1. As mentioned above, Mr Olow, from around 2013 to 2016, was the sole director and shareholder of a company, Sunrising Family Day Care Pty Ltd which operated a childcare service provider from its registered office in the Sydney suburb of Granville. During the Relevant Years the company reported the employment of up to 36 employees and the provision of goods and services valued of around $16 million, receiving around $15.9 million in "government childcare assistance fees" in response.
2. The manner in which this business was operated is somewhat obscure but at a high level it appears that the company maintained a central office which was staffed by a number of staff members which included amongst its ranks the Applicant's wife and children. The company appears to have then engaged a number of "carers to look after children from their homes" under the supervision of the company. This supervision was undertaken by the Applicant, a 'co-ordinator' and the Applicant's wife (who is known to have held a Certificate III in Children's Services issued by the 'Australian Academy') and who explained in an affidavit that she liaised with family daycare carers and conducted "inspections of the carer's premises to ensure that the premises remain compliant with relevant laws".
3. The Applicant and the company shared a tax accountant, JK Accounting Pty Ltd, who lodged income tax returns on their behalf which showed that from working for the Company in the income year ending 30 June 2015:
   • the Applicant' reported taxable income was $129,242; and
   • The Applicant's wife (Ijaaba Hassan)and his two children (Sakarija & Sumaya Hussein) each had reported taxable income of $149,501.
4. In respect of the income year ending 30 June 2016 the Applicant reported taxable income in respect of his work for the company of $37,369, whilst his wife reported $26,643 and his children respectively reported $14,837 and $9,501.
5. For each of the Relevant Years the company withheld and remitted to the Respondent the applicable amount of Pay As You Go (PAYG) withholding as required under Division 12 of Schedule 1 of the TAA 1953 in relation to the salary and earnings reported by the Applicant, his wife and their two children_._
6. In January 2018 the Respondent wrote to the Applicant and the Company explaining that a concurrent audit into the affairs of the Company and the Applicant was being undertaken and sought provision of a range of financial documents and details about its operations. This correspondence was followed up, on 6 March 2018, with a statutory notice issued pursuant to s353-10 of Schedule 1 of the TAA 1953 seeking same. It appears that the Applicant provided little in response to either that would have enabled the Respondent to form a clear view of the Applicant's affairs.
7. The Respondent also acquired copies of account statements for 3 Westpac Banking Corporation accounts and a Commonwealth Bank account held by the Company covering the Relevant Years. Each of those accounts identified the Applicant as the sole signatory and an analysis of the account statements for each showed that there had been a significant number of:

(iii) unexplained cash withdrawals; and > > (iv) purchases of goods and services which appeared to be private and domestic in nature rather than the type of expenses one would typically expect to see in the accounts of a child-care service provider.

8. Amongst the purchases were amounts paid from the company's accounts for school fees, food, clothing items, private travel and traffic fines. Together with the unexplained cash withdrawals, the seemingly private expenses totalled $655,692 and $414,389 in the income years ending 30 June 2015 and 2016 respectively.
9. The Respondent formed the view that the nature of the withdrawals and expenses led to conclusions that:
   • such amounts in the hands of the applicant were likely assessable ordinary income under s6-5 of the Income Tax Assessment Act 1997 (ITAA 1997); and
   • the Applicant had been reckless in not returning such amounts as part of his income in each of the Relevant Years.
10. Amended Assessments and the Penalty Assessments capturing the consequent shortfalls of taxation were issued for the following:

1. The Applicant objected to the Amended Assessments (and the Penalty Assessments) arguing that the cash withdrawals were amounts withdrawn on behalf of his family members for salary and wages payable for work that they had done within the business. Other amounts, it was alleged, were repayments made to the Applicant in respect of loans he had previously advanced to the company.
2. The Respondent remain unconvinced that the amounts were salary payable to family members pointing to a lack of clarity as to what each family member did for the business and how much each was expected to be paid. The Respondent also did not accept that certain amounts and expenses paid by the Company for the Applicant's private expenses were alleged to have been simply repayments of loan advances the Applicant had made to the company. The Respondent pointed to a lack of detail, the absence of loan agreements or any sense of record keeping as being matters that prevented it from being satisfied that such loans existed.
3. Dissatisfied as to the explanations provided by the Applicant the Respondent disallowed the objection in its entirety.

1. On 29 May 2023 the Applicant lodged his application for review with the Tribunal with the assistance of a lawyer. That application claimed simply that the decision was wrong because:
   1. The decision maker erred in dismissing my objection.
   2. The decision is not fair and just in the circumstances.
2. On 18 January 2024 the Applicant sought to further articulate the basis for review in a Statement of Facts, Issues and Contention (SFIC) which identified a single issue as being before the Tribunal for determination. That issue was whether "the Respondent erred in refusing the objection of the Applicant". Contentions were then made as follows:
   1. The applicant says that the Respondent erred in refusing the applicant's objection.
   2. The Respondent was not justified in concluding that the applicant was liable to pay penalties.
   3. The Respondent was incorrect in failing to take into account the tax paid on the income of the applicant's wife and children to reduce the deemed income of the applicant and offset any tax liability of the Applicant.
3. The Applicant's SFIC was accompanied by 3 rather short witness statements affirmed by members of his family, being the Applicant's wife (Ijaaba Hassan) and his two children (Sakarija & Sumaya Hussein) purporting to describe the role each played in the business.
4. The Applicant's SFIC also foreshadowed that not only would the Applicant press challenges to the excessiveness of the Amended Assessments and Penalty Assessment but would ask the Tribunal to exercise its remission power under section 298-20 of Schedule 1 of the TAA 1953 in relation to the Penalty Assessment_._
5. In response the Respondent lodged his SFIC in which it was explained that the Applicant simply hadn't discharged the burden under s14ZZK as was required in a challenge to an assessment brought pursuant to Pt IVC of the TAA 1953. It was argued that the Applicant couldn't explain or substantiate a range of withdrawals made from the company accounts or explain why expenses which appeared to be of a private nature might "constitute everyday operating expenses for a childcare facility, such as those made to (amongst others) airlines, school fees, gyms..." and therefore deductible under s8-1 of ITAA 1997. The Respondent also took issue with how the Applicant alleged that amounts withdrawn from the company's account could reasonably said to be payments of family salary and wages when there was limited records and having regard to the irregularity of these payments, both by way of timing and quantum.

1. The Applicant will succeed in this review if he can successfully discharge his statutory burden to show that on the balance of probabilities the Amended Assessments raised by the Respondent were excessive and what they should have been. This burden is imposed amidst a statutory and legal framework the provisions of which I have previously set out in HWFX and Commissioner of Taxation (Taxation) [2025] ARTA 680 (HWFX) at [38]-[44] and which provides for a predominately self-reporting taxation system.
2. The Commissioner in this case has raised amended assessments under s167 of the Income Tax Assessment Act 1936 (ITAA 1936) which he is entitled to do should he be dissatisfied with the returns as lodged by a taxpayer as he was here. As previously explained[1] such amended assessments are then capable of being objected to and, should a taxpayer remain dissatisfied after an objection is determined by the Respondent, being reviewed in the Administrative Review Tribunal or appealed to the Federal Court[2].
3. In a review before the Tribunal Section 14ZZK imposes a burden of proof on an Applicant in the following relevant terms:

14ZZK Grounds of objection and burden of proof

On an application for review of a reviewable objection decision:

(a) ....

(b) the applicant has the burden of proving:

(i) if the taxation decision concerned is an assessment - that the assessment is excessive or otherwise incorrect and what the assessment should have been; or

(ii) in any other case - that the taxation decision concerned should not have been made or should have been made differently.

1. As is clear from the text of s 14ZZK(b)(i), the task for a taxpayer in discharging the burden of proof is twofold - firstly to show that those assessments are excessive and secondly, and somewhat crucially, to show what their actual liability to taxation ought to have been in each of those years in dispute. These matters are to be established by the Taxpayer on the "civil standard of the balance of probabilities".[3]
2. It is important to remember that where the Commissioner, as he has done in this case, exercises his power under s 167 of the ITAA 1936 to raise (or amend) assessments, the task of a taxpayer to discharge the burden contained in s 14ZZK(b)(i) of the TAA 1953 is "necessarily different" to the one required where assessments have been made pursuant to s 166[4]. Where an assessment made under s 166 requires a more limited response on review, an amendment under s 167 requires a much more expansive endeavour[5].
3. As Derrington J explains in Commissioner of Taxation v Ross [2021] FCA 766 (Ross), the task of the Commissioner in a s 167 assessment context is less evidence-based than the process of assessing under s 166 and involves more the exercise of a judgment as to the amount of tax that ought be levied based on the Commissioner's knowledge of the Taxpayer's affairs. As one might expect, and as noted in Gashi v Commissioner of Taxation [2013] FCAFC 30 (Gashi) at [55] this means that the amount assessed under s 167 "is necessarily a guess to some extent and almost certainly inaccurate in fact". As Derrington J further explained in Ross at [48](8) when properly applied, the principles pertaining to the statutory onus "can result in a situation where the default assessment can be assumed to be inaccurate in some respects but, in the absence of the taxpayer establishing what their actual taxable income was, it must nevertheless stand".
4. The application was listed for a hearing on 8 May 2025 and in the week prior to the hearing the Respondent lodged and served written submissions. Those submissions reinforced at paragraph [1] that:

The Commissioner puts the Applicant to proof in demonstrating that all the Amended assessments and corresponding imposed penalties are excessive and show what the correct assessments should have been. The Applicant must therefore establish what his 'true tax liability' is and to that end, provide what the correct variables to 'both sides of the [income tax] equation' are. In this exercise, the Applicant must also provide a satisfactory account for any unexplained income and wealth from other sources.

5. On the day of the hearing the Applicant, who by that time had instructed a barrister, lodged an outline of written submissions in which it conceded that "the Applicant's financial records are inadequate, as to a large extent are his recollections". Those submissions then explained that:

1. With the exception of deductions arising from wages paid to family members, it would be improper other than to concede that the Applicant is not able to make out that any expenses claimed by the Applicant were properly incurred. 2. These submissions will therefore be confined to the wages issue and any penalties flowing therefrom.

6. The Applicant asserts that to the extent that he is able to establish that family members have paid tax to the Respondent on income distributed to them through the company (and the applicant has assessed such income) the Respondent is estopped from asserting that such income should not be excluded from the income of the Applicant. To do otherwise would be "double dipping"
7. At the commencement of the hearing, counsel for the Applicant further informed the Tribunal that in addition to the narrowing of its case as flagged in the written outline of submissions it would no longer be asking the Tribunal to exercise its remission power under s298-20 of Schedule 1 of the TAA 1953 nor, beyond a consequent reduction that would flow from any reductions to the Amendment Assessments themselves, would the Applicant seek to challenge the Penalty Assessment more generally.
8. Importantly, it is worth making the observation at this stage of my reasons that save where the Respondent agrees to confine the issues on review the onus carries its full burden for the Applicant to discharge in proceedings brought pursuant to Pt IVC of the TAA 1953. The Applicant cannot simply and unilaterally decide to confine issues or parts of the assessment in a way that would, in practical terms, 'chip away' at the amounts assessed.
9. From the Respondent's SFIC and written submissions it is abundantly clear that the Commissioner, in this case, makes no concessions which might result in a confinement of the issues or a narrowing of any onus requirements. There can be little doubt about such matters and the Respondent's submissions at paragraph 1 (as extracted above) are express in that regard.
10. In the course of the hearing the Applicant relied on 3 affidavits being from the Applicant's wife (Ijaaba Hassan) and his two children (Sakarija & Sumaya Hussein). Each were then cross-examined and gave oral evidence, which was somewhat superficial, going to their involvement and work with the childcare business.
11. I could embark on lengthy analysis about what each of those witnesses said in cross-examination and whether I was satisfied that the assessments may have or may have not been excessive to the extent of the salaries allegedly paid to each family member based on this evidence. However, in light of the Applicant's general concessions (as extracted at paragraph ‎33 above) that his "financial records are inadequate, as to a large extent are his recollections" and that he did not intend to establish the full extent of his potential income producing sources this would be a somewhat academic endeavour.
12. I find that in circumstances where the Applicant concedes that he can't explain the extent to which he may have personally derived income from a childcare business that generated some $16 million of revenue over the Relevant Years which he solely controlled, and from which he drew funds from (expending them, seemingly, for personal purposes like the payment of school fees for example), he simply can't hope to establish what the "assessment[s] should have been". The situation in this regard is analogous to circumstances identified by Senior Member Olding in Goldsworthy v Commissioner of Taxation [2022] AATA 2472 where at [24] and [25] he explained:
    1. I have also considered whether, having regard to the submissions lodged, I should nevertheless consider in detail the evidence regarding whether the payments are loans. I have concluded that I should not. To do so, would be futile in light of the clear law regarding the taxpayer's burden of proof as outlined above. This is not a case where consideration of an alternative proposition might lead to a different result. Even if I were to accept everything the applicant says regarding the payments being loans, the outcome must be the same: the applicant has not discharged, indeed has not sought to discharge, the burden of proving the assessment is excessive and, in particular, what amount should be assessed.
    2. In my view, in those circumstances it would not be an appropriate use of Commonwealth funds and the tribunal's scarce resources, nor consistent with the tribunal's statutory objectives, to spend the substantial time required to analyse and recite evidence that cannot change the outcome of the review. ....
13. It was put to the Applicant's counsel in submissions that there may be significant challenges that arise in discharging the onus where the applicant was only seeking to address a singular category of outgoings from the company (that being, a range of otherwise inexplicable withdrawals made from the company accounts which the Applicant says were payments to family members in respect of salary and wages). In response, counsel explained that his client accepted that he had a statutory burden to overcome but was of the view that the requirements under the burden were restricted to the payments alleged to be salary and wages- pointing to the fact that they represented a significant component of what made up the overall assessment (albeit not suggesting that they comprised the entirety or whether that would have made any difference in any event). Unfortunately for the Applicant, in my view and as I understand the authorities suggest, the task under the onus can't be atomised in such a fashion.
14. When considered another way, the approach of the Applicant which seeks to recharacterize what is required under s14ZZK may simply amount to an attempt to point out that the Commissioner's assessments are wrong in one particular or another. As I have explained above, it is well established that discharge of the onus requires more- as mentioned above, in seeking review of an objection decision where the Respondent has raised or amended assessments pursuant to s 167 it is insufficient to simply demonstrate that the Commissioner was wrong or has come to an incorrect amount[6]. Or as it was put by the High Court in Bosanac v Commissioner of Taxation [2019] HCA 41 at [30]:

where, as here, an appeal proceeds on the basis that not all of the material facts are known, either because the taxpayer has been less than forthcoming in making disclosures to the Commissioner or for some other reason, the taxpayer cannot succeed by showing only that the basis of the Commissioner's assessment was in some respects erroneous; since for all that can be told, unless and until the taxpayer proves to the contrary, there may be other income of which the Commissioner is not aware and which the Commissioner has not taken into account. In order to succeed in such a case, the taxpayer must discharge the burden of demonstrating on the balance of probabilities the true amount of the taxpayer's taxable income and thus that the amount determined by the objection decision is excessive. Here, that required the kind of wide survey and exact scrutiny of the plaintiff's business activities to which the primary judge referred and which was conspicuously absent from the plaintiff's presentation.

15. For the reasons I have pointed out it is clear that the Applicant has not and cannot discharge the burden of proving the amount of his taxable income in each of the Relevant Years.

1. In addition to matters relating to the statutory onus, at the hearing the Applicant's counsel argued that the Commissioner should not be entitled to raise assessments against him in circumstances where:
   • Large components of the amount identified by the Respondent as being part of the Applicant's income in the Relevant Years were previously declared as being the salary and wages of his family members in the company's records;
   • There had been large amounts of Pay As You Go Withholding remitted to the Commissioner in respect of those salary and wages;
   • Those amounts had been included in the family member income tax returns lodged at the relevant time;
   • The Respondent had taken no steps to "challenge" those assessments in the years since.
2. The Applicant went on to argue that, as I understood it, there would be something unconscionable about the Respondent seeking to raise assessments against the Applicant for those same amounts and he ought be estopped from doing so. To do so, it was argued, would effectively be a situation where the Commissioner was either 'double-taxing' the Applicant and his family for the same amounts or (in a fashion that was somewhat unclear to me) seeking to 'approbate and reprobate'. In support of this argument the Applicant's counsel referred me to well-known decision of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (Anshun) and suggested that the Respondent should be similarly prevented from raising (or relying upon) assessments raised against the Applicant.
3. In response to such arguments I make the following observations:
   • Firstly, the Respondent's ability to assess multiple parties for amounts that may be characterised as income attributable to one or the other (often referred to as 'alternative assessments') is well established[7].
   • Secondly, such a characterisation of what the Commissioner of Taxation is doing in raising assessments misapprehends the legislative taxing regime set out by Part IV of the ITAA 1936 and the basis upon which such assessments may be challenged within Pt IVC of the TAA 1953.
   • Thirdly, to the extent that the Applicant relies on Anshun to identify some form of issue estoppel (as seemed to be argued by the Applicant). In my view; the Commissioner raising an assessment under the power contained in s167 in circumstances where the same funds might reasonably form the basis of a tax obligation raised against or acknowledged by another taxpayer bears little resemblance to whether matters pertaining to a contractual indemnity had or should have been raised in previous litigation conducted by the parties in the manner addressed by the High Court in Anshun; and
   • Finally, if I misunderstood the Applicant's argument and it was counsel's intention to raise the risk of some form of 'double taxing' in a debt recovery context or otherwise strike at the validity of the underlying assessments[8], then such arguments ought appropriately fall beyond the scope of proceedings brought pursuant to Pt IVC of the TAA 1953[9].
4. Counsel for the Applicant made passing reference to the well-known United Kingdom case of Associated Provincial Picture House v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 and pressed an argument that for the Commissioner to seek to raise and recover the same amount twice would constitute 'Wednesbury unreasonableness'. Again, in my view such arguments have no application in the context of Pt IVC proceedings. The Respondent is entitled to raise assessments to more than one individual where there is real doubt as to which individual may be appropriately liable to tax.
5. In my view these 'other arguments' raise no basis upon which the reviewable objection decision may be set aside or otherwise varied as the Applicant seeks.
6. As the Applicant, as noted in paragraph ‎34, no longer asks the Tribunal to exercise its remission power under s298-20 of Schedule 1 of the TAA 1953 or seeks to challenge the Penalty Assessment more generally, I am not required to address such matters.
7. Pursuant to s 105 of the Administrative Review Tribunal Act 2024, the reviewable objection decision is affirmed.

[3] See Buzadzic v Commissioner of Taxation [2024] FCAFC 50.

[4] See Gashi v Commissioner of Taxation [2013] FCAFC 30 at [51]- [54] ('Gashi').

[5] See for example Bosanac v Commissioner of Taxation [2019] FCAFC 116 at [57] ('Bosanac').

[6] See for example Federal Commissioner of Taxation v Dalco (1936) 168 CLR 615 at [624] or Ross at [48].

[7] See PSLA 2006/7 Alternative Assessments and a number of the cases cited therein.

[8] see Federal Commissioner of Taxation v Futuris (2008) 237 CLR 146.

[9] See for example Hyder v Commissioner of Taxation [2022] FCA 264.