Administrative Appeals Tribunal of Australia|2013-09-05

Beiruti and Commissioner of Taxation [2013] AATA 634 (5 September 2013)

CATCHWORDS - TAXATION - EXTENSION OF TIME - relevant principles - Tribunal without power to review objection decision even if time extended - review sought of non-crediting of PAYG withholding credits - whether encompassed in review of assessment - no jurisdiction - extension of time refused.

Blackman v Commissioner of Taxation [1993] FCA 345; (1993) 43 FCR 449;

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; 139 ALR 1

Brown v Federal Commissioner of Taxation [1999] FCA 563; (1999) 99 ATC 4516; [1999] FCA 563; 42 ATR 118

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Chalk v Commissioner for Superannuation (1994) 50 FCR; 33 ALD 420

Federal Commissioner of Taxation v Brown (1999) 99 ATC 4852; 42 ATR 672; [1999] FCA 1198

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315

Minister for Immigration v Chan [2008] FCAFC 155; (2008) 172 FCR 193

Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611; 162 ALR 577

Phillips v Australian Girls' Choir Pty Ltd & Anor [2001] FMCA 109

Re Knight and Comcare (1995) 36 ALD 417

Re The Australian and Department of Families, Community Services and Indigenous Affairs and Cape York Land Council [2006] AATA 755

Scott v Commercial Hotel Merbein Pty Ltd [1930] VicLawRp 4; [1930] VLR 25

Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628; 75 ALR 513

Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324

Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 100 FCR 297

Windshuttle v Commissioner of Taxation [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; [1993] FCA 553; 27 ATR 88

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495

Income Tax Assessment Act 1997, ss 3-5, 4-10, 5-5, 9-1, 9-5

Taxation Administration Act 1953, ss 8AAZA, 8AAZC, 8AAZLF, 14ZD, 14ZL, 14ZQ, 14ZW, 14ZY, 14ZZ, 14ZZC, Part IIB and division 3, Part 2-5 of Sch 1 and divisions 12, 15 and 16, subdivisions 16-BA, 16-C and 20-D, 18-15, 18-65, 18-100, 20-80

Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

DECISION AND REASONS FOR DECISION [2013] AATA 634

(1). it does not have power to review the respondent's decision declining to credit PAYG payments he claims have been made to the Australian Taxation Office by his employer; and

(2) a decision of that sort is not part of the assessment which is the subject of the respondent's reviewable objection decision dated 25 February 2013; and

refuses the applicant's application to extend the time within which he may lodge an application for review of the respondent's reviewable objection decision dated 25 February 2013.

Mr Beiruti has applied for an extension of time within which to seek review of the objection decision made by the Commissioner of Taxation (Commissioner) dated 25 February 2013. That objection decision partly allowed an objection to an assessment made by the Commissioner. It did not, however, allow Mr Beiruti's objection to the fact that no credit had been given for PAYG withholding payments shown in a payment summary issued by his employer. I have decided that I do not have jurisdiction to review matters arising in relation to the PAYG and have refused his application for an extension of time. Even though the Tribunal has no power, I understand that the Commissioner is continuing to examine the matter.

2. On 23 May 2012, the Commissioner issued a Notice of Assessment to Mr Beiruti for the year ended 30 June 2011. The notice showed that the Commissioner had assessed Mr Beiruti's taxable income as $200,000.00 rather than $187,735.00 as he had disclosed. It also showed that the Commissioner had disallowed Mr Beiruti's claims for work related clothing expenses ($145.00), other work related expenses ($1,954.00), work related car expenses ($9,396.00) and tax withheld ($66,768.00). The tax payable on Mr Beiruti's net taxable income was assessed as $63,550.00. When the Medicare levy of $3,000.00 and Medicare levy surcharge of $2,000.00 was added, Mr Beiruti was assessed as required to pay $68,550.00.

3. On 26 July 2012, Mr Beiruti lodged an objection to the Commissioner's assessment. After considering that objection, the Commissioner advised Mr Beiruti of his decision to disallow the objection except in relation to his claim for the deduction of his tax agent's fees of $770.00. He advised Mr Beiruti of his decision in a letter dated 25 February 2013. Mr Beiruti received that letter on 27 February 2013.

4. As a consequence of his objection decision, the Commissioner issued a Notice of Amended Assessment on 5 March 2013. After adjusting the taxable income to $199,230 to allow for the deduction of the tax agent's fees, the Commissioner assessed the tax payable on that amount to be $63,203.50 and Medicare levy and surcharges to be $4,980.75. The outcome was that the Commissioner assessed the tax payable by Mr Beiruti as $68,184.25. Mr Beiruti has claimed that he is entitled to Pay as You Go (PAYG) withholding credits that reduce the tax remaining to be paid by him.

5. On 13 May 2013, the Tribunal received a letter from Mr Beiruti's accountant, SM Wilson & Associates, stating that a copy of the Commissioner's letter of 25 February 2013 was attached and requesting that the decision be reviewed by the Tribunal. He enclosed a cheque for $816.00 but the Commissioner's letter appears to have been omitted. On the following day, 14 May 2013, his accountants sent a completed application form by email together with a copy of the Commissioner's letter dated 25 February 2013, the notices of assessment and amended assessment and a statement dated 26 March 2013 setting out why "Mr Beiruti objects against the assessments ...".

6. As it appeared that the application for review had not been lodged within the time permitted for it, the Tribunal's Registry wrote to Mr Beiruti advising him of that and inviting him to complete and return an application for an extension of time within which to lodge an application for review. Through his accountant, Stephen Wilson, Mr Beiruti lodged an application for an extension of time until 31 May 2013.[1] He did so on 29 May 2013 when he also enclosed a second application but, this time, that application was completed on a document following Form 1 in the Schedule to the Administrative Appeals Tribunal Regulations 1976 (Regulations).[2]

7. On 29 May 2013, the Tribunal's Registry sent a copy of the application for an extension of time with its attachments to the Commissioner and sought his view on that application. Receipt of the application was acknowledged by the Commissioner on 11 June 2013 when he advised the Tribunal that he did not have any objection to an extension's being granted until 13 May 2013. On the same day, he sent the Tribunal a copy of the letter he had sent to Mr Beiruti on the same day confirming his advice. In that letter, he went on to advise Mr Beiruti that, in his view, the decision to disallow his claim for PAYG withholding credits is not a decision that the Tribunal may review because it is not a reviewable decision. Mr Wilson has set out a contrary view in his letter to the Tribunal dated 17 July 2013.

WHEN WAS MR BEIRUTI'S APPLICATION FOR REVIEW LODGED?

8. This issue arises because I note that the Commissioner has given his consent to an extension of time for lodgement until 13 May 2013. This was the date on which the Tribunal received Mr Wilson's letter enclosing a filing fee in the amount of $816.00 and stating that, on behalf of Mr Beiruti, he was requesting the Tribunal to review the Commissioner's decision. He did not enclose a copy of the Commissioner's letter setting out his objection decision and did not send a completed application form. They arrived on the following day, 14 May 2013, together with copies of the assessments and the reasons for the application.

9. It seems to me that, on 13 May 2013, the letter written to the Tribunal on Mr Beiruti's behalf met the requirement of s 29(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act) that it be in writing. There is no need for it to be completed on the prescribed form for s 29(1)(b) permits that but does not require it. It did not meet the requirements of s 29(1)(d) but that is being addressed by the application for an extension of the time within which an application could be lodged.

10. The only other issue is whether it met the requirements of s 29(1)(c) that it contain a statement of reasons for the application. The letter lodged on 13 May 2013 did not contain anything that could be read as such a statement. The material that was lodged on 14 May 2013 clearly did. If it is the case that an application is required to contain a statement of reasons before it can be regarded as an application, then Mr Beiruti's application was not lodged until 14 May 2013[3] and any extension of time would have to be given to that date. If it is not required to contain it, then any extension need only be given to 13 May 2013.

11. Although s 29(1) of the AAT Act is the relevant provision under which to consider this matter, I recognise that s 29(1) as it appears in the AAT Act is not the s 29(1) that is relevant. For the purposes of a reviewable objection decision, and so of an objection decision made by the Commissioner that is not an ineligible income tax remission decision,[4] s 14ZZC of the Taxation Administration Act 1953 (TAA) provides that:

"Section 29 of the AAT Act applies in relation to a reviewable objection decision as if subsections (1) to (6) (inclusive) of that section were omitted and the following subsection were substituted:

'(1) An application to the Tribunal for a review of a decision:

(b) may be made in accordance with the prescribed form; and

(c) must set out a statement of the reasons for the application; and

(d) must be lodged with the Tribunal within 60 days after the person making the application is served with notice of the decision.'."

12. Apart from the difference in the expression of the time limit in s 29(1)(d), there is another significant difference between the wording of s 29 of the AAT Act as it applies to applications lodged for review of a reviewable taxation objection decision. That difference is found in ss 29(1)(a) and (d) when they use the word "must" to express the requirement. In that regard, their use is consistent with s 29(1)(c), which also expresses its requirement by means of the word "must". Their use of that word is not consistent, though, with the way in which ss 29(1)(a) and (d) generally apply. In their unmodified form, ss 29(1)(a) and (d) express their requirements by using the word "shall" and only s 29(1)(c) uses the word "must".

13. For the reasons I have set out in Attachment A, I have decided that in the modified form in which it applies to an application for review of a reviewable taxation objection decision, an application cannot be made to the Tribunal unless it sets out a statement of reasons for its being made. That follows from the consistent use of the word "must" in ss 29(1)(a), (c) and (d). In its ordinary usage, the word "must" is used to express duty or obligation and, in the context of s 29(1), is to be understood as permitting the use of the prescribed form but not requiring it in order to make an application. That means that, putting aside the time requirements of s 29(1)(d) and the special provisions made for applications to which ss 29(ca) and (cb) apply, an application cannot be lodged until it meets the requirements of ss 29(1)(a) and (c). As Mr Beiruti's application did not do so until 14 May 2013, that is the day to which time will have to be extended if I grant his application for its extension.

14. I have reached this conclusion only after an analysis of s 29(1) as it applies in its unmodified form in relation to applications made to the Tribunal for review. In its unmodified form, its requirements are not expressed consistently by the use of one word of obligation be it "must" or "shall". Instead, it uses both. That fact, together with the premise implicitly underlying s 29(1B)(a) that an application can be made without a statement of reasons and the nature of merits review, leads me to the conclusion that a statement is not a mandatory requirement to be met before an application can be said to be made. Therefore, had s 29(1) applied in its unmodified form and putting aside the time requirements of s 29(1)(d), Mr Beiruti's application would have been lodged on 13 May 2013.

The Tribunal's power to extend the time within the prescribed time

15. The "prescribed time" within which an application must be lodged is set out in s 29(2) of the AAT Act but s 29 is a provision which may be modified by an enactment that provides for an application to be made to the Tribunal. The TAA is such an enactment. Section 14ZZC modifies s 29 so that ss 29(2) to (6), which deal with the time within which an application must be made, are treated as if they had been omitted from the provision altogether. In their place is s 29(1)(d), which I have already set out at [11] above. It sets a time limit of "... 60 days after the person making the application is served with notice of the decision."

16. No modification is made to s 29(7) of the AAT Act. It provides:

"The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so."

Principles identified in Hunter Valley Developments Pty Ltd v Cohen

17. In considering the manner in which the discretion to grant an extension should be exercised, regard is frequently paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[5] (Hunter Valley). In that case Wilcox J considered an application for extension of time pursuant to s 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) rather than s 29 of the AAT Act. Section 11(1)(c) permits an application to be lodged "... within such further time as the court concerned ... allows." After noting that s 11 does not set out any criteria to be followed in exercising the Court's discretion and that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he distilled six factors that are relevant in deciding to exercise the discretion. The first factor[6] was modified by the Full Court of the Federal Court in Comcare v A'Hearn[7] although in the context of the AAT Act. Allowing for that modification, the factors were summarised by Federal Magistrate McInnis, as he then was, in Phillips v Australian Girls' Choir Pty Ltd & Anor[8] when he said:

" In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:

_There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored (_Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
It is a prima facie _rule that the proceedings commenced outside the prescribed period will not be entertained (_Lucic v Nolan _(1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (_Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297 at 302).
Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287).
Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).
The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at

p 417). 7. _Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (_Wedesweiller v Cole (1983) 47 ALR 528)."[9]

18. In Budd v Secretary, Department of Education, Employment and Workplace Relations,[10] Cowdroy J approved and applied these factors in the context of s 44(2A)(a) of the AAT Act. Section 44(2A) provides that an appeal instituted under ss 44(1) or (2) shall be instituted within the time set out in s 44(2A)(a) and in such manner as is prescribed by the Rules of Court made under the Federal Court of Australia Act 1976.[11]

Principles must be adapted to the particular legislative context

19. It is important, however, to remember that these factors should not be applied rigidly without regard to the particular legislative context in which an application for an extension of time must be considered. The legislative context in which they were developed by Wilcox J in Hunter Valley was that of the ADJR Act. They were modified by the Full Court of the Federal Court in A'Hearn in the context of the extension of time provisions in s 29(7) of the AAT Act. It may be that in a particular context the principles remain the same but it may be that they do not. That this is so is clear from the observations made by Hill J in Brown v Federal Commissioner of Taxation,[12] to which I will return below.

20. By way of illustration, I note that the formulation of the power to extend time may affect the principles. The way in which it is formulated in s 11(1) of the ADJR Act, with which Wilcox J was concerned, differs from the way in which it is formulated in s 29(7) of the AAT Act. Whereas s 11(1) gives the court power to extend the time for lodgement "within such further time as the court concerned ... allows", s 29(7) provides that the Tribunal may extend the time if it "is satisfied that it is reasonable in all the circumstances to do so." Section 2A of the AAT Act does not have an equivalent in the Federal Court of Australia Act 1976 or in the Federal Circuit Court of Australia Act 1999. They apply to the two Courts that would be expected to hear an application under the ADJR Act. It provides that:

"In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick."

21. The apparent strengths or weaknesses of any applicant's case are the subject of factor 6 in McInnis FM's summary in Phillips v Australian Girls' Choir Pty Ltd & Anor and were earlier included by Wilcox J in the Hunter Valley case in his list. The particular application for an extension of time will be relevant in deciding how those strengths and weaknesses are "properly to be taken into account". An application for an extension of time for lodging an objection under the now repealed s 188A of the Income Tax Assessment Act 1936 or under s 14ZW of the TAA, which now provides for the time at which a taxation objection must be made, might, for example, lead to a view of what might properly have been taken into account that is different from the view of what may properly be taken into account under s 29(7) of the AAT Act.

22. The authorities may adopt what appear to be slightly different approaches although their ultimate conclusions are consistent i.e. a consideration of the merits of the substantive or substantial application does not translate into a requirement to undertake a full consideration of the merits of a substantive application were time extended and it were to be lodged. Von Doussa J explained their relevance of issues relating to the merits of the substantial application in Windshuttle v Commissioner of Taxation.[13] His Honour said:

"The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A [of the Income Tax Assessment Act 1936], the applicant's case had prospects of success, and what those prospects were. It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. It would, of course, have been open before the AAT for the Commissioner to attack the history of the transaction asserted by the applicant. If it could have been demonstrated that an essential part of that history was wrong, that would go directly to the prospects of success to the objection. However the Commissioner chose not to attach [sic] the veracity of the facts alleged by the applicant, and this is understandable having regard to judicial pronouncements to the effect that where the issue is whether leave should be given to extend time it is inappropriate for the tribunal concerned to embark on a full scale trial of the merits of the underlying question which will be agitated only if time is extended. See Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; (1989) 18 ALD 129 at 130, Repatriation Commission v Tuite [1992] FCA 415; (1992) 37 FCR 571 at 577. It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant's case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time."[14]

In the later case of Brown v Federal Commissioner of Taxation, Hill J commented upon the relevance of particular principles set out in the Hunter Valley case to an application for an extension of time under the Taxation Administration Act 1953. The taxpayer had sought an extension of time within which to lodge an objection from an assessment but the Commissioner of Taxation (Commissioner) had refused it. The Tribunal affirmed the Commissioner's decision and the taxpayer appealed to the Federal Court. Against that background, Hill J said:

"... there is much to be said for the view that the merits of the objection are of less concern when an application for an extension of time to object is under consideration than would be the case where judicial review of an administrative decision is sought. For it is only after the objection is lodged within the time which is extended that the Commissioner is placed under a duty to consider the objection and allow or disallow it or allow it in part. I do not wish to be taken as saying that the merits of the objection are totally irrelevant. For present purposes I am prepared to accept the view of von Doussa J in Windshuttle [v Deputy Federal Commissioner of Taxation (1993) 93 ATC 4992] that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold. What is involved is whether the objection on its face discloses a case which is arguable, not whether having regard to other matters, including evidence which may not even be known to the taxpayer at the time of making the application, the case is one that the taxpayer will or will probably lose."[15]

24. While his Honour's comments were noted on appeal, the Full Court made no particular observation other than to clarify the Tribunal's power to have regard to the apparent strengths and weaknesses of the taxpayer's case.[16] It said:

" We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer's case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration. In the present case, for example, while the AAT should not have resolved the application by rejecting the taxpayer's evidence as unworthy of belief, it could have taken into account the obvious difficulties confronting the taxpayer's claim when deciding whether, in the light of all the circumstances, an extension of time was appropriate. The AAT might well have concluded that, having regard to the taxpayer's delay in lodging the application, the fact that he had been prepared at one stage to accept that the assessed amount was income and the contemporaneous documentary evidence casting doubt upon his claims, the case did not warrant an extension of time. But this is not the basis on which the AAT chose to proceed."[17]

25. The spirit in which an application for an extension should be approached is a matter that Davies J, with whom Black CJ agreed, considered in Chalk v Commissioner for Superannuation.[18] He said:

" Most provisions which authorise an extension of time are instances of beneficial legislation which, accordingly, should be applied beneficially. With respect to such discretions in rules of court, Reynolds, Hutley and Bowen JJA said, in Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht (Third Party) [1974] 1 NSWLR 27 at 30:

'We appreciate that the rules of court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.'

Those remarks indicate the importance of forming a view as to whether it is in the interests of justice that time be extended..."[19]

26. Similar sentiments were expressed by McHugh J in the High Court in Brisbane South Regional Health Authority v Taylor:[20]

"Even where the cause of action relates to personal injuries ..., it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible ...

In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' [[21]] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."[22]

27. If it were not for the question of the Tribunal's jurisdiction to review the decision, there would be no doubt in my mind that the time within which Mr Beiruti should be permitted to lodge his application for review should be extended to 14 May 2013. The delay has been short and the Commissioner has not been disadvantaged by it and nor could an extension of time be said to place Mr Beiruti in an unfair position when compared with other taxpayers. The only matter that makes me hesitate in granting him an extension of time relates to the prospects of his application's being successful were I to do so.

28. A hearing of an application to extend time for lodgement is not the time to hear all the evidence, make findings of fact and try the issues as it would be on a hearing of the substantive application. It is a time to decide whether an applicant has an arguable case in the sense that, if at a hearing, he or she were able to lead evidence to establish the facts as he or she asserts them to be, he or she would have a reasonable prospect of succeeding. That necessarily requires some regard to be had to the law. As Hill J indicated in Brown v Federal Commissioner of Taxation, if an application is "... on the face of it ... one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered." If Parliament has not given the Tribunal power to review the decision, and so not given it jurisdiction, Mr Beiruti's application would be bound to fail. If that is the case, I would refuse his application for an extension of time within which to lodge it. Therefore, I must consider whether the Tribunal does have jurisdiction.

The Tribunal's power to review decisions made by the Commissioner

A. Making provision for power to be conferred on the Tribunal

29. In so far as it is relevant, s 25(1) of the AAT Act provides:

"An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment; or

Where an enactment does make a provision of that sort, the Tribunal's power to review the decision concerned does not come from that provision but from s 25(4) of the AAT Act. It provides:

"The Tribunal has power to review any decision in respect of which application is made to it under any enactment."

Power conferred on the Tribunal to review some of the Commissioner's decisions

30. The first step is to look to see whether Parliament has been given power to review a decision of the Commissioner. I find that it has done in s 14ZZ(a) of the TAA. It provides that:

"If the person is dissatisfied with the Commissioner's objection decision (including a decision under paragraph 14ZY(1A)(b) to make a different private ruling), the person may:

(i) apply to the Tribunal for review of the decision; ...

31. The way in which Parliament has identified the decision that the Tribunal may review means that I must go back to identify what an objection decision is and what it may be made about. The expression "objection decision" is given its meaning by s 14ZY(2), which provides that it is a decision made by the Commissioner and mentioned in ss 14ZY(1), (1A) and (1B). Among them, is the Commissioner's decision whether to allow, wholly in part, or whether to disallow an objection decision. Section 14ZYA provides for circumstances in which the Commissioner may be deemed to have made an objection decision under s 14ZY(1).

32. An objection decision can only be made by the Commissioner on receiving a "taxation objection". That is an expression given its meaning by s 14ZL[24] when it provides that Part IVC, which applies to taxation objections, reviews and appeals:

"... applies if a provision of an Act or of regulations (including the provisions 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."

33. Therefore, before a person can take a step on the path that leads to review of an objection decision by the Commissioner, he or she must first find a provision of an Act or in any regulations providing that he or she may object against an assessment, determination, notice or decision, or with a failure to make a private ruling, in the way Part IVC provides.

Looking for an assessment, notice or decision relevant to PAYG withholding credits and to which Mr Beiruti may object

34. On behalf of Mr Beiruti, Mr Meehan submits that I should look to s 175A of the Income Tax Assessment Act 1936 (ITAA36). Subject to qualifications that are not relevant in this case, s 175A(1) provides:

"A taxpayer who is dissatisfied with an assessment made in relation to the taxpayer may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953."

35. If Mr Meehan is correct, it would follow that an "assessment" encompasses matters that arise under the PAYG withholding provisions and the way in which the Commissioner is required to apply credits arising under those provisions to tax liabilities. In the following paragraphs, I explain why I have concluded that it does not.

36. The word "assessment" has various meanings but, in the context of a taxpayer in Beiruti's situation, it means:

"(a) the ascertainment of the amount of taxable income (or that there is no taxable income) and of the tax payable on that taxable income (or that no tax is payable); ...".[25]

C. When may the Commissioner make an "assessment"?

37. Income tax is payable each year by each individual and company and some other entities listed in ss 9-1 to 9-5 of the Income Tax Assessment Act 1997 (ITAA97).[26] Income tax is worked out by first multiplying a taxpayer's taxable income for the relevant income year by the relevant rate of tax and then deducting tax offsets.[27]

38. Where a person is liable to pay tax (including a nil liability) under ITAA36, the Commissioner may make an assessment of the amount of that tax or that no tax is payable.[28] Section 166 imposes on the Commissioner the obligation to make an assessment:

"From the returns, and from any other information in the Commissioner's possession, or from any one or more of these sources, the Commissioner shall make an assessment of the amount of the taxable income (or that there is no taxable income) of any taxpayer, and of the tax payable thereon (or that no tax is payable)."

39. Income tax is due and payable only if the Commissioner makes an assessment of the taxpayer's income tax for a particular year.[29] The time at which it is due and payable after the Commissioner has made an assessment is determined under s 5-5 of ITAA97.

40. When certain types of payments, such as salaries and wages, are paid to a person, the person making those payments is, as a general rule, required to withhold part of it and to pay that part to the Commissioner. The part withheld is generally described as a Pay as You Go (PAYG) withholding. The occasions on which that obligation arises are set out in Division 12 of Part 2-5 of Schedule 1 to the TAA.

41. Division 15 sets out how much must be withheld and Division 16 when to withhold it and when to pay them to the Commissioner. An entity required to withhold amounts must be registered with the Commissioner under Subdivision 16-BA. It must notify the Commissioner of the amounts withheld and give the recipient a payment summary of the amounts withheld under Subdivision 16-C.[30] A recipient of a payment summary must keep it for the periods specified in s 18-100.

42. When an entity has withheld an amount from a payment made to, or received for, the recipient and has purported to do so under Division 12 and the amount was withheld or paid to the Commissioner in error, the amount must be refunded in the circumstances set out in s 18-65(1). This is the effect of s 18-65(2), which goes on to provide that the amount becomes a debt recoverable by the recipient from the payer. If the payer does refund an amount under s 18-65(1), the payer may recover so much of the amount of the debt from the Commissioner as is provided in s 18-65(5).

43. An entity may receive a credit for the amounts withheld from payments made to him or her during an income year. Section 18-15 of TAA applies in the case of a salary or wage earner:

"An entity is entitled to a credit equal to the total of the *amounts withheld from *withholding payments made to the entity during an income year if an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the entity for the income year."[31]

44. Section 20-80 of Subdivision 20-D of Part 2-5 of Schedule 1 of TAA describes various decisions made by the Commissioner under particular sections in Divisions 12 to 18. It provides that a person dissatisfied with those decisions may object against them in the manner provided in Part IVC of TAA. As each of those decisions is a decision made by the Commissioner, a decision in the form of a failure or refusal by a person making a payment to the Commissioner of a PAYG withholding, cannot come within the scope of Subdivision 20-D and they do not.

45. The effect of s 18-15(1) of TAA is that a taxpayer is entitled to a "credit" equal to the amounts withheld as PAYG withholdings made during an income year but only if an assessment has been made of the income tax payable, or an assessment has been made that no income tax is payable, by the taxpayer for that income year. There is a clear separation of the notions of "credit" and of "assessment" in s 18-15 of Schedule 1 to TAA.

46. When regard is had to the Running Balance Accounts (RBAs) that the Commissioner may keep, the distinction becomes even clearer. The Commissioner may establish one or more systems of account - or RBAs - for primary tax debts[32] and may do so for any entity.[33] A "primary tax debt":

"... means any amount due to the Commonwealth directly under a taxation law (other than, except in Division 4, the Product Grants and Benefits Administration Act 2000), including any such amount that is not yet payable."[34]

In view of the provisions of s 5-5(2) of ITAA97, an amount that is due to the Commonwealth would include income tax that is due and payable because the Commissioner has made an assessment of it for a particular year.

47. Division 3 of Part IIB of TAA sets out how the Commissioner must treat certain amounts, including a credit of the sort provided for in s 18-15 of Schedule 1 to TAA. Two methods are prescribed in ss 8AAZLA and 8AAZLB. Although different, the end result is that the amount of the credit is offset against the tax debt and any general interest charge (GIC) on such debts. A taxpayer is entitled to a refund of a credit if all or part of it is not required to be applied against the tax debt or any GIC.[35]

48. There is no provision made in TAA for review of decisions made by the Commissioner in relation to RBAs and the application of payments and credits.

49. It follows that matters relating to PAYG withholdings and to any credits arising from them are quite separate from an assessment of the sort referred to in s 175A of ITAA36. An assessment of the sort made by the Commissioner and to which Mr Beiruti objected does not permit him to raise matters relating to PAYG withholdings because it ascertains only an entity's taxable income and tax payable on that taxable income. It does not extend to what is, in effect, an accounting exercise offsetting tax liability determined under the assessment with credits such as those provided by PAYG withholdings. As issues related to PAYG withholdings are not encompassed within the process of the Commissioner's making an assessment, a person cannot seek to have those issues reviewed by objecting to an assessment. Equally, a reviewable objection decision made following an objection to an assessment cannot raise those issues for review in the Tribunal. Therefore, the Tribunal does not have power to review them.

50. In view of my conclusion that the Tribunal does not have power to review issues relating to PAYG withholdings, I have decided to refuse Mr Beiruti's application for an extension of time within which to lodge an application.

MUST AN APPLICATION CONTAIN A STATEMENT OF REASONS?

SECTION 29 IN ITS UNMODIFIED FORM

The unmodified requirements of section 29(1)

51. Putting aside matters arising in the Tribunal's security jurisdiction, s 29(1) as it appears in the AAT Act and without modification by any other enactment, provides that:

"An application to the Tribunal for a review of a decision:

(b) may be made in accordance with the prescribed form; and

(c) ... must contain a statement of the reasons for the application: and

(d) if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A) - shall be lodged within the prescribed time."[36]

52. There is no question in my mind that, on 14 May 2013, Mr Beiruti satisfied all of the requirements of s 29(1)(1) except that relating to lodgement within the prescribed time. With that one qualification, did he do so on 13 May 2013? The answer to that question depends on whether Mr Beiruti was required by s 29(1)(c) to include a statement of reasons in his application in order to be regarded as having made it and, if so, whether he had done so. He had complied with the requirement in s 29(1)(a) that his application be in writing. There was no requirement that it be made on the prescribed form for s 29(1)(b) provides only that it "may be made in accordance with the prescribed form" (emphasis added). The requirement in s 29(1)(c) is expressed in terms that the application "must", rather than "may", contain a statement of reasons for the application. The difference in wording suggests that the former is a mandatory requirement and the latter permissive but that easy resolution of the question is somewhat clouded by Parliament's choice of the word "shall" when describing the time within which a person must lodge an application in the Tribunal. The word "shall" also suggests a mandatory requirement but, if it is possible to qualify the word "mandatory", is one more mandatory than the other, is one mandatory and the other not or are they simply expressing the same thing?

Legislative history of unmodified section 29(1)

53. When first enacted in 1975, the requirements of ss 29(1)(a), (c) and (d) were all expressed in terms of "shall". Section 29(1) provided:

"An application to the Tribunal for a review of a decision -

(a) shall be in writing in accordance with the prescribed form;

(b) shall set out the grounds of the application; and

(c) shall be lodged with the Tribunal within the prescribed period after the decision was made."[37]

54. Two years later, in 1977, s 29 was repealed and replaced. Section 29(1) now read:

"An application to the Tribunal for a review of a decision -

(b) may be made in accordance with the prescribed form;

(c) shall set out a statement of the reasons for the application; and

(d) if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant or the decision is deemed to be made by reason of the operation of sub-section 25(5)-shall be lodged with the Tribunal within the prescribed time."[38]

55. In 1995, the word "and" was added between ss 29(1)(a) and (b). Section 29(1)(c) was repealed and s 29(1)(c) substituted in very much the form in which it now appears and new ss 29(1)(ca) and (cb) added.[39] Sections 29(1)(ca) and (cb) are concerned with applications made under the Australian Security Intelligence Organisation Act 1979. Since then, the only variations are the change in spelling of the word "Organization" to "Organisation" in ss 29(1)(ca) and (cb),[40] the change of the word "furnish" to "given" in s 29(1)(d),[41] the addition of a Note after s 29(1)[42] and the addition of the reference to s 25(5A) in s 29(1)(d) to reflect the Tribunal's jurisdiction in relation to decisions made under a Norfolk Island enactment.[43]

56. Only the addition of the Note and the change of the word "furnish" to "given" have any relevance in this case. The Note reads:

"Paragraph 33(1)(c) provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."[44]

The change of the word in s 29(1)(d) from "furnish" to "given" is a reflection of a conscious change that was made throughout the AAT Act to remove the word "furnish" from it. In some provisions, such as ss 28(1), (1AB), (1A), (2), (3)(b), (3A), (4) and (5), the word "given" or "give" is substituted. In others, such as s 29(1A), the word "provide" is substituted.

The ordinary meanings of the words "shall" and "must"

57. In their ordinary meanings and in a context such as that found in s 29(1), the word "shall" is commonly used as "expressing resolve"[45] or "obligation"[46] and the word "must" as "indicating obligation or necessity"[47] or "duty or obligation".[48] If those ordinary meanings were to be applied in s 29(1), it would follow that an application for review of a decision would be required to be in writing, contain a statement of reasons and be lodged within the prescribed time.

Should the word "must" in s 29(1)(c) be interpreted as a word of obligation?

58. It does not follow as a matter of course, though, that those ordinary meanings should be applied to each of those words as they are used in s 29(1)(c) and that both should be read as words of obligation. The fact that Parliament has deliberately chosen a different word when substituting s 29(1)(c) raises the principle expressed in Scott v Commercial Hotel Merbein Pty Ltd[49] by Irvine CJ when he said:

" The authorities show that where there is a departure from a definite form of expression in the same Act in relation to a particular matter, the Legislature had a different intention. ... [T]hough it is not to be conclusive, the employment of different language in the same Act may show that the Legislature had in view different objects. ..."[50]

59. In more recent times, Parliament has given weight to the notion that the principle is not conclusive. Section 15AC of the Acts Interpretation Act 1901 (AI Act) requires regard to be had to the idea that an Act is expressing as well as to the choice of words used to express that idea. It provides:

(a) an Act has expressed an idea in a particular form of words; and

(b) a later Act appears to have expressed the same idea in a different form of words for the purpose of using a clearer style;

the ideas shall not be taken to be different merely because different forms of words were used."

60. When I look to the ideas that are expressed in s 29(1) they are all concerned with different aspects of how an application is made to the Tribunal or what is required in order to make an application. Perhaps the word "must" is regarded as a more modern expression of an obligation. There is no suggestion of that in the Explanatory Memorandum to the Law and Justice Legislation Amendment Act (No 1) 1995[51] but, if that is so, a question remains: Why did Parliament not choose to amend the word "shall" in ss 29(1)(a) and (d) to "must" when it amended s 29(1)(c) and chose to use the word "must" rather than "shall"? On a later occasion, in 2005, it chose to amend all provisions so that there was a consistent use of the word "furnish" throughout the AAT Act. On each occasion on which the amendment is made, the Explanatory Memorandum explains, "It is not intended that the meaning of this subsection will change as a result of the substitution."

61. I think that the answer to the question becomes clearer when regard is had to two other matters. The first is that the task of the Tribunal is not that of a court. It is not required to decide a matter between two parties engaged in adversarial proceedings in which the issues have been defined by pleadings lodged on their behalf and referred to in determining the relevance and admissibility of evidence at the trial.[52] It is an administrative tribunal which must decide issues that are defined not by the parties but by the legislation under which the administrative decision it is reviewing was made. As Gray J said in Blackman v Commissioner of Taxation[53] (Blackman):

"... The Tribunal stands in the place of the original decision maker, to make the 'correct or preferable decision' on the material before the Tribunal. See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J. The Tribunal has the responsibility of ascertaining the facts necessary for the making of the decision. By s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."

62. Consistent with the Tribunal's task, any statement of reasons appearing in the application for review will not be treated as defining the issues. That is not to say that they are not useful for they are. Their preparation concentrates the attention of an applicant on particular evidentiary or legal issues that he or she considers relevant. On receiving them, a decision-maker has an indication of the aspects of the decision that may be the subject of further evidentiary material and/or legal argument. They are a useful starting point in the Tribunal's alternative dispute resolution mechanisms but are then quickly overtaken as the matter proceeds. The General Practice Direction dated 26 March 2007, for example, requires that in most matters, including taxation matters, the parties are to lodge "A brief statement setting out the issue(s) that the applicant and the respondent consider to be in dispute ... The statement of issues must address the specific issue(s) in question and must not be expressed in general terms. ...".[54] That is required before the first conference. It is followed by a statement of facts and contentions that is required before the second conference. "This statement must clearly and concisely set out the facts upon which the party relies and any contentions to be drawn from those facts, should include references to relevant legislation and case law and should not be just a repetition of the statement of issues."[55] The Explanatory Memorandum that accompanied the Bill leading to the enactment of the Administrative Appeals Tribunal Amendment Act 2005 (2005 Amendment Act) explains:

"... This note clarifies that the Tribunal is not limited by the applicant's statement of reasons submitted to the Tribunal in accordance with subsection 29(1) of the Act."[56]

63. Section 29(1B) was added to the AAT Act by the 2005 Amendment Act. It provides:

(a) an application contains a statement under paragraph (1)(c); and

(b) the Tribunal is of the opinion that the statement is not sufficient to enable the Tribunal to readily identify the respects in which the applicant believes that the decision is not the correct or preferable decision;

the Tribunal may, by notice given to the applicant, request the applicant to amend the statement, within the period specified in the notice, so that the statement is sufficient to enable the Tribunal to readily identify the respects in which the applicant believes that the decision is not the correct or preferable decision."[57]

64. The drafting of s 29(1B) to the AAT Act is important. It begins with two criteria that must be met before the Tribunal has the power to request an applicant to amend the statement of reasons in an application. If s 29(1)(c) were intended to be read as imposing a mandatory requirement that an application contain a statement of reasons for the application, there would be no need to specify in the first criterion, found in s 29(1B)(a), that "an application contains a statement under paragraph (1)(c)". There would be no need because, if the requirement in s 29(1)(c) is mandatory, there would be no application unless and until it is included. That requirement is to be contrasted with the requirement in s 29(1)(d) that an application "shall" be lodged within the prescribed time. The provisions in ss 29(7), (8) and (9) permitting the Tribunal to "... extend the time for the making ... of an application to the Tribunal for review of a decision ...",[58] make it clear that there is no application if an application has been lodged outside the time limits referred to in s 29(1)(d). That leads to the conclusion that the word "shall" in s 29(1)(d) is intended to be mandatory.

65. When it is understood that a statement of reasons has a limited role in the course of an application's proceeding to resolution, when it is seen that s 29(1B) contemplates an application without a statement, it seems to me that Parliament has chosen to use the word "must", rather than "shall" to frame a provision that is exhortatory rather than mandatory. It is a provision in the nature of s 2A of the AAT Act which also uses the word "must" rather than "shall" when it provides:

"In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick."[59]

66. Provisions of the sort found in s 2A have been described as "general exhortatory provisions"[60] and are intended to be facultative and not restrictive.[61] Just as the five qualities that the Tribunal is exhorted to aspire to by s 2A may be difficult for the Tribunal to achieve simultaneously,[62] it seems to me that s 29(1B) recognises that those who come to the Tribunal may not always be able to express their reasons in their application. Therefore, to read the requirement in s 29(1)(c) as anything more than exhortatory would be to disadvantage persons who find themselves in that category. It would be inconsistent with the exhortation that the Tribunal provide a mechanism of review that is economical, informal and quick for it would tend to lead to the introduction of further administrative processes. In many instances, the fact the application has been made at all will be a good indication of the reasons for its being made. In others, there will be no delay caused by the absence of reasons for they can be explored at the first conference in the Tribunal. If there is any need to tease out the reasons before that, resort can be had to the power in s 29(1B) of the AAT Act.

67. The only case that I have been able to find that considers this issue is that of Re Knight and Comcare.[63] Among other matters, it considered an application by Ms Knight to amend the statement of reasons she had included in her application. Senior Member Dwyer refused the application saying that the Tribunal had the power to review all relevant issues on the hearing of the matter without their being an amendment of the statement of reasons to reflect issues that had emerged since the application had been lodged. She noted the requirements in the General Practice Direction. They were drafted in similar terms to the current version of that document. Both are designed to ensure that the parties give each other notice of what they see as the relevant issues and evidentiary material together with the facts as they see them. Senior Member Dwyer added:

"... The tribunal endeavours to avoid all unnecessary formality or legalism. It would in my view be an unfortunate step to treat the informal form of application prescribed under the AAT Act as similar to pleadings in a court."[64]

68. It would seem that Senior Member Dwyer assumed that a statement of reasons was required. I would agree with her as the law stood at the time. She decided the case in December 1994 when s 29(1)(c) was still drafted in terms of "shall". It was in the following year that s 29(1)(c) was repealed and replaced by the Law and Justice Legislation Amendment Act (No 1) 1995 and, in contrast to ss 29(1)(a) and (d), which continued to be drafted in terms of the criteria an application "shall" comply with, was drafted in terms of what it "must" contain. Therefore, Re Knight and Comcare has not assisted me in considering s 29(1)(c) in its current terms.

When would Mr Beiruti's application have been lodged if unmodified s 29(1) applied?

69. In view of my understanding of s 29(1)(c) of the AAT Act, I have decided that, if s 29(1) applied in its unmodified form to Mr Beiruti's application, it would be taken to have been lodged in the Tribunal on 13 May 2013 rather than on the following day when he lodged his reasons for making the application. Section 29(1) has, however, been modified and I will now turn to that.

SECTION 29 AS MODIFIED BY THE TAXATION ADMINISTRATION ACT 1953

70. At [11] above, I have set out the provisions of s 29(1) as modified by the TAA. It is modified by s 14ZZC of the TAA, which was inserted in that legislation by the Taxation Laws Amendment Act (No 3) 1991 (TLA Act) as part of a comprehensive amendment of the TAA regarding appeals to the Federal Court and applications to the Tribunal for review of taxation objection decisions. The Explanatory Memorandum to the Taxation Laws Amendment Bill (No 3) 1991 explained that:

"26.1 Under the existing law, if a taxpayer is dissatisfied with the Commissioner's decision on an objection, the taxpayer may lodge with the Commissioner a request to refer the decision to either the AAT or the Federal Court of Australia. This right of review or appeal is provided for in various taxation laws. Each of these taxation laws sets out the mechanisms and conditions for the lodgment of objections, requests for review and appeals, and the Commissioner's responsibilities and duties in relation to them.

26.2. This Bill will amend these taxation laws in two ways.

Firstly, applications for review and appeals will no longer need to be lodged with the Commissioner for him to refer them to the AAT or the Federal Court. Taxpayers will now lodge applications for review and appeals directly with the AAT or the Federal Court.

Secondly, there will be one set of generic provisions for objections, reviews and appeals included in the Taxation Administration Act 1953 (the Principal Act)."Act 1953 (the Principal Act 1953 (the Principal Act).

71. As the law had previously required applications to be lodged with the Commissioner, s 29 of the AAT Act had no relevance. This was expressly recognised for, before the enactment of the TLA Act, s 14ZD of the TAA provided that s 29 did not apply in relation to an objection decision. The first time that s 29 did have any relevance was on the passage of the TLA Act in 1991 and then only in the modified form I have set out above.

72. That was a form that expressed the requirements of ss 29(1)(a), (c) and (d) in terms of "must". As I have said, that word is commonly used as "indicating obligation or necessity" or "duty or obligation".[65] In light of its consistent use in s 29(1) and in the absence of any use of the word "shall" in the same provision to express another requirement, there would seem to be no reason to view it as having anything other than its ordinary meanings. That view is supported further by the fact that s 14ZZC not only modifies s 29(1), it provides that other provisions, and in particular, s 29(1B) of the AAT Act, are to be treated as if they had been omitted. Its omission confirms further the mandatory nature of s 29(1)(c) to give a statement of reasons for there is now no longer a provision that is predicated on an assumption that an application might not have contained a statement of reasons.

73. A conclusion of that sort is not inconsistent with the different interpretation I have given the word "must" in the unmodified form of s 29(1) of the AAT Act. That is a general provision with a completely different legislative history from that of s 14ZZC and the modified s 29(1). Furthermore, the modified s 29(1) has been crafted with the particular framework of taxation objection decisions and their review in mind. Part IVC, in which it is found, provides for, in broad terms, "review" by both the Federal Court and the Tribunal even though the path to that review is different.

74. Although the Tribunal would be expected, by its nature and purpose, to be a less formal venue for review than the Federal Court, a reading of the Court's judgments and the Tribunal's reasons for decision shows that the final outcome of an appeal or an application for review looks much the same. It is not unexpected, then, that the processes initiating the appeal or the application will look much the same. Division 33.1 of Part 33 of Chapter 33 of the Federal Court Rules 2011 provides for AOD appeals under s 14ZZ of the TAA against a reviewable objection decision. Rule 33.02(1) provides that "A person who wants to make an AOD appeal must file a notice of appeal, in accordance with Form 73." An "AOD appeal" is "... an appeal under section 14ZZ of the Taxation Administration Act to the Court against a reviewable objection decision."[66] Form 73 requires an appellant to "... specify grounds relied on in support of the orders or relief sought". Although expressed more formally, this requirement equates with an applicant's being required to "... set out a statement of reasons for the application".

I certify that the preceding seventy four paragraphs are a true copy of the reasons for the decision herein of

Signed: ...(sgd)............................................................

[1] For the reasons I give at [8]-[14] below, there was no need to request an extension of time until 31 May 2013 as the application had been lodged, although out of time, on either 13 or 14 May 2013.

[2] See Regulations; r 5(1) and Schedule 1, Form 1 and see also Administrative Appeals Tribunal Act 1975; s 29(1)

[3] Regard can be had to the material lodged on both days but the application would not be regarded as having been made until all criteria had been met. That would only occur on 14 May 2013. As Marshall J said in a different context "It was not in contest that the applicant may apply for a visa without submitting all requisite accompanying material so that 'the application could become a valid application when it was so supplemented' see Thayananthan v Minister for Immigration and Multicultural Affairs [2001] FCA 831; (2001) 113 FCR 297 at [33]; Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495.": Minister for Immigration v Chan [2008] FCAFC 155; (2008) 172 FCR 193 at [14]; 197 and see also [9]; 196 per Moore J (in dissent but not on this point) and [53]; 204 per Lander J

Blackman v Commissioner of Taxation

At a glance

Court

Decision date

Source

Judgment (246 paragraphs)

Beiruti and Commissioner of Taxation [2013] AATA 634 (5 September 2013)

Parties

Legislation Cited (18)

Cases Cited (20)