Bani Samuel Pty Ltd and Commissioner of Taxation (Taxation) [2025] ARTA 2186 | Case summary | Zoe

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Bani Samuel Pty Ltd and Commissioner of Taxation (Taxation) [2025] ARTA 2186 (17 October 2025)

austlii:cth/ARTA/2025/2186

ARTA|2025-10-17

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At a glance

Source facts

Court

ARTA

Decision date

2025-10-17

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

The Applicant must discharge the onus of demonstrating how the Further Amended Assessments are excessive and what the assessments should be. Picking off one aspect or another of the Commissioner's audit report and Objection Decision, seeking to prove how one or other amount the Commissioner has relied on is not income in the hands of the taxpayer, is fraught with difficulties.
In circumstances where the Tribunal rejected the evidence of the Mr Attam on behalf of Bani Samuel, it is difficult to see how Mr Attam can discharge the burden of proving the assessments for Bani Samuel are excessive.
The relevant assessments were issued under s 166. Mr Attam's position appears to be that under s 166, the burden of proof imposed on the Applicants can be discharged by showing an error in the amounts assessed by the Commissioner.
The Applicant's arguments are misconceived as the case is about the burden of proof which a taxpayer has to discharge under s 14ZZK(b) of the TAA, and not about the basis upon which the assessments were issued. This is not a case in which differences in the way s 166 and s 167 assessments are made have any practical significance for the Applicant as to its burden of proof.
As to the other grounds advanced by the Applicant, including the numerous spreadsheets and invoices or bills paid by the Applicant, are of little weight, considering the deficiencies in the Applicant's evidence with respect to the intermingling of funds. The accuracy of the spreadsheets is dubious and unreliable. It appeared that no Fringe Benefits Tax records were ever prepared contemporaneously, i.e. in the relevant FBT years. Further, the Applicant's accountant Mr Zach Hussein, was never in the position to prepare FBT records, accurate or otherwise, as Mr Attam had never given Mr Hussein access to Mr Attam's personal financial details. In these circumstances, it is impossible to believe the FBT returns prepared for Mr Attam by Mr Ahmed in 2024, years out of time, were based on any reliable source documentation and were anything other than a figment of Mr Ahmed's imagination.

[2]

Division 284 of Schedule 1 of the TAA sets out the administrative penalty regime relevant to the present applications. Section 284-75(1) of Schedule 1 of the TAA relevantly provides that a taxpayer will be liable to an administrative penalty if that taxpayer makes a statement to the Commissioner that is false or misleading in a material particular, whether because of things in it or omitted from it. Here, the false or misleading statements are the understatements of assessable income by the Applicant with respect to the tax returns for the 2014, 2015, and 2016 income years.
While the Tribunal does not need to consider whether the Applicant made the statements knowing them to be false or misleading, only that they have been made,[63] the Tribunal finds Mr Attam knowingly understated the income of Bani Samuel in the relevant years.
The Tribunal was not persuaded that the Applicant discharged its burden of proving that Bani Samuel or Mr Zach Hussein took reasonable care in preparing the Applicant's income tax returns for the relevant years. The reasonable care test calls upon a taxpayer to exercise the care that a reasonable person would be likely to have exercised in the circumstances of the taxpayer fulfilling their tax obligations. The Tribunal finds that the behaviour of Mr Attam was reckless, as it showed disregard or indifference to a risk that is foreseeable by a reasonable person.[64]
The Respondent may, in exercising the discretion allowed, remit the whole or any part of the administrative penalties under s. 298-20 of Schedule 1 to the TAA. The relevant question is whether remission is appropriate in the particular circumstances of the Applicant. The Respondent contended there was nothing in the evidence before the Tribunal that pointed to further remission of penalties being appropriate. The Tribunal agrees with the Respondent's position, set out in the table in Annexure A. The Tribunal was not persuaded that any further remission was appropriate in all the circumstances, and that the Respondent 's decision with respect to non-remission of penalties should have been made differently: s 14ZZK(b)(ii) of the TAA.

[3]

These proceedings concern Mr Attam's liability to income tax for the years ended 30 June 2014, 2015, and 2016, and Mr Attam's liability to administrative penalties.
Having considered the objection decision, the witness statements of Mr Attam and Mr Attam's oral evidence, the Tribunal finds the Respondent's Further Amended Assessments for Mr Attam for the income years ending 30 June in 2014, 2015 and 2016 were not excessive. However, as a flow on consequence of the Respondent's agreed concessions made because of Bani Samuel's Amended Statement of Facts, Issues and Contentions, the Respondent will need to further amend Mr Attam's Further Amended Assessments.
The Tribunal is not in a position, on the basis of the evidence before it, to conclude any of the amounts allegedly transferred to Mr Attam from Bani Samuel where in respect of reimbursements for expenses related to the business of Bani Samuel.
In respect of the Respondent's Amended Assessments for the Applicant's liability for Administrative Penalties in respect of shortfall amounts for the financial years ended 30 June 2014, 2015 and 2016, the Tribunal finds the administrative penalties are not excessive.
Mr Attam was an educated man who ran, or was involved in, a number of business and was a company director of numerous companies. It is inconceivable that he was unaware of the requirements imposed on him both personally and in his capacity as a director with respect to the preparation of company and personal income tax returns. In respect of his personal income tax returns, Mr Attam's evidence was that he prepared these returns himself.
The Tribunal finds Mr Attam deliberately manipulated his income and made false and or misleading statements to the Respondent for the purposes of s 284-75(1). Mr Attam had access to all of the business bank accounts of Bani Samuel and his own personal bank accounts, yet he significantly underreported his taxable income in each of the 2014, 2015 and 2016 income tax years. It is difficult for the Tribunal to infer anything other than Mr Attam failed to properly disclose his income in the knowledge that it would reduce his liability to income tax. Further, it is not beyond the realms of possibility that Mr Attam was aware that, in order to take advantage of Commonwealth Government payments for low-income families he would have to significantly reduce his taxable income. In any event, whatever Mr Attam's motive, the Tribunal finds Mr Attam intentionally disregarded a taxation law, and the penalties imposed by the Respondent were appropriate and not excessive.
There were no factors before the Tribunal nor any circumstances that warrant any remission of administrative penalties pursuant to s 298 -20 of Schedule 1 of the TAA for income tax shortfall or for failing to withhold tax, given the Tribunal finds Mr Attam intentionally disregarded a taxation law.

Legislation Cited (11)

Tax Assessment Act 1936(Cth)

Frings Benefits Tax Assessment Act 1986(Cth)

Review Tribunal Act 2024

Administration Act 1953

Appeals Tribunal Act 1975

Review Tribunal (Consequential and Transitional Provisions No.](/cgi-bin/viewdoc/au/legis/cth/num_act/artatpn1a2024807/index.html) [1) Act 2024

Benefits Tax Assessment Act 1986

New Tax System (Family Assistance) Act 1999

Review Tribunal (Consequential and Transitional Provisions No](/cgi-bin/viewdoc/au/legis/cth/num_act/artatpn1a2024807/index.html) [1) Act 2024

Administrative Act 1953

Security Offences (Special Measures) Act 2012

Cases Cited (26)

Bani Samuel Pty Ltd and Commissioner of Taxation (Taxation) [2025] ARTA 2186 (17 October 2025)

Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26

Re Eastwin Trade Pty Ltd and Commissioner of Taxation [2017] AATA 140

ZFPR v Commissioner of Taxation (Taxation and Business) [2025] ARTA 572

Trautwein v Federal Commissioner of Taxation ( No1) [1936] HCA 77; (1936) 56 CLR 63

Warner v Hung (No2) [2011] FCA 1123

Melbourne Corporation v Commissioner of Taxation [2022] FCA 972

Commissioner of Taxation v Liang [2025] FCAFC 4

Hart v Commissioner of Taxation [2003] FCAFC 105; (2003) 131 FCR 203

Vu v Federal Commissioner of Taxation [2006] FCA 889; (2006) 63 ATR 341

Commissioner of Taxation v Ross [2021] FCA 766

Gauci v Federal Commissioner of Taxation [1975] HCA 54; (1975) 135 CLR 81

HWFX and Commissioner of Taxation (Taxation) [2025] ARTA 680

Imperial Bottleshops Pty Ltd v Federal Commissioner of Taxation [1991] FCA 276; (1991) 22 ATR 148

McPartland v Commissioner of Taxation [2025] FCAFC 23

Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 at 623-624 Gashi v Federal Commissioner of Taxation [2013] FCAFC 30; (2013) 209 FCR 301

"Save as identified below, the Respondent joins issue with the Applicant on each and every one of its contentions and says: > > "Pursuant to section 14ZZK(b) of the TAA, on an application for review of a reviewable objection decision, the Applicant has the burden of proving that the relevant assessments are excessive or otherwise incorrect and what the assessments should have been" (citing Bosanac v Commissioner of Taxation [2019] FCAFC 116)" > > '"unless expressly admitted, the Respondent puts the applicant to proof of all facts set out in the Applicants SFIC" > > "The Respondent contends that, save for the concessions expressly made, each of the amended assessments and penalty assessments set out at paragraph 54-57A in the Applicants SFIC are not excessive."

[12] "As will be apparent from the language of the sub-section, s 14ZZK(b)(i) of the TAA requires the appellants to have proved in the Tribunal that the assessments were excessive or otherwise incorrect and what the assessment should have been: see Bosanac v Commissioner of Taxation at [47],Buzadzic v Commissioner of Taxation ([2024] FCAFC 50 at [7]-[8]); Gashi v Federal Commission of Taxation ((2013) [2013] FCAFC 30; 209 FCR 301 at [61]- [63] ) (Gashi); Rigoli v Federal Commissioner of Taxation [2014] FCAFC 29; (2014) 96 ATR 19 at [26] .A careful distillation of the nature of the onus of proof and the principles is set out by Derrington J in Commissioner of Taxation v Ross [2021] FCA 766; (2021) 174 ALD 77 at [46]- [48]". > > [15] "The taxpayer bears the onus on all issues, save where the commissioner and taxpayer agree to confine the issues to a particular point of law or fact, in which case the taxpayer bears the onus in respect of those: Dalco at 624. No particular method by which the taxpayer must discharge their burden is defined or specified. The method will vary according to the circumstances of the case: Gashi at [63], citing Dalco at 624".

"A taxpayer who does not keep records of his deductible outgoings faces a very difficult task. If he goes into the witness box and swears that he has incurred the outgoings he is making a self-serving statement. That does not necessarily mean that he is not to be believed. Such a statement, like statements of purpose, or object or state of mind must, however, be "tested most closely, and received with the greatest caution": Pascoe v Federal Commissioner of Taxation (1956) 11 ATD 108 at 111. It would, of necessity, be a rare case indeed where a taxpayer, claiming to have expended a very large sum of money on trading stock and other business expenses, would succeed in satisfying the burden of proving that the assessment is excessive. Some other corroborative evidence would normally be required which makes it more probable than not that his sworn testimony is to be believed. It must, however, be borne in mind that the evidence of a taxpayer is not to be regarded as "prima facie unacceptable", cf McCormack v Federal Commissioner of Taxation [1979] HCA 18; (1978-9) 143 CLR 284 at 302 per Gibbs J."

(1936) 56 CLR 63

(2003) 131 FCR 203

(1975) 135 CLR 81

(1990) 168 CLR 614

(2013) 209 FCR 301

(1979) 143 CLR 284

(1975) 8 ALR 155