 14ZYA(3) provides:


"If the Commissioner has not made an objection decision by the end of the period of 60 days after being given the notice, then, at the end of that period, the Commissioner is taken to have made a decision under subsection 14ZY(1) to disallow the taxation objection."

17. Once the Commissioner has made a decision on a taxation objection, or deemed to have made one under s 14ZYA(3), he has made an objection decision. Unless it is an ineligible income tax remission decision, and there is no such decision in this case, it is a reviewable objection decision. [13] A person who is dissatisfied with a reviewable objection decision may apply to the Tribunal for its review. [14]

The course of events

18. In an earlier decision considering an application made by the Family Trust for review of a decision said to have been made at that stage by the Commissioner, I set out a table of events. With minor modifications, I reproduce it now for it remains relevant and, except for two entries, drawn entirely from material lodged by Mr Garrett on behalf of the Family Trust and a related company. [15] The modifications expand upon some of the entries. In the final entry, rather than summarise the effect of the Commissioner's letter, I have reproduced the first five paragraphs in full and omitted only the reference to the Family Trust's liability to pay interest and what it should do if it required further information.

Date Event
8 January 2013 The Australian Taxation Office (ATO) completed an audit of the revised Business Activity Statements submitted on behalf of the Family Trust and relating to quarterly tax periods between 1 January 2010 and 31 March 2010 and 1 April 2011 and 30 September 2012. The audit concerned input tax credits of $108,947 claimed by the Family Trust in respect of those periods. [16]
8 January 2013 The Commissioner issued notices of assessments for the tax period 1 January 2010 to 30 June 2012 and 1 July 2012 to 30 September 2012 showing a difference of $89,794 as the difference between the net amount from the activity statements lodged in the first period and the net amount assessed for the earlier period and a difference of $19,153 for the later period. [17]
12 January 2013 Mr Garrett emails the ATO and marks it "Without Prejudice All Rights Reserved". In summary, he states that all relevant information had been provided to the ATO and he has demonstrated his openness and willingness to ease its concerns. He asserts that the ATO's withholding the input tax credit amounts to "conscious maladministration". [18]
18 January 2013 Acknowledgment of receipt of email by ATO advising that an officer would "respond to your concerns in writing next week."
19 January 2013 On behalf of the Family Trust, Mr Garrett emailed a notice of objection to the Commissioner. He referred to six sets of material and his grounds were:

"1. [left blank in original]

2. There has been no notice issued under the provisions of section 8AAZLGA of the Taxation Administration Act 1953 to the Trustee.

3. No further attempt was made by the ATO to again request the information from the original request dated 18 December 2012.

4. There was no attempt by the ATO to communicate with the trustee of AGFT 3 between 18 December 2012 and 8 January 2013 in a [sic] espatblished [sic] pattern of conscious maladministration.

5. No time limit was expressed by the ATO on 18 December 2012 or at any other time for the provision of information.

6. Between 20 December 2012 and 7 January 2013 the custodiamn [sic] of the information requested being the booke [sic] keepr [sic] was on leave.

7. The information requested has subsequently been provided within a reasonable time frame dated 9 and 12 January 2013..

8. The Notice of Finalisation of Audit and Notices of Assessment is a further example of the ongoing evidence of conscious maladministration allegedly flowing from the mind set of Operation Winebar.

9. The Notice of Finalisation was issued in a void of information.

10. On 20th October 2012 a related trust applied to the Commissioner for compensation in respect to the conscious maladministration issues apparently associated to Operation Winebar and the failure to set aside the default judgment in DCCIV - 1666-2003

11. I allege further examples pf [sic] conscious maladministration is evidenced within the activities of the ATO related to the OenoViva (Australia & New Zealand) Plant & Equipment Trust and the OenoViva (Australia & New Zealand) Plant & Equipment Trust No 2." [19]

24 January 2013 The Commissioner advised that the objection was invalid in that it is not in the approved form and did not fully state the grounds on which the objection was made. [20]
16 February 2013 The Family Trust lodged a notice of objection with the Commissioner. [21]

The grounds referred to further invoices that had been lodged on 9, 10 and 29 January 2013 in respect of the relevant period and to amending Business Activity Statements that had also been lodged.

2 March 2013 The Family Trust applies to Tribunal for review of objection decision. [22]
13 March 2013 "We have received your request dated 16 February 2013 in an email dated 2 March 2013.

Your notice of objection dated 16 February 2013 states that:

The decision objected to is a GST decision to cancel and (SIC) Activity Statement amendment lodged on the 29th January 2013 by the Trustee.

Having reviewed all of the grounds stated by you as being reasons for your objection in the various correspondences received by this office between 9 January 2013 and 2 March 2013 we have decided to accept your objection as being a valid objection against the Notice of Assessments and the Notice of Amended Assessments both dated 8 January 2013.

You cannot object against our decision to cancel your amended lodgement of the ATO assessed March 2012 Business Activity Statement (BAS). Any additional documentation that is relevant to your objection for the March 2012 BAS period, will be considered at the objection stage and if allowable will be taken into consideration of the final outcome and any revisions made to the amount of GST payable by you or creditable to you

We aim to reply to you within 56 days. If we find that we need more information before we can respond, or your case is complex, we may need more time. If this is the case we aim to contact you within 14 days to negotiate a reply date.

..." [23]

24 March 2010 On behalf of the Family Trust Mr Garrett sent an email to the ATO asking it to "... accept this Notice as a Notice under section 14ZYA of the Tax Administration Act that the Commissioner make Objection Decisions in respect to the Notices of Objection referred to in the attached submissions in respect to:

1.The Trustee of the Andrew Garrett Family Trust No 3

[reference was then made to 19 documents contained in either Book 2 or Book 3 of the Books lodged by Mr Garrett.]

...

You will note that in the attached submissions, I refer to a number of Objection Decision that I say invokes jurisdiction of the Tribunal.

Notice under section 14ZYA is issued without prejudice to those Objection Decisions.

..."

THE SUBMISSIONS

19. In the application made on behalf of the Family Trust, Mr Garrett wrote:


"I rely on the details set out in 2013/0910 and the Confirmation Letter dated 13th March 2013 of Receipt of Two Valid Notices of Objection dated 19th January 2013 and 16th February 2013 Document 44 of Book 3.

On the 24th March 2013, the Trustee issued a Notice under section 14ZYA of the TAA (copy attached) that the Commissioner makes the Objection Decisions. No such decisions have been issued by the Commissioner consequently the Commissioner is deemed to have refused the Taxation Objections."

20. On behalf of the Commissioner, Ms Woolley submitted that the notice given by Mr Garrett had not been properly given as it could not be given until 60 days after the Family Trust had lodged a taxation objection. As the Family Trust had not made a valid objection until 16 February 2013, a notice could not be given under s 14ZYA(2) until the expiration of 60 days from that date. Therefore, a notice sent on behalf of the Family Trust on 24 March 2013 had been sent prematurely and could not give rise to the deeming provisions in s 14ZYA(3).

CONSIDERATION

The issues

21. Whether there is a "reviewable objection decision" in relation to which the Family Trust may apply to the Tribunal under s 14ZZ of the TAA depends in this case on whether the Commissioner is deemed to have made an objection decision under s 14ZYA(1) of the TAA to have disallowed the taxation objection. Whether he is deemed to have done so depends, in turn, on whether a taxation objection to the Commissioner's earlier decision was made and whether 60 days passed before the Family Trust gave notice to the Commissioner under s 14ZYA(2).

What is a taxation objection?

22. I have already set out the provisions of s 14ZU of the TAA setting out the criteria with which a taxation objection must comply and those of s 388-50 of Schedule 1 to the TAA supplementing those criteria. [24] In this context, the most important of the criteria is that set out in s 14ZU(1)(c) i.e. that it must set out the grounds on which the taxpayer relies in objecting to the Commissioner's decision. Although neither s 14ZU(1)(c) in particular not the TAA in general suggests that the "grounds" on which a taxpayer may rely are limited in some way, the fact is that they are limited. They are limited by two matters but both are directed to the same end. The end to which they are directed is to limit the taxation objection to matters to which the Commissioner may have regard in reviewing his decision.

23. The first matter is found in s 14ZL(1) when it provides that Part IVC of the TAA, and so the review provisions relating to taxation law, apply if a provision provides that a "... person who is dissatisfied with an assessment ... or decision ... may object against it in the manner set out ..." in that Part (emphasis added). In the earlier case of Re Sanctuary Australasia Pty Ltd and Commissioner of Taxation, [25] I referred to a number of authorities considering what it means to be "dissatisfied" with a decision when a right to apply for review of that decision is given to a "person who is dissatisfied" with it. I adopt [15]-[34] of the reasons in that case as part of these reasons but, as Mr Garrett represented the applicant in that case, will reproduce only the summary of principles I drew from the authorities, to which I referred. They are:


"(1) When used in an enactment prescribing those who may make an application to a review body such as the Tribunal, the word 'dissatisfied' is not to be given its ordinary meanings of 'displeased wit h', 'not contented wit h' or the like.

(2) Its meaning is to be gained from the context in which it is used. That context includes not only the particular provision conferring a right to make an application but to the scheme of the legislation in which an administrative decision has been made and authorities such as Bond [Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11].

(3) A person is not dissatisfied with an administrative decision that cannot have any legal effect upon his or her interests:

(a)
Those interests must be examined in the context of the legislative framework in which the administrative decision has been made.
(a)
Generally, for example, a bankrupt's interests cannot be affected by a judgment debt or by an administrative decision imposing a liability provable in the bankruptcy but Cummings [Cummings v Claremont Petroleum NL (1996) 185 CLR 124; 137 ALR 1] leaves open the possibility that they may be affected if it is a debt or liability from which the bankrupt will not be released on his or her discharge from bankruptcy.


(4) A person may be dissatisfied with an administrative decision and be entitled to make an application for its review in the Tribunal even though the Tribunal's decision may, under the legislative scheme, be set aside, ignored, treated as a recommendation or the like by the Minister or other person.

(a)
This places an administrative body such as the Tribunal in a very different position from a federal court established under Chapter III of the Constitution.

(i)
The Tribunal is part of the Executive Government coming under Chapter II of the Constitution.
(ii)
Therefore, unlike a federal court, its jurisdiction is not constrained by:

·
matters referred to in ss 75 and 76 of the Constitution;
·
any obligation to determine rights and liabilities of the parties for its role is to create rights and liabilities; or
·
any obligation to reach a decision that cannot be set aside, ignored, treated as a recommendation or the like by a Minister or other person acting in accordance with the terms of the relevant legislation. An example is found in s 501 of the Migration Act 1958 for it can be set aside by the Minister acting under s 501A."

24. The second matter that limits the grounds on which a person may make a taxation objection is included in these principles. It is the context of the legislation under which the decision, however described and which is the subject of the objection, has been made. A person will only be dissatisfied with a decision in a sense contemplated by s 14ZL if what gives rise to his or her dissatisfaction is something on which he or she may challenge that decision within the terms of the taxation law under which it was made. That this is so is apparent from the wider context of review provided under Part IVC.

25. Once the Commissioner has made an objection decision, the person is generally limited to the grounds stated in the taxation objection should he or she choose to apply to the Tribunal for review of the objection decision made upon it. [26] In the case of an assessment as has been made by the Commissioner in this case, an applicant in the Tribunal has the burden of proving that the assessment is excessive. [27] The processes by which the Commissioner came to an assessment are not relevant in establishing whether an assessment is excessive and nor is it relevant to raises issues relating to how well he has, or has not, undertaken his task in making an assessment or whether he has made any procedural errors. There are various authorities on these matters and I referred to some of them at [258]-[269] of my reasons for decision in Re Confidential and Commissioner of Taxation. [28] I adopt those paragraphs as part of these reasons.

26. Once the broader context of review rights is understood, it is seen that the grounds on which a person may object and the basis on which he or she may be dissatisfied both encompass and are circumscribed by the basis on which Part IVC of the TAA effectively allows an assessment of indirect tax such as GST to be challenged. That basis is that the assessment is excessive. Whether it is excessive or not will require regard to be had to the GST Act and any relevant provisions of the TAA.

27. At its very simplest, the GST Act can be said to identify various events and transactions, prescribe each as giving rise to the imposition of GST or to input tax credits and work out whether a person owes the Commonwealth or the Commonwealth owes the person at the end of each specified periods. It follows that any challenge to an assessment made by the Commissioner regarding what the Commonwealth is owed or owes to a person under the GST Act depends on establishing that events or transaction either have, or have not, taken place and the consequences that the GST Act attaches to their having, or not having, taken place. Establishing those matters and determining their consequences is not achieved by challenging the means by which the Commissioner made his assessment in the first place. He will make his decision over again in light of any additional material that is put to him whether evidentiary or in the form of legal argument about the way in which the GST Act should be interpreted and applied in a particular factual matrix.

28. As the challenge to the Commissioner's assessment is made in the form of a taxation objection and as s 14ZU(c) requires that the person making it must "state in it, fully and in detail, the grounds that the person relies on", those grounds must link back to matters on which the assessment may be challenged. For the reasons I have given, they must link back to matters of substance and not to matters affecting the way in which the staff of the ATO might have approached the matter in the past.

When was a taxation objection made on behalf of the Family Trust?

29. I have set out the letter written by Mr Garrett on 19 January 2013. He regards this as a taxation objection. I do not. Each of the 11 grounds it sets out is directed to a procedural matter or a matter of administration. It is not directed to a matter of substance on which a challenge can properly be mounted and so does not set out anything that can be regarded as "grounds" on which the Family Trust relies or on which the Commissioner may review his assessment.

30. On one view, it might be thought that this is to take too narrow a view of what is required by s 14ZU(c). After all, if a person chooses grounds that cannot support his challenge, that is his or her choice. Against that, it can be said that the right to make a taxation objection is given only to a person "dissatisfied" with it. In order to be dissatisfied within the meaning of s 105-40, that dissatisfaction must relate to some aspect of the assessment that can be challenged. To take a more liberal view of the requirements of s 14ZU(c) would be to mislead a person into thinking that he or she has made a taxation objection when, on its face, it has no chance of being successful. That would effectively be to waste his or her rights under Part IVC of the TAA for, once accepted as a taxation objection, he or she is limited to those grounds unless the Tribunal gives leave to expand upon them. In contrast, the narrower view preserves those rights and requires a person to focus on the real issues and the issues that have some chance of leading to a different decision from the very start.

31. There is nothing in Part IVC or in s 388-50 of Schedule 1 to TAA and there is nothing in Taxation Ruling TR 2011/5 that requires a taxation objection to be confined to one document. Until the ATO received Mr Garrett's facsimile sent on 2 March 2013, the Commissioner did not have an objection that addressed issues that he could properly review under Part IVC. He then had references to further factual material and the place of that material could be seen in light of the course of Mr Garrett's correspondence with the ATO between 9 January and 2 March 2013. Until the ATO received his facsimile of 2 March 2013, it could not be said that the Family Trust had stated, fully and in detail, the grounds on which it relied. Therefore, the Family Trust had not made a taxation objection until that date.

The notice given to the Commissioner on 24 March 2013

32. In view of my conclusion regarding the Family Trust's taxation objection, the notice it gave on 24 March 2013 cannot be regarded as a notice given under s 14ZYA(3) of the TAA. It was given only some 22 days after the Family Trust had made its taxation objection and so long before the expiration of the 60 day period required by s 14ZYA(1) before such a notice could be given. As the notice was given prematurely, the provisions of s 14ZYA(3) do not come into play. The Commissioner is not deemed to have made a decision disallowing the taxation objection made on 2 March 2013.

The application in the Tribunal

33. The Commissioner is not deemed to have made an objection decision on the taxation objection lodged on 2 March 2013 and has not made an objection decision on it at the time that the Family Trust lodged its application for review in the Tribunal on 29 May 2013. Therefore, s 14ZZ of the TAA did not permit the Family Trust to lodge an application for review. The application must be dismissed.

Date of Decisions 12 June 2013
Representative for Applicants Mr Garrett
Solicitor for the Respondent Ms Renae Woolley


ATO Legal Services Branch


GST Act; s 7-1(1)


GST Act; s 7-5


GST Act; s 7-15


GST Act; s 35-5(1)


TAA; s 3AA(2) and Income Tax Assessment Act 1997 ; s 995-1(1)


TA Act; s 105-15


TAA; s 298-30(1)


TAA; s 105-40(2) An objection must be made within the time limits set out in s 14ZW of the TAA or extended by the Commissioner under s 14ZX.


" This Ruling constitutes approval in writing by the Commissioner under subsection 388 - 50 ( 1 ) of Schedule 1 for such objections to be in the approved form ."


TAA; s 14ZZK(b)(i)


TAA; s 14ZY(1)


TAA; s 14ZYA(1)


TAA; s 14ZQ


AAT Act; s 25(1) when read with TAA; s 14ZZ. In general terms, an objection decision is an " ineligible income tax remission decision " if it relates to the remission of additional tax payable under certain provisions of ITAA36: TAA; ss 2(1) and 14ZS.


Re Trustee for Oenoviva ( Australia & New Zealand ) Plant and Equipment Trust [2013] AATA 253 at [5]


AG documents, volume 2 at 29


AG documents, volume 2 at 32


AG documents, volume 2 at 44


AG documents, volume 2 at 46


AG documents, volume 2 at 51


Commissioner's documents in proceedings No. 2013/0910; Attachment 5


Tribunal proceedings No. 2013/0910


Commissioner's documents in proceedings No. 2013/0848; Attachment 6


See [11]-[13] above


[2013] AATA 371


TAA; s 14ZZK(a)


TAA; s 14ZZK(b)(i)


[2013] AATA 112