• FC of T v Administrative Appeals Tribunal & Ors

    The Full Federal Court has held that the AAT was correct in finding that it lacked jurisdiction to review a decision of the Commissioner to refuse to make a determination to disregard or reallocate contributions to a super fund in excess of the non-concessional cap.

    Facts

    The central issue in this appeal was the nature of the right of review available if the Commissioner refused to make a determination under section 292-465 as it stood before the 2010 amendments.

    The Commissioner brought the appeal submitting that the AAT's decision was incorrect and that it did have jurisdiction to review the Commissioner's decision.

    The Commissioner submitted that even though no provision of Division 292 provided that the refusal of a determination under section 292-465 might be objected to under Part IVC of the TAA, the refusal to make the determination was sufficiently connected or integral to the process of assessment of a person's liability to ECT that it was reviewable under Part IVC of the TAA.

    In other words, the Commissioner contended that because the decision to refuse to make a determination in section 292-465 was sufficiently connected or integral to the process of assessment of a liability to ECT, it was open to the person to contend that the assessment was excessive because the Commissioner should have made a different decision under section 292-465.

    Decision

    The Full Federal Court held that the AAT was correct to conclude that it did not have jurisdiction to review the decision of the Commissioner to refuse to make a determination under section 292-465.

    The court held that the AAT had jurisdiction to review decisions only if an enactment authorised it to do so, in accordance with subsection 25(1)External Link of the Administrative Appeals Tribunal Act 1975.

    Part IVC of the TAA provided that a person may make a tax objection and apply to the AAT for review of a reviewable objection decision, therefore the AAT only had jurisdiction to review decisions that were reviewable objection decisions.

    The court held that Part IVC of the TAA, before the 2010 amendments, was engaged for ECT assessments but not for a decision not to make a determination under section 292-465.

    The subsequent amendment to the statute suggested, if anything, that this was indeed the effect of Division 292 before the 2010 amendment.

      Last modified: 22 Nov 2013QC 34181